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Write a legal research memo on the following topic. | Status of Taliban Forces Under Article 4 of the Third
Geneva Convention of 1949
The President has reasonable factual grounds to determine that no members of the Taliban militia are
entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the
Treatment of Prisoners of War.
February 7, 2002
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked for our Office’s views concerning the status of members of the
Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the
Treatment of Prisoners of War (“GPW”). Assuming the accuracy of various facts
provided to us by the Department of Defense (“DoD”), we conclude that the
President has reasonable factual grounds to determine that no members of the
Taliban militia are entitled to prisoner of war (“POW”) status under GPW. First,
we explain that the Taliban militia cannot meet the requirements of Article
4(A)(2), because it fails to satisfy at least three of the four conditions of lawful
combat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV)
Respecting the Laws and Customs of War on Land (“Hague Convention”), which
are expressly incorporated into Article 4(A)(2). Second, we note that neither
Article 4(A)(1) nor Article 4(A)(3) apply to militia, and that the four conditions of
lawful combat contained in the Hague Convention also govern Article 4(A)(1) and
(3) determinations in any case. Finally, we explain why there is no need to
convene a tribunal under Article 5 to determine the status of the Taliban detainees.
I.
Article 4(A) of GPW defines the types of persons who, once they have fallen
under the control of the enemy, are entitled to the legal status of POWs. The first
three categories are the only ones relevant to the Taliban. Under Article 4(A)(1),
individuals who are “members of the armed forces of a Party to the conflict,” are
entitled to POW status upon capture. Article 4(A)(3) includes as POWs members
of “regular armed forces who profess allegiance to a government or an authority
not recognized by the Detaining Power.”
Article 4(A)(2) includes as POWs members of “other militias” and “volunteer
corps,” including “organized resistance movements” that belong to a Party to the
conflict. In addition, members of militias and volunteer corps must “fulfill” four
conditions: (a) “being commanded by a person responsible for his subordinates”;
(b) “having a fixed distinctive sign recognizable at a distance”; (c) “carrying arms
openly”; and (d) “conducting their operations in accordance with the laws and
customs of war.” Those four conditions reflect those required in the 1907 Hague
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Convention IV. See Commentary to the Geneva Convention Relative to the
Treatment of Prisoners of War 49 (Red Cross 1952) (“Red Cross Commentary”)
(“[D]uring the 1949 Diplomatic Conference . . . there was unanimous agreement
that the categories of persons to whom the Convention is applicable must be
defined, in harmony with the Hague Regulations.”).
Should “any doubt arise as to whether persons, having committed a belligerent
act and having fallen into the hands of the enemy, belong to any of the categories
enumerated in Article 4,” GPW Article 5 requires that these individuals “enjoy the
protections of” the Convention until a tribunal has determined their status.
Thus, in deciding whether members of the Taliban militia qualify for POW
status, the President must determine whether they fall within any of these three
categories. Under Article II of the Constitution, the President possesses the power
to interpret treaties on behalf of the Nation. Memorandum for John Bellinger, III,
Senior Associate Counsel and Legal Adviser to the National Security Council,
from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty,
Special Counsel, Office of Legal Counsel, Re: Authority of the President to
Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001). This includes, of
course, the power to apply treaties to the facts of a given situation. Thus, the
President may interpret GPW, in light of the known facts concerning the operation
of Taliban forces during the Afghanistan conflict, to find that all of the Taliban
forces do not fall within the legal definition of POW. A presidential determination
of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a
matter of domestic law, and would therefore obviate the need for Article 5
tribunals.
We believe that, based on the facts provided by the Department of Defense, see
Rear Admiral L.E. Jacoby, U.S. Navy, J-2, Information Paper, Subject: Background Information on Taliban Forces (Feb. 6, 2002), the President has reasonable grounds to conclude that the Taliban, as a whole, is not legally entitled to POW
status under Article 4(A)(1) through (3).
II.
As the Taliban have described themselves as a militia, rather than the armed
forces of Afghanistan, we begin with GPW’s requirements for militia and
volunteer corps under Article 4(A)(2). Based on the facts presented to us by DoD,
we believe that the President has the factual basis on which to conclude that the
Taliban militia, as a group, fails to meet three of the four GPW requirements, and
hence is not legally entitled to POW status.
First, there is no organized command structure whereby members of the Taliban militia report to a military commander who takes responsibility for the actions
of his subordinates. The Taliban lacks a permanent, centralized communications
infrastructure. Periodically, individuals declared themselves to be “commanders”
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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
and organized groups of armed men, but these “commanders” were more akin to
feudal lords than military officers. According to DoD, the Taliban militia functioned more as many different armed groups that fought for their own tribal, local,
or personal interests.
Moreover, when the armed groups organized, the core of the organization was
often al Qaeda, a multinational terrorist organization, whose existence was not in
any way accountable to or dependent upon the sovereign state of Afghanistan. We
have previously concluded, as a matter of law, that al Qaeda members are not
covered by GPW. See Memorandum for Alberto R. Gonzales, Counsel to the
President and William J. Haynes II, General Counsel of the Department of
Defense, from Jay S. Bybee, Assistant Attorney General, Re: Applications of
Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002). After
October 7, when the United States armed forces began aerial bombing of al Qaeda
and Taliban targets in Afghanistan, the distinction between Taliban and al Qaeda
became even more blurred as al Qaeda assumed the lead in organizing the defense.
DoD’s facts suggest that to the extent the Taliban militia was organized at all, it
consisted of a loose array of individuals who had shifting loyalties among various
Taliban and al Qaeda figures. According to DoD, the Taliban lacked the kind of
organization characteristic of the military. The fact that at any given time during
the conflict the Taliban were organized into some structured organization does not
answer whether the Taliban leaders were responsible for their subordinates within
the meaning of GPW. Armed men who can be recruited from other units, as DoD
states, through defections and bribery are not subject to a commander who can
discipline his troops and enforce the laws of war.
Second, there is no indication that the Taliban militia wore any distinctive
uniform or other insignia that served as a “fixed distinctive sign recognizable at a
distance.” DoD has advised us that the Taliban wore the same clothes they wore to
perform other daily functions, and hence they would have been indistinguishable
from civilians. Some have alleged that members of the Taliban would wear black
turbans, but apparently this was done by coincidence rather than design. Indeed,
there is no indication that black turbans were systematically worn to serve as an
identifying feature of the armed group.
Some of the Taliban militia carried a tribal flag. DoD has stated that there is no
indication that any individual members of the Taliban wore a distinctive sign or
insignia that would identify them if they were not carrying or otherwise immediately identified with a tribal flag. Moreover, DoD has not indicated that tribal flags
marked only military, as opposed to civilian, groups.
Third, the Taliban militia carried arms openly. This fact, however, is of little
significance because many people in Afghanistan carry arms openly. Although
Taliban forces did not generally conceal their weapons, they also never attempted
to distinguish themselves from other individuals through the arms they carried or
the manner in which they carried them. Thus, the Taliban carried their arms
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Opinions of the Office of Legal Counsel in Volume 26
openly, as GPW requires military groups to do, but this did not serve to distinguish
the Taliban from the rest of the population. This fact reinforces the idea that the
Taliban could neither be distinguished by their uniforms and insignia nor by the
arms they carried from Afghani civilians.
Finally, there is no indication that the Taliban militia understood, considered
themselves bound by, or indeed were even aware of, the Geneva Conventions or
any other body of law. Indeed, it is fundamental that the Taliban followed their
own version of Islamic law and regularly engaged in practices that flouted
fundamental international legal principles. Taliban militia groups have made little
attempt to distinguish between combatants and non-combatants when engaging in
hostilities. They have killed for racial or religious purposes. Furthermore, DoD
informs us of widespread reports of Taliban massacres of civilians, raping of
women, pillaging of villages, and various other atrocities that plainly violate the
laws of war.
Based on the above facts, apparently well known to all persons living in
Afghanistan and joining the Taliban, we conclude that the President can find that
the Taliban militia is categorically incapable of meeting the Hague conditions
expressly spelled out in Article 4(A)(2) of GPW.
III.
One might argue that the Taliban is not a “militia” under Article 4(A)(2), but
instead constitutes the “armed forces” of Afghanistan. Neither Article 4(A)(1),
which grants POW status to members of the armed forces of a state party, nor
Article 4(A)(3), which grants POW status to the armed forces of an unrecognized
power, defines the term “armed forces.” Unlike the definition of militia in Article
4(A)(2), these two other categories contain no conditions that these groups must
fulfill to achieve POW status. Moreover, because GPW does not expressly
incorporate Article 4(A)(2)’s four conditions into either Article 4(A)(1) or (3),
some might question whether members of regular armed forces need to meet the
Hague conditions in order to qualify for POW status under GPW.
We conclude, however, that the four basic conditions that apply to militias must
also apply, at a minimum, to members of armed forces who would be legally
entitled to POW status. In other words, an individual cannot be a POW, even if a
member of an armed force, unless forces also are: (a) “commanded by a person
responsible for his subordinates”; (b) “hav[e] a fixed distinctive sign recognizable
at a distance”; (c) “carry[] arms openly”; and (d) “conduct[] their operations in
accordance with the laws and customs of war.” Thus, if the President has the
factual basis to determine that Taliban prisoners are not entitled to POW status
under Article 4(A)(2) as members of a militia, he has the grounds to also find that
they are not entitled to POW status as members of an armed force under either
Article 4(A)(1) or Article 4(A)(3).
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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
Article 4(A)’s use of the phrase “armed force,” we believe, incorporated by
reference the four conditions for militia, which originally derived from the Hague
Convention IV. There was no need to list the four Hague conditions in Article
4(A)(1) because it was well understood under preexisting international law that all
armed forces were already required to meet those conditions. As would have been
understood by the GPW’s drafters, use of the term “armed forces” incorporated the
four criteria, repeated in the definition of militia, that were first used in the Hague
Convention IV.
The view that the definition of an armed force includes the four criteria outlined
in Hague Convention IV and repeated in GPW is amply supported by commentators. As explained in a recently-issued Department of the Army pamphlet, the four
Hague conditions are
arguably part and parcel of the definition of a regular armed force. It
is unreasonable to believe that a member of a regular armed force
could conduct military operations in civilian clothing, while a member of the militia or resistance groups cannot. Should a member of
the regular armed forces do so, it is likely that he would lose his
claim to immunity and be charged as a spy or as an illegal combatant.
Major Geoffrey S. Corn & Major Michael L. Smidt, “To Be Or Not To Be, That Is
The Question”: Contemporary Military Operations and the Status of Captured
Personnel, Army Law., June 1999, at 1, 14 n.127 (citation omitted). One scholar
has similarly concluded that “[u]nder the Hague Convention, a person is a member
of the armed forces of a state only if he satisfies the [four enumerated] criteria.”
Gregory M. Travalio, Terrorism, International Law, and the Use of Military
Force, 18 Wis. Int’l L.J. 145, 184 n.140 (2000). See also Michael N. Schmitt,
Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible
Implications For the Law of Armed Conflict, 19 Mich. J. Int’l L. 1051, 1078
(1998) (“[U]nder the Regulations annexed to Hague Convention IV, combatants
were those who were members of the regular armed forces (or formal militia),
were commanded by a person responsible for their conduct, wore a fixed distinctive emblem (or uniform), carried their weapons openly, and conducted operations
in accordance with the law of war. The 1949 Geneva Convention on Prisoners of
War extended this status to members of an organized resistance movement which
otherwise complied with the Hague IV requirements.”).
Further, it would be utterly illogical to read “armed forces” in Article 4(A)(1)
and (3) as somehow relieving members of armed forces from the same POW
requirements imposed on members of a militia. There is no evidence that any of
the GPW’s drafters or ratifiers believed that members of the regular armed forces
ought to be governed by lower standards in their conduct of warfare than those
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Opinions of the Office of Legal Counsel in Volume 26
applicable to militia and volunteer forces. Otherwise, a sovereign could evade the
Hague requirements altogether simply by designating all combatants as members
of the sovereign’s regular armed forces. A sovereign, for example, could evade the
status of spies as unlawful combatants simply by declaring all spies to be members
of the regular armed forces, regardless of whether they wore uniforms or not.
Further, it would make little sense to construe GPW to deny some members of
militias or volunteer corps POW protection for failure to satisfy the Hague
conditions (under Article 4(A)(2)), while conferring such status upon other
members simply because they have become part of the regular armed forces of a
party (under Article 4(A)(1)).
This interpretation of “armed force” in GPW finds direct support in the International Committee of the Red Cross (“ICRC”), the non-governmental organization
primarily responsible for, and most closely associated with, the drafting and
successful completion of GPW. After the Conventions were established, the
Committee started work on a Commentary on all of the Geneva Conventions. In
its discussion of Article 4(A)(3) of GPW, the ICRC construed both Article 4(A)(1)
and (3) to require all regular armed forces to satisfy the four Hague IV (and Article
4(A)(2)) conditions:
[t]he expression “members of regular armed forces” denotes armed
forces which differ from those referred to in sub-paragraph (1) of
this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the
conflict. These “regular armed forces” have all the material characteristics and all the attributes of armed forces in the sense of subparagraph (1): they wear uniform, they have an organized hierarchy
and they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed
forces the requirements stated in sub-paragraph (2) (a), (b), (c) and
(d).
Red Cross Commentary at 62-63 (emphasis added).
Numerous scholars have similarly interpreted GPW as applying the four conditions to Article 4(A)(1) and (3) as well as to Article 4(A)(2). As Professor Howard
S. Levie, a leading expert on the laws of war and the Geneva Conventions in
particular, has explained in his authoritative treatise:
This enumeration [of the four conditions] does not appear in subparagraph 1, dealing with the regular armed forces. This does not mean
that mere membership in the regular armed forces will automatically
entitle an individual who is captured to prisoner-of-war status if his
activities prior to and at the time of capture have not met these
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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
requirements. The member of the regular armed forces wearing civilian clothes who is captured while in enemy territory engaged in an
espionage or sabotage mission is entitled to no different treatment
than that which would be received by a civilian captured under the
same circumstances. Any other interpretation would be unrealistic as
it would mean that the dangers inherent in serving as a spy or saboteur could be immunized merely by making the individual a member
of the armed forces; and that members of the armed forces could act
in a manner prohibited by other areas of the law of armed conflict
and escape the penalties therefore, still being entitled to prisoner-ofwar status.
Howard S. Levie, 59 International Law Studies: Prisoners of War in International
Armed Conflict 36-37 (Naval War College 1977). Oxford Professor Ingrid Detter
has similarly concluded that, under the 1949 Geneva Conventions,
to be a combatant, a person would have to be:
(a) commanded by a person responsible for his subordinates;
(b) having a fixed distinctive sign recognizable at a distance;
(c) carrying arms openly;
(d) conducting their operations in accordance with the laws and
customs of war.
The same requirements as apply to irregular forces are presumably also valid for members of regular units. However, this is not
clearly spelt out: there is no textual support for the idea that members
of regular armed forces should wear uniform. On the other hand,
there is ample evidence that this is a rule of law which has been
applied to a number of situations to ascertain the status of a person.
Any regular soldier who commits acts pertaining to belligerence in
civilian clothes loses his privileges and is no longer a lawful combatant. “Unlawful” combatants may thus be either members of the regular forces or members of resistance or guerilla movements who do
not fulfil the conditions of lawful combatants.
Ingrid Detter, The Law of War 136-37 (Cambridge 2d ed. 2000) (footnotes omitted). See also Christopher C. Burris, The Prisoner of War Status of PLO Fedayeen,
22 N.C. J. Int’l L. & Com. Reg. 943, 987 n.308 (1997) (“I am using Article
4A(2)’s four criteria because the armed forces of the Palestinian Authority, over
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Opinions of the Office of Legal Counsel in Volume 26
30,000 men under arms organized into roughly ten or more separate para-military
units, are more characteristic of militia units than the regular armed forces of a
state. This is because these units are organized as police/security units, not
exclusive combat units. See Graham Usher, Palestinian Authority, Israeli Rule,
The Nation, Feb. 5, 1996, at 15, 16. Whether the Palestinian Authority’s forces are
considered militia or members of the armed forces, they still must fulfill Article
4A(2)’s four criteria.”). 1
Therefore, it is clear that the term “armed force” includes the four
conditions first identified by Hague Convention IV and expressly
applied by GPW to militia groups. In other words, in order to be
entitled to POW status, a member of an armed force must (a) be
“commanded by a person responsible for his subordinates”; (b)
“hav[e] a fixed distinctive sign recognizable at a distance”; (c) “carry[] arms openly”; and (d) “conduct[] their operations in accordance
with the laws and customs of war.” We believe that the President,
based on the facts supplied by DoD, has ample grounds upon which
to find that members of the Taliban have failed to meet three of these
four criteria, regardless of whether they are characterized as members of a “militia” or of an “armed force.” The President, therefore,
1
The only federal court we are aware of that has addressed this issue denied Article 4(A)(3) status
to defendants because they could not satisfy the Hague conditions. In United States v. Buck, 690
F. Supp. 1291 (S.D.N.Y. 1988), the defendants claimed that they were entitled to POW status as
military officers of the Republic of New Afrika, “a sovereign nation engaged in a war of liberation
against the colonial forces of the United States government.” Id. at 1293. That nation, it was contended,
included “all people of African ancestry living in the United States.” Id. at 1296. The court refused to
extend POW status to the defendants. After determining that GPW did not apply at all due to the
absence of an armed conflict as understood under Article 2, the court alternatively reasoned that the
defendants could not satisfy any of the requirements of Article 4. See id. at 1298 (stating that, even if
GPW applied, “it is entirely clear that these defendants would not fall within Article 4, upon which they
initially relied”). The court first concluded that the defendants failed to meet the four Hague conditions
expressly spelled out in Article 4(A)(2). The court then rejected POW status under Article 4(A)(3)
“[f]or comparable reasons”:
Article 4(A)(2) requires that to qualify as prisoners of war, members of “organized
resistance movements” must fulfill the conditions of command by a person responsible for
his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms
openly; and conducting their operations in accordance with the laws and customs of war.
The defendants at bar and their associates cannot pretend to have fulfilled those conditions.
For comparable reasons, Article 4(3)’s reference to members of “regular armed forces who
profess allegiance to a government or an authority not recognized by the Detaining Power,”
also relied upon by defendants, does not apply to the circumstances of this case.
Id. (emphasis added). The court reached this conclusion even though the Hague conditions are not
explicitly spelled out in Article 4(A)(3). Nothing in the court’s discussion suggests that it would have
construed Article 4(A)(1) any differently.
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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
may determine that the Taliban, as a group, are not entitled to POW
status under GPW.
IV.
Under Article 5 of GPW, “[s]hould any doubt arise as to whether persons . . .
belong to any of the categories enumerated in Article 4, such persons shall enjoy
the protection of the present Convention until such time as their status has been
determined by a competent tribunal.” As we understand it, DoD in the past has
presumed prisoners to be entitled to POW status until a tribunal determines
otherwise. The presumption and tribunal requirement are triggered, however, only
if there is “any doubt” as to a prisoner’s Article 4 status.
Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. * We conclude, in light of the facts submitted
to us by the Department of Defense and as discussed in parts II and III of this
memorandum, that the President could reasonably interpret GPW in such a manner
that none of the Taliban forces falls within the legal definition of POWs as defined
by Article 4. A presidential determination of this nature would eliminate any legal
“doubt” as to the prisoners’ status, as a matter of domestic law, and would
therefore obviate the need for Article 5 tribunals.
This approach is also consistent with the terms of Article 5. As the International
Committee of the Red Cross has explained, the “competent tribunal” requirement
of Article 5 applies “to cases of doubt as to whether persons having committed a
belligerent act and having fallen into the hands of the enemy belong to any of the
categories enumerated in Article 4.” Red Cross Commentary at 77. Tribunals are
thus designed to determine whether a particular set of facts falls within one of the
Article 4 categories; they are not intended to be used to resolve the proper
interpretation of those categories. The President, in other words, may use his
constitutional power to interpret treaties and apply them to the facts, to make the
determination that the Taliban are unlawful combatants. This would remove any
“doubt” concerning whether members of the Taliban are entitled to POW status.
We therefore conclude that there is no need to establish tribunals to determine
POW status under Article 5.
JAY S. BYBEE
Assistant Attorney General
Office of Legal Counsel
*
Editor’s Note: We have deleted a footnote containing a citation to an earlier Office of Legal
Counsel memorandum that was unnecessary to support the proposition in the text, because the cited
memorandum no longer reflects the views of this Office.
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|
Write a legal research memo on the following topic. | Applicability of the Miscellaneous Receipts Act to
Personal Convenience Fees Paid to a Contractor by
Attendees at Agency-Sponsored Conferences
“Personal convenience” fees that attendees at agency-sponsored conferences pay to private contractors
are not subject to the Miscellaneous Receipts Act.
November 22, 2006
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF COMMERCE
Many agencies, including within the Department of Commerce, host public
conferences where agency officials can exchange ideas and information with peers
outside the agency on topics relating to the agency’s statutory mission. Often the
agencies hire a private contractor to help plan and administer these conferences.
The contractor may collect fees from conference attendees to cover its costs of
providing certain goods and services to the attendees. You have asked whether
these fees are subject to the Miscellaneous Receipts Act (“MRA”), 31 U.S.C.
§ 3302(b) (2000). We conclude that they are not.
I.
In sponsoring a conference, you have explained, it is common for an agency to
hire a contractor, paid out of appropriated funds, to manage logistics. It also has
been common for agencies to authorize such a contractor (1) to provide meals,
lodging, refreshments, and other goods and services to conference attendees and
(2) to charge the attendees a “personal convenience” fee to cover the costs of these
items. You distinguish the fees collected under such a scenario from fees that a
contractor might collect for the agency, to cover the agency’s costs in hosting the
conference. 1 Agencies within the Department of Commerce have generally had
little if any say in the amount of any fee. Sometimes, they have required the
contractor to make food available to conference attendees and have retained the
right to some input to ensure against lavish arrangements or excessive charges that
would discourage attendance, but otherwise they have left the contractor free to
deal directly with the attendees. Any fees are collected at the discretion of the
contractor, not at the direction of the government.
1
Whether an agency could pay the cost of personal convenience items from its appropriations is a
separate question, which we do not address. As you recognize, 31 U.S.C. § 1345 forbids an agency in
many cases from using an appropriation for “travel, transportation, and subsistence expenses for a
meeting.” See generally Use of Appropriations to Pay Travel Expenses of International Trade
Administration Fellows, 28 Op. O.L.C. 269 (2004).
132
Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees
This practice was called into question by the Comptroller General’s 2005 opinion in Matter of: National Institutes of Health—Food at Government-Sponsored
Conferences, B-300,826, 2005 WL 502825 (“NIH”). That opinion addressed
whether an agency could charge and retain a registration fee to defray the costs of
meals and light refreshments at a conference that the Institutes were hosting. The
Comptroller General advised that, under the MRA, the Institutes could not retain
any fee. He added: “Nor could NIH authorize its contractor to charge a fee to
offset costs, because, pursuant to [the MRA], a contractor receiving money for the
government may not retain funds received for the government to pay for the
conference costs.” Id. at *6. The Comptroller General did not explain why, in such
situations, the contractor would be “an official or agent of the Government” under
the MRA in receiving payment from attendees for its services to attendees, or why
those fees that the contractor received would be received “for the Government.”
See 31 U.S.C. § 3302(b). He did recognize, however, that “the participants may
cover the costs of their food using their own personal funds.” NIH, 2005 WL
502825, at *6.
The Comptroller General reiterated this position in Contractors Collecting Fees
at Agency-Hosted Conferences, B-306,663, 2006 WL 39435 (“Contractors”). He
stated that “when an agency lacks statutory authority to charge a fee at a conference and retain the proceeds, neither the agency hosting a conference, nor a
contractor on behalf of the agency, may do so.” Id. at *1 (emphasis added). You
question why, if attendees may purchase meals, lodging, and refreshments “using
their own personal funds,” a contractor could not offer such items to the attendees
and then retain the attendees’ payments from their own personal funds.
II.
We agree that a private contractor may, consistent with the MRA, retain fees it
receives from conference attendees for goods and services such as meals, lodging,
and refreshments that the contractor provides to the attendees. The MRA requires
as follows: “[A]n 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
the circumstances you have described, the fees are not received “for the Government” but rather collected by contractors for their own use. 2
2
Because we answer your question on this basis, we need not determine whether the contractors
could be considered “agent[s] of the Government” in their receipt of the fees, or whether the
government constructively “receive[s]” the fees, see generally Effect of 31 U.S.C. § 484 on the
Settlement Authority of the Attorney General, 4B Op. O.L.C. 684, 688 (1980). On the former question,
there is an argument from one of the sanctions for violating the MRA—removal “from office,” 31
U.S.C. § 3302(d)—that a contractor, not holding any “office,” cannot be subject to the MRA. The D.C.
Circuit has employed this reasoning. See Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C.
Cir. 1999) (“This sanction makes no sense with respect to a private actor like Network Solutions.”); cf.
133
Opinions of the Office of Legal Counsel in Volume 30
The most natural reading of the phrase “for the Government” in the MRA is
that it describes something intended to be used by the government. See 6 Oxford
English Dictionary 24 (Clarendon 2d ed. 1989) (defining “for” as “[i]ntroducing
the intended recipient, or the thing to which something is intended to belong, or in
connexion with which it is to be used”); cf. Motor Coach Indus., Inc. v. Dole, 725
F.2d 958, 968 (4th Cir. 1984) (affirming injunction against contracts between
Federal Aviation Administration and airlines under which the FAA waived certain
fees and airlines deposited money into a trust fund: “the Trust was an attempt by
the FAA to divert funds from their intended destination—the United States
Treasury”) (emphasis added). This interpretation is bolstered by the MRA’s
statutory history and this Office’s interpretation of the MRA’s earlier language. In
its original form, that act provided as follows:
[T]he gross amount of all duties received from customs, from the
sales of public lands, and from all miscellaneous sources, for the use
of the United States, shall be paid by the officer or agent receiving
the same into the treasury of the United States at as early a day as
practicable.
Act of Mar. 3, 1849, ch. 110, § 1, 9 Stat. 398, 398 (emphasis added). The phrase
“for the use of the United States” remained in the act for 133 years, until Congress
in 1982 amended a large portion of title 31, as discussed below.
The reference to “use” indicated that the money must be intended for use by, or
meant to cover an obligation or expense of, the United States. Thus this Office in
1978 explained that the phrase “for the use of the United States” in the MRA “has
been interpreted to require that the funds in question are ‘to be used in bearing the
expense of the administration of the Government and paying the obligations of the
United States.’” Memorandum for the Attorney General, from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, Re: Legislation Regarding
FBI Undercover Operations at 4 (July 27, 1978) (“Undercover Operations”)
(quoting Disposition of Excess Railway Operating Income, 33 Op. Att’y Gen. 316,
321 (1922)). We added that “funds must be available to the United States for
Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356, 1361 (D.C. Cir. 1996) (referring
to the MRA’s “requirement that a Government official ‘receiving money for the Government from any
source’ deposit the money in the Treasury”). On the other hand, section 3302(d) also includes forfeiture
as a sanction, which might be available against a non-officer, and the D.C. Circuit’s reading does not
clearly give content to the term “agent,” as distinct from “official.” The concept of “[a]gency encompasses a wide and diverse range of relationships and circumstances,” including but not limited to the
relationship between “employer and employee.” Restatement (Third) of Agency § 1.01 cmt. c (2006).
This Office has not previously resolved the meaning of the term “agent” in the MRA. Cf. Memorandum
for the Attorney General, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel,
Re: Legislation Regarding FBI Undercover Operations at 4, 8 (July 27, 1978) (using “agent” in the
sense of FBI Special Agents and suggesting curing an MRA problem involving income received in the
FBI’s undercover business operations by instead “associat[ing] with a private business”).
134
Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees
disposition on its own behalf.” Id. And in applying the MRA, we noted that “the
funds in issue are at the disposal of the United States” and that “[t]his availability . . . must mean that they were received ‘for the use of the United States.’” Id.
See also id. at 6 (purpose of MRA was to “require Congressional control of all
funds that are available to the United States for disbursement, regardless of the
source of the funds or the reason the funds were surrendered to the United
States”).
In 1982, in re-codifying the MRA at its present location in section 3302, Congress shortened the phrase to its current form by (among other things) deleting
“the use of.” Act of Sept. 13, 1982, Pub. L. No. 97-258, 96 Stat. 877, 948. But the
1982 statute itself explained that Congress’s purpose was simply “[t]o revise,
codify, and enact without substantive change certain general and permanent laws,
related to money and finance.” Id. at 877 (emphasis added). This Office repeatedly
has recognized that the 1982 revision of the MRA was not intended to work any
substantive changes but rather to eliminate unnecessary words. E.g., Application of
31 U.S.C. § 3302(b) to Settlement of Suit Brought by the United States, 7 Op.
O.L.C. 36, 37 n.3 (1983). This understanding also finds support in the background
principle that “‘it will not be inferred that Congress, in revising and consolidating
the laws, intended to change their effect unless such intention is clearly expressed.’” Finley v. United States, 490 U.S. 545, 554 (1989) (quoting Anderson v.
Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912)).
With this understanding of the MRA’s text, it is clear that personal convenience
fees, such as you have described, are not money received “for the Government.”
Rather, they are “for” the event planner. The fees are not used, and are not
intended to be used, by or for the benefit of the host agency that hires the event
planner. The host agency makes no claim to the fees; apart from the question of
the MRA’s applicability, the planner “is under no duty to turn over any portion to
the federal government,” but rather “the monies belong to” the contractor. Thomas
v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999). The conference
attendees pay the fees to the event planner so that they can obtain meals, lodging,
and refreshments from the planner. The planner in turn accepts the fees to cover its
costs in providing these goods and services to the attendees. The fees are not
“available to the United States for disposition on its own behalf,” Undercover
Operations at 4, “at the disposal of the United States,” id., or “surrendered to the
United States,” id. at 6.
Nor do the personal convenience fees compensate the event planner for any
contractual obligation that the host agency owes to it, or enable the agency to
avoid expending appropriations on “services that statutes required the agenc[y] to
perform.” Thomas, 176 F.3d at 511. In Thomas, the court approved retention by
the private Network Solutions of fees it collected for registering internet domain
names because, among other things, performing such registration was not a duty of
the National Science Foundation. Similarly, the Comptroller General has recog-
135
Opinions of the Office of Legal Counsel in Volume 30
nized that a “government official or agent is deemed to receive money for the
government under the [MRA] if the money is to be used to bear the expenses of the
government or pay government obligations.” SBA’s Imposition of Oversight
Review Fees on PLP Lenders, B-300,248, 2004 WL 77861, at *7 (emphasis
added). The Comptroller General concluded that the Small Business Administration (“SBA”) had violated the MRA by imposing fees on lenders of SBAguaranteed loans for reviews that the SBA was required by statute to conduct, and
which the lenders paid to contractors who helped to conduct the reviews, because
“the review fees paid by the lenders substitute for payment that SBA would
otherwise make.” Id. at *9. In the two subsequent Comptroller General opinions
discussed above in Part I, the Comptroller General cited this 2004 opinion in
general, without discussion. See NIH, 2005 WL 502825, at *6; Contractors, 2006
WL 39435, at *1. Here, the host agency has no obligation, statutory or contractual,
to provide meals, lodging, or refreshments to conference attendees. The fees are
not “to be used in bearing the expenses of the administration of the Government
and paying the obligations of the United States,” Undercover Operations at 4
(internal quotation marks omitted), or by an agency “to offset expenses” of its
operations, id. at 8. Thus, the personal convenience fees are not received “for the
Government” and so are not subject to the MRA.
C. KEVIN MARSHALL
Deputy Assistant Attorney General
Office of Legal Counsel
136 |
|
Write a legal research memo on the following topic. | Whether Physician-Assisted Suicide Serves a
“Legitimate Medical Purpose” Under DEA Regulations
A physician’s assisting in a patient’s suicide, even in a manner permitted by state law, is not a
“legitimate medical purpose” within the meaning of a Drug Enforcement Agency regulation, and
accordingly dispensing controlled substances for this purpose violates the Controlled Substances
Act, which the DEA regulation implements.
June 27, 2001
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
I. Background ...................................................................................................... 136
II. Physicians Are Regulated Under the Controlled Substances Act ................... 137
III. Dispensing Controlled Substances to Assist in Suicide Does Not Serve a
“Legitimate Medical Purpose”........................................................................ 140
A. Case Law ................................................................................................. 140
B. State and Federal Policy .......................................................................... 142
C. Views of the Medical and Nursing Professions ....................................... 145
IV. The Existence of a State Law Permitting Physician-Assisted Suicide
Does Not Immunize a Physician from the General Requirements of the
CSA ................................................................................................................ 150
V. The CSA Contemplates Concurrent Federal and State Regulation of
Medical Practices Involving Controlled Substances....................................... 152
VI. The CSA’s Preemption Provision Is Consistent with This Interpretation ..... 155
VII. The DEA Had the Authority to Promulgate and Interpret a Regulation
Concerning Whether Dispensing a Controlled Substance Has a
“Legitimate Medical Purpose”........................................................................ 157
VIII. Conclusion .................................................................................................. 160
You have asked for our opinion whether a physician who assists in a patient’s
suicide by prescribing a controlled substance has a “legitimate medical purpose”
within the meaning of a regulation of the Drug Enforcement Administration
(“DEA”), 21 C.F.R. § 1306.04(a) (2000), 1 if the physician is immune from liability
1
The DEA regulation was promulgated pursuant to a delegation of the Attorney General’s broad
authorities under the Controlled Substances Act, 21 U.S.C. §§ 801-971 (1994 & Supp. II 1996) (the
CSA or Act), to “promulgate rules and regulations . . . relating to the registration and control of the
manufacture, distribution and dispensing of controlled substances and to the registration and control of
regulated persons and of regulated transactions,” 21 U.S.C. § 821, and to “promulgate and enforce any
rules, regulations, and procedures which he may deem necessary and appropriate for the efficient
execution of his functions under this [title].” Id. § 871(b). See also id. § 871(a) (authority of Attorney
General to delegate CSA functions); 28 C.F.R. § 0.100 (2000) (delegation to DEA); Touby v. United
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Opinions of the Office of Legal Counsel in Volume 25
under a state law such as the Oregon “Death with Dignity Act” for assisting in a
suicide in such a manner. 2 In our view, assisting in suicide, even in a manner
permitted by state law, is not a “legitimate medical purpose” under the DEA
regulation, and accordingly dispensing controlled substances for this purpose
violates the Controlled Substances Act, which the DEA regulation implements.*
I. Background
The Oregon “Death with Dignity Act,” which legalized physician-assisted
suicide under certain circumstances, was originally approved by Oregon voters on
November 8, 1994, and went into effect on October 27, 1997. 3 Prior to the
effective date of the Oregon law, Representative Henry J. Hyde, Chairman of the
House Judiciary Committee, and Senator Orrin G. Hatch, Chairman of the Senate
Judiciary Committee, wrote to the Administrator of the DEA, Thomas A. Constantine, requesting a determination whether the CSA prohibits the use of controlled
substances for the purpose of assisting in a suicide. 4
Administrator Constantine replied on November 5, 1997, concluding “that
delivering, dispensing or prescribing a controlled substance with the intent of
assisting a suicide would not be under any current definition a ‘legitimate medical
purpose’” and thus would violate the CSA. 5
States, 500 U.S. 160, 169 (1991) (upholding Attorney General’s authority to delegate CSA functions to
DEA).
2
The “Death with Dignity Act” is codified at 3 Oregon Revised Statutes (O.R.S.) §§ 127.800127.995 (1999).
*
Editor’s Note: Relying upon the analysis set forth in this memorandum opinion, the Attorney
General subsequently promulgated an interpretive rule, which provided that “assisting suicide is not a
‘legitimate medical purpose’ within the meaning of 21 C.F.R. § 1306.04 (2001), and that prescribing,
dispensing, or administering federally controlled substances to assist suicide violates the Controlled
Substances Act.” 66 Fed. Reg. 56,607, 56,608 (Nov. 9, 2001). In Gonzales v. Oregon, 546 U.S. 243
(2006), the Supreme Court held that the Attorney General was not statutorily authorized to issue the
interpretive rule. Id. at 274-75.
3
On the circumstances surrounding the adoption of the Oregon “Death with Dignity Act” and a
description of its provisions, see generally Mark C. Siegel, Lethal Pity: The Oregon Death With
Dignity Act, Its Implications for the Disabled, and the Struggle for Equality in an Able-Bodied World,
16 Law & Ineq. 259, 270- 76 (1998).
4
Letter for Thomas A. Constantine, Administrator, Drug Enforcement Administration, from Henry
J. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives, and Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate (July 25, 1997), reprinted in S. Rep. No. 105-372,
at 7 n.6 (1988) (“Hyde Letter”) (“In our view, assisting in a suicide by prescribing or filling a
prescription for a controlled substance cannot be a ‘legitimate medical purpose’ under DEA regulations, especially when the practice is not reasonable and necessary to the diagnosis and treatment of
disease and injury, legitimate health care, or compatible with the physician’s role as healer.”).
5
Letter for Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, from Thomas A.
Constantine, Administrator, Drug Enforcement Administration at 1-2 (Nov. 5, 1997), reprinted in
S. Rep. No. 105-372, at 8 n.9 (1998) (“Constantine Letter”).
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
Within a month, the Oregon Deputy Attorney General, David Schuman, wrote
to the United States Department of Justice on December 3, 1997, arguing that “the
CSA is addressed to the problems of the abuse and trafficking of controlled
substances. In enacting and later amending the CSA, Congress had no intention of
regulating medical practices that are legal under state law and that have no relation
to drug abuse or trafficking.” 6 Deputy Attorney General Schuman concluded that
the DEA had no authority to regulate medical practices authorized by state law and
unrelated to drug abuse or trafficking.
On June 5, 1998, Attorney General Janet Reno reversed the interpretation of
DEA Administrator Constantine, concluding that “the CSA does not authorize
DEA to prosecute, or to revoke the DEA registration of, a physician who has
assisted in a suicide in compliance with Oregon law.” Specifically, Attorney
General Reno stated: “There is no evidence that Congress, in the CSA, intended to
displace the states as the primary regulators of the medical profession, or to
override a state’s determination as to what constitutes legitimate medical practice
in the absence of a federal law prohibiting that practice.” 7
II. Physicians Are Regulated Under the Controlled Substances Act
The basic domestic drug trafficking provision of the CSA, 21 U.S.C. § 841,
governs physicians’ prescriptions of controlled substances. Section 841(a)(1)
makes it unlawful for “any person knowingly or intentionally . . . to . . . dispense, a
controlled substance.” The term “dispense” is defined to “mean[] to deliver a
controlled substance to an ultimate user . . . by, or pursuant to the lawful order of,
a practitioner . . . .” 21 U.S.C. § 802(10). A “practitioner” includes a “physician . . . licensed, registered, or otherwise permitted, by the United States or the
jurisdiction in which he practices . . . to . . . dispense . . . a controlled substance in
the course of professional practice.” Id. § 804(21).
Although section 841(a)(1) generally prohibits the dispensing of controlled
substances, the statute does permit such action if “authorized by this subchapter.”
21 U.S.C. § 841(a). One such form of authorization is found in the CSA’s
provisions dealing with physician “registration.” See id. § 822(b) (“Persons
registered by the Attorney General . . . to . . . dispense controlled substances . . .
are authorized to . . . dispense such substances . . . to the extent authorized by their
registration and in conformity with the other provisions of this subchapter.”).
6
Letter for Jonathan Schwartz, Principal Associate Deputy Attorney General, United States, from
David Schuman, Deputy Attorney General, Oregon at 7 (Dec. 3, 1997) (“Oregon Deputy Attorney
General Letter”).
7
Letter for Henry J. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives,
from Janet Reno, Attorney General at 1 (June 5, 1998), reprinted in S. Rep. No. 105-372, at 9 n.10
(1998) (“Reno Letter”) (“Adverse action against a physician who has assisted in a suicide in full
compliance with the Oregon Act would not be authorized by the [CSA]”).
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Physicians may apply to the DEA (which acts here as the Attorney General’s
delegate) for registration permitting them to prescribe and administer controlled
substances. Section 823(b) provides that the DEA shall register qualified applicants unless it “determines that . . . such registration is inconsistent with the public
interest.” This determination is to be based on any of five factors identified in the
statute, including “such other factors as may be relevant to and consistent with the
public health and safety.” Id. § 823(b)(5).
“[T]he scheme of the [CSA], viewed against the background of the legislative
history, reveals an intent to limit a registered physician’s dispensing authority to
the course of his ‘professional practice.’ . . . Implicit in the registration of a
physician is the understanding that he is authorized only to act ‘as a physician.’ . . .
[R]egistration is limited to the dispensing and use of drugs ‘in the course of
professional practice or research.’ Other provisions throughout the Act reflect the
intent of Congress to confine authorized medical practice within accepted limits.”
United States v. Moore, 423 U.S. 122, 140-42 (1975). Although section 841(a)
does not, in terms, state that a physician is authorized to dispense controlled
substances only for a legitimate medical purpose, that limitation appears to be
implicit in the statute, see Moore, 423 U.S. at 137 n.13, and has been made explicit
by DEA regulation. 8 The relevant regulation reads:
A prescription issued for a controlled substance to be effective
must be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional practice . . . . An order purporting to be a prescription issued not in the
usual course of professional treatment or in legitimate and authorized
research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling
such a purported prescription, as well as the person issuing it, shall
be subject to the penalties provided for violations of the provisions
of law relating to controlled substances.
21 C.F.R. § 1306.04(a) (emphasis added).
Where a physician dispenses controlled substances without a “legitimate medical purpose” under 21 C.F.R. § 1306.04(a), the physician violates several provisions of the CSA, including sections 829 and 841(a)(1). If such dispensing without
a legitimate medical purpose is proven in a criminal case, the physician may be
subject to criminal penalties under 21 U.S.C. §§ 841(a)(1) (felony) and 842(a)(1)
8
The courts have found no distinction between the statutory phrase “in the course of professional
practice” and the regulatory phrase “legitimate medical purpose.” See United States v. Rosenberg, 515
F.2d 190, 193 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1975); cf. United States v. Kirk, 584 F.2d
773, 784 (6th Cir. 1978), cert. denied, 439 U.S. 1048 (1978); United States v. Plesons, 560 F.2d 890,
897 n.6 (8th Cir. 1977), cert. denied, 434 U.S. 966 (1977).
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
(misdemeanor). See Moore, 423 U.S. at 131 (holding that registered physician can
be prosecuted and convicted under section 841(a)(1) for dispensing controlled
substances outside the usual course of professional practice). Even without a
criminal prosecution or conviction, the DEA may initiate administrative proceedings to suspend or revoke the registration of a physician based on evidence that the
physician dispensed controlled substances without a legitimate medical purpose
under 21 C.F.R. § 1306.04(a). In an administrative proceeding, the government
must prove, by a preponderance of the evidence, that the physician dispensed in
violation of section 1306.04(a), and that, as a result, the physician’s continued
registration would be inconsistent with the public interest. See 21 U.S.C.
§ 824(a)(4) (applying public interest standard of section 823(f) to administrative
proceedings for suspension or revocation of registration granted under section 823); see generally Robert G. Hallermeier, M.D., Continuation of Registration with Restrictions, 62 Fed. Reg. 26,818 (1997) (administrative proceeding in
which DEA sought revocation of physician’s federal registration). 9 Nothing in the
language of the CSA or of the relevant DEA regulations requires that the physician
be shown to have violated state law in order to be subject to criminal sanctions
under sections 829 or 841(a), or to suspension or revocation of federal registration
under section 824(a)(4). Indeed, of the five separate grounds listed in section
824(a)(4) for adverse administration action, only two directly concern state law
sanctions.10 Further, as we shall discuss in detail below, Congress added the
“public interest” standard in section 824(a)(4) in order to permit the Attorney
General to take adverse administrative action against a registrant in cases in which
the registrant’s wrongful conduct might not have been sanctioned or sanctionable
under state law.
9
We note that practitioners have lost or been denied federal registrations necessary to prescribe
controlled substances because they have prescribed controlled substances used in suicides and other
lethal overdoses. See, e.g., Hugh I. Schade, M.D., Denial of Application, 60 Fed. Reg. 56,354 (1995);
José R. Castro, M.D., Denial of Application, 62 Fed. Reg. 16,189 (1997 ); Samuel Fertig, M.D., Denial
of Application, 49 Fed. Reg. 6577 (1984); Murray J. Walker, M.D., Revocation of Registration, 55 Fed.
Reg. 5306 (1990); see also Townwood Pharmacy, Revocation of Registration, 63 Fed. Reg. 8477
(1998).
10
Section 824(a)(2) authorizes the Attorney General to suspend or revoke a registration upon a
finding that the registrant “has been convicted of a felony under . . . any . . . law . . . of any State,
relating to any . . . controlled substance,” while section 824(a)(3) authorizes such action if the registrant
“has had his State license or registration suspended, revoked, or denied . . . and is no longer authorized
by State law to engage in . . . dispensing . . . controlled substances . . . or has had the suspension,
revocation, or denial of his registration recommended by competent State authority.”
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III. Dispensing Controlled Substances to Assist in Suicide Does Not
Serve a “Legitimate Medical Purpose”
We understand that physician-assisted suicide typically involves the use of a
lethal dose of a combination of drugs, including controlled substances. First, the
patient is sedated using either a barbiturate (e.g., sodium pentothal), or an opiate
(e.g., morphine). Then, one or more drugs are used to paralyze the muscles and/or
to stop the heart. The sedatives involved in these procedures are controlled
substances under the CSA. Most lawfully available opiates and barbiturates are in
Schedule II of the CSA, the most strictly regulated category of substances
available for non-research purposes. See 21 C.F.R. § 1308.12(b), (c), (e) (2000).
In our opinion, assisting in suicide is not a “legitimate medical purpose” within
the meaning of 21 C.F.R. § 1306.04(a) that would justify a physician’s dispensing
controlled substances. That interpretation, which the DEA itself originally adopted
before being overruled by Attorney General Reno, is the best reading of the
regulatory language: it is firmly supported by the case law, by the traditional and
current policies and practices of the federal government and of the overwhelming
majority of the states, and by the dominant views of the American medical and
nursing professions.
A. Case Law
The case law demonstrates that the CSA forbids dispensing controlled substances except in the course of accepted medical practice, and that physicianassisted suicide is outside the boundaries of such practice.
In Moore, the Supreme Court in effect approved a jury instruction under which
a physician would be held criminally liable for dispensing controlled substances in
violation of 21 U.S.C. § 841(a) unless the physician was acting “in the usual
course of professional practice and in accordance with a standard of medical
practice generally recognized and accepted in the United States.” Moore, 423 U.S.
at 139. The lower courts have followed Moore in requiring that a physician’s
actions conform to standards “generally recognized and accepted” throughout the
nation. For example, in United States v. Vamos, 797 F.2d 1146, 1153 (2d Cir.
1986), the court stated that:
To permit a practitioner to substitute his or her views of what is good
medical practice for standards generally recognized and accepted in
the United States would be to weaken the enforcement of our drug
laws in a critical area. As the Supreme Court noted in Moore, “Congress intended the CSA to strengthen rather than weaken the prior
drug laws.”
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
As the courts have found, physician-assisted suicide has never been, and is not
now, a generally recognized and accepted medical practice in the United States.
On the contrary, the American legal system and the American medical profession
alike have consistently condemned the practice in the past and continue to do so.
In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court upheld
a state prohibition against causing or aiding a suicide against a challenge that, as
applied to physicians assisting terminally ill, mentally competent patients, the
prohibition offended the requirements of substantive due process. See id. at 709
n.6 (describing holding). The Court began its analysis by examining “our Nation’s
history, legal traditions, and practices,” id. at 710. The Court found that “[i]n
almost every State—indeed, in almost every western democracy—it is a crime to
assist a suicide. The States’ assisted-suicide bans are not innovations. Rather, they
are longstanding expressions of the States’ commitment to the protection and
preservation of all human life.” Id. (footnote omitted).11 After tracing “the AngloAmerican common law tradition” that “for over 700 years” “has punished or
otherwise disapproved of both suicide and assisted suicide,” id. at 711, the Court
referred to the Oregon “Death With Dignity Act,” which legalized physicianassisted suicide for competent, terminally ill adults. The Court’s discussion made
plain that the Oregon statute represented an exceptional case, contrary both to
longstanding historical practices and to contemporary trends in the law:
Since the Oregon vote, many proposals to legalize assisted-suicide
laws have been and continue to be introduced in the States’ legislatures, but none has been enacted. And just last year [i.e., 1996], Iowa
and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. . . . Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction
Act of 1997, which prohibits the use of federal funds in support of
physician-assisted suicide.
Id. at 717-18 (citations and footnotes omitted). Further, the Court discussed the
“serious, thoughtful examinations of physician-assisted suicide and other similar
issues” now going on in the states. Id. at 719. It referred in particular to the work
of New York State’s Task Force on Life and the Law, a commission composed of
doctors, ethicists, lawyers, religious leaders and interested laymen charged with
recommending public policy on issues raised by medical advances. The Court
noted that after studying physician-assisted suicide, the Task Force had unanimously concluded that “[l]egalizing assisted suicide and euthanasia would pose
11
Accord Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 280 (1990) (“As a general
matter, the States—indeed, all civilized nations—demonstrate their commitment to life by treating
homicide as a serious crime. Moreover, the majority of States in this country have laws imposing
criminal penalties on one who assists another to commit suicide.”).
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profound risks to many individuals who are ill and vulnerable. . . . [T]he potential
dangers of this dramatic change in public policy would outweigh any benefit that
might be achieved.” Id. (internal quotation marks and citation omitted; ellipses in
original).
Summarizing its review of the American legal tradition’s view of assisted
suicide, the Court said:
Attitudes toward suicide itself have changed since Bracton, but our
laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life
decisionmaking, we have not retreated from this prohibition.
Id.
B. State and Federal Policy
As detailed in Washington v. Glucksberg, state law and policy, with the sole
exception of Oregon’s, emphatically oppose assisted suicide. Assisted suicide has
long been prohibited at common law, see Glucksberg, 521 U.S. at 711,12 and at
least forty states and territories have laws explicitly prohibiting the practice.13 “In
the two hundred and five years of our [national] existence no constitutional right to
aid in killing oneself has ever been asserted and upheld by a court of final
jurisdiction.” Compassion in Dying v. Washington, 49 F.3d 586, 591 (9th Cir.
1995) (Noonan, J.), rehearing en banc granted, 62 F.3d 299 (9th Cir. 1995);
vacated, 79 F.3d 790 (9th Cir. 1996) (en banc) (Reinhardt, J.) (state could not
constitutionally prohibit physician-assisted suicide in cases of terminally ill
competent adults), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702
(1997). The only state supreme court to decide the matter has rejected recognition
of an enforceable right to assisted suicide under that state’s constitution. Krischer
v. McIver, 697 So.2d 97 (Fla. 1997).
State statutes banning assisted suicide trace back a century or more in many
cases. They have not been kept on the books through oversight or neglect:
Many jurisdictions have expressly reconsidered these laws in
recent years and reaffirmed them. In 1980, the American Law Institute conducted a thorough review of state laws on assist[ed] suicide
in the United States and acknowledged the continuing widespread
12
See generally Thomas J. Marzen, Mary K. O’Dowd, Daniel Crone & Thomas J. Balch, Suicide: A
Constitutional Right?, 24 Duq. L. Rev. 1, 71-75 (1985).
13
See Christine Neylon O’Brien & Gerald A. Madek, Physician-Assisted Suicide: New Protocol for
a Rightful Death, 77 Neb. L. Rev. 229, 275 n.314 (1998).
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support for criminalization. Accordingly, it endorsed two criminal
provisions of its own. In the 1990s, both New York and Michigan
convened blue-ribbon commissions to consider the possibility of
legalizing assisted suicide and euthanasia. The New York commission issued a thoughtful and detailed report unanimously recommending the retention of existing laws against assisting suicide and
euthanasia. The Michigan panel divided on the issue, but the state
legislature subsequently chose to enact a statute strengthening its
existing common law ban against assisted suicide. . . . Meanwhile,
repeated efforts to legalize the practice—in state legislatures and by
popular referenda—have met with near-total failure.
Neil M. Gorsuch, The Right to Assisted Suicide and Euthanasia, 23 Harv. J. L. &
Pub. Pol’y 599, 639-41 (2000) (“Gorsuch”) (footnotes omitted).
Federal policy fully accords with the views that prevail in every state except
Oregon. As noted in Glucksberg, the Assisted Suicide Funding Restriction Act of
1997, Pub. L. No. 105-12, 111 Stat. 23, was signed into law on April 30, 1997.
The Act was approved in the House of Representatives by a 398-to-16 vote and in
the Senate by a 99-0 vote. The Act bans federal funding of assisted suicide,
euthanasia, or mercy killing through Medicaid, Medicare, military and federal
employee health plans, the veterans health care system, or other federally funded
programs. In the “Findings” preceding the Act’s substantive restrictions, Congress
stated that “[a]ssisted suicide, euthanasia, and mercy killing have been criminal
offenses throughout the United States and, under current law, it would be unlawful
to provide services in support of such illegal activities.” Id. § 2(a)(2). Then, after
taking note that the Oregon “Death With Dignity Act” might soon become
operative, see id. § 2(a)(3), Congress determined that it would “not provid[e]
Federal financial assistance in support of assisted suicide, euthanasia, and mercy
killing and intends that Federal funds not be used to promote such activities.” Id.
§ 2(a)(4). In general, Congress stated that its purpose was “to continue current
Federal policy by providing explicitly that Federal funds may not be used to pay
for items and services (including assistance) the purpose of which is to cause (or
assist in causing) the suicide, euthanasia, or mercy killing of any individual.” Id.
§ 2(b).
Even before the enactment of the Assisted Suicide Funding Restriction Act of
1997, it was the policy of the federal government not to recognize physicianassisted suicide as a legitimate medical practice. As Acting Solicitor General
Walter Dellinger noted in 1996 in the United States brief in Glucksberg:
The United States owns and operates numerous health care facilities
which . . . do not permit physicians to assist patients in committing
suicide by providing lethal dosages of medication. The Department
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of Veterans Affairs (VA), which operates 173 medical centers, 126
nursing homes, and 55 in-patient hospices, has a policy manual
that . . . forbids “the active hastening of the moment of death.” . . .
The military services, which operate 124 centers, the Indian Health
service, which operates 43 hospitals, and the National Institutes of
Health, which operate a clinical center, follow a similar practice . . . .
No federal law . . . either authorizes or accommodates physician
assisted suicide.14
Other federal agencies have taken similar views in the past. The Hyde Letter
noted that “[t]he Health Care Financing Administration has stated that physicianassisted suicide is not ‘reasonable and necessary’ to the diagnosis and treatment of
disease or injury and is therefore barred from reimbursement under Medicare.”
Hyde Letter, supra note 4, at 1. Administrator Constantine’s reply stated that a
review of “a number of cases, briefs, law review articles and state laws relating to
physician-assisted suicide” and “a thorough review of prior administrative cases in
which physicians have dispensed controlled substances for other than a ‘legitimate
medical purpose’” demonstrated “that delivering, dispensing or prescribing a
controlled substance with the intent of assisting a suicide would not be under any
current definition a ‘legitimate medical purpose.’”15
Finally, federal medical policy since the enactment of the Assisted Suicide
Funding Restriction Act also supports the conclusion that physician-assisted
suicide is not a legitimate medical practice. In 1999, the Surgeon General sought
to classify suicide as a serious public health problem and to intensify suicide
prevention efforts, especially among high risk groups such as the sick and elderly,
who often suffer from undiagnosed depression and inadequately treated pain.16
Dispensing controlled substances to assist the suicides of some of the most
14
Brief for the United States as Amicus Curiae Supporting Petitioners at 1-2, Washington v.
Glucksberg, 521 U.S. 702 (1997) (No. 96-110) (“United States Brief in Glucksberg”).
15
Constantine Letter, supra note 5, at 1-2. Also relevant to the past practice of federal agencies is
United States v. Rutherford, 442 U.S. 544 (1979), which involved a challenge by terminally ill cancer
patients to the determination of the Food and Drug Administration (“FDA”) that Leatrile constituted a
“new drug” for purposes of the Federal Food, Drug and Cosmetic Act because it was not generally
regarded as safe or effective. In upholding the FDA’s determination, the Court rejected the plaintiffs’
argument that an implied exception from the Act was justified because the safety and effectiveness
standards could have no reasonable application to terminally ill patients. It pointed out that “the FDA
has never made exception [from the FDA’s safety standards] for drugs used by the terminally ill.” Id.
at 553.
16
See generally U.S. Public Health Service, Dep’t of Health and Human Services, The Surgeon
General’s Call to Action to Prevent Suicide (1999), available at http://www.surgeongeneral.gov/
library/calls/index.html (last visited Aug. 3, 2012); see also Improving Palliative Care for Cancer:
Summary and Recommendations (Kathleen M. Foley & Hellen Gelbard, eds., 2001) (finding depression
common among terminally ill cancer patients, and recommending greater emphasis on palliative care).
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vulnerable members of American society is manifestly inconsistent with the
Surgeon General’s policy.17
C. Views of the Medical and Nursing Professions
The leading organizations of the American medical profession have repeatedly,
and recently, expressed the profession’s condemnation of physician-assisted
17
See United States Brief in Glucksberg at 19. Medical evidence suggests that many terminally ill
patients who seek death do so not as a result of rational deliberation, but rather because of depression or
mental illness. Moreover, given modern palliative care techniques, pain-avoidance cannot justify the
general practice of assisted suicide. See Susan R. Martyn and Henry J. Bourguignon, Now Is The
Moment to Reflect: Two Years of Experience With Oregon’s Physician-Assisted Suicide Law, 8 Elder
L.J. 1, 14-16 (2000) (footnotes omitted) (“First, the rate of depression among terminally ill patients
appears to be ‘much higher than would be expected in the general population.’ Recent studies indicate
that fully two-thirds of those requesting assisted suicide suffer from depression. Second, seriously ill
patients often require powerful medications which can distort the patient’s thoughts and feelings. ‘For
many patients, the progression of disease will result in the impairment of decisionmaking capacity,
either from the effects of the disease itself or those of drug treatment.’ Third, seriously ill patients may
also suffer physical and mental disability, have short attention spans, or find it difficult to concentrate.
They may have difficulty hearing or thinking through complex subjects. . . . Physicians, psychiatrists,
and psychologists, like anyone else who deals with a seriously ill, mentally or physically disabled
patient can all too easily conclude that the patient’s request for assisted suicide is reasonable and
therefore competent. The greatest threat is that persons with mental or physical disabilities or
depression, especially those who burden others, will readily be found competent to request assistance in
suicide. . . . Depression, the major precursor of suicidal intent, often worms its way into serious
illnesses and, especially among the elderly, can remain undiagnosed and untreated. In fact, clinical
studies now indicate that depression is the only factor that predicts suicidal intent or ideation. Indeed,
Oregon physicians report that they recognized symptoms of depression in twenty percent of patients
who sought suicide assistance.”); id. at 38-43 (describing significant recent innovations in palliative
care, noting that states are increasingly enacting intractable pain legislation to assure physicians that
adequate pain control is legally and medically required, and suggesting that legalizing physicianassisted suicide may inhibit advances in such care); New York State Task Force on Life and the Law,
When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 11, 13 (1994) (“Studies
that examine the psychological background of individuals who kill themselves show that 95 percent
have a diagnosable mental disorder at the time of death. Depression, accompanied by symptoms of
hopelessness and helplessness, is the most prevalent condition among individuals who commit
suicide. . . . In one study of terminally ill patients, of those who expressed a wish to die, all met
diagnostic criteria for major depression.”); Brief for American Geriatrics Soc. as Amicus Curiae at 7-9,
Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 95-1858,
96-100) (1996) (hospice and palliative care programs relieve pain and other severe symptoms for those
near death and should be preferred treatment options; also noting high correlation between cognitive or
emotional dysfunctioning such as depression and suicide inquiries); Leon R. Kass and Nelson Lund,
Physician-Assisted Suicide, Medical Ethics and the Future of the Medical Profession, 35 Duq. L. Rev.
395, 406 (1996) (“Kass & Lund”) (“Because the quick-fix of suicide is easy and cheap, it will in many
cases replace the use of hospice and other humanly-engaged forms of palliative care, for there will be
much less economic incentive to continue building and supporting social and institutional arrangements
for giving humane care to the dying.”); Yale Kamisar, Against Assisted Suicide—Even a Very Limited
Form, 72 U. Detroit Mercy L. Rev. 735, 744 (1995) (“Although pain is notoriously undertreated in this
country, ‘according to experts in the field of pain control, almost all terminally ill patients can
experience adequate relief with currently available treatments.’”) (footnotes omitted); Gorsuch at 691.
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suicide. The American Medical Association (“AMA”), joined by the American
Nurses Association (“ANA”), the American Psychiatric Association, and 43 other
national medical organizations, filed a brief in the Glucksberg case declaring that
“[t]he ethical prohibition against physician-assisted suicide is a cornerstone of
medical ethics” and that physician-assisted suicide is “‘fundamentally incompatible with the physician’s role as healer.’”18 More specifically, the AMA’s Brief
said:
The power to assist in intentionally taking the life of a patient is antithetical to the central mission of healing that guides both medicine
and nursing. It is a power that most physicians and nurses do not
want and could not control. Once established, the right to physicianassisted suicide would create profound danger for many ill persons
with undiagnosed depression and inadequately treated pain, for
whom physician-assisted suicide rather than good palliative care
could become the norm. At greatest risk would be those with the
least access to palliative care—the poor, the elderly, and members of
minority groups.
Amici acknowledge that many patients today do not receive proper treatment for their pain, depression, and psychological distress.
Nevertheless, physician-assisted suicide is not the right answer to the
problem of inadequate care. Although for some patients it might
appear compassionate intentionally to cause death, institutionalizing
physician-assisted suicide as a medical treatment would put many
more patients at serious risk for unwanted and unnecessary death.
...
The ethical prohibition against physician-assisted suicide is a cornerstone of medical ethics. Its roots are as ancient as the Hippocratic
oath that a physician “will neither give a deadly drug to anybody if
asked for it, nor . . . make a suggestion to this effect,” and the merits
of the ban have been debated repeatedly in this nation since the late
nineteenth century. Most recently, the AMA has reexamined and
reaffirmed the ethical prohibition against physician-assisted suicide
in 1977, 1988, 1991, 1993, and 1996.19
18
Brief for American Medical Association et al. as Amici Curiae at 5, Washington v. Glucksberg,
521 U.S. 702 (1997) (No. 96-110) (1996).
19
Id. at 2-5.
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
As the Court noted in Glucksberg, 521 U.S. at 731, the AMA’s Code of Ethics
condemns physician-assisted suicide as fundamentally incompatible with the
physician’s role as a healer. AMA, Code of Ethics § 2.211 (1994); see also
Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267
JAMA 2229, 2233 (1992). Largely on the basis of the AMA’s position, the Court
found that the State of Washington had “an interest in protecting the integrity and
ethics of the medical profession” when it prohibited physician-assisted suicide.
Glucksberg, 521 U.S. at 731; see also Compassion in Dying, 49 F.3d at 592
(citation omitted) (“From the Hippocratic Oath with its promise ‘to do no
harm,’ . . . to the AMA’s code, the ethics of the medical profession have proscribed killing.”).
The AMA took the same unequivocal position in hearings before Congress on
the subject of assisted suicide. See Assisted Suicide in the United States: Hearing
Before the Subcomm. on the Constitution of the House Comm. on the Judiciary,
United States House of Representatives, 104th Cong. 309-11 (1996) (statement of
Lonnie L. Bristow, M.D., Pres., AMA). Dr. Bristow testified:
The AMA believes that physician-assisted suicide is unethical and
fundamentally inconsistent with the pledge physicians make to themselves to healing and to life. . . . AMA takes seriously its role as a
leader in issues of medical and professional ethics. The AMA’s
“code of ethics” serves as the profession’s defining document as to
what is right versus what is wrong in medical practice, and such are
critical to our professionalism and our role as healers. My primary
obligation as a physician is to first be an advocate for my patient. If
my patient in understandably apprehensive or afraid of his or her
own mortality, I need to provide information, support, and comfort,
not help them avoid the issues of death.
Id. at 310.
The American Nurses Association (“ANA”), a national organization representing 2.2 million registered nurses, submitted written testimony to Congress at the
same hearing. See id. at 438-50. Included in the ANA’s submission was the
organization’s Position Statement on Assisted Suicide (1994). The Position
Statement succinctly summarizes the ANA’s view of nurse-assisted suicide as
follows:
The American Nurses Association (ANA) believes that the nurse
should not participate in assisted suicide. Such an act is in violation
of the Code for Nurses with Interpretive Statements (Code for Nurses) and the ethical traditions of the profession.
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Id. at 443. The “Rationale” in the Position Statement sets forth comprehensively
the basis of the ANA’s view. It states in part:
• The profession of nursing is built upon the Hippocratic tradition
“do no harm” and an ethic of moral opposition to killing another
human being. The ethical framework of the profession as articulated
through the Code for Nurses explicitly prohibits deliberately terminating the life of any human being.
• Nursing has a social contract with society that is based on trust
and therefore patients must be able to trust that nurses will not
actively take human life. . . . Nurse participation in assisted suicide is
incongruent with the accepted norms and fundamental attributes of
the profession. . . .
• While there may be individual patient cases that are compelling,
there is high potential for abuses with assisted suicide, particularly
with vulnerable populations such as the elderly, poor and disabled.
These conceivable abuses are even more probable in a time of
declining resources. The availability of assisted suicide could
forseeably weaken the goal of providing quality care for the dying.
Id. at 445.
Scholars have observed that the norms of the medical and nursing professions
with respect to physician-assisted suicide, which reflect the experience and the
reflection of centuries, are more compelling now than ever. See Kass & Lund,
supra note 17, at 423 (“Given the great pressures threatening medical ethics
today—including, among other factors, a more impersonal practice of medicine,
the absence of a lifelong relationship with a physician, the push toward managed
care, and the financially-based limitation of services—a bright line rule regarding
medically-assisted suicide is a bulwark against disaster.”); see also Seth F.
Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and
the Right to Die, 44 Am. U. L. Rev. 803, 841 (1995) (“Particularly with the
emergence of cost controls and managed care in the United States, the danger of
tempting health care providers to persuade chronic patients to minimize costs by
ending it all painlessly is no fantasy.”).
To be sure, it has been claimed that physician-assisted suicide has become a
common, if also usually clandestine, practice.20 But the claim is questionable. The
American Geriatrics Society, for example, has stated that the Society’s leadership
“is unfamiliar with situations in which this is true, and it seems unlikely. Three-
20
See, e.g., Compassion in Dying, 79 F.3d at 811.
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
quarters of all deaths happen in institutions where a regularized endeavor would
require the collusion of a large number of persons, which seems implausible. Little
reliable evidence characterizes the rate and nature of actual instances of [physician-assisted suicide].” Brief for American Geriatrics Soc. as Amicus Curiae at 10,
Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702
(1997). Moreover, even if there were reliable evidence that unacknowledged
physician-assisted suicide was not infrequent, that fact would hardly invalidate the
normative judgments of the AMA and other medical groups that emphatically
condemn the practice. By parity of reasoning, if it could be shown that physicians
violated traditional medical canons of ethics more often that is usually supposed,
e.g., by engaging in sexual relations with their patients or disclosing patient
confidences, it would follow that the evidence of such deviations overturned the
professional standards prohibiting such misconduct.
Thus, the overwhelming weight of authority in judicial decisions, the past and
present policies of nearly all of the states and of the federal government, and the
clear, firm and unequivocal views of the leading associations within the American
medical and nursing professions, establish that assisting in suicide is not an
activity undertaken in the course of professional medical practice and is not a
legitimate medical purpose. Indeed, we think it fair to say that physician-assisted
suicide should not be considered a medical procedure at all. Here we follow an
amicus brief filed in Glucksberg by a group of fifty bioethics professors, who
declared that physician-assisted suicide “is not a medical procedure, and
medicalizing an act runs the risk of making an otherwise unacceptable act appear
acceptable.” Brief for Bioethics Professors as Amici Curiae Supporting Petitioners
at 27, Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S.
702 (1997) (Nos. 95-1858, 96-100). As this brief points out, assisted suicide does
not require any medical knowledge whatever, nor does it necessarily depend on
access to any prescribed drugs or to medical services. Indeed, the country’s most
prominent partisan of assisted suicide, Jack Kevorkian, has often used the entirely
non-medical method of carbon monoxide poisoning. See George J. Annas,
Physician Assisted Suicide—Michigan’s Temporary Solution, 20 Ohio N.U.L.
Rev. 561, 568 (1994). It is plainly a fallacy to assume that a procedure must be
“medical” because it is performed by a physician rather than, say, by a family
member, or because it involves the use of a drug that a physician has prescribed.21
21
The Oregon Deputy Attorney General’s Letter assumes, uncritically, that physician-assisted
suicide, if authorized by state law, must be considered a “medical” practice that serves a “medical”
purpose. See Oregon Deputy Attorney General Letter, supra note 6, at 7 (“[T]he CSA is addressed to
the problems of the abuse and trafficking of controlled substances, [not to] regulating medical practices
that are legal under state law and that have no relation to drug abuse or trafficking”). As we have
argued above, it is far from obvious (to say no more) that assisting an individual to kill himself or
herself must be considered a “medical” procedure.
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Accordingly, we conclude that assisting in suicide is not a “legitimate medical
purpose” that would justify a physician’s dispensing controlled substances
consistent with the CSA.
IV. The Existence of a State Law Permitting Physician-Assisted
Suicide Does Not Immunize a Physician from the General
Requirements of the CSA
The CSA establishes a uniform, nation-wide statutory scheme for regulating the
distribution of controlled substances. Notwithstanding the traditional role of the
states in regulating the practice of medicine,22 state law cannot abrogate the CSA
or supersede its provisions in the event of conflict.23 Thus, the fact that assisting in
suicide may be permitted in some cases for Oregon physicians under local law
does not entail that they should be held immune from criminal prosecution or
adverse administrative action under the CSA if they dispense a controlled
substance when rendering that assistance. It is simply wrong to suggest, as the
Deputy Attorney General of Oregon did, that the CSA does not reach “practices
that are engaged in by physicians in accordance with state law.”24
The Supreme Court’s very recent decision in the so-called “medical marijuana”
case, United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001),
demonstrates the fallacy of attempting to read an implied immunity into the CSA
for physicians who dispense controlled substances to assist suicides in a state in
which such conduct is consistent with local law. In Oakland Cannabis Buyers, the
Supreme Court addressed the question whether there was an implied “medical
necessity” exception to the CSA’s general prohibition in 21 U.S.C. § 841(a)(1) on
manufacturing and distributing marijuana. Marijuana is a “schedule I” controlled
substance. For drugs on that schedule, there is but one express statutory exception,
and that exception is available only for government-approved research projects.
See 21 U.S.C. § 823(f); Oakland Cannabis Buyers, 532 U.S. at 491.25 Notwithstanding the fact that it did not fall within the sole express statutory exception, the
defendant Cooperative argued that the statute should be read to include another,
implied exception for “medical necessity.” The Supreme Court refused to read
such an exception into the CSA.
22
See, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001); Gade v. Nat’l Solid
Wastes Management Ass’n, 505 U.S. 88, 108 (1992).
23
See, e.g., Rosenberg, 515 F.2d at 198 n.14.
24
See Oregon Deputy Attorney General Letter, supra note 6, at 6.
25
The controlled substances usually used in physician-assisted suicide are, as we have noted,
schedule II substances, and accordingly are governed by a different regulatory regime from schedule I
substances. In particular, registered practitioners may “dispense” schedule II, but not schedule I,
substances. See 21 U.S.C. § 824(f). This distinction does not, however, affect the relevance of Oakland
Cannabis Buyers to the questions considered in this memorandum.
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Because of the passage in a 1996 voter initiative of the Compassionate Use Act
of 1996, Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2001), California
laws prohibiting the possession and cultivation of marijuana now include an
exception for a patient or primary caregiver who possesses or cultivates marijuana
for the patient’s medical purposes upon the recommendation or approval of a
physician. In the wake of the voter initiative, “medical cannabis dispensaries”
were organized to meet the needs of qualified patients. The defendant was one
such organization, and distributed marijuana to those it accepted as members. The
United States sued the defendant in 1998, arguing that, “whether or not the
Cooperative’s activities are legal under California law, they violate” section 841(a)
of the CSA. Oakland Cannabis Buyers, 532 U.S. at 487. Despite being enjoined
from distributing marijuana, the defendant continued to do so, and the United
States accordingly initiated contempt proceedings. In defense, it was “contended
that any distributions were medically necessary. Marijuana is the only drug,
according to the Cooperative, that can alleviate the severe pain and other debilitating symptoms of the Cooperative’s patients.” Id. (citation omitted). The district
court found the defendant in contempt, and declined to modify its injunction so as
to permit marijuana distributions that were asserted to be medically necessary.
Although the defendant’s appeal of the contempt order was mooted, its motion to
modify the injunction presented a live controversy, and the court of appeals
accepted the defendant’s argument that medical necessity was a legally cognizable
defense under the CSA. The United States sought certiorari to review the court of
appeals’ decision, and the Supreme Court granted the petition because the
appellate decision below “raise[d] significant questions as to the ability of the
United States to enforce the Nation’s drug laws.” Id. at 489.
The Supreme Court flatly rejected the defendant’s claim of an implied medical
necessity exception. “[T]o resolve the question presented, we need only recognize
that a medical necessity exception for marijuana is at odds with the terms of the
Controlled Substances Act. The statute, to be sure, does not explicitly abrogate the
defense. But its provisions leave no doubt that the defense is unavailable.” Id.
at 491 (footnote omitted).
The question whether Oregon physicians may dispense controlled substances to
assist in a suicide without violating the CSA is similar to (although it is of course
not the same as) the question decided in Oakland Cannabis Buyers. In effect, the
argument that such physicians do not violate the CSA depends on the assumption
that because assisting suicide in that manner is permissible under state law, the
CSA must be interpreted so that such dispensing is done “in the course of
professional practice,” 21 U.S.C. § 802(21), and the DEA’s regulations must be
read so that such actions serve “a legitimate medical purpose,” 21 C.F.R.
§ 1306.04(a). But a state cannot, by its unilateral action, take its physicians’
conduct out of the scope of otherwise nationally applicable prohibitions on the
dispensing of controlled substances. The CSA contains no express immunity for
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such conduct in states in which physicians may assist suicides compatibly with
local law, and it should not be construed in a manner that implies such an immunity.26
V. The CSA Contemplates Concurrent Federal and State Regulation
of Medical Practices Involving Controlled Substances
Like the Court in Oakland Cannabis Buyers, we share the concern for “‘showing respect for the sovereign States that comprise our Federal Union.’” Oakland
Cannabis Buyers, 532 U.S. at 494 n.7 (quoting Stevens, J., concurring in judgment). But we think it shows no disrespect for the principles of federalism to
conclude that the states cannot, by their unilateral actions, shelter their physicians
from the federal narcotics code. Although the states are the primary regulators of
the practice of medicine, they are not its exclusive regulators: since the Harrison
Narcotics Act of 1914, the federal government has regulated the practice of
medicine insofar as it involved the dispensing of controlled drugs.27 Physicians
were often prosecuted under the Harrison Act for prescribing drugs in a manner
that did not comport with federal statutory requirements or that fell outside the
course of professional practice as determined by the federal courts.28 Further, the
Supreme Court repeatedly upheld the authority of federal prosecutors to bring such
cases against physicians over the objection that the Harrison Act impermissibly
encroached on a regulatory power exclusively reserved to the states.29 The CSA
26
We note that the Reno Letter, supra note 7, at 3-4, expressly recognized that its conclusion was
“limited to these particular circumstances” in Oregon (and, should any other State follow Oregon, such
a State), and affirmed that “[a]dverse action under the CSA may well be warranted in other circumstances: for example, where a physician assists in a suicide in a state that has not authorized the practice
under any conditions.” Construing the CSA and its regulations as Attorney General Reno did would
accordingly cause the Act’s prohibitions to apply differently from one state to another, and would in
effect grant the states the power to immunize their physicians from liability under otherwise generally
applicable federal law.
27
See Moore, 423 U.S. at 132 (“Physicians who stepped outside the bounds of professional practice
could be prosecuted under the Harrison Act (Narcotics) of 1914, 38 Stat. 785, the predecessor of the
CSA.”); id. at 139 (“Under the Harrison Act physicians who departed from the usual course of medical
practice were subject to the same penalties as street pushers with no claim to legitimacy.”).
28
See, e.g., United States v. Behrman, 258 U.S. 280 (1922) (sustaining conviction of physician over
dissent’s argument that defendant should have been assumed to have given drugs in the regular course
of his practice and in good faith); Jin Fuey Moy v. United States, 254 U.S. 189, 194 (1920) (sustaining
conviction; Court states that “[m]anifestly the phrases ‘to a patient’ and ‘in the course of his professional practice only’ are intended to confine the immunity of a registered physician, in dispensing the
narcotic drugs mentioned in the act, strictly within the appropriate bounds of a physician’s . . .
practice.”); Webb v. United States, 249 U.S. 96, 99-100 (1919) (holding that to call the defendant’s
order for the use of morphine a “physician’s prescription” would “be so plain a perversion of meaning
that no discussion of the subject is required.”).
29
See Nigro v. United States, 276 U.S. 332, 353-54 (1928) (upholding constitutionality of Harrison
Act as revenue measure despite claim that it infringed on states’ police power to regulate intrastate
purchases of commodities); Linder v. United States, 268 U.S. 5, 18 (1925) (prosecution of physician
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was intended “to strengthen rather than to weaken the prior drug laws.”30 Consequently, dispensing controlled substances has been an aspect of medical practice
that the federal government has regulated concurrently with the states for some
eighty-seven years.31
Both in enacting the CSA in 1970 and in amending it in 1984, Congress was
well aware that enforcement of the federal law would unavoidably necessitate
federal regulation of medicine concurrent with, and in some circumstances
designedly superseding, state regulation. In the House Report on what is now 42
U.S.C. § 257a,32 the Committee on Interstate and Foreign Commerce noted the
difficulty but found it inescapable:
Although the committee is concerned about the appropriateness of
having Federal officials determine the appropriate method of the
practice of medicine, it is necessary to recognize that for the last 50
years this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing narcotic drugs have
not conformed to the opinion of Federal prosecutors of what constitutes appropriate methods of professional practice.
H.R. Rep. No. 91-1444, pt. 1, at 15 (1970), reprinted in 1970 U.S.C.C.A.N. 4566,
4581 (emphasis added).
Further, Congress revisited the CSA in 1984 in order to add amendments that
expanded federal authority at the expense of the states and were specifically
directed against the misuse of federally regulated prescription drugs (that otherwise have legitimate medical uses) in a manner that did not violate state law. The
expanded federal authority was accomplished by adding “inconsistency with the
public interest” as a ground for denying, suspending, or revoking federal registration. See 21 U.S.C. § 823(f) (“The Attorney General may deny an application for
such registration if he determines that the issuance of such registration would be
inconsistent with the public interest.”); id. § 824(a)(4) (DEA may revoke registration of any physician who has committed acts “inconsistent with the public
interest.”). Previously, the federal government lacked the authority under the CSA
to deny a physician’s registration application when the physician possessed a
under Harrison Act; Court states that while “direct control of medical practice in the States is beyond
the power of the Federal Government,” “[i]ncidental regulation of such practice by Congress through a
taxing act” may be permitted); United States v. Doremus, 249 U.S. 86, 93-94 (1919).
30
Moore, 423 U.S. at 139.
31
Cf. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41 (1921) (state law regulating physicians’
furnishing or prescribing narcotic drugs held compatible with Harrison Act).
32
This provision was originally enacted as section 4 of title I of the Comprehensive Drug Abuse
and Control Act of 1970, 84 Stat. 1236, 1241 (1970); title II comprised the CSA. Hence the legislative
history of the provision is highly relevant to the CSA.
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license from the state to practice medicine and had no felony drug conviction. See
S. Rep. No. 98-225, at 262 (1984) (footnote omitted) (“the Attorney General must
presently grant a practitioner’s registration application unless his State license has
been revoked or he has been convicted of a felony drug offense, even though such
action may clearly be contrary to the public interest”).33
Supporters of the 1984 amendments explained that the most serious threat to
“public health and safety” prompting this legal change was the frequency with
which prescription drugs were involved in “drug-related deaths” and overdoses
that threatened life.34 Representative Hamilton Fish, a sponsor of the 1984
amendments, said that giving flexibility to the federal government was necessary
because states often did not respond adequately to abuses: “State policing of these
activities . . . ha[s] not been [an] adequate control measure[]. State laws regarding
the dispensing of controlled substances are also inadequate.” 130 Cong. Rec. at
25,849. At a hearing before the House Commerce Subcommittee on Health and
the Environment, the DEA called the expanded federal authority to revoke
practitioner registrations “one of the most important sections of the bill,” not only
because states were often ill-equipped to enforce their own drug laws but also
because “[m]any controlled drug violations involving prescription drugs are not
felonies under state law and therefore cannot be used in a DEA revocation action”
under then-existing law.35 Members of Congress also explained that the 1984
amendments were intended to “expand[] the standards for practitioner registration
beyond the current exclusive reliance upon authorization by the practitioner’s own
jurisdiction.”36
Congress intended, therefore, that the “inconsistent with the public interest”
standard be more demanding than the standard of a physician’s licensing state. The
1984 amendments authorized the DEA to enforce the CSA against medical
practitioners who prescribed controlled substances in a manner that “endangers
public health or safety” contrary to the “public interest,” notwithstanding the
nature or content of state law or regulation. Consistent with Congress’s purpose,
33
See also 130 Cong. Rec. 25,852 (1984) (statement of Rep. Rangel); see generally Moore, 423
U.S. at 140-41 (“In the case of a physician th[e] scheme [of the registration provision of the thenexisting CSA] contemplates that he is authorized by the State to practice medicine and to dispense
drugs in connection with his professional practice. The federal registration . . . follows automatically.”).
34
Dangerous Drug Diversion Act of 1984: Hearing on H.R. 5656 Before House Comm. on Health
and the Environment, 98th Cong. 365 (1984) (testimony of Rep. Waxman) (“[d]rugs legally manufactured for use in medicine are responsible for a substantial majority of drug-related deaths and injuries”);
see also 130 Cong. Rec. 25,851 (statement of Rep. Rodino) (“prescription drugs are responsible for
close to 70 percent of the deaths and injuries due to drug abuse”).
35
Dangerous Drug Diversion Control Act of 1984: Hearing on H.R. 5656 Before Subcomm. on
Health and the Environment of House Comm. on Energy and Commerce, 98th Cong. 403-04 (1984)
(statement of Gene R. Haislip, Deputy Assistant Administrator, Drug Enforcement Administration).
36
130 Cong. Rec. 1586 (1984) (statement of Sen. Laxalt); see also 130 Cong. Rec. at 25,851-52
(statement of Rep. Rangel).
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
the public interest standard incorporated in section 824(f) is best understood to
authorize suspension or revocation of the federal registration of a practitioner who
dispenses controlled substances to assist in a suicide, even if such conduct is
permitted under state law.
VI. The CSA’s Preemption Provision Is Consistent with
This Interpretation
The CSA itself includes a provision designed to narrow possible federal
preemption of state law. The provision is found at 21 U.S.C. § 903. Section 903
plainly does not require the Department of Justice to accept Oregon’s determination of what is a “legitimate medical purpose.”
Section 903 reads as follows:
No provision of this subchapter shall be construed as indicating
an intent on the part of the Congress to occupy the field in which that
provision operates, including criminal penalties, to the exclusion of
any State law on the same subject matter which would otherwise be
within the authority of the State, unless there is a positive conflict
between that provision of this subchapter and that State law so that
the two cannot consistently stand together.
21 U.S.C. § 903.
For at least two reasons, we do not think that section 903 affects the conclusion
that assisting in a suicide is not a legitimate medical purpose that would justify a
physician’s dispensing a controlled substance.
First, if section 841(a) and other pertinent parts of the CSA are read and applied
in accordance with the DEA’s regulation, 21 C.F.R. § 1306.04(a), and the
interpretation of it here, it would certainly not follow that the CSA was being
understood to “occupy the field” of regulating the medical profession to the
“exclusion of any State law.”3 7 On the contrary, as we have just shown, the states
remain free to regulate that profession concurrently with the federal government,
as they have done since 1914. Federal regulation of the profession under the CSA
would reach only the dispensing of controlled substances, which is hardly the
37
Congress’s intent to preempt all state law in a particular area may be inferred “where the scheme
of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left
no room’ for supplementary state regulation” or “where the field is one in which ‘the federal interest is
so dominant that the federal system will be assumed to preclude enforcement of state laws on the same
subject.’” Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713 (1985) (citations
omitted). Interpreting the CSA and its regulations to reach the conduct of physicians who dispense
drugs to assist suicide does not require the assumption that Congress intended to occupy the field of
regulation of the medical profession.
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whole field of medical practice. Moreover, states would remain free to regulate
that activity as well, as long as such regulation did not conflict with federal law.
Second, even if our interpretation would make it harder as a practical matter for
Oregon physicians to assist in suicides, the CSA and its regulations as we read
them do not preempt Oregon’s Death With Dignity Act.38 Oregon physicians
remain free under that law to assist in suicides, provided of course that they follow
the procedures that Oregon imposes. All that our interpretation does is to affirm
that dispensing controlled substances in connection with such an assisted suicide
will cause an Oregon physician to be in violation of the CSA. Any method of
assisting in suicides in which an Oregon physician does not dispense a controlled
substance entails no violation of the CSA. The Attorney General’s interpretation
forecloses one, but only one, method of assisting suicide in a manner consistent
with Oregon law.
We respectfully disagree with the contrary opinion of the Oregon Deputy Attorney General. See Oregon Deputy Attorney General Letter, supra note 6, at 7-8.
That Letter argues, in part, that the CSA should not be construed to enable the
Attorney General to regulate the practice of medicine, which is said to be an area
traditionally reserved to the states. We consider that argument to be mistaken.
First, as we have shown, the federal government has regulated the dispensing of
controlled substances by physicians continuously since the Harrison Act of 1914,
and in enacting the CSA in 1970, Congress clearly intended that the Attorney
General continue to do so.39
Second, as we have also shown, the legislative history of the 1984 amendments
to the CSA demonstrates that Congress intended the Attorney General to have
regulatory authority with respect to the conduct of physicians even in circumstances in which that conduct was not sanctionable under state law.
Third, the activity of assisting in suicide should not, in our view, be considered
a “medical” practice solely because it is undertaken by a physician: as we have
shown, physician-assisted suicide has been condemned by the overwhelming
majority of the states and by the leading professional associations of medical and
nursing practitioners. On the theory of the Oregon Deputy Attorney General’s
Letter, an act that was performed by doctors, despite being forbidden by ordinary
professional standards or even punishable elsewhere as a crime, could be transformed into a “medical” practice if a single state were to decide to deem it so; and
that state’s unilateral decision would presumptively place the act beyond the reach
of federal regulation. It would follow that if a state authorized physicians to
38
Cf. Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476 (1996) (per curiam) (state
law preempted only to the extent that it “‘actually conflicts’” with federal law) (citation omitted);
Pharmaceutical Society of State of New York v. Lefkowitz, 586 F.2d 953, 958 (2d Cir. 1978) (no
preemption because no actual conflict).
39
See Moore, 423 U.S. at 132-33.
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Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose”
perform involuntary euthanasia on severely handicapped or mentally retarded
persons, and thus “medicalized” that procedure, the state law could place the
procedure beyond federal regulatory power pursuant to the CSA even if controlled
substances were used. Equally, it would follow that if a state authorized physicians
to prescribe controlled substances to addicts in order to enable them to maintain
their customary use and so avoid discomfort, the federal government would be
unable to prosecute those physicians or to revoke their registrations under the
CSA. We cannot accept these consequences of the theory: no state has the power
to determine unilaterally what practices count as “medical” for purposes of the
CSA.
VII. The DEA Had the Authority to Promulgate and Interpret a
Regulation Concerning Whether Dispensing a Controlled Substance
Has a “Legitimate Medical Purpose”
Finally, we consider the basis of the Attorney General’s authority to determine
that dispensing a controlled substance to assist in a suicide in a state that permits
such conduct on the part of a physician does not serve a “legitimate medical
purpose” under 21 C.F.R. §1306.04 (a).
We address this question because of an apparent ambiguity in the Reno Letter,
supra note 7. The Letter could be understood, not as controverting DEA’s
interpretation of the CSA and the DEA’s own regulations, but rather as making the
jurisdictional claim that the DEA lacked statutory authority to find that a physician’s prescription of controlled substances to assist a suicide in Oregon went
beyond “the course of professional practice,” 21 U.S.C. § 802(21), and did not
serve a “legitimate medical purpose,” 21 C.F.R. § 1306.04(a). See Reno Letter at 3
(“[T]here is no evidence that Congress, in the CSA, intended to assign DEA the
novel role of resolving ‘the earnest and profound debate about the morality,
legality, and practicality of physician-assisted suicide,’ Washington v. Glucksberg,
117 S. Ct. 2258, 2275 (1997), simply because that procedure involves the use of
controlled substances.”). We do not understand the Reno Letter to be making a
jurisdictional point, but rather to be offering its own interpretation of the CSA and
the DEA’s regulations. If, however, the Letter were understood to be putting
forward a jurisdictional claim, we think it would be both misleading and mistaken.
First, it is misleading to raise the question whether Congress assigned responsibility for interpreting and enforcing the CSA to the DEA. It is clear that Congress
assigned that responsibility to the Attorney General, not to the DEA. See 21
U.S.C. § 821 (“The Attorney General is authorized to promulgate rules and
regulations . . . relating to the . . . dispensing of controlled substances . . . and
control of regulated persons and of regulated transactions”) (emphasis added); id.
§ 871(b) (“The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the
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efficient execution of his functions under this subchapter.”) (emphasis added). The
Attorney General is authorized to delegate his or her CSA responsibilities to “any
officer or employee of the Department of Justice,” id. § 871(a), and the Attorney
General determined to delegate those functions to the DEA. See Touby, 500 U.S.
at 169. Thus, if the Reno Letter were construed to be questioning the DEA’s
authority to interpret, for example, what the CSA means by “the course of
professional practice,” 21 U.S.C. § 802(21), it would necessarily be questioning
the authority of the Attorney General to interpret that provision. Such a conclusion
would plainly be at odds with the broad language of the CSA’s authorizing
provisions, id. §§ 821, 871(b).
Second, it is also misleading to say that Congress did not intend to assign to the
DEA the role of resolving the national debate over physician-assisted suicide. Of
course Congress did not intend to do that. What Congress plainly did intend to do
was to give the Attorney General (and, accordingly, his or her delegate, the DEA)
the authority to “promulgate rules and regulations . . . relating to the . . . dispensing of controlled substances and control of regulated persons.” Id. § 821. That is
precisely what the DEA did when it promulgated 21 C.F.R. § 1306.04(a); and it
was well within the scope of DEA’s authority to determine how that regulation
was to be applied to the use of controlled substances in physician-assisted suicides.
Third, the DEA did not undertake to “resolve” the national debate over physician-assisted suicide and should not be faulted for having attempted to do so. The
DEA acts pursuant to delegated authority under an Act of Congress. Congress
remains free to alter the terms on which the DEA acts: it could, for example, carve
out an exception for the use of controlled substances by physicians to assist
suicide. Moreover, the DEA has no power to control the ability of the states to
enact laws permitting (or forbidding) physician-assisted suicide. What DEA could,
and did, properly resolve was that the dispensing of controlled substances by a
physician to assist a suicide did not have a “legitimate medical purpose” within the
meaning of its own regulation, notwithstanding the fact that a single state chose to
legalize physician-assisted suicide. In no way did the DEA preclude open and
vigorous debate in the legislative process on the merits of physician-assisted
suicide.
Fourth, the Reno Letter suggests that the DEA—and, by necessary implication,
the Attorney General—had no authority to adopt an interpretation that addressed
“fundamental questions of morality and public policy.” Reno Letter, supra note 7,
at 3. If that were so, it would follow that the Attorney General had no authority to
decide whether dispensing controlled substances to assist in suicide served a
“legitimate medical purpose” under 21 C.F.R. § 1306.04(a), because in deciding
that question—one way or the other—the Attorney General would unavoidably be
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addressing such moral and policy questions.40 Indeed, it would seem to follow that
that regulation was itself ultra vires—which is clearly a mistaken view.
The truth is that, far from being outside the Attorney General’s mission under
the CSA, addressing such questions is inherent in that mission. See Chevron
U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (“The power of an
administrative agency to administer a congressionally created program necessarily
requires the formulation of policy . . . “) (internal quotation marks, internal ellipses
and citation omitted). If the CSA is to be administered effectively, the Attorney
General must interpret its provisions so as to decide, for example, whether
prescribing of controlled substances in a particular class of cases takes place
within the “course of professional practice,” 21 U.S.C. § 802(21), whether a
physician’s conduct involving such substances “may threaten the public health and
safety,” id. § 823(f)(5), and whether issuing a registration to an applicant would be
“inconsistent with the public interest,” id. § 823(f). Of course such administrative
determinations will require a judgment about public policy.4 1 So do, for example,
administrative determinations as to what constitute “excessive profits” on
government contracts, see Lichter v. United States, 334 U.S. 742, 778-86 (1948),
when commodity prices are “fair and equitable,” see Yakus v. United States, 321
U.S. 414, 426-27 (1944), when rates for the sale of a commodity are “just and
reasonable,” see Federal Power Comm’n v. Hope Gas Co., 320 U.S. 591, 600-02
(1944), when voting power has been “unfairly or inequitably” distributed among
security holders, see American Power & Light Co. v. SEC, 329 U.S. 90, 104
(1946), when broadcast licensing is in the “public interest,” see National Broadcasting Co. v. United States, 319 U.S. 190, 225-26 (1943), or when a new drug
poses an “imminent hazard to the public safety,” see Touby, 500 U.S. at 165. See
generally Whitman v. American Trucking Ass’n, Inc., 531 U.S. 457, 472 (2001).42
As a matter of administrative practice, there was nothing unusual or unauthorized
in the fact that the DEA’s interpretation implicated questions of public policy or
morality.
40
We note that the Reno Letter was itself an administrative interpretation that assumed a particular
view of public policy.
41
Indeed, one of the primary reasons why an agency’s construction of a statute it administers may
be entitled to judicial deference is that it is more appropriate for an agency to make “policy choices”
than it is for the courts. Chevron, 467 U.S. at 865.
42
The Department of Justice may also be required to interpret statutes implicating judgments about
policy or morality when bringing criminal prosecutions or when instituting deportation proceedings.
See, e.g., Jordan v. DeGeorge, 341 U.S. 223, 231 & n.15 (1951) (deportation proceeding based on
alien’s commission of asserted “crime involving moral turpitude;” Court finds that phrase “presents no
greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by
the Court”); see also Kay v. United States, 303 U.S. 1, 3 n.1, 7 (1938) (rejecting argument that statute
making it criminal in some contexts willfully to “overvalue[] any security” was unconstitutionally
vague).
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Accordingly, if the Reno Letter were construed as denying the Attorney General (or the DEA) the statutory authority to reach the question whether prescribing
controlled substances to assist suicide is consistent with the CSA and its implementing regulations in a state that had legalized physician-assisted suicide, the
Letter would be clearly mistaken as a matter of law.
VIII. Conclusion
Based on the foregoing considerations, the conclusion that a physician’s assisting suicide through the dispensing of a controlled substance does not serve a
“legitimate medical purpose” within the meaning of 21 C.F.R. § 1306.04 is the
best reading of that regulation.
SHELDON BRADSHAW
Deputy Assistant Attorney General
Office of Legal Counsel
ROBERT J. DELAHUNTY
Special Counsel
Office of Legal Counsel
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|
Write a legal research memo on the following topic. | Authority of the Federal Bureau of Investigation to
Investigate Police Killings
The Federal Bureau of Investigation is not presently authorized to investigate killings o f
non-federal law enforcement officers which involve only violations of state law, even
in response to a presidential directive.
January 16, 1981
M EM ORANDUM OPIN IO N FO R T H E D IR EC TO R ,
F E D E R A L BUREAU O F IN V ESTIG A TIO N
This responds to your request for our views on the extent of the
Federal Bureau of Investigation’s (FBI’s) authority to investigate the
killing of a non-federal law enforcement officer when requested to do
so by a local law enforcement official. Your question is directed specifi
cally to investigations involving violations of state law but not federal
law. In addition to the threshhold question of authority, you also pose
questions regarding the form o f the request for assistance (whether
written or oral); the need, if any, to seek statutory authority for the
investigation; and the propriety of continuing the investigations in ad
vance of this legislation. We conclude that the FBI does not presently
have the authority to conduct these investigations. The form of the
request for assistance is therefore irrelevant. W hether legislation should
be sought to authorize investigations of this nature depends on whether
the FBI desires to continue to respond to requests for assistance from
local authorities. If so, legislation must be sought; and the FB I has no
authority to conduct such investigations in the interim.
I. Background
The FBI’s investigation of killings of non-federal law enforcement
officers apparently began in response to a presidential directive of
November 1, 1970, from President Nixon to Attorney General M itch
ell.1 Noting the increasing number of assaults on law enforcement
*Our search for communications or memoranda discussing the legality o f the proposed investiga
tions has disclosed no record m the files of this Office or anywhere else in the Department prior to the
date of the directive. W e have also made informal inquiries at the Office of Management and Budget
and have been advised that background documents that may have been connected to President
Nixon’s directive, if any, are no longer retrievable.
45
officers, President Nixon directed the Attorney General “to make avail
able all appropriate investigative resources of the Department of Justice
to w ork jointly with State or local police when requested in any case
involving an assault upon a police officer.” 2 Subsequently, on June 3,
1971, President Nixon met with the Attorney General, the Director of
the FBI, Representatives o f Congress, and 19 police executives from
around the country. The President announced that, in addition to the
previously available services of the FB I laboratory, the Identification
Division, the National Crime Information Center, and the investigation
o f out-of-state leads, the F B I would actively participate in the investi
gation of police killings w hen a local law enforcement agency re
quested the assistance. On June 4, 1971, the FBI Director instructed all
field divisions regarding the new policy, advising them to obtain a
written request for assistance and then “ work the investigation like we
would a bank robbery case, jointly, tow ard the solution of the killing.”
An internal FBI memorandum of June 5, 1971, recognized “the
unique situation involved [,] there being at this time no Federal law
providing penalties for the killing of a local law enforcement officer.”
Accordingly, the memorandum advised that the views of the D epart
ment of Justice should be sought on some of the legal issues incident to
the new policy. By memorandum of the same date, the Director of the
FBI requested an opinion from the Attorney General regarding the
F B I’s jurisdiction to investigate a purely local offense.3
T he Assistant Attorney General in charge o f the Criminal Division
replied by memorandum o f June 28, 1971. Having noted a proposed
line item for inclusion in the F B I’s annual appropriation providing for
investigation o f police killings, the memorandum concluded that FBI
jurisdiction to investigate posed no problem. “Congressional authoriza
tion to expand funds for assistance of state law enforcement activities
appears to us a proper exercise o f the spending power.” 4
T he appropriation apparently relied on in that June 28, 1971, memo
randum was not enacted as proposed; and questions about the FB I’s
jurisdiction continued. On November 1, 1979, the FBI’s Legal Counsel
Division, by memorandum for the Assistant Director, Planning and
Inspection Division, discussed the legality o f FBI investigations of
police killings and concluded that there was no specific statutory au
2A ccording to an internal FBI memorandum of June 4, 1971, the purpose o f the change in policy
was to forestall, if possible, the passage of the many bills pending in Congress which would have
required the FBI to take over the investigation of police killings. T h e FBI has consistently resisted all
such legislation as an instrusion on local law enforcement responsibilities, and, in some cases, as an
excessive demand on FBI investigative resources.
3T he request was primarily concerned with the FB I’s authority to arrest, search, or interrogate a
suspect in connection with a local offense.
4T he memorandum also noted the desirability o f a more explicit statutory authorization for
w arrantless arrests by the FBI in cases not involving violations of federal law. It is not clear from the
memorandum w hether authonty for the investigation o f police killings was thought to exist. But it
does appear that further statutory authonty was thought to be necessary and, moreover, that inclusion
o f the line item in the appropriation w as expected to suffice.
46
thority. The memorandum suggested that the investigations might be
justified because Congress had been made aware of the investigations
by statements by the Director in appropriations hearings. “Subsequent
Congressional action in appropriating funds for these activities could be
construed as tacit approval . . . .” Still, the memorandum recognized
the implication of a memorandum of this Office of March 22, 1978,
entitled “FBI Cooperation with State or Local Authorities,” 5 which
advised that the FBI had no authority to conduct interviews for the
benefit of state and local law enforcement agencies where there was no
possible violation of federal law. Although noting that the March 22
memorandum did not specifically address the question of FBI authority
to act in response to a presidential directive, the Legal Counsel Divi
sion concluded that our memorandum did “point out the necessity for
clarification in this area.” Your request for our advice followed.
II. The FBI’s Legal Authority to Investigate
The FB I’s investigative authority derives from the Attorney Gener
al’s power to appoint officials to detect “crimes against the United
States.” 28 U.S.C. § 533(1). By regulation, the FBI is empowered to
investigate “violations of the laws o f the United States.” 28 C.F.R.
§ 0.85(a) (1980). In construing the extent of this power, this Office has
issued two memoranda, in addition to that o f March 22, 1978, which
are relevant.
In a memorandum of November 9, 1977, for the Director of the
Federal Bureau of Investigation (“ FBI Cooperation with Local Au
thorities”), we discussed various problems arising in the context of FBI
participation in cooperative undercover efforts with local law enforce
ment authorities. We considered first an investigation initiated in the
belief that violations of federal law may be involved, and we concluded
that “[a]s long as there remains a legitimate basis for the view that the
investigation of the underlying conduct may unearth violations of fed
eral law, we believe that the FBI is authorized to proceed with the
investigation.” But we further considered the situation where, as the
cooperative investigation proceeded, it became clear that the activity in
question did not constitute a violation of federal law. We concluded
that the FBI could not in such circumstances continue to cooperate
with local authorities because “[t]he investigation of violations o f state
law alone would be beyond the authority conferred on the FBI by 28
U.S.C. § 533(1) and 28 C.F.R. §0.85.” Moreover, incurring expenses
other than those necessary for the detection and prosecution of crimes
against the United States would result in a violation of 31 U.S.C. § 628,
which precludes expenditures except for the purpose for which the
5
FBI.
A copy of the memorandum, which was in the form of a memorandum to files, was sent to the
47
appropriation was made. T h e only exception that we noted was in the
context o f an investigation from which the F B I’s abrupt withdrawal
would result in a significant likelihood of physical harm to other par
ticipants. In that case, we indicated that the FBI would be justified in
continuing its covert activity to the extent necessary to prevent such
harm.
W e also had occasion to consider related issues in a memorandum of
February 24, 1978, for the D irector o f the Federal Bureau of Investiga
tion (“Responsibility and A uthority of FBI Agents to Respond to
Criminal Offenses Outside th e Statutory Jurisdiction of the FB I”). That
m emorandum dealt with the commission of state law offenses in the
presence or immediate vicinity of an FB I agent who then acts either on
his ow n accord or in response to a summons by a local law enforce
m ent officer to detain or arrest the offender. We stated at the outset
that we thought it “clear th at the FB I has no federal authority to take
action with respect to violations o f state law, even in the exigent
circumstances . . . presented].” Noting that the FBI’s statutory juris
diction in every respect—investigation, execution of search or arrest
warrants, and making arrests without warrants—was limited to acts
involving violations of the laws of the United States, we concluded that
“ [a]ny action taken with respect to the violation of state or local law
w ould thus be beyond the F B I’s explicit statutory authority.” We did
find, however, that certain exigent circumstances would give rise to an
agent’s obligation and pow er under state law to intervene in state
offenses, specifically, if state law designated the agent a peace officer, if
the common law authorized a private citizen to act, or if the common
law or state statutory law required a bystander to respond to a sum
mons by a local law enforcement officer.
W e see nothing in the question o f FBI authority that you now raise
that would permit a different answer than that which follows from the
plain language o f § 533(1) itself and from our three prior memoranda.6
6 W e cannot find congressional approval of the investigations through the device of FBI appropria
tions following hearings at which D irector Hoover referred to the practice. It is true that congres
sional ratification by subsequent appropriations has been found on occasion, see Ivanhoe Irrig. Disi. v.
McCracken. 357 U.S. 275, 292-94 (1958); Brooks v. Dewar, 313 U.S. 354, 360-61 (1941); Sibbach v.
Wilson & Co.. 312 U.S. 1, 15-16 (1941); United States v. Midwest Oil Co.. 236 U.S. 459, 481 (1915). For
a number o f reasons, however, we find no such ratification here. First, the asserted congressional
awareness in this case goes no further than a single committee. Moreover, it is the Appropriations
Committee, which has no jurisdiction over FBI activities and whose work is limited, by House and
Senate rules, to non-substantive legislation. See TVA v. Hill, 437 U.S. 153, 189-192 (1978). Second, the
unambiguous language of the statute is too plain to admit of a different construction, which is the
usefulness o f the doctrine o f congressional acquiesence. Jones v. Liberty Glass Co.. 332 U.S. 524, 533—
34, (1947); First Nat. City Bank v. United States. 557 F.2d 1379, 1384 (Ct. Cl. 1977) In these
circumstances, w e would not be giving effect to a “construction** o f the statute; rather, w e would be
recognizing a repeal (of the limitation on FBI jurisdiction) by implication. See TVA v. Hill, supra; see
also S E C v. Sloan, 436 U.S. 103, 121 (1978).
N or can w e find that the agency practice is entitled to the deference that arises in other cases from
consistent and longstanding administrative interpretation. Such deference cannot be paid where the
practice is inconsistent with or in excess of statutory authority. E .g, VolksWagenwerk v. FMC, 390
U.S. 261, 272 (1968); Opinion of the A ttorney General for the Secretary of Agriculture, June 23, 1980,
at 12 [4 Op. O.L.C. 30, 38 (1980)]. See S E C v. Sloan. 436 U.S. at 117-19.
48
If there is no reasonable expectation that the investigation will lead to
evidence of a violation o f federal law—and you specifically pose only
the situation w here there is none—there is no FBI jurisdiction or
authority to investigate. None of the exceptions to this general rule
outlined in our prior memoranda is applicable here. First, the authority
to begin an investigation cannot be premised on the danger to other
law enforcement officials or informers that might result if the FB I were
to withdraw from the investigation. Second, the authority under the
common law to act upon certain exigencies for crime prevention or
apprehension of offenders does not extend to investigations of crimes
already committed. Third, state statutory law, although it might con
ceivably confer investigative authority, could not authorize expendi
tures that would be incurred in the course of an investigation. The
proscriptions of 31 U.S.C. § 628 would still apply.7
The Legal Counsel Division’s Memorandum appears to suggest that
our well-established view of FBI jurisdiction might be different if, as
here, the activity was bottomed on a presidential directive. Under 28
U.S.C. § 533(3), the Attorney General may appoint officials “to con
duct such other investigations regarding official matters under the con
trol of the Departm ent of Justice and the Department of State as may
be directed by the Attorney General.” We have previously recognized
that pursuant to this section, the FBI could conduct such investigations
as were ordered by a presidential directive related to the President’s
exercise o f his constitutional or statutory functions. Memorandum o f
June 16, 1976, from Assistant Attorney General Scalia, Office o f Legal
Counsel, to Associate Deputy Attorney General Giuliani (“FBI Au
thority to Conduct Investigations of Potential Vice-Presidential Nomi
nees”).8 But we see no reason to believe that the purpose of an investi
gation of a police killing is related to any specific statutory or constitu-
7 We did not address 31 U.S.C. § 628 in our memorandum of February 24, 1978, possibly because an
agent’s actions in arresting or detaining a state law violator m an emergency situation involve no
extraordinary expenses.
5 The memorandum concluded that no constitutional or statutory authority existed to support a
presidential directive to the FBI to investigate possible vice-presidential nominees, and so there was no
discussion of how directly related the investigation must be. The memorandum does suggest, however,
that more than an indirect relation is required Although recognizing that the President's general
powers to “take care that the laws be faithfully executed," U.S. Const., Art. II, § 3, or his nominating
powers, Art. II, § 2, could provide the basis for certain investigations, we nevertheless concluded that
neither justification would apply in the case of a vice-presidential nominee; for the President has no
responsibility o r powers under the Constitution to screen candidates for public office. W e further
considered the President’s need to assure the trustworthiness of a candidate who would receive a
national security briefing. But we found no practice of providing such briefing to vice-presidential
candidates and, moreover, a “possible constitutional impediment to conditioning the conferral of such
a clear benefit in the political campaign, upon agreement to an investigation, particularly when the
incumbent President himself is an opposing candidate.”
49
tional pow er o f the President.9 Thus, this purported investigatory
pow er is not authorized by 28 U.S.C. § 533(3).10
III. Proposals for Legislation
You also asked, in the event that we determined that the FBI lacked
the authority to investigate police killings, that we advise whether
authorizing legislation can or should be sought. The question whether
legislation should be sought is a policy decision. However, if such
investigations are to continue, legislation will be required. We see no
constitutional infirmity w ith either o f two legislative proposals that
have been considered in the past. First, the killing of a police officer
could be made a federal crime, as to which the FBI already possesses
investigative authority under 28 U.S.C. § 533(1). Second, specific inves
tigative authority for police killings could be added to the FBI jurisdic
tion conferred under 28 U.S.C. § 533. Such authority could be condi
tioned upon a request for assistance by a local law enforcement agency,
or it could be conferred in all police killing cases. We have no doubt
about the sufficiency of the federal interest in local law enforcement to
enable Congress to proceed either by amendment to the criminal code
or to § 533.
Jo h n M. H arm on
Assistant Attorney General
Office o f Legal Counsel
9 In view o f our conclusion that 28 U.S.C. §533(3) does not apply, we have no occasion to
determ ine w hat particular action is necessary to invoke the powers under that section. We do note,
how ever, that the directive of Novem ber 1, 1970, charged only that the A ttorney General should use
“all appropriate investigative resources” (emphasis added) and did not purport to be an independent
basis o f investigative authonty pursuant to § 533(3). W e should add, moreover, that although it is not
possible conclusively to determine w hat was meant in the directive by “appropriate” resources, it does
appear that the directive was thought to be the basis for investigations not previously within the FBI's
range o f operations. T hat is, we d o not believe that the directive was intended only to authorize FBI
investigations where “appropriate” under existing statutory authority and agency practice. In light of
o u r conclusion, however, that investigations of non-federal offenses are outside the FBI's jurisdiction,
we would now read the directive merely to emphasize that FBI resources may be used in an
“appropriate” case, e.g., where there is a reasonable likelihood of uncovering a violation o f federal
law, and in an “appropriate" manner, e.g., as determ ined by law enforcement officials in their expertise
and in light o f all the circumstances.
10 M oreover, in the absense o f any authority under either § 533(1) or § 533(3) for the FBI to act
upon a request by a state or local law enforcement official for investigative assistance, the form of the
request, w hether written or oral, is o f course irrelevant.
50 |
|
Write a legal research memo on the following topic. | Authority of the Federal Bureau of Investigation to
Investigate Police Killings
The Federal Bureau of Investigation is not presently authorized to investigate killings o f
non-federal law enforcement officers which involve only violations of state law, even
in response to a presidential directive.
January 16, 1981
M EM ORANDUM OPIN IO N FO R T H E D IR EC TO R ,
F E D E R A L BUREAU O F IN V ESTIG A TIO N
This responds to your request for our views on the extent of the
Federal Bureau of Investigation’s (FBI’s) authority to investigate the
killing of a non-federal law enforcement officer when requested to do
so by a local law enforcement official. Your question is directed specifi
cally to investigations involving violations of state law but not federal
law. In addition to the threshhold question of authority, you also pose
questions regarding the form o f the request for assistance (whether
written or oral); the need, if any, to seek statutory authority for the
investigation; and the propriety of continuing the investigations in ad
vance of this legislation. We conclude that the FBI does not presently
have the authority to conduct these investigations. The form of the
request for assistance is therefore irrelevant. W hether legislation should
be sought to authorize investigations of this nature depends on whether
the FBI desires to continue to respond to requests for assistance from
local authorities. If so, legislation must be sought; and the FB I has no
authority to conduct such investigations in the interim.
I. Background
The FBI’s investigation of killings of non-federal law enforcement
officers apparently began in response to a presidential directive of
November 1, 1970, from President Nixon to Attorney General M itch
ell.1 Noting the increasing number of assaults on law enforcement
*Our search for communications or memoranda discussing the legality o f the proposed investiga
tions has disclosed no record m the files of this Office or anywhere else in the Department prior to the
date of the directive. W e have also made informal inquiries at the Office of Management and Budget
and have been advised that background documents that may have been connected to President
Nixon’s directive, if any, are no longer retrievable.
45
officers, President Nixon directed the Attorney General “to make avail
able all appropriate investigative resources of the Department of Justice
to w ork jointly with State or local police when requested in any case
involving an assault upon a police officer.” 2 Subsequently, on June 3,
1971, President Nixon met with the Attorney General, the Director of
the FBI, Representatives o f Congress, and 19 police executives from
around the country. The President announced that, in addition to the
previously available services of the FB I laboratory, the Identification
Division, the National Crime Information Center, and the investigation
o f out-of-state leads, the F B I would actively participate in the investi
gation of police killings w hen a local law enforcement agency re
quested the assistance. On June 4, 1971, the FBI Director instructed all
field divisions regarding the new policy, advising them to obtain a
written request for assistance and then “ work the investigation like we
would a bank robbery case, jointly, tow ard the solution of the killing.”
An internal FBI memorandum of June 5, 1971, recognized “the
unique situation involved [,] there being at this time no Federal law
providing penalties for the killing of a local law enforcement officer.”
Accordingly, the memorandum advised that the views of the D epart
ment of Justice should be sought on some of the legal issues incident to
the new policy. By memorandum of the same date, the Director of the
FBI requested an opinion from the Attorney General regarding the
F B I’s jurisdiction to investigate a purely local offense.3
T he Assistant Attorney General in charge o f the Criminal Division
replied by memorandum o f June 28, 1971. Having noted a proposed
line item for inclusion in the F B I’s annual appropriation providing for
investigation o f police killings, the memorandum concluded that FBI
jurisdiction to investigate posed no problem. “Congressional authoriza
tion to expand funds for assistance of state law enforcement activities
appears to us a proper exercise o f the spending power.” 4
T he appropriation apparently relied on in that June 28, 1971, memo
randum was not enacted as proposed; and questions about the FB I’s
jurisdiction continued. On November 1, 1979, the FBI’s Legal Counsel
Division, by memorandum for the Assistant Director, Planning and
Inspection Division, discussed the legality o f FBI investigations of
police killings and concluded that there was no specific statutory au
2A ccording to an internal FBI memorandum of June 4, 1971, the purpose o f the change in policy
was to forestall, if possible, the passage of the many bills pending in Congress which would have
required the FBI to take over the investigation of police killings. T h e FBI has consistently resisted all
such legislation as an instrusion on local law enforcement responsibilities, and, in some cases, as an
excessive demand on FBI investigative resources.
3T he request was primarily concerned with the FB I’s authority to arrest, search, or interrogate a
suspect in connection with a local offense.
4T he memorandum also noted the desirability o f a more explicit statutory authorization for
w arrantless arrests by the FBI in cases not involving violations of federal law. It is not clear from the
memorandum w hether authonty for the investigation o f police killings was thought to exist. But it
does appear that further statutory authonty was thought to be necessary and, moreover, that inclusion
o f the line item in the appropriation w as expected to suffice.
46
thority. The memorandum suggested that the investigations might be
justified because Congress had been made aware of the investigations
by statements by the Director in appropriations hearings. “Subsequent
Congressional action in appropriating funds for these activities could be
construed as tacit approval . . . .” Still, the memorandum recognized
the implication of a memorandum of this Office of March 22, 1978,
entitled “FBI Cooperation with State or Local Authorities,” 5 which
advised that the FBI had no authority to conduct interviews for the
benefit of state and local law enforcement agencies where there was no
possible violation of federal law. Although noting that the March 22
memorandum did not specifically address the question of FBI authority
to act in response to a presidential directive, the Legal Counsel Divi
sion concluded that our memorandum did “point out the necessity for
clarification in this area.” Your request for our advice followed.
II. The FBI’s Legal Authority to Investigate
The FB I’s investigative authority derives from the Attorney Gener
al’s power to appoint officials to detect “crimes against the United
States.” 28 U.S.C. § 533(1). By regulation, the FBI is empowered to
investigate “violations of the laws o f the United States.” 28 C.F.R.
§ 0.85(a) (1980). In construing the extent of this power, this Office has
issued two memoranda, in addition to that o f March 22, 1978, which
are relevant.
In a memorandum of November 9, 1977, for the Director of the
Federal Bureau of Investigation (“ FBI Cooperation with Local Au
thorities”), we discussed various problems arising in the context of FBI
participation in cooperative undercover efforts with local law enforce
ment authorities. We considered first an investigation initiated in the
belief that violations of federal law may be involved, and we concluded
that “[a]s long as there remains a legitimate basis for the view that the
investigation of the underlying conduct may unearth violations of fed
eral law, we believe that the FBI is authorized to proceed with the
investigation.” But we further considered the situation where, as the
cooperative investigation proceeded, it became clear that the activity in
question did not constitute a violation of federal law. We concluded
that the FBI could not in such circumstances continue to cooperate
with local authorities because “[t]he investigation of violations o f state
law alone would be beyond the authority conferred on the FBI by 28
U.S.C. § 533(1) and 28 C.F.R. §0.85.” Moreover, incurring expenses
other than those necessary for the detection and prosecution of crimes
against the United States would result in a violation of 31 U.S.C. § 628,
which precludes expenditures except for the purpose for which the
5
FBI.
A copy of the memorandum, which was in the form of a memorandum to files, was sent to the
47
appropriation was made. T h e only exception that we noted was in the
context o f an investigation from which the F B I’s abrupt withdrawal
would result in a significant likelihood of physical harm to other par
ticipants. In that case, we indicated that the FBI would be justified in
continuing its covert activity to the extent necessary to prevent such
harm.
W e also had occasion to consider related issues in a memorandum of
February 24, 1978, for the D irector o f the Federal Bureau of Investiga
tion (“Responsibility and A uthority of FBI Agents to Respond to
Criminal Offenses Outside th e Statutory Jurisdiction of the FB I”). That
m emorandum dealt with the commission of state law offenses in the
presence or immediate vicinity of an FB I agent who then acts either on
his ow n accord or in response to a summons by a local law enforce
m ent officer to detain or arrest the offender. We stated at the outset
that we thought it “clear th at the FB I has no federal authority to take
action with respect to violations o f state law, even in the exigent
circumstances . . . presented].” Noting that the FBI’s statutory juris
diction in every respect—investigation, execution of search or arrest
warrants, and making arrests without warrants—was limited to acts
involving violations of the laws of the United States, we concluded that
“ [a]ny action taken with respect to the violation of state or local law
w ould thus be beyond the F B I’s explicit statutory authority.” We did
find, however, that certain exigent circumstances would give rise to an
agent’s obligation and pow er under state law to intervene in state
offenses, specifically, if state law designated the agent a peace officer, if
the common law authorized a private citizen to act, or if the common
law or state statutory law required a bystander to respond to a sum
mons by a local law enforcement officer.
W e see nothing in the question o f FBI authority that you now raise
that would permit a different answer than that which follows from the
plain language o f § 533(1) itself and from our three prior memoranda.6
6 W e cannot find congressional approval of the investigations through the device of FBI appropria
tions following hearings at which D irector Hoover referred to the practice. It is true that congres
sional ratification by subsequent appropriations has been found on occasion, see Ivanhoe Irrig. Disi. v.
McCracken. 357 U.S. 275, 292-94 (1958); Brooks v. Dewar, 313 U.S. 354, 360-61 (1941); Sibbach v.
Wilson & Co.. 312 U.S. 1, 15-16 (1941); United States v. Midwest Oil Co.. 236 U.S. 459, 481 (1915). For
a number o f reasons, however, we find no such ratification here. First, the asserted congressional
awareness in this case goes no further than a single committee. Moreover, it is the Appropriations
Committee, which has no jurisdiction over FBI activities and whose work is limited, by House and
Senate rules, to non-substantive legislation. See TVA v. Hill, 437 U.S. 153, 189-192 (1978). Second, the
unambiguous language of the statute is too plain to admit of a different construction, which is the
usefulness o f the doctrine o f congressional acquiesence. Jones v. Liberty Glass Co.. 332 U.S. 524, 533—
34, (1947); First Nat. City Bank v. United States. 557 F.2d 1379, 1384 (Ct. Cl. 1977) In these
circumstances, w e would not be giving effect to a “construction** o f the statute; rather, w e would be
recognizing a repeal (of the limitation on FBI jurisdiction) by implication. See TVA v. Hill, supra; see
also S E C v. Sloan, 436 U.S. 103, 121 (1978).
N or can w e find that the agency practice is entitled to the deference that arises in other cases from
consistent and longstanding administrative interpretation. Such deference cannot be paid where the
practice is inconsistent with or in excess of statutory authority. E .g, VolksWagenwerk v. FMC, 390
U.S. 261, 272 (1968); Opinion of the A ttorney General for the Secretary of Agriculture, June 23, 1980,
at 12 [4 Op. O.L.C. 30, 38 (1980)]. See S E C v. Sloan. 436 U.S. at 117-19.
48
If there is no reasonable expectation that the investigation will lead to
evidence of a violation o f federal law—and you specifically pose only
the situation w here there is none—there is no FBI jurisdiction or
authority to investigate. None of the exceptions to this general rule
outlined in our prior memoranda is applicable here. First, the authority
to begin an investigation cannot be premised on the danger to other
law enforcement officials or informers that might result if the FB I were
to withdraw from the investigation. Second, the authority under the
common law to act upon certain exigencies for crime prevention or
apprehension of offenders does not extend to investigations of crimes
already committed. Third, state statutory law, although it might con
ceivably confer investigative authority, could not authorize expendi
tures that would be incurred in the course of an investigation. The
proscriptions of 31 U.S.C. § 628 would still apply.7
The Legal Counsel Division’s Memorandum appears to suggest that
our well-established view of FBI jurisdiction might be different if, as
here, the activity was bottomed on a presidential directive. Under 28
U.S.C. § 533(3), the Attorney General may appoint officials “to con
duct such other investigations regarding official matters under the con
trol of the Departm ent of Justice and the Department of State as may
be directed by the Attorney General.” We have previously recognized
that pursuant to this section, the FBI could conduct such investigations
as were ordered by a presidential directive related to the President’s
exercise o f his constitutional or statutory functions. Memorandum o f
June 16, 1976, from Assistant Attorney General Scalia, Office o f Legal
Counsel, to Associate Deputy Attorney General Giuliani (“FBI Au
thority to Conduct Investigations of Potential Vice-Presidential Nomi
nees”).8 But we see no reason to believe that the purpose of an investi
gation of a police killing is related to any specific statutory or constitu-
7 We did not address 31 U.S.C. § 628 in our memorandum of February 24, 1978, possibly because an
agent’s actions in arresting or detaining a state law violator m an emergency situation involve no
extraordinary expenses.
5 The memorandum concluded that no constitutional or statutory authority existed to support a
presidential directive to the FBI to investigate possible vice-presidential nominees, and so there was no
discussion of how directly related the investigation must be. The memorandum does suggest, however,
that more than an indirect relation is required Although recognizing that the President's general
powers to “take care that the laws be faithfully executed," U.S. Const., Art. II, § 3, or his nominating
powers, Art. II, § 2, could provide the basis for certain investigations, we nevertheless concluded that
neither justification would apply in the case of a vice-presidential nominee; for the President has no
responsibility o r powers under the Constitution to screen candidates for public office. W e further
considered the President’s need to assure the trustworthiness of a candidate who would receive a
national security briefing. But we found no practice of providing such briefing to vice-presidential
candidates and, moreover, a “possible constitutional impediment to conditioning the conferral of such
a clear benefit in the political campaign, upon agreement to an investigation, particularly when the
incumbent President himself is an opposing candidate.”
49
tional pow er o f the President.9 Thus, this purported investigatory
pow er is not authorized by 28 U.S.C. § 533(3).10
III. Proposals for Legislation
You also asked, in the event that we determined that the FBI lacked
the authority to investigate police killings, that we advise whether
authorizing legislation can or should be sought. The question whether
legislation should be sought is a policy decision. However, if such
investigations are to continue, legislation will be required. We see no
constitutional infirmity w ith either o f two legislative proposals that
have been considered in the past. First, the killing of a police officer
could be made a federal crime, as to which the FBI already possesses
investigative authority under 28 U.S.C. § 533(1). Second, specific inves
tigative authority for police killings could be added to the FBI jurisdic
tion conferred under 28 U.S.C. § 533. Such authority could be condi
tioned upon a request for assistance by a local law enforcement agency,
or it could be conferred in all police killing cases. We have no doubt
about the sufficiency of the federal interest in local law enforcement to
enable Congress to proceed either by amendment to the criminal code
or to § 533.
Jo h n M. H arm on
Assistant Attorney General
Office o f Legal Counsel
9 In view o f our conclusion that 28 U.S.C. §533(3) does not apply, we have no occasion to
determ ine w hat particular action is necessary to invoke the powers under that section. We do note,
how ever, that the directive of Novem ber 1, 1970, charged only that the A ttorney General should use
“all appropriate investigative resources” (emphasis added) and did not purport to be an independent
basis o f investigative authonty pursuant to § 533(3). W e should add, moreover, that although it is not
possible conclusively to determine w hat was meant in the directive by “appropriate” resources, it does
appear that the directive was thought to be the basis for investigations not previously within the FBI's
range o f operations. T hat is, we d o not believe that the directive was intended only to authorize FBI
investigations where “appropriate” under existing statutory authority and agency practice. In light of
o u r conclusion, however, that investigations of non-federal offenses are outside the FBI's jurisdiction,
we would now read the directive merely to emphasize that FBI resources may be used in an
“appropriate” case, e.g., where there is a reasonable likelihood of uncovering a violation o f federal
law, and in an “appropriate" manner, e.g., as determ ined by law enforcement officials in their expertise
and in light o f all the circumstances.
10 M oreover, in the absense o f any authority under either § 533(1) or § 533(3) for the FBI to act
upon a request by a state or local law enforcement official for investigative assistance, the form of the
request, w hether written or oral, is o f course irrelevant.
50 |
|
Write a legal research memo on the following topic. | February 24, 1977
77-9
MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Conflict of Interest—Status of an Informal
Presidential Advisor as a “Special Government
Employee”
A question has arisen as to whether Mr. A should be regarded as a
special Government employee for purposes of the Federal conflict-ofinterest laws. Generally, M r. A advises the President almost daily,
principally on an informal basis. This essentially personal relationship
would not in itself result in Mr. A’s being a Government employee or
special Government employee. However, as explained in the latter part
o f this memorandum, Mr. A should be designated as a special Govern
ment employee in connection with his work on a current social issue
that is o f concern to the Administration.
The term “employee” is not defined in the conflict-of-interest laws,
but it was no doubt intended to contemplate an employer-employee
relationship as that term is understood in other areas of the law.
Perhaps the most obvious source of a definition under Federal law is in
the civil service laws. For purposes of Title 5 of the United States
Code, a person is regarded as an “officer” or “employee” of the United
States if he or she (1) is appointed in the civil service by a Federal
officer or employee; (2) is engaged in the performance of a Federal
function under authoriy of law; and (3) is subject to the supervision of a
Federal officer or employee while engaged in the duties of his or her
position. See 5 U.S.C. §§2104, 2105. A review of our files and other
available material reveals that variants of these same three factors have,
in fact, been utilized in one context or another under the conflict-ofinterest laws.
For example, the first criterion under the civil service test—that the
person be appointed in the civil service 1—is analogous to the definition
of the term “special Government employee” for purposes of the con1
T h e “civil service” includes all appointive positions in the executive branch. 5 U.S.C.
§ 2101 .
20
flict-of-interest laws: an officer or employee “who is retained, designat
ed, appointed, or employed” to perform duties not to exceed 130 out of
the next 365 calendar days. 18 U.S.C. § 202(a). The quoted phrase
connotes a formal relationship between the individual and the G overn
ment. See B. Manning, Federal Conflict of Interest Law, 27, 34 (1964).
In the usual case, this formal relationship is based on an identifiable act
of appointment. Id.,2 However, 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. We are not aware that Mr. A has been
officially “retained, designated, appointed, or employed” as an adviser
to the President or that there is any other basis for inferring a relatively
formal relationship insofar as Mr. A ’s advising the President is con
cerned.
The second criterion under the civil service laws is that the person
be engaged in the performance of a Federal function under authority of
law. It seems doubtful that Mr. A ’s essentially personal advice on a
wide variety of issues would be regarded as a Federal function under
this test.
The third civil service factor—that the individual work under the
supervision of a Federal officer or employee—is closely related to the
second. It has been of importance in the conflict-of-interest area primar
ily in determining whether an individual is an independent contractor
rather than an employee and therefore not subject to the conflict-ofinterest laws. For example, if a person is hired to conduct a study using
his own judgment and resources and then turn over the end product to
the agency, he would probably be regarded as an independent contrac
tor. On the other hand, if a person works on Government premises
under the direction of Government personnel and performs work of a
kind normally handled by Government employees, he is probably an
employee. Manning, supra, at 32-33. The question is obviously one of
degree, but the distinction between an employee and an independent
contractor, based primarily on the element of supervision and the
nature of the work, is well recognized in other areas of the law. See,
e.g., United States v. Orleans, 425 U.S. 807 (1976) (tort claims); N L R B
v. Hearst, 322 U.S. I l l (1944) (Labor). We have taken this same
approach in the past under the conflict-of-interest laws. See also Man
ning, supra, at 32-33. Again, given the largely personal relationship
between the President and Mr. A, apparently based on mutual respect
rather than an assignment of duties, it seems doubtful that Mr. A
ordinarily consults with the President under the latter’s supervision,
2 Appendix C to C hapter 735 o f the F ederal Personnel M anual provides detailed
guidelines for agencies to follow in appointing consultants and o th er tem porary em ploy
ees, principally to ensure that they are officially designated as special G overnm ent
employees. These guidelines o f course reinforce the requirem ent o f a formal relationship.
21
direction, or control as that concept is applied in the conflict-of-interest
and similar laws or engages in the type of work ordinarily performed
by Governm ent employees.
It is our conclusion, for the reasons given above, that Mr. A does not
have to be designated as a special Government employee and abide by
the restrictions of the conflict-of-interest laws applicable to such em
ployees solely by virtue of his informal consultations with the Presi
dent.
The conclusion is, for the most part, consistent with the position of
Professor Manning, a noted commentator on the conflict-of-interest
laws:
One does not become an “employee of the United States” merely
by voicing an opinion on government matters to a federal official
at a cocktail party. The distinction may be shadowy in a particular
case, and each situation must be judged on its own facts. Formali
ties can play an important part. In the ordinary situation, a person
will not be considered to be a consultant-employee if he does not
bear a formal appointment, is not enrolled on the personnel roster
of the relevant agency, has no government personnel file in his
name, and has not been sworn in or signed the customary oath of a
government employee. O ther factors that might be relevant can be
conjectured. Is the person’s advice solicited frequently? Is it sought
by one official, who may be a personal friend, or impersonally by a
number of persons in a government agency that needs expert
counsel? D o meetings take place during office hours? Are they
conducted in the government office, and does, perhaps, the adviser
maintain a desk or working materials in government facilities?
Manning, supra, at 29-30.
This conclusion is also consistent with the prior position of this
Office. By letter dated April 10, 1968, we advised the Acting Director
of the Office of Foreign Direct Investments in the Department of
Commerce that if he were to turn on occasion to a single expen or a
group of such experts for informal advice on a particular regulation or
policy, that would not make the experts “employees” for conflict-ofinterest purposes.
As mentioned earlier, Mr. A speaks with the President almost every
day by telephone, and these discussions cover a wide range of policy
issues. The passage just quoted from Professor Manning’s book and our
1968 memorandum both appear to attach some significance to the
frequency of consultation. But we do not believe the mere fact that Mr.
A speaks with the President on a regular basis in itself alters the
fundamentally personal nature of the relationship that is apparently
involved here, just as Mrs. Carter would not be regarded as a special
Governm ent employee solely on the ground that she may discuss gov
ernmental matters with the President on a daily basis.
22
Mr. A, however, seems to have departed from his usual role o f an
informal adviser to the President in connection with his recent work on
a current social issue. Mr. A has called and chaired a number of
meetings that were attended by employees of various agencies, in rela
tion to this work, and he has assumed considerable responsibility for
coordinating the Administration’s activities in that particular area. Mr.
A is quite clearly engaging in a governmental function when he per
forms these duties, and he presumably is working under the direction or
supervision of the President. For this reason, Mr. A should be designat
ed as a special Government employee for purposes of this work—
assuming that a good faith estimate can be made that he will perform
official duties relating to that work for no more than 130 out of the
next 365 consecutive days. If he is expected to perform these services
for more than 130 days, he should be regarded as a regular employee.
In either case, he should be formally appointed and take an oath of
office. This formal designation would not necessarily affect the conclu
sion that Mr. A’s other consultations with the President are o f a
personal rather than official nature. Should Mr. A assume governmental
responsibilities in other areas, as he has done with his work on the
above project, he should be regarded as a Government employee for
these other purposes as well.
John M . H
armon
Acting Assistant Attorney General
Office o f Legal Counsel
23 |
|
Write a legal research memo on the following topic. | Department of Transportation Authority to Exempt
Canadian Truck Drivers From Criminal Liability
for Transporting Explosives
The Department of Transportation possesses the authority to issue a regulation that, under section
845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section
842(i) of that title.
The Department of Transportation, however, has not issued such a regulation, and therefore section
842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.
February 6, 2003
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF TRANSPORTATION
AND
THE ACTING CHIEF COUNSEL
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES
We have been asked by the Department of Transportation (“DoT”) and the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to resolve a
dispute regarding section 1123(b) of the Safe Explosives Act, Pub. L. No. 107296, 116 Stat. 2135, 2284 (2002) (the “Act”), which became effective January 24,
2003.1 In particular, we have been asked to address the application of this provision to Canadian truck drivers who “ship or transport” or “receive or possess”
explosives in interstate or foreign commerce. Because of the exceedingly short
time period we were given to provide our advice, we have limited our discussion
to this particular fact situation.
Section 1123(b) of the Act amended section 842(i) of title 18, United States
Code, by adding several categories to the list of prohibited persons who may not
lawfully “ship or transport any explosive in interstate or foreign commerce” or
“receive or possess any explosive which has been shipped or transported in
interstate or foreign commerce.” The existing law covered any person who was a
felon, a fugitive from justice, an unlawful user or addict of any controlled
substance, or had been “adjudicated as a mental defective.” 18 U.S.C. § 842(i)
(2000). The Act added three new categories of persons: aliens (excluding aliens
lawfully admitted for permanent residence, as defined by section 101(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20), and four narrow categories of aliens present in the United States for specific purposes), persons
dishonorably discharged from the armed forces, and former citizens of the United
States who have renounced their citizenship. Pub. L. No. 107-296, § 1123(b), 116
Stat. at 2284. Section 1126 of the Act authorizes the Attorney General to grant
1
See Homeland Security Act of 2002, Pub. L. No. 107-296, § 4, 116 Stat. 2135, 2142 (2002).
38
DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability
relief from this prohibition if he “determines that the circumstances regarding the
applicability of section 842(i), and the applicant’s record and reputation, are such
that the applicant will not be likely to act in a manner dangerous to public safety
and that the granting of such relief is not contrary to the public interest.” 116 Stat.
at 2285 (to be codified at 18 U.S.C. § 845(b)(2)).
Section 845(a)(1) of title 18 provides exemptions to some of the criminal prohibitions contained in chapter 40 of title 18, including the prohibition contained in
section 842(i). The relevant exemption here states that the provisions of section
842(i) “shall not apply to . . . any aspect of the transportation of explosive
materials via railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which pertain to
safety.” 18 U.S.C. § 845(a)(1).
The question presented for resolution by our Office is whether the prohibition
in section 842(i) on “alien[s]” “ship[ping] or transport[ing]” or “receiv[ing] or
possess[ing]” explosives forbids Canadian truck drivers from driving explosives
into the United States. ATF posits that the answer to that question is “yes,” and
that the sole mechanism for these truckers to obtain relief from this prohibition is
to apply to ATF for “relief from disabilities” under section 845(b), as amended.
DoT, by contrast, argues that the exemption contained in section 845(a)(1)
provides an exemption from criminal liability for the Canadian truck drivers.
For the reasons set forth below, we conclude that DoT possesses the authority
to issue a regulation that, under section 845(a)(1), would exempt Canadian truck
drivers from criminal liability under section 842(i). We further conclude, however,
that DoT has not issued such a regulation and therefore section 842(i) liability
would attach to a Canadian truck driver transporting explosives in the United
States.
I.
As noted above, section 845(a) of title 18 provides exemptions to some of the
criminal prohibitions contained in chapter 40 of title 18, including the prohibition
contained in section 842(i).2 The relevant exemption states that the provisions of
section 842(i) “shall not apply to . . . any aspect of the transportation of explosive
materials via railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which pertain to
safety.” 18 U.S.C. § 845(a)(1) (2000). To decide whether section 845(a)(1)
provides an exemption from criminal liability for the Canadian truck drivers, we
2
Section 845(a)(1) does not apply to the criminal offenses statutorily excepted from the exemption.
See 18 U.S.C. § 845(a)(1) (“Except in the case of subsection (l), (m), (n), or (o) of section 842 and
subsections (d), (e), (f), (g), (h), and (i) of section 844 of this title, [chapter 40] shall not apply to . . .
any aspect of the transportation . . . .”).
39
Opinions of the Office of Legal Counsel in Volume 27
first define the reach of the exemption and then discuss whether DoT has issued a
regulation that falls within section 845(a)(1).
A.
The precise contours of the exemption in section 845(a)(1) are not easy to
discern from the statutory text. The exemption uses two plural verbs—“are” and
“pertain”—stating that the criminal provisions of chapter 40 “shall not apply to . . .
any aspect of the transportation of explosive materials . . . which are regulated by”
DoT “and which pertain to safety.” Plural verbs, of course, must correspond to a
plural subject. And the only possible plural subject in section 845(a)(1) is the noun
“materials.”3 A literal reading of this language would therefore lead to the
conclusion that the exemption is triggered by any DoT regulation of the explosive
materials in question. And, indeed, two courts have read the exemption this way.
See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973) (“The
exception refers to materials which are regulated by the Department”); id. (“the
dynamite which Illingworth carried with him on the planes was . . . regulated”);
United States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992) (“A
proper grammatical reading of the exception results in an interpretation that
provides that if the explosive materials transported via air ‘are’ regulated, the
exception applies.”); id. at 799 (“Section 845 of Title 18 excludes the application
of Chapter 40 of Title 18 if the explosive materials being transported are regulated
by the Department of Transportation.”) (emphasis added).
Yet, despite the undeniable force of the argument that this is the most grammatically correct reading of the exemption, there are also powerful reasons to question
this reading of section 845(a)(1). First, it is possible that construing section
845(a)(1) as outlined above would render many of the substantive criminal
prohibitions of chapter 40 meaningless. As the Western District of Washington has
pointed out, this reading could “result[] in an interpretation that provides that if the
explosive materials transported . . . ‘are’ regulated [by DoT], the exception
applies.” 809 F. Supp. at 797. But, DoT, of course, regulates all, or nearly all,
explosives in some fashion, for example, by regulating the explosives’ “labeling,
packaging, mode of transportation, placarding and shipping papers.” Id.; accord
DoT Submission, Tab 1, at 2–3. Therefore, to construe section 845(a)(1) to exempt
an individual from criminal liability for transporting explosives simply because the
explosives themselves were in some way regulated by DoT would be to “eviscerate[]” the criminal provisions of chapter 40. United States v. Fiorillo, 186 F.3d
3
DoT suggests that “pertain” could correspond to “agencies.” DoT Submission, Tab 3, at 5. But
this construction does not account for the fact that the full text of the amendment reads “and which
pertain to safety.” The phrase “the United States Department of Transportation and agencies thereof,
and which pertain to safety” simply does not express the idea that the agencies must pertain to safety.
Moreover, it is unclear that such a construction would have limiting effect because we are uncertain
whether the jurisdiction of any DoT agency could be characterized as unrelated to safety.
40
DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability
1136, 1153 (9th Cir. 1999). Such a construction would mean, for example, that an
individual who transported stolen explosives, knowing they were stolen, in
violation of section 842(h) of title 18, would not be liable if DoT had a regulation
specifying how explosives should be stored. Cf. id. at 1153. Under such a reading,
even a single DoT regulation concerning explosives would mean that no one
would ever be liable for transporting explosives in violation of chapter 40.
Second, construing section 845(a)(1) as outlined above could lead to the opposite, yet equally absurd, conclusion that the exemption from criminal liability has
no meaning. In the Antiterrorism and Effective Death Penalty Act of 1996,
Congress amended section 845(a)(1) to add the phrase “and which pertain to
safety.” See Pub. L. No. 104-132, § 605(1)(B), 110 Stat. 1214, 1290 (1996). Read
literally, therefore, the exemption applies only to any “aspect of the transportation
of explosive materials . . . [(a)] which are regulated by the Department of Transportation . . . and [(b)] which pertain to safety.” While it might make sense to refer
to “explosive materials” that “are” regulated by DoT, it is not at all clear that there
is any content to the category of “explosive materials” “which pertain to safety.”
Moreover, because the exemption is phrased conjunctively, the exemption would
apply only if the materials are both regulated by DoT and pertain to safety.
Because the latter category is either empty or vanishingly small, to read section
845(a)(1) according to its literal terms is to drain the 1996 amendment to that
section of virtually all meaning.
We cannot believe that Congress intended either of these absurd results.4 See
United States v. X-Citement Video, Inc., 513 U.S. 64, 70–71 (1994). Instead, we
believe that the incoherence of the exemption as written is likely the result of a
mere scrivener’s error. In this case, we believe the error was Congress’s failure to
include an “s” at the end of the word “aspect.”5 Thus, we believe that the exemp4
It is worth noting that the two reported decisions that have construed section 845(a)(1) such that
the operative provision is DoT’s regulation of the explosive materials were decided before the 1996
amendment to the statute. These courts were therefore not faced with the construction of the “and
which pertain to safety” language. See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973);
United States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992).
5
Alternatively, the statutory confusion could be the result of a “conjugator’s error”—that is, the
draftsman of the original exemption may have incorrectly conjugated the verb “to be,” choosing the
plural form “are” rather than the singular “is” to correspond to the singular subject “aspect.” Indeed,
ATF’s regulations implementing this section have interpreted the statutory provision this way:
Except for the [prohibitions relating to unmarked plastic explosives and reporting of
plastic explosives], this part does not apply to:
(1) Any aspect of the transportation of explosive materials via railroad, water,
highway, or air which is regulated by the U.S. Department of Transportation and
its agencies, and which pertains to safety.
27 C.F.R. § 55.141(a) (2002) (emphasis added). We recognize that this reading implies that Congress
perpetuated its original error when it added the phrase “and which pertain to safety.” When Congress
amended the statute in 1996, it may simply have followed the verb form chosen by the original
draftsman. We note in this regard that the House version of the bill contained the word “pertains,” H.R.
Rep. No. 104-383, at 19 (1995) (setting forth House version), whereas the version adopted at
41
Opinions of the Office of Legal Counsel in Volume 27
tion is more properly read to say that certain provisions of chapter 40, including
section 842(i), as amended, “shall not apply to . . . any aspects of the transportation of explosive materials via railroad, water, highway, or air which are regulated
by the United States Department of Transportation and agencies thereof, and
which pertain to safety.”
Read this way, the exemption focuses on the aspects of the transportation of
explosive materials that DoT regulates rather than on the materials themselves.
This is essentially the reading of section 845(a)(1) adopted by the court in United
States v. Scharstein, 531 F. Supp. 460, 466 (E.D. Ky. 1982) (“The key word in
construing the meaning of § 845 is the word ‘aspect.’”). In addition, the only
legislative history on the exemption supports the construction of the statute that
focuses on the “aspects” of transportation, rather than on the “materials” transported. See H.R. Rep. No. 91-1549, at 4047 (1970) (“This chapter is not meant to
affect aspects of the transportation of explosive materials regulated by the
Department of Transportation.”) (emphasis added). This reading is further
supported by the 1996 amendment, which—because there is no meaning to a
category of “explosive materials . . . which pertain to safety”—makes clear that
Congress was referring to the aspects of transportation that are regulated, not the
explosive materials themselves. Finally, although the affected agencies did not
address this issue specifically in their submissions to this Office, they seem to
agree that the focus of the section 845(a)(1) exemption is on the “aspects” of
transportation that are regulated. See DoT Submission, Tab 1, at 5 (“It is these
‘aspects’ of transportation in commerce that [Research and Special Programs
Administration] believes are excepted from the prohibitions in 18 U.S.C.
§ 842(a)–(k).”); id., Tab 2, at 4 (“From a legal point of view, the critical issue is
the meaning of the term “any aspect” in § 845(a)”); ATF Submission at 4 (“the
exception in section 845(a)(1) applies only to those aspects of transportation
relating to safety”); id. at 13 (“Section 845(a)(1) refers to any aspect of transportation ‘regulated by’ DoT ‘which pertain to safety.’”).
Thus, we believe that section 845(a)(1) is best read to say that certain provisions of chapter 40, including section 842(i), as amended, “shall not apply to . . .
any aspects of the transportation of explosive materials via railroad, water,
highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety.” Accordingly, the
exemption is triggered only when (1) DoT has regulated relevant “aspects of the
transportation of explosive materials,” and when (2) those regulated aspects
“pertain to safety.” We address these requirements in reverse order.
conference contained the word “pertain,” H.R. Conf. Rep. No. 104-518, at 79 (1996). Whether the error
is a “scrivener’s” or a “conjugator’s” error does not affect our analysis.
42
DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability
B.
The phrase “and which pertain to safety” was added to section 845(a)(1) by
section 605(1)(B) of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat 1214, 1290 (1996). ATF argues that “safety” within
section 845(a)(1) is limited to safety in the sense of preventing accidents. See ATF
Submission at 11 (“DoT statutes are designed to regulate the safe transportation of
hazardous materials, such as explosives, while in transit and in commerce. These
statutes . . . primarily supplement State regulatory schemes to promote highway
safety. This is reflected in statutes requiring drivers to be knowledgeable and
qualified to operate motor vehicles, testing, certification, and so forth.”); id. (the
risk DoT regulates is the “general safety and fitness of the operator”). DoT
contends that “safety” should be read to include security, i.e., national security
concerns. See DoT Submission, Tab 1, at 1.
We believe that the term “safety” as it is used in section 845(a)(1) includes
security concerns, including the risk to national security posed by drivers transporting explosives. DoT’s jurisdiction extends to both safety and security.
Congress has authorized the Secretary of Transportation to “prescribe regulations
for the safe transportation, including security, of hazardous material in intrastate,
interstate, and foreign commerce.” 49 U.S.C. § 5103(b) (emphasis added). The
clause “including security” was added by section 1711(a) of the Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2319 (2002). The use
of the word “including” indicates that Congress believed security is an element of
safety.
Moreover, Congress has already assigned DoT a role in assessing the national
security risk posed by individuals transporting hazardous materials. In section
1012 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 271, 397 (2001),
Congress amended portions of the statutes governing the issuance of licenses for
those who transport hazardous materials by motor vehicles. Specifically, Congress
prohibited states from issuing commercial driver’s licenses for transporting
hazardous materials (“hazmat” licenses) “unless the Secretary of Transportation
has first determined . . . that the individual does not pose a security risk warranting
denial of the license.” 49 U.S.C. § 5103a(a)(1) (Supp. I 2002) (emphasis added).
Under this provision, the Attorney General conducts the background check, id.
§ 5103a(c), but the Secretary of Transportation makes the determination regarding
the security risk, id. § 5103a(a)(1). Although DoT, through the Transportation
Security Administration (“TSA”), has not yet implemented this statutory scheme,
see DoT Submission, Tab 6, at 1, the grant of authority from Congress is powerful
evidence that Congress believes DoT has a role to play with respect to assessing
risks to national security. Accordingly, we believe that a DoT regulation addressing the security aspects of the transportation of explosive materials, including an
assessment of the risk to national security posed by drivers, could be one “which
pertain[s] to safety” within the meaning of section 845(a)(1).
43
Opinions of the Office of Legal Counsel in Volume 27
C.
We next address what is meant by the clause “aspect[s] of the transportation of
explosive materials . . . which are regulated by the United States Department of
Transportation.” This clause raises two interpretive questions: What is meant by
“aspect[s] of transportation”?; and what is meant by “which are regulated by”
DoT? We again address these questions in reverse order.
Section 845(a)(1) states that the provisions of chapter 40 shall not apply to “any
aspect[s] of the transportation of explosive materials . . . which are regulated by”
DoT “and which pertain to safety.” This statutory language admits of two possible
readings. The first, and we believe the most natural, reading is to say that the
provisions of chapter 40 do not apply to “any aspect[s] of the transportation of
explosive materials which are” in fact, presently being “regulated by” DoT. That
is, for the exemption to apply, DoT must have issued regulations addressing the
relevant “aspect[s]” of transportation. But there is another possible reading. The
exemption might be read to apply to “any aspect[s]” of the safe transportation of
explosive materials which are within DoT’s regulatory jurisdiction, even if DoT
has not actually exercised its jurisdiction by regulating in the area. Thus, “aspect[s] . . . which are regulated” could be read to mean “aspect[s] which are within
DoT’s regulatory competence.” As discussed previously, we believe that the safe
and secure transportation of explosive materials lies within DoT’s regulatory
competence. Thus, if the latter interpretation of the statutory language were
correct, DoT’s regulatory jurisdiction over the safe and secure commercial
transportation of hazardous materials would be essentially exclusive; even without
actually regulating any aspect of the safe transportation of hazardous materials,
DoT would have pre-empted the field. We are reluctant to accept this broad
interpretation of section 845(a)(1). To accept it would be to eviscerate the criminal
provisions of chapter 40 and the Attorney General’s prosecutorial and regulatory
authority, see 18 U.S.C. § 847,6 to enforce those provisions, at least as they apply
to commercial transportation. Such a construction would run afoul of the “well
established [principle] that when two regulatory systems are applicable to a certain
subject matter, they are to be reconciled and, to the extent possible, both given
effect.” Pennsylvania v. Interstate Commerce Comm’n, 561 F.2d 278, 292 (D.C.
Cir. 1977); accord FTC v. Ken Roberts Co., 276 F.3d 583, 593 (D.C. Cir. 2001)
(“Because we live in an ‘age of overlapping and concurring regulatory jurisdiction,’ a court must proceed with the utmost caution before concluding that one
agency may not regulate merely because another may.”) (internal citations
omitted). Although Congress may certainly grant one agency exclusive jurisdiction over an area of federal regulation, we are loath to infer such a sweeping grant
6
See Homeland Security Act of 2002, Pub. L. No. 107-296, § 1111(c)(1), 116 Stat. 2135, 2275
(2002) (transferring the authorities of the Secretary of Treasury with regard to ATF to the Attorney
General).
44
DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability
of authority, which here even displaces criminal prosecutorial authority, without a
more precise statement from Congress. Accordingly, we believe that the section
845(a)(1) exemption is best read as applying only when DoT has actually regulated some aspect of the safe transportation of explosive materials. Cf. Chao v.
Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002) (interpreting preemption
provision of Occupational Safety and Health Act such that “mere possession by
another federal agency of unexercised authority to regulate certain working
conditions is insufficient to displace [the Occupational Safety and Health Administration]’s jurisdiction”).
Our second interpretive question asks what is meant by the “aspect[s]” of the
safe transportation of explosives that are regulated by DoT. In interpreting this
provision we must ask whether an exemption from criminal liability obtains
whenever DoT has actually regulated any aspect of the safe transportation of
explosive materials or whether the exemption prevails only when DoT has
regulated the particular aspect of the safe transportation of explosive materials
that prompted Congress to enact the criminal statute from which the exemption is
sought. We believe that the latter interpretation is the better one.
This reading provides a link between the criminal liability imposed by section
842(i) and the exemption from this liability found in section 845(a)(1). We believe
such a link is necessary because it is highly unlikely that Congress would have
criminalized a particular aspect of the transportation of explosive materials—here,
the threat to security posed by the driver—and then provided a broad exemption
from this criminal liability whenever DoT regulates any aspect of the safe
transportation of explosive materials, even if the regulated aspect is not one that
pertains to the threat Congress addressed in the criminal prohibition. This reading
would mean, for example, that if DoT had issued only one regulation pertaining to
the safe and secure transport of explosive materials—say, a regulation requiring
explosive materials to be locked up at all times during transport to prevent theft—
no one, or at least no commercial driver, could be liable for any offense under
chapter 40 concerning the transportation of explosives. We believe that this
construction reads too much into section 845(a)(1).
Instead, we believe that section 845(a)(1) is more properly construed to provide
relief from criminal liability whenever DoT has regulated the particular aspect of
the safe transport of explosive materials that Congress sought to regulate through
criminal liability. That is, section 845(a)(1)’s immunity is limited to situations
where an individual is subject to DoT regulations regarding the activity covered
by the criminal provision. Reading the statute this way ascribes to the exemption a
perfectly reasonable purpose: to eliminate wasteful duplication in the enforcement
efforts of federal agencies, and to prevent the regulated community from having to
comply with two sets of potentially conflicting regulations concerning the same
aspect of transportation. This reading also ensures that every person transporting
explosives will be covered by one of the two alternative federal schemes (but not
both): the criminal prohibition contained in section 842(i) or the regulations issued
45
Opinions of the Office of Legal Counsel in Volume 27
by DoT. The alternative reading, by contrast, would ascribe to the statute the
startling purpose of creating a blanket immunity from prosecution for any criminal
explosives offense regarding the transportation of explosives, even if DoT had
regulated only certain limited, unrelated, aspects of the safe transportation of
explosives. We are reluctant to ascribe to Congress such an unusual intent without
more explicit direction. We therefore conclude that the section 845(a)(1) exemption is available only where DoT has regulated the particular aspect of the
transportation of explosive materials with which Congress was concerned in
passing the criminal provision from which relief is sought.
While not directly binding on the question before us, we note that our conclusion is consistent with the conclusion reached by the Supreme Court in Chao v.
Mallard Bay Drilling, Inc., 534 U.S. 235 (2002).7 In Chao, the Court examined a
preemption provision contained in the Occupational Safety and Health Act of 1970
(“OSH Act”). The OSH Act, which is enforced by the Occupational Safety and
Health Administration (“OSHA”), imposes a duty on covered employers to
provide working conditions that “‘are free from recognized hazards that are
causing or are likely to cause death or serious bodily harm’” to their employees, as
well as an obligation to comply with safety standards promulgated by the Secretary of Labor.” Id. at 240–41 (quoting 29 U.S.C. § 654(a)(1)). However, the Act
contains the following preemption provision: “[n]othing in this [Act] shall apply to
working conditions of employees with respect to which other Federal agencies . . .
exercise statutory authority to prescribe or enforce standards or regulations
affecting occupational safety and health.” 29 U.S.C. § 653(b)(1) (2000).
In Chao, OSHA had cited a drilling company for violations of the OSH Act
that occurred while the company was drilling a well in the territorial waters of
Louisiana. The drilling company argued that OSHA’s jurisdiction was preempted by section 653(b)(1) of title 29 because the Coast Guard had regulated some
aspects of occupational safety and health on vessels in navigable waters. The
Court disagreed, holding that “minimal exercise of some authority over certain
conditions on vessels” would not trigger the preemption provision. Chao, 534
U.S. at 241. Instead, the Court held that OSHA’s jurisdiction was preempted
only if the working conditions at issue in a given case were the “particular ones
‘with respect to which’ another federal agency has regulated.” Id. (quoting 29
U.S.C. § 653(b)(1)).
Chao, of course, is not dispositive in the instant case because the language of
the preemption provision in section 653(b)(1) of title 29 differs from the language
7
Indeed, DoT’s Federal Motor Carrier Safety Administration has conceded this point. DoT Submission, Tab 2, at 4 (“The term ‘any aspect’ could also mean that ATF has no jurisdiction over ‘any
aspect’ of the safe transportation of explosives regulated by DoT, but may apply the prohibitions of
Sec. 1123 that are not covered by ‘any aspect’ of the DoT program. Since DoT does not directly
regulate drivers by nationality, this would allow ATF to enforce the prohibition on aliens. [This]
position is consistent with the Supreme Court’s decision” in Chao).
46
DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability
in section 845(a)(1) of title 18. Yet we do not believe that there is a great deal of
distance between the statutory language at issue in Chao (“[n]othing in this [Act]
shall apply to working conditions of employees with respect to which other
Federal agencies . . . exercise statutory authority”) and the language at issue here
(the provisions of chapter 40 “shall not apply to any aspect[s] of the transportation
of explosive materials . . . which are regulated by” DoT). Both, we believe, are
best read to suggest congruence between the general statutory requirement and the
regulation that purports to preempt it. Moreover, our reading is consistent with the
Court’s express desire to avoid “large gaps” in the enforcement of the regulatory
scheme. Chao, 534 U.S. at 245 n.9 (noting that to construe the preemption
provision otherwise “would mean that if the Coast Guard regulated marine toilets
on [the vessel in question] and nothing more, any OSHA regulation of the vessel
would be pre-empted”). This principle applies with particular force in light of
Congress’s manifest concern with shoring up the nation’s defenses after the events
of September 11. See, e.g., USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat.
272, 397 (2001); Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135
(2002).
For these reasons, we believe there must be more than an attenuated link between the DoT regulation that seeks to invoke the section 845(a)(1) exemption and
the activity prohibited under chapter 40. We believe that the section 845(a)(1)
exemption is triggered only when DoT has regulated the particular “aspect[s] of
the [safe] transportation of explosive materials” that are criminalized by section
842(i), as amended. By passing section 842(i), as amended, Congress identified a
presumptive security threat posed by allowing certain categories of persons to
transport explosives, and regulated that threat through criminal liability, subject to
relief after satisfactory completion of a background check. It would eviscerate this
statutory scheme to conclude that a regulation completely unrelated to the
prohibition would provide immunity from criminal liability under this section.
Because section 842(i) criminalizes the transportation of explosives by specified
categories of persons, we believe that the section 845(a)(1) exemption applies only
if DoT has, in fact, regulated the security risk posed by the transportation of
explosives by these categories of persons.
D.
We next address whether DoT has regulated the security risk posed by the
transportation of explosives by the categories of persons listed in section 842(i).
The only specific regulation that DoT points to in this regard is that in 1988 DoT
“determined that commercial drivers’ license[s] issued by Canadian Provinces and
Territories in conformity with the Canadian National Safety Code are in accordance with the standards of [49 C.F.R. Part 383].” DoT Submission, Tab 2, at 2
(quoting 49 C.F.R. § 383.23(b) n.1). Part 383 is entitled “Commercial driver’s
license standards; requirements and penalties.” But nothing in that part regulates
47
Opinions of the Office of Legal Counsel in Volume 27
the security threat posed by a particular driver. Moreover, DoT’s determination in
1988 that Canadian commercial drivers’ licenses satisfied DoT regulations predated the requirement in the USA PATRIOT Act that domestic hazmat licenses be
issued only after DoT has determined that the applicant does not pose a security
risk. See supra p. 43 (discussing section 5103a(a)(1) of title 49, as amended, which
prohibits states from issuing commercial driver’s licenses for transporting
hazardous materials “unless the Secretary of Transportation has first determined . . . that the individual does not pose a security risk warranting denial of the
license”). Thus, although DoT determined in 1988 that Canadian commercial
drivers’ licenses satisfied DoT regulations, that determination did not include an
assessment of the security review, if any, conducted by Canadian provinces
because there was no U.S. equivalent at the time.
DoT does not currently perform any such assessment of Canadian hazmat
licensees,8 nor has DoT officially endorsed any Canadian background check
system that may already be in place.9 Thus, we conclude that DoT has not
regulated the security risk posed by the transportation of explosives by the relevant
category of persons in section 842(i)—here, aliens.10
Accordingly, we do not believe that the regulations cited by DoT have actually
regulated the “aspect of the transportation of explosive materials” that is criminalized by section 842(i), as amended, in a way that would allow the Canadian truck
8
The provisions of the USA PATRIOT Act that require DoT to perform background checks before
a person may receive a license to transport hazardous materials, see 49 U.S.C. § 5103a (Supp. I 2002),
are triggered only by an individual’s application for a license issued by a U.S. state. They do not apply
to persons holding Canadian hazmat licenses; nor may persons holding Canadian licenses apply for
licenses issued by U.S. states. See 49 C.F.R. § 383.21 & 383.23(b) n.1 (2001). We are informed that
DoT is working with the Canadian government to establish a procedure regarding background checks
for Canadian hazmat licensees, but such a procedure is not currently in place. See DoT Submission,
Tab 7, at 1.
9
We are informed, for example, that Quebec requires all drivers (Canadian and U.S.) transporting
explosives in Quebec to obtain a general explosives permit, and that this permitting process includes a
“criminal background check and security review” of the driver. DoT Submission, Tab 2, at 3. DoT has
not indicated that any other Canadian province conducts a similar security review; nor has DoT
determined that the security review conducted by Quebec is acceptable to DoT or similar to that which
will be performed under section 5103a. See DoT Submission, Tab 7, at 1 (“Transport Canada has . . .
proposed early and effective equivalency programs for background checks of drivers, but [has] not
implemented the programs because [it has] not yet received an official USG endorsement.”).
10
This is not to say, however, that a DoT regulation that would trigger the section 845(a)(1) exemption would have to be identical to the scheme put in place by Congress in section 845(b). To construct a
hypothetical, we imagine that, before the passage of the USA PATRIOT Act, DoT could have
addressed the security risk posed by felons, see 18 U.S.C. § 842(i)(1), by promulgating a regulation that
allowed certain types of non-violent felons to possess hazmat licenses without going through a
background check. This regulation would not have been identical to the scheme Congress created for
dealing with the security risk posed by felons in section 845(b) of title 18, but may well have been a
sufficient regulation to allow a non-violent felon to take advantage of the exemption contained in
section 845(a)(1).
48
DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability
drivers at issue here to take advantage of the section 845(a)(1) exemption from
criminal liability.11
II.
We recognize that our resolution of the question presented to us is not free from
doubt. To invoke an over-used, but apt phrase, the statute is “far from a model of
clarity.” Our resolution rests, at bottom, on our conviction that to read the statute
in the way suggested by DoT would create an enormous gap in the enforcement of
newly enacted national security provisions, which we cannot believe Congress
intended to do. Yet two canons of statutory construction—the rule of lenity and
the Charming Betsy canon—tug against our conclusion. Although we believe that,
ultimately, neither of these canons compels a result contrary to the conclusion we
have reached, we cannot say with certainty that a court reviewing an indictment or
conviction under section 842(i) would agree.
A.
The rule of lenity provides that “when choice has to be made between two
readings of what conduct Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite.” United States v. Bass, 404 U.S. 336, 347
(1971) (internal quotations and citation omitted). Congress has certainly not done
that here. Thus, we can understand how a court might reach the conclusion that the
rule of lenity leads to the conclusion that the statute must be construed in the way
that most narrows the scope of potential criminal liability. And, indeed, one court
has done just that. See Petrykievicz, 809 F. Supp. at 799 (invoking the rule of
lenity to conclude that the focus of section 845(a)(1) must be on the materials
regulated rather than on the aspects of transportation regulated). Yet the “rule of
lenity applies only if, after seizing everything from which aid can be derived . . .
we can make no more than a guess as to what Congress intended.” Holloway v.
11
The section 845(a)(1) exemption applies to “any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by” DoT “and which pertain to safety.”
(Emphasis added.) ATF hints at the argument that regardless of the reach of section 845(a)(1) with
respect to transporting explosives, section 842(i) still prohibits aliens and other prohibited persons
from possessing explosives, even if they are doing so only as a part of transportation. See ATF
Submission at 5, 10–12. Thus, if a driver could be said to be simultaneously transporting and possessing explosives within the meaning of section 842(i), ATF might argue that it could still prosecute the
driver for the possession of explosives, even if DoT had actually issued a regulation that would trigger
the transportation exemption under section 845(a)(1). Although we do not resolve the question here,
we do note that ATF’s assertion of jurisdiction in such a case would severely limit, and arguably
eviscerate, section 845(a)(1) because that provision would immunize only those individuals who were
transporting but not simultaneously possessing explosives. We do not know whether such a class of
persons exists, and decline to speculate without further input from the affected agencies.
49
Opinions of the Office of Legal Counsel in Volume 27
United States, 526 U.S. 1, 12 n.14 (1999) (internal quotations and citation
omitted); accord Staples v. United States, 511 U.S. 600, 619 n.17 (1994) (ambiguity must be “grievous” for rule of lenity to apply); Johnson v. United States, 529
U.S. 694, 712 n.13 (2000) (Scalia, J., dissenting) (“[l]enity applies only when the
equipoise of competing reasons cannot otherwise be resolved”). Although section
845(a)(1) poses interpretive difficulties, we cannot conclude that any ambiguity is
“grievous,” or that our interpretation of the statute is “a guess as to what Congress
intended.” Therefore, we believe the rule of lenity does not apply.
B.
[Redacted from original memorandum opinion at the request of the United
States Trade Representative.]
III.
For the reasons set forth above, we conclude that DoT possesses the authority
to issue a regulation that, under section 845(a)(1), would exempt Canadian truck
drivers from criminal liability under section 842(i). We further conclude, however,
that DoT has not issued such a regulation and therefore section 842(i) liability
would attach to a Canadian truck driver transporting explosives in the United
States.
JAY S. BYBEE
Assistant Attorney General
Office of Legal Counsel
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Write a legal research memo on the following topic. | Constitutionality of Bill Establishing American Folklife
Center in the Library of Congress
A bill creating an American Folklife Center in the Library of Congress would violate the separation of
powers by vesting the Librarian of Congress, a congressional officer, with executive functions.
The bill would also violate the Appointments Clause by permitting certain members of the Board of
Directors of the American Folklife Center to be appointed by members of Congress, the Board of
Directors of the Smithsonian Institution, and the Librarian of Congress.
December 31, 1975
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This is in response to the telephone request of Mr. Barry Roth of your staff for
the views of the Department of Justice on the constitutional aspects of the aboveentitled enrolled bill, with which the Department has had no prior contact.
The bill contains findings to the effect that it is appropriate and necessary for
the federal government to support research and scholarship in American folklife,
and that the encouragement and support of American folklife is an appropriate
matter of concern to the federal government. H.R. 6673, 94 Cong., 1st Sess. § 2
(1975). The bill then sets up an American Folklife Center in the Library of Congress. Id. § 4(a). The Center would be under the direction of a Board of Trustees
composed as follows:
(1) four members appointed by the President [of the United States];
(2) four members appointed by the President pro tempore of the Senate . . . and four members appointed by the Speaker of the House of
Representatives . . . ;
(3) the Librarian of Congress;
(4) the Secretary of the Smithsonian Institution;
(5) the Chairman of the National Endowment for the Arts;
(6) the Chairman of the National Endowment for the Humanities;
and
(7) the Director of the Center.
Id. § 4(b).
The Librarian of Congress is empowered to appoint a Director of the Center
after consultation with the Board. Id. § 4(f). The Director would be the chief
executive officer of the Center, and would have responsibility for carrying out the
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
functions of the Center, subject to the direction of the Board and the general
supervision of the Librarian. Id. § 4(g).
Section 5 sets forth the functions which the Librarian of Congress is authorized
to perform under the Act (subsection (a)) and provides that they are to be carried
out through the Center (subsection (b)).
In our view the bill presents two important constitutional problems: the first
involves the doctrine of the separation of powers, which requires that statutes
assigning executive duties must be administered by the Executive Branch and not
by congressional officers, such as the Librarian of Congress; the second is the
principle that functions of an executive nature must be carried out by officers of
the United States appointed in compliance with the requirements of Article II of
the Constitution.
I.
Article I of the Constitution vests the legislative power of the United States in
the Congress. Article II vests the executive power of the United States in the
President and directs him to “take care that the laws be faithfully executed.” This
means that statutes creating functions of an executive nature are to be carried out
by the Executive Branch of the government under the supervision of the President,
and not by congressional agencies. This basic constitutional consideration, of
course, does not preclude the performance of internal congressional functions and
of congressional services by congressional officers. The bill, however, goes far
beyond that. Some of the functions to be performed by the Librarian of Congress
through the American Folklife Center have, it is true, a substantial nexus with the
Library of Congress (see, e.g., H.R. 6673, § 5(a)(2)–(5))—though even as to these
it is open to question whether they truly come within the ambit of an institution
whose primary purpose is to give library and reference service to Congress. This,
however, cannot under any circumstances be said of the contract authority set forth
in section 5(a)(1), empowering the Librarian to
enter into, in conformity with Federal procurement statutes and regulations, contracts with individuals and groups for programs for the—
(A) initiation, encouragement, support, organization, and promotion of research, scholarship, and training in American folklife;
(B) initiation, promotion, support, organization, and production of
live performances, festivals, exhibits, and workshops related to
American folklife;
(C) purchase, receipt, production, arrangement for, and support of
the production of exhibitions, displays, publications, and presentations (including presentations by still and motion picture films,
380
Constitutionality of Bill Establishing American Folklife Center
and audio and visual magnetic tape recordings) which represent or
illustrate some aspect of American folklife; and
(D) purchase, production, arrangement for, and support of the
production of exhibitions, projects, presentations, and materials
specially designed for classroom use representing or illustrating
some aspect of American folklife.
These activities do not appear to be related to any internal congressional function or service. While it is true that a few other functions of the Library, such as
the provision of books and sound production records to the blind and other
physically handicapped persons, 2 U.S.C. § 135a, are not directly so related either,
they are at least a logical adjunct of the historical library function which the
venerable institution has provided. While one may permit this for reasons of
practicality and historical prescription, the extension of the institution’s activities
into the entirely unrelated field of funding folklife training and performances is a
change of qualitative nature. The extension would thus have been made first, from
an institution which serves the Congress as a library; to one which serves the
public in the same capacity; and finally, to one which serves the public in capacities entirely unrelated either to congressional service or to libraries. This last
extension moves the Library of Congress into areas now occupied by the National
Endowment for the Arts, and the National Endowment for the Humanities (both
executive agencies).
II.
The second constitutional problem in the bill concerns the manner in which ten
members of the Board of Trustees of the American Folklife Center are to be
appointed.
Under the bill, the Board would perform important functions in the administration of the statutory program; its responsibilities would not be limited to advice.
For example, it would give direction, not merely advice, to the Director of the
Center, an official appointed by the Librarian (H.R. 6673, § 4(g)(1)); and certain
functions of the Center could be undertaken only if the Board considers them
“appropriate” (id. § 5(a)(5), (6)). Again, certain types of contracts may be entered
into only with the concurrence of the Board. See, e.g., id. §§ 6(a), 7(a)(3), 7(a)(8).
Under section 7(a)(7) a majority of two-thirds of the members of the Board may
even waive otherwise applicable bonding requirements.
The Board therefore performs functions of an executive nature. Its activities are
not merely of an advisory nature or limited to a single task of limited duration, as
is the case with so-called ad hoc officers. See The Constitution of the United
States: Analysis and Interpretation, S. Doc. No. 92-82, at 523 (1973).
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
It follows that the functions of the members of the Board of Trustees can be
performed only by persons who are officers of the United States and appointed in
the manner prescribed by Article II, Section 2, Clause 2 of the Constitution,
namely, by the President by and with the advice of the Senate, or with congressional authorization by the President alone, or the courts of law, or the heads of
departments.
The bill fails to comply with these constitutional requirements with respect to
the following members of the Board:
(a) The eight members appointed by the President pro tempore of the
Senate and the Speaker of the House, respectively;
(b) The Secretary of the Smithsonian Institution, who is appointed by
the Board of Regents of the Smithsonian Institution (20 U.S.C. § 44),
which cannot be viewed as the equivalent of a department head within the meaning of Article II; and
(c) The Director of the Center who would be appointed by the
Librarian of Congress who similarly does not have the status of a department head within the meaning of Article II of the Constitution.
A similar problem arose in connection with the legislation establishing the
Japan-United States Friendship Commission (Japan-United States Friendship Act,
Pub. L. No. 94-118, 89 Stat. 603 (1975)) and in the Arts and Artifacts Indemnity
Act (Pub. L. No. 94-158, 89 Stat. 844 (1975)). There, as indicated in the President’s signing statements, Statement on Signing the Japan-United States Friendship Act, 2 Pub. Papers of Pres. Gerald R. Ford 1718, 1719 (Oct. 21, 1975);
Statement on Signing the Arts and Artifacts Indemnity Act, 2 id. 1990, 1991 (Dec.
22, 1975), it was possible to obviate the difficulty by considering the members
appointed by the President pro tempore and the Speaker to be advisory, nonvoting
members. This approach does not appear to be available here, because the improperly appointed members would constitute ten out of seventeen of the Board’s
membership.
For the above reasons, it is our view that the provisions of this legislation are
contrary to the strict provisions of the Constitution. It must be acknowledged,
however, that in the area of cultural and educational affairs, the separation of
powers may not have been strictly observed. Despite the fact that they do not
constitute as drastic a departure from the constitutional requirements as the present
bill, those provisions of the Library of Congress statute which authorize the
provision of specific services to the public must be considered a technical
anomaly. Indeed, it is probably demonstrable that from an early date the primary
function of the Library of Congress has been public service rather than congressional assistance. Similarly, the makeup of the Smithsonian Institution—if that is
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Constitutionality of Bill Establishing American Folklife Center
to be regarded as a federal agency, a point which is subject to some dispute—
contravenes the constitutional text.
Complete acceptance of this historical practice runs the risk of inviting further
transfers to the Library of Congress of cultural and educational functions; and
perhaps of encouraging more serious encroachments upon executive prerogatives
through the assignment of entirely different functions to the General Accounting
Office. Moreover, it appears from our experience with the Japan-United States
Friendship Commission and the Arts and Artifacts Indemnity Act, discussed
above, that only a presidential veto directed at this practice will suffice to call the
attention of Congress to the problem involved. Given the very nature of all of these
cultural and educational proposals, it may be vain to await an occasion for a
presidential veto more propitious than the present. Nonetheless, in light of the
historical practice, we think the President can responsibly sign the present legislation with the expression of his serious reservation concerning the constitutional
propriety of placing such functions outside the Executive Branch.*
ANTONIN SCALIA
Assistant Attorney General
Office of Legal Counsel
*
Editor’s Note: President Ford signed H.R. 6673 into law as the American Folklife Preservation
Act, Pub. L. No. 94-201, 89 Stat. 1129 (Jan. 2, 1976). As advised, he expressed “serious reservations
concerning the constitutional propriety of placing the functions to be performed by the Center outside
the executive branch and the assignment of executive duties to officers appointed by Congress.”
Statement on Signing the American Folklife Preservation Act, 1 Pub. Papers of Pres. Gerald R. Ford
6, 6 (Jan. 3, 1976). “However,” said President Ford, “given historical practice and custom in the area of
cultural and educational affairs and the potential of H.R. 6673 to enrich the cultural life of the Nation, I
am granting my approval to the measure.” Id. at 6-7. The American Folklife Center remains a part of
the Library of Congress today. See 20 U.S.C. §§ 2101 et seq.
A recent D.C. Circuit decision reached a different conclusion regarding the separation of powers
and Appointments Clause issues addressed in this opinion, holding that the Library of Congress is part
of the Executive Branch and that the Librarian is a department head, at least with respect to the
Copyright Office. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C.
Cir. 2012).
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Write a legal research memo on the following topic. | Government Lawyers’ Pro Bono Activities
in the District of Columbia
A tto rn e y s e m p lo y ed by th e fed eral g o v e rn m e n t a re b a rre d b y 18 U .S .C . § 2 0 5 from
p a rtic ip a tin g in an y case in w h ic h th e D istric t o f C o lu m b ia is a p a rty o r has a d ire c t
an d su b stan tial in terest. C o n c lu sio n o f 1970 o p in io n th at fed eral a tto rn e y s m ay not
re p re se n t e v e n o n a v o lu n ta ry basis in d ig en t p erso n s assertin g claim s against the
D istric t, affirm ed.
November 3, 1980
M EM ORANDUM OPIN IO N FOR T H E STA FF DIRECTOR,
FE D E R A L L EG A L COUNCIL
This responds to your request on behalf of the Federal Legal Council
for “an opinion as to whether [18 U.S.C. §205] necessarily bars all
federal attorneys from practice in any case in which the District of
Columbia is a party or has a direct and substantial interest.”
At the outset we wish to point out that this Department’s position on
the applicability of 18 U.S.C. §205 to matters in which the District of
Columbia is a party or has an interest does not stem from the fact that
District criminal cases are handled by lawyers of the United States
Attorney’s Office. We originally took that position upon the enactment
of § 205, and have consistently maintained it since then, because we
concluded that § 205 requires it. We would maintain it even if the U.S.
Attorney’s Office were to withdraw completely from prosecutive work
in the District.
The specific legal issue raised by the inquiry of the Council is
whether a case involving the District is a “particular matter in which
the United States is a party or has a direct and substantial interest”
within the meaning of 18 U.S.C. §205(2). This Office had occasion to
rule on the issue formally a decade ago. Then it was raised by the
former Civil Service Commission in relation to a proposal by the
District of Columbia Chapter of the Federal Bar Association that Dis
trict o f Columbia and federal government attorneys be permitted to
volunteer their representational services to indigent persons asserting
claims against the District. Assistant Attorney General Rehnquist con
cluded, in a March 26, 1970 opinion, that such representation is barred
by § 205 because a District matter is one “in which the United States is
800
a party or has a direct and substantial interest.” We find no basis for
diverging from that opinion today.
We have also considered the suggestion that certain similarities in
function between the District of Columbia government and that of a
state provide the justification for allowing presently barred pro bono
activities of federal attorneys before the District of Columbia courts.
The suggestion evidences the view that the Department has the discre
tion to permit such activities. In truth, the Department has no power of
that kind. Only Congress can reduce the scope of 18 U.S.C. §205.
L e o n U lm a n
Deputy Assistant Attorney General
Office o f Legal Counsel
801 |
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Write a legal research memo on the following topic. | Duty to Report Suspected Child
Abuse Under 42 U.S.C. § 13031
Under 42 U.S.C. § 13031—a provision of the Victims of Child Abuse Act of 1990—all
covered professionals who learn of suspected child abuse while engaged in enumerated
activities and professions on federal land or in federal facilities must report that abuse,
regardless of where the suspected victim is cared for or resides.
The fact that a patient has viewed child pornography may “give reason to suspect that a
child has suffered an incident of child abuse” under the statute, and a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in
the pornography.
May 29, 2012
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF VETERANS AFFAIRS *
Section 13031 of title 42, a provision in the Victims of Child Abuse
Act of 1990 (“VCAA” or “Act”), Pub. L. No. 101-647, tit. II, § 226, 104
Stat. 4789, 4792, 4806, requires persons engaged in certain activities and
professions on federal lands or in federal facilities to report “facts that
give reason to suspect that a child has suffered an incident of child abuse”
if they learn such facts in the course of their professional activities. Failure to make a report required by section 13031 could subject such persons
to criminal penalties. See 18 U.S.C. § 2258. You have raised two questions about the scope of section 13031. See Letter for Eric Holder, Attorney General, from Will A. Gunn, General Counsel, Department of Veterans Affairs (Nov. 9, 2009) (“VA Letter”).
First, you have asked whether section 13031’s reporting requirement is
limited to situations in which the suspected victim of child abuse is cared
for or resides on federal land or in a federal facility. We conclude that it is
not. Instead, under the VCAA, all persons who learn of suspected child
abuse (as defined by the Act) while engaged in the enumerated activities
and professions on federal land or in federal facilities must report that
* Editor’s Note: After this opinion was issued, 42 U.S.C. § 13031 was reclassified
and renumbered as 34 U.S.C. § 20341. The statute has also repeatedly been amended
by Congress since 2012, but not in any way that appears to undermine the analysis or
conclusions reached by this opinion.
167
36 Op. O.L.C. 167 (2012)
abuse, regardless of where the suspected victim is cared for or resides. We
recognize that the scope of some of the statutory language may be ambiguous, and that narrower readings of the reporting requirement find some
support in certain of the statute’s provisions. But we believe that section
13031, read as a whole and in light of its purpose, is best interpreted
broadly.
Second, you have inquired whether the VCAA’s reporting obligation is
triggered when a person covered by section 13031 learns that a patient
under his or her care has viewed child pornography, even if the person
does not know, and has no reason to believe the patient knows, the identity of the child or children depicted in the pornography. We conclude that
the fact that a patient has viewed child pornography may be a “fact[] . . .
giv[ing] reason to suspect that a child has suffered an incident of child
abuse” under section 13031, and that the statute does not require a covered professional to possess knowledge of the identity of an affected child
in order for the reporting duty to apply.
We have concluded that the interpretive questions you have raised can
be resolved using ordinary tools of statutory construction, so we have not
applied the rule of lenity even though the VCAA provides for criminal
penalties. We note, however, that a person who fails to make a report
required by section 13031 will not necessarily be subject to criminal
penalties under the statute. The criminal penalty provision contains no
explicit mens rea requirement, and thus one would almost certainly be
inferred. See United States v. X-Citement Video, Inc., 513 U.S. 64, 70
(1994). While we need not decide what mens rea would apply, a court
construing section 13031 might well require a defendant to have known
that a report was legally required before imposing criminal liability for a
failure to report. Such a reading would, among other things, address any
concern about imposing criminal liability on persons who lacked clear
notice that the failure to report in their particular circumstances was
unlawful.
I.
Congress enacted the VCAA, including section 13031, as title II of the
Crime Control Act of 1990. Pub. L. No. 101-647, §§ 201–255, 104 Stat. at
4792–4815. Section 13031 requires persons on “Federal land or in a
168
Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031
federally operated (or contracted) facility” who are engaged in certain
activities—individuals the statute calls “[c]overed professionals”—to
report suspected incidents of child abuse. 42 U.S.C. § 13031(a)–(b)
(2006). Specifically, section 13031(a) provides that
[a] person who, while engaged in a professional capacity or activity
described in subsection (b) of this section on Federal land or in a
federally operated (or contracted) facility, learns of facts that give
reason to suspect that a child has suffered an incident of child abuse,
shall as soon as possible make a report of the suspected abuse to the
agency designated under subsection (d) of this section. 1
Section 13031(d) directs the Attorney General to designate the agency
or agencies to which the reports described in subsection (a) should be
made. It states:
For all Federal lands and all federally operated (or contracted) facilities in which children are cared for or reside, the Attorney General shall designate an agency to receive and investigate the reports
described in subsection (a) of this section. By formal written agreement, the designated agency may be a non-Federal agency. When
1
Subsection (b) provides:
Persons engaged in the following professions and activities are subject to the requirements of subsection (a) of this section:
(1) Physicians, dentists, medical residents or interns, hospital personnel and
administrators, nurses, health care practitioners, chiropractors, osteopaths,
pharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers, undertakers, coroners, medical examiners, alcohol or drug treatment personnel, and persons performing a healing role or practicing the healing
arts.
(2) Psychologists, psychiatrists, and mental health professionals.
(3) Social workers, licensed or unlicensed marriage, family, and individual
counselors.
(4) Teachers, teacher’s aides or assistants, school counselors and guidance personnel, school officials, and school administrators.
(5) Child care workers and administrators.
(6) Law enforcement personnel, probation officers, criminal prosecutors, and
juvenile rehabilitation or detention facility employees.
(7) Foster parents.
(8) Commercial film and photo processors.
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36 Op. O.L.C. 167 (2012)
such reports are received by social services or health care agencies,
and involve allegations of sexual abuse, serious physical injury, or
life-threatening neglect of a child, there shall be an immediate referral of the report to a law enforcement agency with authority to take
emergency action to protect the child. All reports received shall be
promptly investigated, and whenever appropriate, investigations
shall be conducted jointly by social services and law enforcement
personnel, with a view toward avoiding unnecessary multiple interviews with the child.
Consistent with this directive, the Attorney General has issued a regulation designating the agencies authorized to receive and investigate reports
of child abuse submitted under section 13031(a). That rule, which appears
as 28 C.F.R. § 81.2 (2010), provides:
Reports of child abuse required by 42 U.S.C. 13031 shall be made
to the local law enforcement agency or local child protective services agency that has jurisdiction to investigate reports of child
abuse or to protect child abuse victims in the land area or facility in
question. Such agencies are hereby respectively designated as the
agencies to receive and investigate such reports, pursuant to 42
U.S.C. 13031(d), with respect to federal lands and federally operated
or contracted facilities within their respective jurisdictions, provided
that such agencies, if non-federal, enter into formal written agreements to do so with the Attorney General, her delegate, or a federal
agency with jurisdiction for the area or facility in question. If the
child abuse reported by the covered professional pursuant to 42
U.S.C. 13031 occurred outside the federal area or facility in question, the designated local law enforcement agency or local child protective services agency receiving the report shall immediately forward the matter to the appropriate authority with jurisdiction outside
the federal area in question.
Att’y Gen. Order No. 2009-96, 61 Fed. Reg. 7704 (Feb. 29, 1996).
Under section 13031, “the term ‘child abuse’ means the physical or
mental injury, sexual abuse or exploitation, or negligent treatment of a
child.” 42 U.S.C. § 13031(c)(1). Section 13031 further explains that “the
term “sexual abuse” includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another
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person to engage in, sexually explicit conduct or the rape, molestation,
prostitution, or other form of sexual exploitation of children, or incest
with children.” Id. § 13031(c)(4). “[T]he term ‘exploitation’ means child
pornography or child prostitution.” Id. § 13031(c)(6).
Two other provisions in section 13031 are also relevant. Section
13031(e) provides that “[i]n every federally operated (or contracted)
facility, and on all Federal lands, a standard written reporting form, with
instructions, shall be disseminated to all mandated reporter groups,” and
makes clear as well that although “[u]se of the form shall be encouraged,
. . . its use shall not take the place of the immediate making of oral reports
. . . when circumstances dictate.” Section 13031(h) provides that “[a]ll
individuals in the occupations listed in subsection (b)(1) of this section
who work on Federal lands, or are employed in federally operated (or
contracted) facilities, shall receive periodic training in the obligation to
report, as well as in the identification of abused and neglected children.”
Finally, in section 226(g)(1) of the VCAA (codified as amended at 18
U.S.C. § 2258), Congress criminalized the failure to report child abuse as
mandated by 42 U.S.C. § 13031. The criminal provision states:
A person who, while engaged in a professional capacity or activity
described in subsection (b) of section 226 of the Victims of Child
Abuse Act of 1990 [42 U.S.C. § 13031] on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse, as
defined in subsection (c) of that section, and fails to make a timely
report as required by subsection (a) of that section, shall be fined
under this title or imprisoned not more than 1 year or both.
18 U.S.C. § 2258 (2006). When the VCAA was originally enacted, the
offense was a Class B misdemeanor punishable by six months of imprisonment, Pub. L. No. 101-647, § 226(g)(1), 104 Stat. at 4808; see 18
U.S.C. § 3581(b)(7) (1988), but in 2006, Congress amended 18 U.S.C.
§ 2258 by raising the maximum punishment from six months to one year
of imprisonment. Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, § 209, 120 Stat. 587, 615. Other than this change,
Congress has amended neither 18 U.S.C. § 2258 nor 42 U.S.C. § 13031
since it enacted the provisions in 1990.
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36 Op. O.L.C. 167 (2012)
II.
A.
We first consider the circumstances under which covered professionals
must report suspected child abuse under the VCAA. 2 We conclude that,
although no interpretation of section 13031 perfectly reconciles all of its
provisions, section 13031 is best read to impose a reporting obligation on
all persons who, while engaged in the covered professions and activities
on federal lands or in federal facilities, learn of facts that give reason to
suspect that child abuse has occurred, regardless of where the abuse might
have occurred or where the suspected victim is cared for or resides. In
reaching this conclusion, we considered the construction of section 13031
that you propose, as well as two other readings that would narrow the
reporting obligation. As explained below, while all of these narrowing
constructions find support in certain provisions of the statute, they are
also in significant tension with other parts of section 13031, leading us to
conclude that section 13031 “‘as a whole’” is best read to impose the
broad reporting obligation described above. See United States v. Atl.
Rsch. Corp., 551 U.S. 128, 135 (2007) (quoting King v. St. Vincent’s
Hosp., 502 U.S. 215, 221 (1991)).
Section 13031(a) sets forth the reporting requirement that is the
VCAA’s core directive. It provides that a covered professional engaged in
a covered activity “on Federal land or in a federally operated (or contracted) facility” who “learns of facts that give reason to suspect that a child
2 In preparing our opinion, we considered views provided by your office, the Department of Justice’s Criminal Division, the Department of Defense, the Department of State,
and the Attorney General’s Advisory Council. See E-mail for Jeannie S. Rhee, Deputy
Assistant Attorney General, Office of Legal Counsel (“OLC”), from Alexandra Gelber,
Criminal Division (Jan. 15, 2010, 10:15 AM); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Counsel, Department
of Defense (Feb. 26, 2010, 5:02 PM); E-mail for Jeannie S. Rhee, Deputy Assistant
Attorney General, OLC, from Robert Choo, Office of the Legal Adviser, Department of
State (July 21, 2010, 2:35 PM); E-mail for Cristina M. Rodríguez, Deputy Assistant
Attorney General et al., from Carter Stewart, United States Attorney for the Southern
District of Ohio (Feb. 3, 2012, 6:45 PM). We also solicited the opinion of the Department
of Health and Human Services, which indicated that it “has no view about the interpretation advanced by the Veterans Administration.” E-mail for Jeannie S. Rhee, Deputy
Assistant Attorney General, OLC, from Elizabeth J. Gianturco, Senior Advisor to the
General Counsel, Department of Health and Human Services (Apr. 21, 2010, 2:16 PM).
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has suffered an incident of child abuse, shall as soon as possible make a
report of the suspected abuse to the agency designated under subsection
(d) of this section.” On its face, this is a broad provision: It applies to
covered professionals on all federal lands and in all federal facilities and
requires a report as soon as possible no matter where the suspected child
victim resides, is cared for, or may have been abused. The express incorporation of subsection (d), however, gives rise to doubt about the scope of
subsection (a)’s reporting requirement, because subsection (d) appears to
require the Attorney General to designate an agency to receive reports
only “[f]or all Federal lands and all federally operated (or contracted)
facilities in which children are cared for or reside.” The central question,
then, is whether the cross-reference to subsection (d) limits subsection
(a)’s otherwise broad language, and if so, in what way. 3
You suggest that it would be reasonable to read the reporting requirement as applying “only with regard to suspected abuse of children residing or cared for on Federal lands and in federally operated and contracted
facilities,” because “42 U.S.C. § 13031(a) requires reporting only to
agencies as designated under subsection (d), and subsection (d) provides
for designation only of agencies to receive and investigate reports for
Federal reservations in which children are cared for or reside.” VA Letter
at 2. In other words, you maintain that, because subsection (d) specifies
agencies to receive reports only for “Federal lands and . . . facilities in
which children are cared for or reside,” Congress intended to require
reports only for suspected abuse of children who reside or are cared for on
federal lands or in federal facilities. Moreover, it might be argued that
when the Attorney General designates an agency to receive reports for
federal lands and facilities in which children are not cared for and do not
reside, he is not making designations “under” subsection (d), because that
provision expressly addresses designations only for federal lands and
facilities “in which children are cared for or reside.” This construction of
section 13031, in your view, would appropriately align the location of the
3 We assume for purposes of this opinion, as do you, that the phrase “in which children are cared for or reside” modifies both “Federal lands” and “federally operated (or
contracted) facilities.” VA Letter at 2 (“subsection (d) provides for designation . . . of
agencies to receive and investigate reports for Federal reservations in which children
are cared for or reside”). The Attorney General’s regulations do not address the issue,
28 C.F.R. pt. 81 (2010), nor do any of the submissions we received.
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36 Op. O.L.C. 167 (2012)
suspected child victims with subsection (d)’s designation of agencies to
receive reports.
This interpretation is not without some force, but we believe it is inconsistent with other subsections of section 13031 and with the statute
viewed in its entirety. See Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989) (“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.”). As noted above, Congress
phrased subsection (a) using broad language that contains no limitation on
the federal lands or facilities in which reporting is required, and no residence-based limitation on the suspected child victims whose potential
abuse can give rise to a reporting obligation. In fact, section 13031 as a
whole is devoid of any language that explicitly limits the suspected child
victims whose potential abuse triggers the reporting requirement.
If Congress had intended to limit the scope of the VCAA’s reporting
requirement in the significant manner you propose, an isolated crossreference to subsection (d) would have been an obscure and backhanded
way to do so. Cf. Allied Chem. & Alkali Workers of Am., Local Union
No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 170–71 (1971) (“To
accept the Board’s reasoning that the union’s § 302(c)(5) responsibilities
dictate the scope of the § 8(a)(5) collective-bargaining obligation would
be to allow the tail to wag the dog.”). Subsection (d) is entitled “[a]gency
designated to receive report and action to be taken,” and purports to
address only the agencies to which reports must be made, not the professionals who must make reports or the children who may be the subject of
reports. Nothing in subsection (d) expressly narrows the scope of potential
child victims covered by the reporting requirement. Cf. Comm’r v. Clark,
489 U.S. 726, 739 (1989) (“In construing provisions . . . in which a general statement of policy is qualified by an exception, we usually read the
exception narrowly in order to preserve the primary operation of the
provision.”).
Indeed, subsection (d) does not say that the Attorney General may only
designate agencies to receive reports for federal lands and facilities “in
which children are cared for or reside.” It simply specifies that the Attorney General “shall designate an agency to receive and investigate” reports
for such lands and facilities, saying nothing about what the Attorney
General should do with respect to other federal lands and facilities. And in
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implementing this authority, the Attorney General has in fact specified
reporting locations for all covered professionals who learn of any covered
abuse while engaged in their profession or activity on any federal land or
facility, not solely abuse connected to lands or facilities where children
are cared for or reside. See 28 C.F.R. § 81.2.
The broad reading of the reporting requirement gains further support
from two other provisions in the VCAA that unambiguously apply to all
federal lands and facilities, not just those where children are cared for or
reside. Subsection (e) requires dissemination of a standard written reporting form to “all mandated reporter groups” “[i]n every federally operated
(or contracted) facility, and on all Federal lands.” In other words, reporting forms must be disseminated not only to federal lands and facilities
where children are cared for or reside, but to all federal lands and facilities. This provision thus appears to presume that mandated reporter
groups exist in every federally operated or contracted facility and on all
federal lands. This presumption, in turn, strongly suggests that Congress
intended to require the reporting of abuse discovered by covered professionals in the course of their covered activities on all federal lands and in
all federal facilities, not simply abuse that occurs on the lands and in the
facilities where children are cared for or reside.
Subsection (h) embodies a similar premise. That provision, entitled
“[t]raining of prospective reporters,” requires “periodic training in the
obligation to report, as well as in the identification of abused and neglected children,” for “[a]ll individuals in the occupations listed in subsection (b)(1) of this section who work on Federal lands, or are employed
in federally operated (or contracted) facilities.” Again, this provision
appears to assume that all individuals who work in the listed occupations
on all federal lands and in all federal facilities—not solely those where
children are cared for or reside—might encounter suspected abuse that
must be reported. This further suggests that Congress intended to require
covered professionals working on all federal lands and in all federal
facilities to report suspected abuse, because the across-the-board training
requirement otherwise would serve no clear purpose.
The broad reading of the reporting requirement is also consistent with
the scope of subsection (b). Subsection (b)’s specific list of relevant
professions and activities echoes the mandatory reporter provisions of
numerous state laws requiring the reporting of abuse. Compare 42 U.S.C.
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36 Op. O.L.C. 167 (2012)
§ 13031(b) (list set forth supra note 1), with Child Welfare Information
Gateway, Dep’t of Health & Human Services, Mandatory Reporters of
Child Abuse and Neglect: Summary of State Laws at 2 (Apr. 2010)
(“Summary of State Laws”), http://www.childwelfare.gov/systemwide/
laws_policies/statutes/manda.pdf (last visted ca. May 2012). The reporting requirement, as defined in subsections (a) and (b), focuses on the
nature of the covered professional’s employment activity, not the place
where the child victim is cared for or resides. Indeed, many of the covered professionals—such as film processors, coroners, and ambulance
drivers—would likely learn of suspected child abuse in circumstances
that provide no indication whether the child victim is cared for or resides
on federal lands or in a federal facility.
The VCAA’s legislative history also reflects a congressional intent to
enact a far-reaching reporting obligation that would protect as many
victims of suspected child abuse as possible. Senator Biden, a co-sponsor
of the legislation, called it a “sweeping title aimed at mak[ing] our criminal justice system more effective in cracking down on child abusers, and
more gentle in dealing with the child abuse victims.” 136 Cong. Rec.
36,312 (1990); see also id. at 16,240 (statement of Sen. Biden) (“[Y]ou,
the innocent bystander, you, the third party, you have a legal obligation to
report when you observe or have reason to believe that an abuse of an
innocent child takes place.”); id. at 16,238 (statement of co-sponsor Sen.
Reid) (“A critical step in protecting our children is to identify child victims . . . before it is too late. My proposed bill of rights requires certain
professionals to identify who they suspect are victims of abuse and neglect.”).
As we recognize above, our interpretation of the statute does not reconcile perfectly all of the statute’s parts, specifically subsection (a)’s crossreference to subsection (d). Read in context, however, we think subsection
(d) need not and should not be construed to limit either the scope of the
reporting requirement under subsection (a) or the Attorney General’s
authority to designate agencies to receive the required reports. Such an
interpretation would be in marked tension with the breadth of subsection
(a)’s terms, the requirements of subsections (e) and (h), the scope of
subsection (b), and the general evidence of Congress’s intent.
The two additional narrowing constructions we identified also fail to
make better sense of the statute than the broad reading we have adopted.
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We first considered whether the reporting requirement should be limited
to situations involving children who had been abused on federal lands or
facilities. But under this reading, as under your suggested reading, we
would have to conclude that Congress acted to limit the apparently broad
reporting requirement set forth in subsection (a) through the oblique
mechanism of a cross-reference to subsection (d). What is more, this
reading, too, would make it difficult to explain the breadth of the mandated training and provision of forms on all federal lands and in all federal
facilities in subsections (e) and (h) and the scope of covered professionals
in subsection (b). Further, and significantly, this reading would narrow the
class of children whose suspected abuse could give rise to a required
report, despite the fact that no provision in the statute—including subsection (d)—addresses the location of the suspected abuse.
We also considered a third alternative reading—one that would require
reporting only from covered professionals who engage in the specified
professions and activities on federal lands or in federal facilities where
children are cared for or may have been abused. This construction, too,
would rest on a presumption that Congress intended to limit the scope of
the reporting obligation through a single cross-reference to subsection (d).
Further, it would be in particularly sharp tension with subsections (e) and
(h), which require training and distributing reporting forms on all federal
lands and in all federal facilities, not just where children are cared for or
reside. This reading would also produce an anomalous result—a professional’s obligation to report facts giving reason to suspect that a child
unconnected with federal lands or facilities had been abused would turn
on the apparently unrelated question whether other children happened to
be cared for or reside on the lands or in the facility where the professional
works. In our judgment, these difficulties make this interpretation less
coherent than the broad reading we have given the statute.
We therefore conclude that the best reading of section 13031 as a whole
is that a covered professional is required to report suspected child abuse
discovered while engaged in the professions or occupations specified in
subsection (b) on federal lands or in federal facilities. 4
This interpretation of the reporting requirement is consistent with the law of most
states. “All States, the District of Columbia, [and all U.S. territories] have statutes identifying persons who are required to report child maltreatment under specific circumstances,” and, in most states, the list of individuals with reporting obligations closely resembles
4
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36 Op. O.L.C. 167 (2012)
B.
We next consider whether “the mere knowledge that a patient has
viewed child pornography [would] trigger a covered professional’s duty
to report the suspected child abuse, even if he or she does not know the
identity of the child or children depicted and has no reason to believe the
patient knew their identity.” VA Letter at 2. 5 In raising this question, you
point to language in a later part of subsection (d) providing that, when
reports required by subsection (a) are “received by social services or
health care agencies, and involve allegations of sexual abuse, serious
physical injury, or life-threatening neglect of a child, there shall be an
immediate referral of the report to a law enforcement agency with authority to take emergency action to protect the child.” Based on subsection
(d)’s reference to “the” child, you note that, while it is clear that “the
[reporting] requirement applies when the identity of an abused child can
be determined by the covered provider so that the law-enforcement agency with jurisdiction can be identified, . . . it is less clear . . . that it applies
when that is not the case.” VA Letter at 2. 6 We conclude, however, that
the text of the statute covers the situation you describe.
the list of covered professionals in section 13031. Summary of State Laws at 1–2. In fact,
some jurisdictions require all persons, not just certain professionals, to report suspected
child abuse. Id. at 3. Thus, many, if not all, covered professionals who learn of suspected
child abuse on federal lands or in federal facilities would also be required to report under
state laws. Covered professionals should therefore consult relevant state law to ensure that
they are fully informed about the scope of their legal reporting requirements.
5 As we have noted, section 13031(b) subjects a wide range of individuals to the reporting duty of subsection (a), including physicians, pharmacists, school officials, detention facility employees, and commercial film and photo processors. See supra note 1
(quoting 42 U.S.C. § 13031(b)). Those covered professionals thus may learn of possible
child abuse from a variety of individuals besides those commonly referred to as “patients.” For simplicity, however, we use the term “patient” as shorthand for any person
from whom a covered professional may learn of potential child abuse.
6 Similarly, the Department of Defense states that its relevant policy “does not contemplate that the statute applies in a situation where the patient merely blurts out that he
has an addiction to child pornography.” Instead, under its policy, reporting would be
required in contexts where the patient “is drawn to a particular child,” “knows the identity
or whereabouts of a child depicted in the pornography,” “help[s] to produce the pornography,” or in other contexts where “there is an identifiable child or identifiable children that
could be the subject of action by the child protective agency.” E-mail for Jeannie S. Rhee,
Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Coun-
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The text of section 13031(a) imposes a reporting duty on a covered
professional “who, while engaged in a professional capacity or activity
described in subsection (b) . . . , learns of facts that give reason to suspect that a child has suffered an incident of child abuse.” “[C]hild abuse,”
in turn, is defined as “the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1).
The statute further provides that “the term ‘sexual abuse’ includes the
employment [or] use . . . of a child to engage in . . . sexual exploitation of
children,” and that “the term ‘exploitation’ means child pornography or
child prostitution.” Id. § 13031(c)(4), (6). Under these definitions, covered professionals must report suspected abuse if they learn of facts
giving reason to suspect that a child “has suffered an incident of [employment or use to engage in child pornography],” 7 or “has suffered an
incident of [child pornography].”
Although section 13031 does not define the term “child pornography,”
it is defined elsewhere in the U.S. Code as
any visual depiction, . . . whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where—
sel, Department of Defense (Feb. 26, 2010, 5:02 PM). The Department of State “does not
have a formal position or policy addressing whether the reporting requirement is triggered
when a covered professional learns that someone has viewed child pornography, but the
professional does not know the identity of the child or children depicted and has no
reason to believe that the viewer knows their identities.” E-mail for Jeannie S. Rhee,
Deputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser,
Department of State (July 21, 2010, 2:35 PM). It recognizes, however, that this situation
“may trigger other actions including the enforcement of child pornography laws, if
applicable, or internal discipline.” Id.
7 The substitution in the text is not completely straightforward, in that the statute defines “exploitation”—without any qualification—to include “child pornography or child
prostitution,” but defines “sexual abuse” to include “rape, molestation, prostitution, or
other form[s] of sexual exploitation of children.” Compare 42 U.S.C. § 13031(c)(6)
(definition of “exploitation”), with id. § 13031(c)(4) (definition of “sexual abuse”). We do
not think, however, that the statute intends to draw a strong distinction between “exploitation” and “sexual exploitation.” The latter phrase is not a defined term. And the statute in
other respects seems to treat the two terms as essentially interchangeable. In particular,
the definition of “sexual abuse” expressly provides that “prostitution . . . of children” is a
form of “sexual exploitation of children,” and the definition of “exploitation” similarly
provides that “child prostitution” is a form of “exploitation.” Id. § 13031(c)(4), (6).
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36 Op. O.L.C. 167 (2012)
(A) the production of such visual depiction involves the use of
a minor engaging in sexually explicit conduct;
(B) such visual depiction is . . . of a minor engaging in sexually
explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually
explicit conduct.
18 U.S.C. § 2256(8). 8 This definition is consistent with dictionary definitions of child pornography. See, e.g., Black’s Law Dictionary 1279 (9th
ed. 2009) (defining “child pornography” as “[m]aterial depicting a person
under the age of 18 engaged in sexual activity”).
Under these definitions, child pornography is not a specific action or
set of actions, but an end product, a particular kind of visual depiction that
is “made or produced.” 18 U.S.C. § 2256(8). It is thus not entirely clear
what it means “to engage in child pornography,” or for “a child” to have
“suffered an incident of” child pornography. Notably, however, certain
other forms of “child abuse” in section 13031 are also defined as end
results rather than actions. “[P]hysical injury,” for example, is defined to
include, among other things, “lacerations, fractured bones, burns, [and]
internal injuries.” 42 U.S.C. § 13031(c)(2). And it is relatively straightforward to conclude that a child has “suffered an incident of” lacerations
or fractured bones if the child has been subjected to physical abuse that
results in those injuries. We think it is similarly clear that, whatever else
the phrase may include, a person has “engage[d] in child pornography” if
that person has produced or created pornographic images of children, and
that “a child has suffered an incident of ” child pornography if that child
has been made the subject of pornographic images. The pornography is “a
permanent record” of the abusive conduct of creating a pornographic
image of a child. New York v. Ferber, 458 U.S. 747, 759 (1982).
Based on this analysis, we conclude that a covered professional who
learns that a patient under his or her care has viewed child pornography
may be aware of “facts that give reason to suspect that a child”—the
Other definitions in section 13031, including the definition of “sexually explicit conduct”—a concept closely related to “child pornography,” as the definition quoted above
makes clear—track definitions in the same chapter (chapter 110) of the criminal code.
Compare 42 U.S.C. § 13031(c)(5) (2006), with 18 U.S.C. § 2256(2) (2006).
8
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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031
subject of the specific pornographic images viewed by the patient—“has
suffered an incident of child abuse.” 42 U.S.C. § 13031(a).
We do not believe a covered professional in such a situation is relieved
of an obligation to report such facts simply because he or she does not
know or have reason to know, or have reason to believe a patient knows,
the identity of the child depicted in the pornography. Subsections (a) and
(d) of section 13031 do not require, either expressly or by implication,
that a covered professional (or his or her patient) know the identity of the
child or children abused in order to have a reporting obligation. We generally “‘resist reading words or elements into a statute that do not appear
on its face.’” Dean v. United States, 556 U.S. 568, 572 (2009) (quoting
Bates v. United States, 522 U.S. 23, 29 (1997)). Moreover, imposing a
requirement that the victim’s identity be known would be in tension with
Congress’s protective purpose. See, e.g., 136 Cong. Rec. 36,312 (1990)
(statement of Sen. Biden) (noting that the statute would “make [the]
criminal justice system more effective in cracking down on child abusers”).
Even assuming that the statute’s references to “a child” in section
13031(a) and (d) limit the reporting requirement to situations involving
“a” specific, potentially identifiable child, that limitation provides no
basis for imposing the additional prerequisites to reporting that the
covered professional know or have reason to believe his or her patient
knows the identity of a child depicted in pornography the patient admits
to viewing. Pornography may well involve “a” specific, potentially
identifiable child even if neither covered professionals nor their patients
know the child’s identity. Even if covered professionals (or their patients) do not know the identity of any children depicted in pornography
viewed by a patient, a report may lead authorities to specific, identifiable children. While some child pornography may be the work of professionals and therefore difficult to link to specific identifiable children,
other such images are homemade recordings, taken in domestic contexts,
of sexually abusive acts “committed against young neighbors or family
members,” and therefore traceable through law enforcement investigation to a particular child or children. Philip Jenkins, Beyond Tolerance:
Child Pornography on the Internet 82 (2001); see also Richard Wortley
& Stephen Smallbone, Community Oriented Policing Services, Dep’t of
Justice, Problem-Oriented Guides for Police, Problem-Specific Guides
Series No. 41, Child Pornography on the Internet at 9 (2006), http://
181
36 Op. O.L.C. 167 (2012)
www.cops.usdoj.gov/Publications/e04062000.pdf (last visited ca. 2012)
(“[M]ore commonly, amateurs make records of their own sexual abuse
exploits, particularly now that electronic recording devices such as
digital cameras and web cams permit individuals to create high quality,
homemade images.”).
For the same reasons, section 13031(d)’s statement that, in certain
circumstances, social services or health care agencies must refer reports of
suspected child abuse “to a law enforcement agency with authority to take
emergency action to protect the child” (emphasis added) should not be
read to restrict the reporting obligation to situations in which covered
professionals know the identity of the children who are the victims of
suspected abuse. This law-enforcement referral requirement applies not to
covered professionals, but to the “social services or health care agencies”
that receive reports of suspected child abuse. 42 U.S.C. § 13031(d). The
statute expressly contemplates that the agency receiving the report, not the
covered professional, must ascertain which law enforcement agency is
“authori[zed] to take emergency action to protect the child.” Id. And
although the referral requirement could be read to reflect an assumption
that these agencies generally will know the identity of the child in need of
protection, the requirement also could be satisfied by identifying a law
enforcement agency with authority to initiate an investigation to ascertain
the identity and location of the suspected victim.
We therefore conclude that the fact that a patient has viewed child pornography may constitute a “fact[] that give[s] reason to suspect that a
child has suffered an incident of child abuse” under section 13031, and
that a covered professional is not relieved of the obligation to report such
a fact simply because the identity of the injured child is unknown.
C.
As noted, the VCAA provides for criminal penalties. 18 U.S.C.
§ 2258. When interpreting a statute’s civil provision, the violation of
which is also subject to criminal sanction, the rule of lenity may be
invoked to resolve ambiguity in the provision. See Leocal v. Ashcroft,
543 U.S. 1, 11–12 & n.8 (2004); United States v. Thompson/Center
Arms Co., 504 U.S. 505, 517–18 & n.10 (1992) (plurality opinion).
Here, however, we resolved both of the interpretive questions you
presented without employing the rule of lenity, because we concluded
182
Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031
that the provisions at issue did not present any “grievous ambiguity or
uncertainty” that could not be addressed by applying ordinary tools of
statutory construction. Muscarello v. United States, 524 U.S. 125, 139
(1998) (internal quotation marks omitted).
We recognize, however, that the statutory trigger for the reporting requirement—the learning of “facts that give reason to suspect that a child
has suffered an incident of child abuse”—is extremely broad. For example, the statute’s text does not appear to require either that the suspected
abuse have occurred recently or that there be a direct connection between
the facts and a particular perpetrator of or witness to abuse. Thus, a doctor’s duty to report conceivably could be triggered by a patient’s revelation that his neighbor confided that he was abused as a child some decades ago, a patient’s revelation that acquaintances long ago had viewed
child pornography, or a patient’s expression of amazement that he had
learned from the Internet that child abuse or child pornography was far
more prevalent than he had previously believed. 9 Because failures to
report may be criminally prosecuted, courts may be concerned about the
uncertain breadth of the suspected abuse that may be subject to section
13031’s reporting requirement, particularly when combined with the
ambiguities discussed in Parts II.A and II.B.
You have not asked us to define the boundaries of the phrase “facts
that give reason” to suspect child abuse or to discuss the application of
18 U.S.C. § 2258, but we note that covered professionals who fail to
make a report required by the statute may not always be criminally liable
for their failure to do so. Significantly, although the VCAA’s criminal
penalty provision lacks an express mens rea requirement, courts generally “interpret[] criminal statutes to include broadly applicable scienter
requirements, even where the statute by its terms does not contain them.”
X-Citement Video, 513 U.S. at 70. 10 Courts deciding whether to impose
9 We do not consider here whether other aspects of the language quoted in the text
above, or of language elsewhere in the statute, might limit its application in some such
situations. A court might also adopt a narrowing construction of the statutory trigger for
the reporting requirement to avoid notice concerns. See Skilling v. United States, 130
S. Ct. 2896, 2931 (2010).
10 As the Supreme Court has explained, the presumption that a statute contains a mens
rea requirement even when that requirement is not explicit in the statutory text is consistent with the rule of lenity. See Liparota v. United States, 471 U.S. 419, 427–28 (1985).
183
36 Op. O.L.C. 167 (2012)
criminal penalties on a covered professional for failing to file a report
would have to decide (i ) whether to construe 18 U.S.C. § 2258 to impose
a mens rea requirement, and (ii) if they do so, what the required mens rea
is. And while for some statutes, courts have required only that a defendant
have knowledge of the “facts that make his conduct illegal,” Staples v.
United States, 511 U.S. 600, 605 (1994), for others, courts have required
that a defendant know that his or her conduct was “unauthorized or illegal” before criminal liability could be imposed, particularly where failure
to impose such a requirement would “criminalize a broad range of apparently innocent conduct,” Liparota v. United States, 471 U.S. 419, 426,
434 (1985). Here, a court concerned about ordinary citizens’ ability to
decipher the contours of the abuse that must be reported, or about the
statute’s punishment of a failure to act rather than an affirmative act,
might be inclined to adopt this kind of heightened mens rea requirement.
See Skilling v. United States, 130 S. Ct. 2896, 2927–28 (2010) (noting that
a “‘criminal offense’” must be defined “‘with sufficient definiteness that
ordinary people can understand what conduct is prohibited’” (quoting
Kolender v. Lawson, 461 U.S. 352, 357 (1983))); id. at 2933 (noting that a
“mens rea requirement” can help “blunt[] . . . notice concern[s]”); Lambert v. California, 355 U.S. 225, 228 (1957) (holding that due process
requires that a person who is “wholly passive and unaware of any wrongdoing” have notice of a registration requirement before she may be held
criminally liable).
III.
In sum, any person who, while engaged in a professional capacity or
activity described in subsection (b) of section 13031 on any federal land
or in any federally operated (or contracted) facility, learns of “facts that
give reason to suspect that a child has suffered any incident of child
abuse” must report the suspected abuse to a designated agency. The fact
that a patient has viewed child pornography may “give reason to suspect
that a child has suffered an incident of child abuse” under the statute, and
Inferring a mens rea requirement is, however, a distinct practice from applying the rule of
lenity, and the Court has suggested that lenity principles may not apply in determining the
degree of mens rea that is required. See Staples v. United States, 511 U.S. 600, 619 n.17
(1994).
184
Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031
a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient
knows the identity of the child depicted in the pornography. As described,
however, a covered professional’s failure to file a required report will not
necessarily result in criminal liability.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
185 |
|
Write a legal research memo on the following topic. | Applicability of 21 U.S.C. § 952(a) to the Importation of
Morphine Sulfate by the General Services Administration
The provision in 21 U .S C . § 952(a), w hich prohibits im portation of certain controlled substances
ex cep t in c e rta in sp e c ifie d c irc u m sta n c e s , a p p lie s to im p o rta tio n by the U nited S tates
G overnm ent.
Notw ithstanding the canon of statutory construction that a law should not be read to im pose new
burdens on the governm ent in derogation of its preexisting nghts and privileges, well-established
and consistent adm inistrative practice and interpretation of the coverage of 2 1 U .S .C . § 952(a), as
well as its legislative history, indicate that that law covers im portations by the U nited States
governm ent.
October 18, 1982
MEMORANDUM OPINION FOR THE COMMISSIONER,
FEDERAL PROPERTY RESOURCES SERVICE,
GENERAL SERVICES ADMINISTRATION
This responds to your request for our opinion whether 21 U.S.C. § 952(a)
applies to the importation of controlled substances by the United States or its
agents. This question has arisen in the context of a proposed importation of
morphine sulfate from Turkey, with which your agency has been involved.
Section 952(a) of Title 21, U.S. Code, is a central provision of the Controlled
Substances Import and Export Act of 1970 (the Act).1 The broad terms of
§ 952(a) provide that it ‘“shall be unlawful” to import into the United States
controlled substances except in certain circumstances.2 On its face, § 952(a)
does not exclude the United States from its coverage. On the other hand, it also
does not specifically include the United States. Accordingly, in view of the fact
that the provision imposes limitations on those whom it covers, and in light of the
longstanding canon of statutory construction that statutes imposing burdens
should not lightly be read to deny governments preexisting rights or privileges,3 a
1Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is entitled the Controlled
Substances Import and Export Act of 1970. As its name indicates. Title III places a number of restrictions on the
import into and export from the United States of controlled substances See Pub. L. No. 91-513, Title III. 91st
Cong., 2d Sess , 84 Stat. 1285, 21 U S C. §§ 951-966
2 The language of 21 U.S C § 952(a) is quoted in its entirety in part II infra
3 This canon of statutory construction is stated in a number o f judicial opinions. See, e.g., Hancock v Train, 426
U S. 167, 179 (1976); United States v. Wittek, 337 U S. 346 (1949); United States v. United Mine Workers c f
America. 330 U S. 258, 272-73(1947); United States v Herron. 87 U.S. (20 Wall ) 251 (1874); United States v.
Knight, 39 U .S. (14 Pet ) 301 (1840)
577
question arises whether the statute does in fact cover importations by the United
States, such as that proposed in this case.
We have concluded that, despite the canon of construction referred to in the
previous paragraph, the statute and pertinent legislative materials do demonstrate
Congress’ intention that the law’s limitations apply broadly. This intention would
not be consistent with implying a general exception for actions by the United
States or its agents. This view is strongly buttressed by the fact, discussed below,
that the federal agency most directly responsible for enforcing the Act— the Drug
Enforcement Administration (DEA)— consistently has taken the position that the
statute does reach actions by the United States. In such circumstances, we find no
adequate justification in the canon of interpretation— a device for use in doubtful
cases— for concluding that 21 U .S.C . § 952(a) does not apply to actions by the
United States. In practical terms, this means that the importation by the United
States of controlled substances referred to in § 952(a) is prohibited unless one of
the exceptions in § 952(a) is found to pertain.
I. Background Facte
Your opinion request follows an earlier opinion of this Office, dated July 19,
1982, which also dealt with the proposed importation of morphine sulfate from
Turkey.4 In that opinion, we assumed arguendo that § 952(a)’s proscription on
the importation of controlled substances, except in certain circumstances, does
cover actions by the United States.5 Passing that issue, we noted that further
attention might profitably be paid to the exceptions themselves, viewed in light of
the particular facts concerning the proposed importation of morphine sulfate.
Specifically, we suggested that the involved agencies should ascertain whether
the “ emergency” exception in 21 U.S.C. § 952(a)(2)(A) could apply to the
proposed importation of morphine sulfate for purposes of replenishing the
National Defense Stockpile’s supply of such substances. We noted that we were
not aware of whether the facts would establish the basis for invoking such an
exception. Nevertheless, we sought to identify the appropriate lines of inquiry.6
Having done so, we indicated that if the facts would not support the use of the
emergency exception, we would be glad to address the underlying legal question
regarding 21 U .S.C . § 952(a)’s applicability to the United States.
4 See M emorandum for Francis M. Mullen, J r., Acting Administrator, Drug Enforcement Administration, from
Theodore B . Olson, Assistant Attorney Genera), Office of Legal Counsel, entitled “ Importation of Morphine
Sulfate from TUrkey” (July 19,1982). [Note: The July 19,1982 opinion is reprinted in this volume at p. 455, supra.
Ed.]
5 We noted in the July 19,1982 opinion not only that an argument could be made that21 U .S.C . § 952(a)doesnot
apply to the United States, but also that a contrary argument could be advanced. In view of the lack of any sure
footing for the contention regarding the nonapplicability of § 952(a) to the United States, we suggested that further
attention be paid to the possibility o f utilizing the statutory exception for an emergency in present circumstances.
6 For instance, we noted that, in order to m ake the requisite finding for using the emergency exception in 21
U S C . § 952(a)(2)(A), it would be “ essential first to identify precisely what that need [for morphine sulfate] is,
second to determ ine w hether failure to fulfill that need creates an emergency situation, and finally to examine
w hether dom estic supplies are adequate to meet the need as identified. . . ” Memorandum, supra note 4 , at 4.
578
II. Analysis of the Statute
The question before us is one of statutory construction. The pertinent language
is as follows:
It shall be unlawful to import into the customs territory of the
United States from any place outside thereof (but within the
United States), or to import into the United States from any place
outside thereof, any controlled substance in schedule I or II of
subchapter I of this chapter, or any narcotic drug in schedule III,
IV, or V of subchapter I of this chapter, except that—
(1) such amounts of crude opium and coca leaves as the
Attorney General finds to be necessary to provide for medical,
scientific, or other legitimate purposes, and
(2) such amounts of any controlled substance in schedule I
or II or any narcotic drug in schedule III, IV, or V that the
Attorney General finds to be necessary to provide for the
medical, scientific, or other legitimate needs of the United
States—
(A) during an emergency in which domestic supplies of
such substance or drug are found by the Attorney General to
be inadequate, or
(B) in any case in which the Attorney General finds that
competition among domestic manufacturers of the con
trolled substance is inadequate and will not be rendered
adequate by the registration of additional manufacturers
under section 823 of this title,
may be so imported under such regulations as the Attorney
General shall prescribe. No crude opium may be so imported for
the purpose of manufacturing heroin or smoking opium.7
There is no question that morphine sulfate— a refined derivative, or salt, of
opium— is a schedule II controlled substance within the meaning of § 952(a).8 It
is not “ crude opium” for purposes of § 952(a)(1). Accordingly, its importation
into the United States in present circumstances is barred unless one of the
exceptions in § 952(a)(2) applies, or unless— and this is the issue about which
you have sought our opinion— § 952(a) as a whole does not cover actions of the
United States but rather is limited to actions by private, nongovernmental parties.
On the one hand, it may be argued that the broad terms of § 952(a) should not
be read to cover actions by the United States in light of the canon of construction
7 21 U.S C § 952(a)
8 See 21 U S C. § 812(c), 21 C.F.R. § 1308.12. Morphine is the pnncipal alkaloid, or organic base, of opium,
which is the coagulated juice o f the opium poppy plant, papaver sommferum. Morphine in the form of a soluble
salt— such as morphine sulfate— is used as an analgesic o r a sedative. See Webster’s Third New International
Dictionary 1471 (1976); 15 Encyclopaedia Bntanmca 856 (1971)
579
identified at the outset of this opinion. This canon holds that, absent contrary
indication in relevant legislative materials, a statute imposing burdens normally
should not be read to impose those burdens on the government in derogation of its
preexisting rights or privileges.9
Historically, this rule originated in the English doctrine that the Crown is
presumed to be unaffected by acts of Parliament unless the acts are directed
specifically at the C row n.10 Because in the United States sovereignty always has
resided by theory and practice in the people, rather than in a monarch, transplan
tation of the English rule to this country necessarily has led to its subtle
transformation. The rule’s chief policy basis in American case law is the notion
that Congress is presumed to have intended to preserve on behalf of the people the
efficient functioning of government, and therefore a statute generally should not
be read to impose new burdens on government without indications that this in fact
was Congress’ intention." In the present context, this rule of construction could
be used as a basis for arguing that § 952(a) was not intended to impose new
burdens on the United States, for the provision does not clearly state that it was so
intended.
On the other hand, the foregoing canon of construction should not be viewed as
an absolute guide to the construction of any statute. One commentator has stated
that although the canon has been useful in a number of cases, “ [i]t is questionable
. . . whether the rule still continues to command the same influence today.” 3 C.
Sands, Sutherland Statutory Construction § 62.03 (4th ed. 1974). The “ rule”
that the government normally is to be excluded from coverage of statutes
imposing burdens is, in fact, subject to numerous exceptions. It is merely a guide
to the most plausible construction of legislative intent when other indications of
such intent are not present or dominant. The central inquiry when faced, as we
are here, with possible application of the canon of construction is to determine
whether there are other specific grounds on which to rest an interpretation of the
statute that are more definite and ultimately more helpful than the canon of
construction itself.12
In present circumstance, one of the most striking features is the existence of a
longstanding, consistent, and specific administrative construction of the statute
in question on the very point at issue here. In conversations with officials of the
Drug Enforcement Administration— which is responsible for administering the
statute of which § 952(a) is a central part— we have learned that for years the
agency has interpreted § 952(a) as applying not only to importations of con
9 See U nited States v United Mine Workers o f America, 330 U S 258. 272-73 (1947), United States v Herron,
87 U .S. (20 Wall.) 251 (1874). United States v. Knight, 39 U S. (14 Pet.) 301 (1840)
10 See U nited States v. California, 297 U .S . 175, 186 (1936); see also 3 C Sands, Sutherland Statutory
Construction § 62 01 (4th ed 1974).
11 See Hancock v 7ram . 4 2 6 U S . 167, 169 (1976), Letter Minerals, Inc v. U nitedStates, 352U S. 220, 224-25
(1957); U nitedStates v Wittek. 337 U S 346 (1949); Guaranty Trust Co v. U nitedStates. 304 U.S. 126, 132-33
(1938).
12 As the Supreme Court has noted, the canon of construction is merely “ an aid to consistent construction of
statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly
fo be inferred be disregarded because not explicitly stated.” United States v California, 297 U.S 175, 186 (1936).
See United States v Wittek. 337 U S 346, 3 58-59 (1949); 3 C Sands, Sutherland Statutory Construction § 62 02
(4th ed. 1974)
580
trolled substances by private parties, but also to importations of such substances
by the government itself, specifically including federal agencies. Thus, in the
course of the routine administration of this statute, the DEA and its predecessor
agency13 have confronted precisely the issue that has been put to us. The federal
agencies involved have been required to meet all statutory and regulatory
requirements pertaining to importations of controlled substances.14
For instance, we have been told that when an agency, such as the National
Institute on Drug Abuse of the Department of Health and Human Services, has
sought to import quantities of controlled substances for laboratory tests, the
agency has been required by the DEA to comply with applicable registration and
permit requirements. These requirements, authorized by statute, see 21 U.S.C.
§§ 957 & 958, are set forth in the DEA’s regulations, see 21 C.F.R. §§ 1311 &
1312 (1981). Among other things, these regulations require importers of con
trolled substances to obtain an annual registration, unless specifically exempted
from the requirement. See 21 C.F.R. § 1311.21. Among those who are exempt
from this requirement are officials of the United States Army, Navy, Marine
Corps, Air Force, Coast Guard, or Public Health Service, see 21 C.F.R.
§ 1311.24, and officials of the United States Customs Service, the Food and
Drug Administration, and “ any other Federal officer who is lawfully engaged in
the enforcement of any Federal law relating to controlled substances. . . .” See
21 C.F.R. § 1311.25. By exempting these federal officials, the DEA has plainly
indicated its understanding that otherwise, the requirements would have applied
to the officials— as they do to officials not exempted. Furthermore, before any
person may import a controlled substance, a permit must be issued. See 21
C.F.R. § 1312.11. Specific grounds for the issuance of such permits are set forth
in the DEA’s regulations. See 21 C.F.R. § 1312.13. These permit requirements,
the DEA has told us, also have regularly been applied to federal agencies seeking
to impiort quantities of controlled substances for official purposes.
The existence of such a consistent agency interpretation of its own authorizing
legislation is viewed by courts as being of substantial importance. The Supreme
Court has underscored that “ [w]hen faced with a problem of statutory con
struction, this Court shows great deference to the interpretation given the statute
by the officers or agency charged with its administration.” Udall v. Tollman, 380
U.S. 1, 16 (1965). The reason for this deference is that agencies have consider
able familiarity with the nuances of their authorizing legislation and its applica
tion in practice, and may generally be presumed to be expert in its construction.
See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969);
Zemel v. Rusk, 381 U.S. 1, 11-12 (1965). Of course, courts remain ultimate
arbiters of the law in contested cases. S ee, e .g ., V olksw agenw erk Aktiengesellschaft v. FMC, 390 U.S. 261, 272 (1968). However, courts give
13 The Drug Enforcement Administration was created by a reorganization plan in 1973 The description in text of
DEA’s interpretation of § 952(a), enacted in 1970, also applies, we are told, to its predecessor, the Bureau of
Narcotics and Dangerous Drugs
14 Our discussion of the D EA’s interpretation of § 952(a) necessarily relies on factual representations made to us
by DEA officials
581
significant weight to a plain and longstanding administrative construction. The
Supreme Court has explained that such a construction has the power “ to per
suade,” if not “ control,” judicial analysis:
We consider that the rulings, interpretations and opinions of
[agencies], while not controlling upon the courts by reason of
their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance. The weight of such a judgment in a particular case will
depend upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.
G eneral Electric Co. v. Gilbert, 429 U.S. 125, 141-2 (1976), quoting Skidmore
v. Swift & C o., 323 U .S. 134, 140 (1944).
In this case, the DEA’s understanding of the coverage of federal agencies by
§ 952(a) is well-established and consistent. Moreover, it would appear to be the
product of informed judgment. Certainly, the DEA has been confronted repeat
edly with situations in which it has had to determine how to treat federal agencies
under § 952(a). Each time, we are told, it has reached the view that such agencies
are subject, as are private parties, to applicable statutory and regulatory require
ments. Furthermore, this interpretation, we understand, dates back at least to the
time of the passage of § 952(a) in 1970, if not to earlier years when § 952(a)’s
immediate predecessor (which was similar in nature) was in effect. In such
circumstances, courts would pay even greater attention to the agency’s view. See,
e .g ., SEC v. Sloan, 436U .S. 103, 120 (1978); E. I .D uPont de Nemours & Co. v.
Train, 430 U.S. 112, 134—35 (1977); Union Electric Co. v. EPA, 427 U.S. 246,
256 (1976); Train v. Natural Resources Defense Council, 421 U.S. 60, 87
(1975); H ercules, Inc. v. EPA, 598 F.2d 91, 101 (D.C. Cir. 1978).
Our own review of the statute’s legislative history tends, at a general level, to
confirm the D EA ’s understanding of § 952(a)’s coverage. First, there are un
mistakable indications that Congress intended the importation restriction to
operate as a critical element in the statute’s scheme of controlling the importation
of controlled substances.15 Furthermore, there are indications that any importa
tion of controlled substances by a ll importers— whether or not a private importer
that might be suspected of seeking to engage in illicit conduct— was intended to
be covered. Thus, the major committee report on'the bill containing § 952(a) that
was enacted in 1970 stated that the importation restriction refers “ to any article,
any bringing in or introduction of such article into any area. . . .’’ H.R. Rep. No.
1444 (Pt. 1), 91st C ong., 2d Sess. 74 (1970) (emphasis added). In floor debate on
the predecessor provision, the Narcotic Drugs Import and Export Act of 1922,
Pub. L. No. 227, 67th Cong., 2d Sess., 42 Stat. 596, 21 U.S.C. § 173 (1964),
the provision’s proponent stated that the predecessor importation restriction was
15 See H .R . Rep. No. 1444 (Pt. 1). 91st C ong., 2d Sess. 71-80 (1970). See also 116 Cong. Rec. 33317(1970).
582
an effort to use “ best efforts to control or cause to be controlled all those who
import or export morphine, cocaine, or their respective salts.” 62 Cong. Rec.
6334 (1922) (emphasis added). These references in the legislative history to “ any
importation” and “ all those who import” morphine or a salt of morphine suggest
that Congress intended a broad coverage of the importation restriction. It is
consistent with this intent to construe § 952(a), as the DEA has done, to cover
actions of \jthe United States.
Furthermore, there is some indication in the legislative history that one
purpose served by the importation restriction is to prevent drug manufacturers in
foreign countries from having access to the domestic American market in
finished narcotic drugs. Thus, the relevant Committee report on the 1922
predecessor to § 952(a) stated that the restriction on the importation of finished
narcotic drugs (as opposed to raw opium and coca leaves) “ will also . . .close the
legitimate domestic market to foreign manufacturers.” H.R. Rep. No. 852, 67th
Cong., 2d Sess. 7-8 (1922).16 Although the precise reasons for closing the
domestic market to foreign manufacturers may not be entirely clear, they may
reasonably be understood to include the desire to protect the American drug
industry from foreign competition— as well as simply to shut off importation in
order to prevent illicit trafficking in drugs. Certainly, domestic drug industry
representatives involved in manufacturing finished narcotics have so understood
the intent of § 952(a). See, e .g ., Controlled Dangerous Substances, Narcotics
and Drug Control Laws: Hearings Before the House Committee on Ways and
Means, 91st Cong., 2d Sess. 458-62 (1970) (testimony of Stephen Ailes on
behalf of three American firms licensed in 1970 to import opium for processing
for legitimate medical purposes). Moreover, we understand from our con
versations with DEA officials that the DEA itself is of the view that one—
although not the major—statutory aim served by § 952(a) is the protection of the
domestic American drug industry from foreign competition.
We would not want to rest an interpretation of § 952(a) entirely on the few
indications of a “ protectionist” purpose that we have found in the legislative
16 The full passage in the course o f which this comment occurs is the following:
The existing law in section 1 of the narcotic drugs import and export act [of 1909, as amended by the
Harrison Act of 1914]. . . prohibits the importation of smoking opium, but permits the importation
for medical purposes of other opium products
. . The United States manufactures more than a
sufficient amount o f narcotic drugs for domestic medical and scientific uses. The committee
therefore believes it desirable to restrict our importation to raw opium and coca leaves, and to admit
these only in amounts found by the Secretary of State, the Secretary of the Treasury, and the
Secretary of Commerce to be sufficient lo provide our manufacturers with enough of the raw
products for the domestic and scientific uses of this country, and for foreign exportation as required
by the opium convention for medical and scientific uses of legitimate foreign consumers. This
restriction will also aid in enforcing our export restrictions. . . . It will also aid in preventing
evasions of the Harrison Act, by means of the unlawful importation into this country of narcotic
drugs previously imported by us and sent into the export trade, and will close the legitimate domestic
market to foreign manufacturers. By proper action in authorizing the importation of the raw
products, it is believed that the three Secretaries can curb any tendency to increase the pnce of the
manufactured narcotic drugs which might otherwise result from the prohibition of their importation,
and by such action also take account of increased domestic consumption beyond the ordinary needs
for medical and scientific uses, due either to diversion of drugs into illegitimate domestic channels
.. or to epidemic or war conditions. (Emphasis added.)
H.R Rep. No. 852, 67th Cong., 2d Sess. 7-8 (1922).
583
history. However, we must acknowledge that, however ambiguous they may
appear to be, such indications do exist, and they directly support the notion that
§ 952(a) should be interpreted to apply to the United States, as well as to private
parties.17
In sum, in view of the longstanding and consistent agency interpretation of
§ 952(a) and its predecessor as applying to importations of controlled substances
by private parties and federal agencies, in view of suggestions in the legislative
history that Congress intended a broad construction of § 952(a) in order to fulfill
its purposes, and in view of the absence of any indication in the legislative history
to the contrary, we conclude that § 952(a) should be understood to apply to
importations by the United States. It thus applies to the proposed importation of
morphine sulfate from Turkey that is presently the subject of negotiations involv
ing the General Services Administration.
T
heodore
B. O lson
Assistant Attorney General
Office c f Legal Counsel
17 An argument can be made that Congress did not intend to cover the United States in § 952(a), for it provided for
a means of enforcing § 952(a), namely, by possible criminal penalty, see 21 U .S C § 960. that is not appropriately
applied against the United States. The problem with this argument is that it ignores that the criminal enforcement
provisions are not exclusive 21 U .S C § 964 states that any penalty imposed for violation of the import and export
restrictions ' ‘shall be in addition to, and not in lieu of. any civil or administrative penalty or sanction authonzed by
law.*’ It is not inconceivable that an aggrieved private party may be able to achieve judicial review of an importation
of a controlled substance by the United States, and seek in a judicial proceeding a civil remedy predicated on an
alleged violation of § 952(a). Accordingly, we cannot give definitive weight to the existence of criminal enforcement
provisions in the statute To us, the central question is what Congress’ intent in imposing the importation restriction
itself appears to have been That question is best resolved by referring to § 952(a) s own legislative history and. in
this case, the longstanding agency construction of the provision.
584 |
|
Write a legal research memo on the following topic. | United States Assistance to Countries that Shoot Down
Civil Aircraft Involved in Drug Trafficking
T h e A irc ra ft S a b o ta g e A c t o f 1 9 8 4 applies to th e p o lic e an d m ilita ry p e rs o n n e l o f fo re ig n g o v e rn m e n ts.
In p a rtic u la r, th e A c t a p p lie s to the use o f d e a d ly fo rce by s u c h fo re ig n g o v e rn m e n ta l a cto rs a g a in st
c iv il a irc ra ft in flig h t th a t a re su sp ected o f tra n s p o rtin g ille g a l d ru g s
T h e re is a c c o rd in g ly a s u b
s ta n tia l ris k th a t U n ite d S ta te s G o v e rn m e n t o ffic e rs an d e m p lo y e e s w h o p ro v id e flig h t tra c k in g in
fo rm a tio n o r c e r ta in o th e r form s o f a s s is ta n c e to th e a e ria l in te rd ic tio n p ro g ra m s o f foreign
g o v e rn m e n ts th a t h a v e d e s tro y e d such a irc ra ft, o r th at h a v e a n n o u n c e d an in te n t to d o so, w o u ld be
a id in g a n d a b e ttin g c o n d u c t th a t v iolated th e A ct.
July 14, 1994
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 *
This m em orandum summarizes our earlier advice concerning whether and in
what circum stances United States G overnm ent (“USG”) officers and employees
may law fully provide flight tracking information and other forms of technical as
sistance to the Republics o f Colombia and Peru. The information and other assis
tance at issue have been provided to the aerial interdiction programs o f those two
countries for the purpose o f enabling them to locate and intercept aircraft suspected
of engaging in illegal drug trafficking.
Concern over the in-flight destruction of civil aircraft as a com ponent of the
counternarcotics program s of foreign governm ents is not novel. In 1990, soon
after the inception of the USG assistance program, the United States made an oral
dem arche to the Colom bian government informing that governm ent that Colom
bian use o f USG intelligence information to effect shootdowns could result in the
suspension o f that assistance.
M ore recently, we understand that the government o f Peru has used weapons
against aircraft suspected of transporting drugs and that the government of Colom
bia has announced its intention to destroy in-flight civil aircraft suspected of
involvem ent in drug trafficking. The possibility that these governments might
use the inform ation or other assistance furnished by the United States to shoot
down civil aircraft raises the question o f the extent to which the United States and
its governm ental personnel may lawfully continue to provide assistance to such
program s.
On M ay 1, 1994, in light of these concerns, the Departm ent of Defense sus
pended a variety o f assistance program s. Thereafter, in a draft opinion, an inter
agency working group concluded that the United States aid was probably unlawful.
E d ito rs N ote: In response to this o p in io n , C ongress en acted Pub. L. No 103-337, § 1012, 108 Stat
2663, 2 8 3 7 (1 9 9 4 ) (co d ified at 22 U S C § 2 2 9 1 -4 (1994)).
148
U nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug T rafficking
The group included lawyers from the Criminal Division, the Departments of State,
Defense (including the Joint Chiefs of Staff), the Treasury, and Transportation
(including the Coast Guard), and the Federal Aviation Administration. On M ay
26, 1994, this Department advised all relevant agencies that assistance programs
directly and materially supportive of shootdowns should be suspended pending the
completion of a thorough review of the legal questions.
After careful consideration o f the text, structure and history o f the Aircraft
Sabotage Act of 1984, the most relevant part o f which is codified at 18 U.S.C.
§ 32(b)(2), we have concluded that this statute applies to governmental actors, in
cluding the police and military personnel of foreign countries such as Colom bia
and Peru. Accordingly, there is a substantial risk that USG personnel who furnish
assistance to the aerial interdiction programs of those countries could be aiding and
abetting criminal violations of the Aircraft Sabotage Act. See 18 U.S.C. § 2(a)
(aiding and abetting statute). We caution, however, that these conclusions are
premised on our close analysis of § 32(b)(2) and should not be taken to mean that
other domestic criminal statutes will necessarily apply to USG personnel acting
officially.
I.
International law forms an indispensable backdrop for understanding § 32(b)(2).
A primary source of international law regarding international civil aviation is the
Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S.
No. 1591, 15 U.N.T.S. 295 (“the Chicago Convention”). The Chicago Convention
is administered by the International Civil Aviation Organization (“ICAO”).
Article 3(d) of the Chicago Convention declares that “[t]he contracting States
undertake, when issuing regulations for their state aircraft, that they will have
due regard for the safety of navigation of civil aircraft.” Parties have interpreted
the due regard standard quite strictly, and have argued that this provision
proscribes the use of weapons by states against civil aircraft in flight.1 For
example, the United States invoked this provision during the international contro
versy over the Korean Air Lines Flight 007 (“KAL 007”) incident.2 W hile ac
knowledging that Article 1 of the Chicago Convention recognized the customary
rule that “every State has complete and exclusive sovereignty over the airspace
above its territory,” the United States argued that the Soviet Union had violated
both Article 3(d) and customary international legal norms in shooting down KAL
1
A rticle 89 o f the C hicago C onvention relieves a state party from its obligations under the C onvention if
il declares a national em ergency and certifies that declaration to ICA O . T o date, neither C olom bia nor Peru
has made such a certification The C hicago C onvention contains no explicit exem ption perm itting the in
flight destruction o f aircraft suspected o f carrying contraband o r o f otherw ise being involved in the drug
trade
“ On Septem ber 1, 1983, a Soviet m ilitary aircraft shot dow n a civil aircraft, KAL 007, lhat had overflow n
Soviet territory while on a scheduled international flight to Seoul
149
Opinions o f th e Office o f L egal C ounsel
007. The A dm inistrator of the Federal A viation Authority stated to the ICAO
Council that:
The ICAO countries have agreed that they will “have due regard for
the safety of navigation of civil aircraft” when issuing regulations
for their m ilitary aircraft. It is self-evident that intercepts of civil
aircraft by military aircraft must be governed by this paramount
concern.
The international community has rejected deadly assault on a civil
airliner by a m ilitary aircraft in time of peace as totally unaccept
able. It violates not only the basic principles set forth in the
[Chicago] convention but also the fundamental norms of interna
tional law . . . .[31
In the wake of KAL 007, the ICAO Assembly unanimously adopted an amend
ment to the Chicago Convention to make more explicit the prohibitions o f Article
3(d).4 This am endm ent, Article 3 b is, reads in part as follows:
(a)
The contracting States recognize that every State must refrain
from resorting to the use of weapons against civil aircraft in
flight and that, in case of interception, the lives of persons on board
and the safety of aircraft m ust not be endangered. This provision
shall not be interpreted as modifying in any way the rights and
obligations o f States set forth in the Charter of the United N ations.5
A rticle 3 b is should be understood to preclude states from shooting down civil
aircraft suspected o f drug trafficking, and the only recognized exception to this rule
is self-defense from attack.6 We understand that the United States has not yet rati
fied Article 3 bis. There is, however, support for the view that the principle it an
nounced is declaratory of customary international law.7
3 FAA A d m in istra to r H e lm s' Statem ent, IC A O Council, S e p t 15. 1983 M ontreal, D e p ’t St B u l l , Oct.
1983, at 17, 18 W e further note that the IC A O Council R esolution o f S eptem ber 16, 1983, condem ned the
sh ootd o w n o f K A L 007 and *‘[r]eaffirm [ed] th e principle th at States, w hen intercepting civil aircraft, should
not use w eap o n s ag ain st th em ” Id. at 20.
4 Se e Jeffrey D. L aveson, K o rea n Airline F lig h t 007. S ta le m a te in International A viation Law — A P ro *
p o sa l f o r E n fo rcem en t, 22 San D iego L Rev. 859, 882-84 (1985)
5 U SG re p resen tativ es p ro p o sed a reference to the U nited N ations C harter (“C harter1') to reflect the view
that an in tern atio n al law p ro h ib itio n on the u se o f w eapons against civil aircraft in flight w ould not restrict a
s ta te ’s n g h t o f self-d efen se as provided for in A rticle 51 o f the C harter.
6 S ee Steven B. S lokdyk, C om m ent, A irb o rn e D rug Trafficking D eterrence Can A Shootdow n P olicy
F ly ', 38 U C L A L. Rev. 1287, 1306(1991)
7 See, e.g ., A ndreas F. L ow enfeld, Looking Back a n d Looking A head, 83 Am J In t’l L. 336, 341 & n 17
(1989); Som p o n g Su ch aritk u l, Procedure f o r the P rotection o f C ivil A ircra ft in Flight, 16 Loy L A In t’l &
150
U nited States A ssistance to Countries that S hoot Down C ivil A ircraft Involved in D rug Trafficking
In addition to the Chicago Convention, the United States has ratified the Con
vention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(Sabotage), done Sept. 23, 1971, 24 U.S.T. 567, 10 I.L.M . 1151 (1971) (“the
Montreal Convention”). Article 1 o f the latter Convention specifies certain sub
stantive offenses against civil aircraft: in particular, Article 1,1 (b) states that
“ [a]ny person commits an offence if he unlawfully and intentionally . . . destroys an
aircraft in service or causes damage to such an aircraft which renders it incapable
o f flight or which is likely to endanger its safety in flight.” Article 1,2 makes it an
offense to attempt to commit a previously enumerated offense, or to be an accom
plice of an offender.8 Further, Article 10 requires states “in accordance with inter
national and national law,” to “endeavour to take all practicable measures for the
purpose of preventing” substantive offenses.
The Montreal Convention imposes on states certain duties with respect to of
fenders or alleged offenders.
Article 3 declares that the contracting states
“undertaken to make the offences mentioned in Article 1 punishable by severe
penalties.” This obligation is specified by requiring states to take measures to es
tablish jurisdiction over certain offenses (Article 5), to take custody of alleged of
fenders within their territory (Article 6), and either to extradite the alleged offender
or to submit the case to their com petent authorities for prosecution (Article 7).
Further, states have the obligation to report the circumstances of an offense, and
the results of their extradition or prosecution proceedings, to the ICAO (Article
13).
Nearly all nations with a significant involvement in air traffic are parties to the
Montreal Convention, and have thus incurred the responsibility to execute it. The
United States implemented the Convention in 1984 by enacting the Aircraft Sabo
tage Act, Pub. L. No. 98-473, §§ 2011-2015, 98 Stat. 1837, 2187-90(1984). Con
gress specifically stated that legislation’s purpose was “to implement fully the
[Montreal] Convention . . . and to expand the protection accorded to aircraft and
related facilities.” Id. § 2012(3); see a lso S. Rep. No. 98-619 (1984), rep rin ted in
1984 U.S.C.C.A.N. 3682.9 The criminal prohibition now codified at 18 U.S.C.
§ 32(b)(2) was enacted as part of that legislation.
C om p. L J 5 1 3 ,5 1 9 -2 0 (1994) But see D J H am s, C ases a n d M a terials on In ternational Law 221 (4th ed
1991)
8 In general, the furnishing o f inform ation o r assistance to another nation in circum stances that clearly
indicate a sen o u s risk that the inform ation or assistance will be used by lhat nation to com m it a w rongful
a ct may itself be a w rongful act under international law.
C f A rticle 27 o f the International Law
C om m issio n 's D raft C onvention on State R esponsibility, w hich provides that “ [a]id or assistance by a State
to another State, if it is established that it is rendered for the co m m ission o f an internationally w rongful act
earn ed out by the latter, itself constitutes an internationally w rongful act, even if, taken alone, such aid or
assistance w ould not constitute the b reach o f an international oblig ation ” R eport o f the Intern a tio n a l L aw
C om m ission on the W ork o f its T h irty-S eco n d S essio n , [1980] 2 Y B In t'l L C om m ’n 33, U .N . Doc.
A /35/10.
9 It is undoubtedly w ithin C o n g re ss's pow er to provide that attacks on civil aircraft should be crim inal
acts under dom estic law, even if they w ere co m m itted e x tra te m to n a lly and even absent any special c o n n ec
tion betw een this country and the offense An attack on civil aircraft can be considered a crim e o f “ universal
c o n c e rn ' to the com m unity o f nations S ee U nited S ta te s v Yum s, 924 F 2d 1086, 1091 (D .C . C ir. 1991),
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Opinions o f th e Office o f L egal C ounsel
II.
W e turn to the question of criminal liability under domestic law. At least two
criminal statutes are relevant to this inquiry. The first is 18 U.S.C. § 32(b)(2),
which im plem ents Article 1,1 (b) o f the Montreal Convention, and prohibits the
destruction o f civil aircraft. The second is 18 U.S.C. § 2(a), which codifies the
principle o f aiding and abetting liability.10
A.
18 U.S.C. § 32(b)(2) was enacted in 1984, one year after the destruction of
KAL 007. The statute makes it a crime “willfully” to “destroy[] a civil aircraft
registered in a country other than the United States while such aircraft is in service
or causef] dam age to such an aircraft which renders that aircraft incapable of flight
or which is likely to endanger that aircraft’s safety in flight.”11 The text, structure
and legislative history o f the statute establish that it applies to the actions of the
Peruvian and Colum bian officials at issue here.
The term “civil aircraft,” as used in § 32(b)(2), is defined broadly to include
“any aircraft other than . . . an aircraft which is owned and operated by a govern
mental entity for other than commercial purposes or which is exclusively leased by
such governm ental entity for not less than 90 continuous days.” 49 U.S.C. app.
§ 1301(17), (36) (definitions section of Federal Aviation Act of 1958). See 18
U.S.C. § 31 (in chapter including § 32(b)(2), “civil aircraft” has meaning ascribed
to term in Federal Aviation Act). The qualifying language providing that the sec
tion applies to “civil aircraft registered in a country oth er than the U nited States,”
18 U.S.C. § 32(b)(2) (emphasis added), has an expansive rather than restrictive
purpose — to extend United States criminal jurisdiction over persons destroying
see g e n era lly K enneth C. R andall, U niversal Ju risd ictio n U nder In ternational Law , 66 Tex. L. Rev 785
(1988)
10 O th e r c rim in a l statu tes m ay also be relev an t F o r exam ple, 49 U .S.C app § 1472(0(1) m akes it a
crim e to co m m it, o r to attem pt to commit, a irc ra ft piracy ‘‘A ircraft piracy'* is defined to *‘m ean[] any seizure
or exercise o f co n tro l, by force o r violence o r th reat o f force o r violence, or by any other form of intim idation,
and w ith w ro n g fu l intent, o f an aircraft w ith in the special aircraft jurisd ictio n o f the U nited S tates." Id.
§ 1472(i)(2). T h e “special airc ra ft ju risd ictio n o f the U nited States’” includes “civil aircraft o f the U nited
S ta te s’" w hile su ch aircraft is in flight Id. § 1301(38)(a) W e do not co n sid er in this m em orandum w hether
the pro h ib itio n on aircraft piracy, o r any c rim in a l statutes o th e r than § 32(b) and the aiding and abetting and
co n sp iracy statu tes, w ould be applicable to th e U SG activities in question here
11 S ectio n 3 2 (b ) is a felony statute, and p u rsu a n t to 18 U S.C § 34, persons w ho violate § 32 are subject
to “ the d eath p enalty o r to im prisonm ent fo r life ” if th e crim e “ resulted in the death o f any person.” H ow
ever, § 34 p red ates the Suprem e Court d e cisio n in Furm an v G eorgia, 408 U S 238 (1972), and m ay not
be ap p licab le c o n siste n t w ith that decision In a p ending case, U nited States v C h eely , 21 F.3d 914 (9th
C ir. 1994), a d iv id ed panel o f the Ninth C irc u it issued an opinion on A pril I I , 1994, concluding that
the d e ath p en alty pro v id ed fo r by 18 U S C. § 844(d) (w h ich incorporates § 34 by reference) is unconstitu
tional. H ow ever, the c o u rt has, su a spoiite, re q u e ste d the parties to address the issue w hether the case should
be reheard en b anc, and it rem ains uncertain w h eth er § 34 can be applied constitutionally Pending cn m e
le gislatio n w o u ld resolve this issue for fu tu re violations by providing a constitutional death penalty
provision.
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U nited States A ssistance to C ountries that Shoot Down Civil A ircra ft Involved in D rug Trafficking
civil aircraft ‘“ even if a U.S. aircraft was not involved and the act was not within
this country.’” U nited States v. Yunis, 681 F. Supp. 896, 906 (D.D.C. 1988)
(citation om itted).12
Section 32(b)(2) was intended to apply to governmental actors (here, the m ili
tary and police forces of Colombia and Peru) as well as to private persons and
groups. W hen Congress adopted § 32(b)(2) in 1984, it had been a crime for nearly
thirty years under § 32(a)(1) for anyone willfully to “set[] fire to, damage[],
destroy[], disable[], or wreck[] any aircraft in the special aircraft jurisdiction of
the United States or any civil aircraft used, operated, or employed in interstate,
overseas, or foreign air comm erce.” 18 U.S.C. § 32(a)(1).13 This Departm ent has
sought, under § 32(a), to prosecute state actors whom it believes to have sponsored
terrorist acts (specifically, the bombing of Pan American Flight 103 at the behest
o f Libya).
Because of the obvious linguistic and structural sim ilarities
between §§ 32(a)(1) and 32(b)(2), we read those sections to have the same cover
age in this regard, i.e., to apply to governmental and non-governmental actors
alike.14
12
It m ight be argued that § 3 2 (b )(2 )'s reference to aircraft “ registered in a country other than the U nited
S tates” is restrictive in m eaning, i e , that the section does not protect u n registered aircraft
M oreover, we
are inform ed that the registration num bers o f aircraft engaged in drug trafficking over C olom bia and Peru
have in som e cases been painted over or otherw ise obscured It is suggested that unregistered aircraft, or
aircraft w hose registration is concealed, may be made targets under a shootdow n policy w ithout violating the
statute T here are several flaw s in this suggestion. (1) C ongress stated lhat its purpose in enacting the A ir
c ra ft Sabotage Act was “ to im plem ent fully" the M ontreal C onvention See 18 U .S.C § 31 noie. A rticle
1,1 (b) o f ihe C onvention (from which 18 U .S.C § 32(b)(2) is derived) prohibits the d estruction o f civil
aircraft as such, w ithout regard to registration B ecause § 32(a)( I) had already forbidden the w illful destruc
tion o f “ any aircraft in the special aircraft ju risd ictio n o f the U nited States or any civil aircraft used, operated,
o r em ployed in interstate, overseas, or foreign air com m erce," C ongress evidently sought to d ischarge this
c o u n try ’s rem aining o bligations under ihe M ontreal C onvention by affording the sam e protection to all other
civil aircraft A ccordingly, the protections provided by § 32(b)(2) should not be deem ed to hinge on w hether
a foreign civil aircraft is in faci registered, had C ongress done no m ore than that, the U nited S tates w ould
have fallen short o f fulfilling its treaty obligations, although C ongress intended lhat it should fulfill them.
S ection 3 2 (b )(2 )‘s reference to “civil aircraft registered in a country other than the U nited S tates” “ m ust be
taken lo refer to the class w iih w hich the statute undertakes lo deal ’’ U nited States v Jin Fuey M ay, 241
U S 394, 402 (1916) (H olm es, J.) (construing scope o f registration requirem ent in crim inal statu te) See
a lso U nited S ta tes v. R o d g ers, 4 6 6 U S. 4 7 5 , 478-82 (1984), C o n tin ental Training S ervices Inc. v C avazos,
893 F 2 d 877, 883 (7th C ir 1990) (2) W e are advised by the Federal A viation A uthority that the co n ceal
m ent or obscuring o f a registration num ber does not legally “d eregister” an airplane, and that only an official
act by the registering governm ent can achieve that effect A ccordingly, suspected drug traffickers w hose
registration is concealed cannot be deem ed to be unregistered (3) T here is no logical connection betw een
the class o f aircraft engaged in drug sm uggling and the class o f unregistered aircraft N or do we kn o w of any
em pirical evidence that the tw o classes significantly overlap Further, drug traffickers may ow n, lease or
steal planes; and even if it w ere their practice not to register the planes they ow n, the ow ners o f the planes
they have leased or stolen m ight norm ally do so. (4) W e are also unaw are o f any reliable m eans by w hich
foreign law enforcers w ho have intercepted a plane could determ ine w hile it was in flight w hether it was
registered or not Indeed, the very act o f d estroying a plane m ight prevent investigators from determ ining its
registration (if any) Thus, it w ould be d ifficult, if not im possible, to m onitor a “shoot dow n” policy so as to
ensure lhat the p articipants in it avoided crim inal liability by targeting only unregistered planes
n Section 3 2 (a) was adopted m 1956, se e Pub. L No. 84-709, 70 Stat 5 3 8 ,5 3 9 (1956)
14
W hile § 32(a) does not have the broad extraterritorial scope of § 32(b)(2), it does apply to acts against
U nited S tates-registered aircraft abroad, and thus w ould apply w ith respect to any such aircraft shot dow n by
C olom bian or P eruvian authorities.
153
Opinions o f th e O ffice o f L egal C ounsel
The legislative history o f the A ircraft Sabotage Act confirms that Congress in
tended § 32(b)(2) to reach governmental actions. The original bill was introduced
as part o f a package o f four related measures proposed by the Administration and
designed to enable the United States to com bat international terrorism, including
state-sponsored actions, more effectively. In subm itting this legislative package to
Congress, the President explained that it was largely concerned with
a very w orrisom e and alarming new kind o f terrorism . . .: the di
rect use of instruments of terror by fo reig n states. This “state ter
rorism ” . . . accounts for the great majority o f terrorist murders and
assassinations. Also disturbing is state-provided training, financing,
and logistical support to terrorists and terrorist groups.
M essage to the C ongress Transmitting Proposed Legislation To Combat Interna
tional Terrorism , Pub. P apers o f R o n a ld Reagan 575 (1984) (emphasis added).
Further, in testim ony given at a Senate Judiciary Committee hearing on these
bills on June 5, 1984, W ayne R. Gilbert, Deputy A ssistant Director o f the Criminal
Investigative Division o f the Federal Bureau of Investigation, underscored that:
Recent years reflect increasing concern both in the United States
and in foreign nations over the use o f terrorism b y fo reig n g o vern
m ents or groups. W e have seen an increased propensity on the part
o f terrorist entities to plan and carry out terrorist acts worldwide.
L eg isla tive In itiatives to Curb D om estic a n d International Terrorism : H earings
B efore the Subcomm. on Security a n d Terrorism o f the Senate Comm, on the Judi
ciary, 98th Cong. 44 (1984) (“H earings”) (statem ent o f Wayne R. Gilbert)
(em phasis added). In written testimony, the Departm ent of Justice also explained
that “ [t]hese four bills address some of the risks caused by the growing worldwide
terrorism problem , especially state-su pported terro rism .” Id. at 46-47 (prepared
statem ent o f V ictoria Toensing, Deputy A ssistant Attorney General, Criminal Divi
sion) (em phasis added).15 The legislative history of § 32(b)(2) thus shows that the
statute was intended to reach shootdowns by officials or agents of governments as
well as by private individuals and organizations.
B ecause § 32(b)(2) applies generally to foreign governments, it must apply to
shootdow ns of foreign-registered civil aircraft by law enforcem ent officers or
military personnel of the governments of Colom bia and Peru. The statute contains
no exem ption for shootdowns in pursuance of foreign law enforcement activity; nor
15
In a co llo q u y b etw een S en ato r Denton a n d M r G ilbert on the bill addressed to aircraft sabotage, S ena
tor D enton co m m en ted that ‘‘we should not ig n o re the fact that in Libya a G eneral W olf, w hose full nam e is
M arcus W olf, set up and acts as the chief o f L ibyan In tellig en ce.” Id. at 81 In context, Senator D enton's
co m m en t seem s to reflect his understanding th a t the legislation w ould reach state-sponsored attacks on civil
aircraft o r air p assen g ers and the officials resp o n sib le for such attacks
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U nited S ta tes A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking
does it exempt shootdowns of aircraft suspected of carrying contraband.16 USG
personnel who aid and abet violations o f § 32(b)(2) by the Colombian or Peruvian
governments are thus themselves exposed to criminal liability by virtue of 18
U.S.C. § 2(a), see Part II B below .17
Our conclusion that § 32(b)(2) applies to governmental action should not be un
derstood to mean that other domestic criminal statutes apply to USG personnel
acting officially. Our O ffice’s precedents establish the need for careful exam ina
tion of each individual statute. For example, we have opined that USG officials
acting within the course and scope of their duties were not subject to section 5 of
the Neutrality Act, 18 U.S.C. § 960. See A pplication o f N eutrality A ct to O fficial
G overnm ent A ctivities, 8 Op. O.L.C. 58 (1984) (“Neutrality Act O pinion”). In
general terms, lhat statute forbids the planning of, provision for, or participation in
“any military or naval expedition or enterprise to be carried on from [the United
States] against the territory or dominion of any foreign prince or state . . . with
whom the United States is at peace,” 18 U.S.C. § 960; it does not explicitly exempt
USG-sponsored activity. Our conclusion with respect to the Neutrality Act was
based upon an examination of the legislative history of the Act, its practical con
struction over two centuries by Presidents and Congresses, and the judicial deci18
sions interpreting it.
B.
The question we have been asked presupposes that USG personnel would not
themselves directly carry out shootdowns of civil aircraft or encourage others to do
16 A lthough the legislative history em phasizes the dangers o f state-sponsored “terrorism ," w e do not
understand the statute to exem pt state activity that co u ld arguably be characterized as “ law en fo rcem en t.”
An action such as the Soviet U n io n 's shooting dow n o f K AL 007 could have been view ed as the enforcem ent
o f national security laws regulating overflights in m ilitarily sensitive airspace, and thus distinguished from
acts o f terrorist violence N evertheless, we think that § 32(b)(2) w ould apply to such attacks on civil avia
tion
17 Section 32(b)(2) w ould also apply directly to USG personnel who them selves shot dow n foreignregistered civil aircraft, although on the facts as we understand them such conduct — as distinct from aiding
and abetting foreign governm ental violations — is not at issue here. (For further discussion, see Part V
below ) N othing in the legislative history o f § 32(b)(2) suggests that that statute w ould not apply to USG
personnel in p roper cases as m uch as it does to foreign governm ental personnel
,x W e noted in the N eutrality Act O pinion that “the A c t's purpose was to enhance the P resid en t’s ability
to im plem ent the foreign policy goals that have been developed by him , with appropriate p articipation by
C ongress.” Id. at 72 A ccordingly, we found that “ it would indeed be anom alous’' to construe that A ct to
lim it what USG officials acting under Presidential foreign policy directives could law fully do. Id By con
trast, interpreting the A ircraft Sabotage A ct to reach such actors w ould not obstruct the statu te ’s purpose,
w hich in any case was not to ensure the P resident’s ability to co nduct a unified and consistent foreign policy
unim peded by private citizen s' interferences If anything, it w ould be contrary to the A ircraft Sabotage A c t's
policy o f protecting international civil aviation from arm ed attacks to allow U SG officials, but not those o f
any other country, to carry out such attacks Furtherm ore, although it is often true that “ ‘statutes w hich in
general term s divest pre-existing rights o r privileges will not be applied to the sovereign w ithout express
w ords to that effect, " id. (quoting U nited S ta tes v U n ited M ine W orkers, 330 U S 258, 272 (1947)), lhat
m axim is “ ‘no hard and fast rule o f e x clu sio n ,’
and much depends on the context, the subject m atter,
legislative history, and executive interpretation ” W ilson v O m aha Indian Tribe, 442 U .S. 653, 6 67 (1979)
(quoting U nited Slates v C oo p er C orp , 3 1 2 U.S 600, 604-05 (1941))
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O pinions o f ihe Office o f L egal C ounsel
so. Thus, the lawfulness o f USG activities and the potential liability o f USG per
sonnel, under the circumstances outlined to us, depend on the proper application of
the federal aider and abettor statute, 18 U.S.C. § 2(a).
Section 2(a) does not itself define any crim inal offense, but rather provides that
a person who is sufficiently associated with the criminal act of another is liable as a
principal for that act.
U nder the “classic interpretation” of this offense, “ [i)n order to
aid and abet another to com m it a crime it is necessary that a defen
dant in some sort associate him self with the venture, that he partici
pate in it as in something that he wishes to bring about, that he seek
by his action to make it succeed.”
U nited S tates v. M onroe, 990 F.2d 1370, 1373 (D.C. Cir. 1993) (quoting Nye <£
N issen v. U n ited S tates, 336 U.S. 613, 619 (1949)) (internal quotation marks and
citations omitted).
A iding and abetting liability for a crime can be usefully analyzed as consisting
of three elements: “[1] knowledge of the illegal activity that is being aided and
abetted, [2] a d esire to help the activity succeed, and [3] some a ct o f helping.”
U nited S ta tes v. Z afiro, 945 F.2d 881, 887 (7th Cir. 1991) (enumeration added),
a ff’d, 506 U.S. 534 (1993). All three elem ents must be present for aiding and
abetting liability to attach. Id.
1. Knowledge of unlawful activity. A person must know about unlawful activity
in order to be guilty o f aiding and abetting it: “a person cannot very well aid a
venture he does not know about.” U nited S tates v. Allen, 10 F.3d 405, 415 (7th
Cir. 1993). W ith respect to most or perhaps all countries to which the United
States provides information or other assistance (other than Colombia and Peru), the
absence o f this first elem ent of aiding and abetting eliminates entirely any possibil
ity that the USG activities implicate 18 U.S.C. § 32(b). In the absence o f some
serious reason to think otherwise, the United States is entitled to assume that the
governm ents o f other nations will abide by their international commitments (such
as the C hicago Convention) and custom ary international law. The fact that another
governm ent theoretically could act otherwise cannot render USG aid activities le
gally problem atic. Furthermore, the United States is under no general obligation to
attem pt to determ ine whether another governm ent has an as-yet unrevealed inten
tion to m isuse U SG assistance in a violation of § 32(b). See United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990) (“A ider and abettor liability is not
negligence liability.”). Therefore, if a foreign nation with no announced policy or
known practice of unlawful shootdowns did in fact use USG aid in carrying out a
shootdow n, that event would create no liability for the prior acts of USG personnel,
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U nited States A ssistance to Countries that Shoot D own Civil A ircraft Involved in D rug Trafficking
although it probably would require a reevaluation of USG assistance to that coun
try and, depending on the circumstances, might require changes in that assistance.
The same analysis, however, does not apply where the foreign state does have
an announced policy or known practice o f carrying out shootdowns that violate
§ 32(b)(2) — precisely the situation with respect to Colombia and Peru. It is obvi
ous that the United States has knowledge o f Colom bia’s publicly avowed policy.
We believe that the United States is equally on notice about Peru’s de fa c to shoot
down policy on the basis of the incidents that have occurred.19 It appears to be
settled law that the knowledge elem ent o f aiding and abetting is satisfied where the
alleged aider and abettor attempted to escape responsibility through a “deliberate
effort to avoid guilty knowledge” of the primary actor’s intentions. G iovannetti,
919 F.2d at 1229. Someone who suspected the existence of illegal activity that his
or her actions were furthering and who took steps to ensure that the suspicion was
never confirmed, “far from showing that he was not an aider and abettor . . . would
show that he was.” Id. On the facts as presented to us, we think that the knowl
edge element is met with respect to Colom bia and Peru unless there is a change in
the policies of those countries.
2. Desire to facilitate the unlawful activity. “[T]he aider and abettor m ust share
the principal’s purpose” in order to be liable under 18 U.S.C. § 2. U nited S tates v.
Fountain, 768 F.2d 790, 798 (7th Cir. 1985), cert, denied, 475 U.S. 1124 (1986).
The contours of this element in the definition of aiding and abetting are not without
ambiguity, see Zafiro, 945 F.2d at 887, although as a general matter mere knowl
edge of the criminal activity (the existence of the first, knowledge element) does
not in itself satisfy this second, purpose element. Many courts state the purpose
element in terms of a “specific intent that [the aider and abettor’s] act or omission
bring about the underlying crim e,” U nited States v. Zam brano, 776 F.2d 1091,
1097 (2d Cir. 1985), and the Suprem e C ourt’s most recent restatement of the aid
ing and abetting statute’s reach suggests — if it does not quite endorse — this
view. See C entral Bank o f D en ver v. F irst Interstate Bank, 511 U.S. 164, 181
(1994) (section 2(a) “decrees that those who provide knowing aid to persons com
mitting federal crimes, with the intent to facilitate the crime, are themselves com
mitting a crime”) (citing Nye & N issen, 336 U.S. at 619).
At first glance it might appear that the United States could negate this element
of aiding and abetting — and thus render USG assistance to Colombia and Peru
lawful and USG personnel free of potential liability under 18 U.S.C. § 32(b)(2) —
simply by announcing this G overnm ent’s opposition to any violations of § 32(b) by
anyone. It might seem that after such an announcement it would not be possible to
say that USG personnel acted with a desire to help unlawful shootdowns succeed.
19
For the purposes o f ihe aiding and abetting statute, it is im m aterial w hether an aider and ab etto r knew
o f the unlaw ful activity because the prim ary actor told him or her, o r sim ply took actions that m ade obvious
w hat was happening See g en era lly G iovannettt, 919 F 2d at 1226-29.
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Opinions o f the O ffice o f Legal C ounsel
However, “there is support for relaxing this requirement [of specific intent to bring
about the crim inal act] when the crime is particularly grave: . . . ‘the seller of gaso
line who knew the buyer was using his product to make M olotov cocktails for ter
roristic u se’” would be guilty of aiding and abetting the buyer’s subsequent use of
the “cocktails” in an act o f terrorism. F ountain , 768 F.2d at 798 (quoting with
approval P eo p le v. L auria , 251 Cal. App. 2d 471, 481 (1967) (dictum )). Where a
person provides assistance that he o r she knows will contribute directly and in an
essential m anner to a serious criminal act, a court readily may infer a desire to fa
cilitate that act. See Zaftro, 945 F.2d at 887 (if someone “knowingly provides es
sential assistance, we can infer that [that person] does want [the primary actor] to
succeed, for that is the natural consequence of his deliberate act”).20
W ere this a case in which a foreign government provided direct and material as
sistance to an attack upon United States civil aircraft, both our Government and,
we believe, the courts o f this country would view the offense against § 32(b)(2) to
be o f a very serious nature, and would adopt an expansive view of the “desire to
help the [unlawful] activity succeed” that constitutes this element of aiding and
abetting. U nited S tates v. Carson, 9 F.3d 576, 586 (7th Cir. 1993), cert, denied,
513 U.S. 844 (1994). As we understand the facts, USG assistance is critical to the
ability o f C olom bia and Peru to effect shootdowns. USG personnel have been
fully engaged in the air interdiction operations of each country, providing substan
tial assistance that has contributed in an essential, direct and immediate way
(w hether by “real tim e” information or otherwise) to those countries’ ability to
shoot dow n civil aircraft. Moreover, our assistance has been of a type and extent
that Colom bia and Peru would have difficulty in providing for themselves or in
obtaining from other sources. In the absence of changes in the policies and prac
tices of C olom bia and Peru, there is a very substantial danger that the USG activi
ties described to us m eet the purpose elem ent of aiding and abetting.
3. Acts of assistance. The application o f the third element to the question we
are considering is, we think, fairly straightforward. As the Supreme Court
recently reiterated, aiding and abetting “ ‘com prehends all assistance rendered by
words, acts, encouragem ent, support, or presence.’” R eves v. Ernst & Young, 507
U.S. 170, 178 (1993) (quoting B la ck ’s L aw D ictionary 68 (6th ed. 1990)). Gauged
by this definition, many or most forms of USG activities that have been described
20
In g en eral, U SG inform ation-sharing an d other form s o f assistance to foreign nations do not im plicate
the U n ited S tates in those n a tio n s’ actions b ecau se, am ong o th er reasons, the purpose elem ent o f aiding and
abetting is not met. H o w ev er im portant USG aid m ay be as an overall m atter, the provision o f .information,
resources, train in g , and su p p o rt to a foreign nation w ould not in itse lf provide a basis for concluding that the
U nited S tates intended to facilitate that n a tio n ’s unlaw ful actions Indeed, the general nature o f such aid and
its le g itim a te p u rp o ses (the furtherance of th e diplom atic, national security, and dem ocratization goals of
USG fo reig n policy) rebut any assertion that its purpose is to su p p o rt the occasional or unexpected unlawful
acts o f re c ip ie n t gov ern m en ts. S ee generally U nited S tates v P tno-P erez, 8 70 F 2d 1230, 1237 (7th Cir.) (en
banc) (aid in g and ab ettin g requires “ a fuller e n g ag em en t with [the prim ary a cto r's] activities” than accidental
or iso lated assistan ce creates), cert denied, 4 9 3 U.S. 901 (1989)
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U nited Slates A ssistance to Countries that Shoot Down C ivil A ircraft Involved m D rug Trafficking
to us could be fairly described as “act[s] of helping” Colombia or Peru to carry out
a shootdown policy. That conclusion, when com bined with our analysis o f the
knowledge and purpose elements, leads us to think that there is grave risk that the
described USG activities contravene 18 U.S.C. § 32(b)(2).
C.
It has been suggested that the problems for USG information-sharing and other
assistance to Colombia and Peru that are posed by 18 U.S.C. §§ 2(a) and 32(b)
might be eliminated by seeking assurances from the governments of those
countries with respect to their shootdown activities. Two possible forms of such an
assurance have been posited: an assurance that Colombia and Peru would engage
in no more shootdowns of civil aircraft, or an assurance that Colombia and Peru
would make no use of information (or other aid) provided by the United States in
effecting shootdowns. The argument would be that such assurances would negate
either the first, knowledge element, or the second, purpose prong o f aiding and
abetting.
An initial point applies to both forms of assurance: to be of any legal signifi
cance, an assurance must be made by an official of the other government with
authority to bind that government, and it must be deemed reliable by a high officer
of the United States, acting with full knowledge o f the relevant facts and circum
stances. Assurances from subordinate officials could not reasonably be taken to
represent a position that would be adhered to by other officials of that government.
The acceptance of assurances that were not deem ed credible in fa c t by USG offi
cials might readily be characterized as a “deliberate effort to avoid [the] know l
edge,” G iovannetti, 919 F.2d at 1229, that the assurance did not represent the
actual intentions of the other government. In light of the gravity o f the issue, the
decision to accept and act on such an assurance would be a policy decision o f such
significance that it could be appropriately made only by a very high officer o f this
Government.
A reliable assurance (as we have defined it) lhat the foreign government would
carry out no shootdowns falling within the prohibition of § 32(b)(2) would, in our
opinion, clearly negate the knowledge element of aiding and abetting. With such
an assurance, there would be no known or suspected intention to effect unlawful
shootdowns for USG officials to have knowledge of; put another way, the
acceptance o f such an assurance as reliable would constitute a judgm ent that the
foreign government was engaged in no criminal activity in this respect. If it subse
quently became apparent that this judgm ent was mistaken, a reevaluation o f the
legal status of USG assistance would be necessary, but until and if evidence
emerged that the other government intended to violate its assurance, USG aid of
all sorts, including the provision of real-time flight information, would be lawful.
For similar reasons, a reliable assurance that the foreign government would
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Opinions o f the O ffice o f L eg a l C ounsel
not carry out any unlawful shootdowns would eliminate any argument that USG
officials had a “desire to help the activity succeed,” C arson , 9 F.3d at 586, because
it would represent a judgm ent that no unlawful activity was contemplated or under
way.
A more problem atic case is posed if the foreign government declined to re
nounce its shootdown policy but offered assurances that it would not use USGsupplied information or other assistance in carrying out shootdowns violating
§ 32(b)(2). (In such a case, the foreign governm ent might carry out such activities
using inform ation or assistance obtained from other sources.) A bare assurance to
that effect, without more, would be insufficient to remove the risk of contravening
the statute, given what we understand to be the widespread use of USG-supplied
inform ation, the commingling of USG and foreign government information, and
the tem ptation on the part of the foreign governm ent’s operational officers to make
use o f information or assistance extrem ely valuable to effecting their own govern
m ent’s law enforcem ent program.
W e believe that there are conditions in which such assurances would be suffi
ciently reliable to perm it the United States to continue to provide information and
assistance to a foreign country’s antinarcotics program even if that country de
clined to renounce its shootdown policy. First, the United States and the foreign
country should agree that the sole purpose for which USG information and other
assistance would be provided and used was to assist in the execution of a groundbased end game (searches, seizures and arrests), and that such information and
assistance would not be used to target civil aircraft for destruction. Second, the
agreem ent should establish mechanisms by which USG personnel would obtain
detailed and specific knowledge as to how the USG-provided information and as
sistance w ere in fact being used, and thus be able to identify at an operational level
any instances o f non-compliance w ith the agreement. Third, the agreement should
stipulate that if any incident should occur in which the foreign governm ent’s agents
fired on a civil aircraft, USG personnel would be able to verify whether USGprovided inform ation and assistance had been used in that instance, or whether the
foreign country had employed only information and assistance from other sources
in carrying out that operation. Finally, the agreem ent should provide for the termi
nation o f U SG -supplied information and assistance in the event of material noncom pliance. W ere it possible to reach an agreem ent that incorporated such safe
guards, we believe that it would insulate U SG personnel from liability in the event
the foreign governm ent destroyed a civil aircraft.
III.
U nited States aid to Colombia and Peru m ight also implicate USG personnel in
those governm ents’ shootdown policies on a conspiracy rationale. See 18 U.S.C.
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U nited States A ssistance to C ountries that Shoot Down C ivil A ircraft Involved in D rug Trafficking
§ 3 7 1 . The concept of conspiracy is distinct from that of aiding and abetting.21
Aiding and abetting liability does not depend on an actual agreement between the
primary actor and the aider and abettor.22 In contrast, “agreement remains the es
sential element of the crime, and serves to distinguish conspiracy from aiding and
abetting which, although often based on agreement, does not require proof o f that
fact.” lannelli v. United S tates , 420 U.S. 770, 111 n.10 (1975). In addition, li
ability for participation in a conspiracy may attach to someone even though he or
she provides no material assistance toward the conspiracy’s goals, and even if the
primary criminal activity that is the object of the conspiracy never takes place.
See, e.g., U nited States v. Townsend, 924 F.2d 1385, 1399 (7th Cir. 1991).23 USG
activities — including information-sharing and technical advice — that would be
of material assistance in effecting shootdowns do not in themselves constitute an
agreement between USG personnel and others to carry out shootdowns, but as we
understand the facts the following are both true. (1) The United States intends, and
has agreed with the governments of Colom bia and Peru, to bolster the antinarcotics
law enforcement activities o f those countries. (2) The governments of Colombia
(expressly) and Peru (in practice) regard shootdowns as an integral part o f their
antinarcotics law enforcement activities. In those circumstances, courts might well
view the distinction between USG assistance to their antinarcotics programs gener
ally and USG assistance to the shootdown component o f those programs as thin or
non-existent, and thus construe ongoing USG assistance as evidence of an agree
ment. See U nited States v. Lechuga, 994 F.2d 346, 350 (7th Cir.) (en banc), cert,
denied, 510 U.S. 982 (1993).
W e believe that it is imperative to make this Governm ent’s disapproval of
shootdowns in violation of § 32(b) clear in order to eliminate any suggestion that
In this m em orandum , we focus on the potential for aiding and abetting liability for tw o reasons First, it
is unclear that under the circum stances outlined to us the relationship betw een the activities of U SG p e rso n
nel and shootdow n actions by foreign governm ents co u ld reasonably be deem ed an “agreem ent ” to violate 18
U S C § 32(b)(2) A lesser degree o f association w ith a crim inal venture suffices to create aiding and a b e t
ting liability, how ever, and we think that a more serious argum ent can be m ade that som e form s o f USG
assistance could fall w ithin the definition o f aiding and abetting See U nited States v C owart, 595 F 2d
1023, 1031 (5th C ir 1979) (the “ ‘co m m unity o f unlaw ful in te n t'” present m aiding and abetting, although
"sim ilar to the ‘ag reem en t’ upon w hich the crim e o f conspiracy is based, does not rise to the level o f
‘a g re em en t'” ) In addition, and vitally, as stated in the text w e believe the risk that U SG personnel m ight
plausibly be view ed as conspirators can and should be elim inated by the com m unication to foreign g o v e rn
m ents and USG operational personnel o f the U nited S tates’s firm opposition to any shootdow ns o f civil
aircraft c o n tra n to § 32(b)(2) o r international law.
" The Seventh C ircuit recently hypothesized a case illustrating this point.
Suppose som eone w ho adm ired crim inals and hated the police learned that the police
were planning a raid on a drug ring, and, hoping to foil the raid and assure the success of
the ring, w arned its m em bers — w ith w hom he had no previous, or for that m atter subse
quent, dealings — o f the im pending raid He w ould be an aider and abettor o f the drug
conspiracy, but not a m em ber o f it
C arson, 9 F 3d at 586 (quoting Zajlro , 945 F.2d at 884)
T hus, USG personnel theoretically could be liable for conspiracy if their actions w ere construed as
constituting an agreem ent with officials o f the foreign governm ent to carry out shootdow ns and if the latter
took som e overt action tow ard accom plishing a shootdow n It w ould be unnecessary under the law o f c o n
spiracy for a shootdow n to take place or for any U SG actions actually to contribute to a shootdow n
161
Opinions o f th e Office o f L egal C ounsel
USG personnel have entered into a conspiratorial agreement with foreign officials
involving unlawful shootdowns since liability as a conspirator attaches even if the
substantive unlawful act never takes place. In addition, we think that USG agen
cies should specifically instruct their personnel not to enter into any agreements or
arrangem ents with the officials or agents of foreign governments that encourage or
condone shootdowns. S ee generally la n n elli , 4 20 U.S. at 777-79.
IV.
This case is characterized by a com bination of factors: it involves a criminal
statute that explicitly has extraterritorial reach, that is applicable to foreign gov
ernm ent m ilitary and police personnel, and that defines a very serious offense.
M oreover, our governm ent is fully engaged in furnishing direct and substantial
assistance that is not otherwise available to the foreign nations involved, and at
least some of the USG personnel w ho provide that assistance have actual knowl
edge that it is likely to be used in com m itting violations.
Given this com bination of factors, we conclude that, in the absence of reliable
assurances in the sense defined above, USG agencies and personnel may not pro
vide inform ation (w hether “real-time” or other) or other USG assistance (including
training and equipm ent) to Colombia or Peru in circumstances in which there is a
reasonably foreseeable possibility that such information or assistance will be used
in shooting down civil aircraft, including aircraft suspected of drug trafficking.
Furtherm ore, we note that § 32(b)(2) prohibits the destruction of civil aircraft
“while such aircraft is in service,” as well as “damage to such an aircraft which
renders that aircraft incapable of flight” (emphasis added). The statute defines
“[i]n services” to “mean[] any time from the beginning of preflight preparation of
the aircraft by ground personnel or by the crew for a specific flight until twentyfour hours after any landing.” 18 U.S.C. § 31. Thus, USG assistance for certain
operations against aircraft on the g rou n d may come within the statutory prohibi
tions. Section 32(b)(2) does not preclude ordinary law enforcement operations
directed at a plane’s crew or cargo during those times.24 It does, however, appear
to forbid airborne law enforcers to bomb or strafe a suspect plane that has landed
or that is preparing to take o f f 25
24 F o r exam ple, nothing in the section fo rb id s the police to o rder the crew of a suspected drug trafficking
plane to su rren d er upon landing, o r to search o r seize the p lane or its cargo (C onsequential dam age to the
aircraft w ould not co n stitu te a violation of the statute ) N or does the section forbid the police to use deadly
force a g ain st a p lane if they are them selves en d an g ered by its c re w ’s arm ed resistance to their legitim ate
orders T he police m ay also use force to rescue any hostages held aboard the plane.
25 A v alid law en fo rcem en t operation in ten d ed to seize a pane on the ground and arrest us crew and an
attack on the airplane itse lf in violation o f § 3 2 (b )(2 ) m ay b o th result in the disabling or destruction o f the
aircraft. No liab ility un d er the section would attach, either to prim ary actors or to those w ho assist them , m
the fo rm er circu m stan ce. As described to us, how ever, the C olom bian and Peruvian counternarcotics pro
gram s each e n co m p ass (p o ten tial) actions that w ould in ten tio n ally fall w ithin the latter, forbidden category
O bviously , on d ifferen t facts we co u ld reach a d ifferen t c o n clu sio n
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U nited Sla tes A ssistance to Countries lhat Shoot D own C ivil A ircraft Involved in D rug T rafficking
We will be pleased to cooperate with legal counsel for other agencies in evalu
ating specific programs or forms of aid under that standard.
V.
Our conclusions here must not be exaggerated. W e have been asked a specific
question about particular forms of USG assistance to the Colombian and Peruvian
aerial interdiction programs. The application of the legal standard described here
to any other USG programs — including other programs designed to benefit Co
lombia or Peru — will require careful, fact-sensitive analysis. W e see no need to
modify USG programs whose connection to those governm ents’ shootdown poli
cies is remote and attenuated, and (as noted above) we perceive no implications for
USG assistance to any other foreign country unless another government adopts a
policy of shooting down civil aircraft.
Other limitations on our conclusions should be noted. In certain circumstances,
USG personnel may employ deadly force against civil aircraft without subjecting
themselves to liability under § 32(b)(2). “The act is a criminal statute, and there
fore must be construed strictly, ‘lest those be brought within its reach who are not
clearly included.’”26 Although these circumstances are extremely limited, they
may in fact arise.
Specifically, we believe that the section would not apply to the actions of
United States military forces acting on behalf of the United States during a state of
hostilities.27 As discussed above, § 32(b)(2) was intended to implement the United
States’s obligations under the Montreal Convention. That Convention does not
appear to apply to acts o f armed forces that are otherwise governed by the laws of
armed conflict.28 (The general rule under the law of armed conflict is that civil
~6 Export S a le s o j A g ricu ltu ra l C om m odities to Soviet U nion a n d E astern European B loc C ountries, 42
O p ^A tt’y G e n 229, 232 (1963) (quoting U nited S ta tes ex rel M arcus v H ess, 317 U.S. 537, 542 (1943))
27 We do not m ean to confine a '‘state o f hostilities’7 to som e specific legal category, such as a state of
declared w ar in the constitutional sense, see U S C onst, art I, § 8, cl. 1 1, or a situation su ch as to trig g er the
reporting requirem ents o f the W ar Pow ers R esolution, see 50 U S C § 1543(a)
28 International agreem ents such as the M ontreal C onvention are generally concluded with a v iew to
regulating ordinary, peace-tim e conditions. A ccordingly, one treatise w riter has stated it to be the general
rule that *“ [i]f, as the result o f a w ar, a neutral or belligerent State is faced w ith the necessity of tak in g ex
traordinary m easures tem porarily affecting the application o f such conventions in order to protect its n e u tra l
ity or for the purposes o f national defence, it is entitled to do so even if no express reservations are m ad e in
the convention. ’’ Bin C heng, The Law oj In tern a tio n a l A ir Transport 483 (1962) (quoting The S S W im
bledon (G r Brit et al v G erm .), 1923 P C 1J (ser. A) No 1, at 36 (A ug. 17) (dissenting opinion o f Judges
A nzilotti and H uber)) A cco rd Prelim inary O bjections S ubm itted by the U nited States o f A m erica, C ase
C oncerning the A e ria l Incident o f 3 Ju lx 1988 (Isla m ic Republic o f Iran v U n ited States o f A m erica) at 200,
203 (M ar 4, 1991) ( “the M ontreal C onvention w as intended to prevent and deter saboteurs and terrorists
from unlaw fully interfering with civil aviation and endangering innocent lives The d rafters of the C o n v en
tion did not discuss the actions o f m ilitary forces acting on b eh alf o f a State during hostilities, and there is no
reason to believe that they intended the C onvention to extend to such actions . . . Infringem ents on the law s
o f arm ed conflict through international agreem ents prim arily addressing situations other than arm ed con flict
are not to be presum ed. There is no indication that the d rafteis o f the M ontreal C onvention intended it to
apply to m ilitary forces acting m arm ed conflict. If they had so intended, they w ould have had to a d d re ss a
m ynad o f issues relating to acts by m ilitary fo r c e s .') This conclusion is corroborated by article 89 o f the
163
Opinions o f th e O ffice o f L eg a l Counsel
aircraft are im mune from attack unless they are being used for military purposes or
pose an im m ediate military threat.29) W e do not think that § 32(b)(2) should be
construed to have the surprising and almost certainly unintended effect of crim i
nalizing actions by military personnel that are lawful under international law and
the law s o f arm ed conflict. We note specifically that the application o f § 32(b)(2)
to acts of U nited States military personnel in a state of hostilities could readily lead
to absurdities: for exam ple, it could mean in som e circumstances that military per
sonnel would not be able to engage in reasonable self-defense without subjecting
them selves to the risk of criminal prosecution. Unless Congress by a clear and
unequivocal statem ent declares otherwise, § 32(b)(2) should be construed to avoid
such outcom es.30 Thus, we do not think the statute, as written, should apply to
such incidents as the dow ning on July 3, 1988 o f Iran Air Flight 655 by the United
States Navy cruiser Vincennes .3I
Furtherm ore, even in cases in which the laws o f armed conflict are inapplicable,
we believe that a USG officer or em ployee may use deadly force against civil air
craft w ithout violating § 32(b)(2) if he or she reasonably believes that the aircraft
poses a threat o f serious physical harm to the officer or employee or to another
person.32 A situation o f this kind could arise, for example, if an aircraft suspected
of narcotics trafficking began firing on, or attempted to ram, a law enforcement
aircraft that was tracking it. Assuming that such aggressive actions posed a direct
and im m ediate threat to the lives of USG personnel or of others aboard the tracking
C hicago C o n v en tio n , w hich declares in part th a t “ [i]n case o f w ar, the provisions o f this C onvention shall not
affect the freedom o f action o f any o f the c o n tractin g States affected, w hether as belligerents or as neutrals ’*
See D av id K. L innan, Ira n A ir Flight 655 a n d B eyond: Free Passage, M istaken Self-D efense, a n d State
R e sp o n sib ility , 16 Y ale J In t’l L 245, 267 (1 9 9 1 ) (“the n atu re o f the M ontreal C onvention as an antih ijacking and sab o tag e treaty seem s to preclude its ap p licatio n to the acts o f arm ed forces governed by the
law o f arm ed c o n flic t under article 89 of the C h ic a g o C o n v en tio n ” ) See also 1 G reen H ackw orth, D igest o f
In te rn a tio n a l L a w 5 52-55 (1 943) (describing e a rlie r practice and theory).
29 Se e D ep artm en t o f the A ir Force, In tern a tio n a l L a w — The C onduct o f A rm ed C onflict a nd A ir O pera
tions, <][ 4 - 3 ( a ) ( l), (b) (1976); Stokdyk, C om m ent, A irb o rn e D ru g Trafficking D e terren c e • Can a Shootdow n
P olicy F lv?, su p ra n o te 6, at 1321
30 C f U n ite d S ta te s v. K irbv, 74 U S. (7 W a l l ) 482, 4 8 6 -8 7 (1869) (holding that statute punishing o b
struction o f m ail did not apply to temporary d e te n tio n o f m ail caused by e a r n e r ’s arrest for m urder); N ardone
v U n ited S ta tes, 302 U .S. 379, 384 (1937) (p u b lic officers m ay be im plicitly excluded from statutory lan
guage e m b racin g all persons because ‘a read in g w hich w o u ld include su ch officers w ould work obvious
a bsurdity as, fo r ex am p le, the application o f a sp eed law to a policem an pursuing a crim inal or the d n v e r o f a
fire e n g in e re sp o n d in g to an a la rm '5).
31 S e e M arian N ash Leich, D e n ia l o f Liability’. Ex G ra tia C om pensation on a H um anitarian B asis, 83
A m . J. In t’l L. 319, 3 21-22 (1 9 8 9 ) (quoting C ongressional testim ony o f State D epartm ent Legal A dviser
S ofaer that “ [i]n the case o f the Iran Air in cid en t, the d am ag e caused in fin n g upon #655 was incidental to
the law ful use o f force
T h e com m ander o f the U.S S. Vincennes evidently believed that his ship was
under im m in en t th re a t o f attack from a hostile aircraft, and he attem pted repeatedly to identify or contact the
aircraft b efo re taking d efensiv e action T h erefo re, the U nited States does not accept legal responsibility for
this in c id e n t. . M).
32 S e e T e n n e sse e v. G a rn e r, 471 U.S. 1, 1 1 (1985) (d iscu ssin g constitutionally reasonable use o f deadly
force); N ew O rlea n s a n d N ortheastern R R v. J o p e s , 142 U .S. 18, 23 (1 8 9 1 ) (“the law o f self-defence ju s ti
fies an act d o n e in h o n est and reasonable b e lie f o f im m ediate dan g er”).
164
U nited States A ssistance lo C ountries that Shoot Down Civil A ircraft In vo lved in D rug T rafficking
aircraft, and that no reasonably safe alternative would dispel that threat, we believe
that the use of such force would not constitute a violation of § 32(b)(2).33
W ALTER DELLINGER
A ssistan t A ttorn ey G eneral
Office o f Legal Counsel
31
T o the extern that § 32(b)(2) does not apply to the use o f deadly force by USG m ilitary or o th e r p erson
nel in the circum stances described above, it w ould o f necessity be inapplicable as w ell to the actions of
sim ilarly situated personnel o f the C olom bian o r Peruvian governm ents T hat is, such foreign governm ental
agents could em ploy deadly force against civilian aircraft in the sam e circum stances in w hich USG personnel
w ere able to do so USG personnel w ho assisted foreign governm ent agents in such law ful and legitim ate
acts o f self-defense w ould o f course not be subject to liability, since one c an n o t be prosecuted for aid in g and
abetting the com m ission o f an act that is not itse lf a crim e. S ee Sh uttlesw urth v. C itv o f B irm ingham , 373
U S . 2 6 2 (1 9 6 3 )
165 |
|
Write a legal research memo on the following topic. | February 2, 1979
79-11
MEMORANDUM OPINION FOR THE
ADMINISTRATOR OF VETERANS AFFAIRS
Federal Labor Relations Council—LaborManagement Relations for Executive Agencies
(Executive Order No. 11491)—Jurisdiction of the
Council in Labor Disputes Concerning the
Conditions of Employment of Medical, Dental,
and Nursing Personnel of the Veterans
Administration
This responds to your request for the opinion o f the Attorney General
concerning the obligation o f the A dm inistrator o f Veterans Affairs (VA)
to abide by the decision o f the Federal Labor Relations Council (FLRC) in
American Federation o f Government Employees, Local 1739 and Vet
erans Administration Hospital, Salem, Va., No. 76A-88 (1978) (Union
and Hospital, respectively), that Executive O rder No. 11491 required the
Hospital to negotiate with the Union the procedures for the evaluation of
probationary professional medical employees. VA contends that 38 U.S.C.
§ 4108(a) exempts its Departm ent o f Medicine and Surgery (DMS) from the
order’s requirement. The A ttorney General referred the m atter to this of
fice. We conclude that 38 U .S.C . § 4108(a) does not exempt VA, and that
VA will not be acting unlawfully in implementing FLRC’s decision.
Executive O rder No. 11491 established a system o f labor-management
relations for executive agencies.' It applied, with exceptions not relevant
here, to all agencies o f the executive branch, including VA.2 The order
authorizes a majority o f the employees in an appropriate unit o f an
1 See, generally. Old Dominion Branch No. 496, National Association o f Letter Carriers v.
Austin, 418 U.S. 264, 273-75 (1974). Exec. O rder N o. 11491 has been superseded, effective
January 13, 1979, by Title Vll o f the Civil Service Reform Act o f 1978, 92 Stat. 1111, 5
U .S.C . § 1101 et seq. (Supp. 1979). However, the Act does not affect administrative pro
ceedings initiated under Exec. O rder No. 11491. See § 902(b), 92 Stat. 1224.
1 Exec. O rder No. 11491, §§ 2(a), 3(a); see 38 U .S.C . § 201.
74
agency to select a union as its exclusive representative.3 To the extent per
mitted by law and executive-branch-wide regulations, § 11(a) of the order
requires an agency to negotiate in good faith with an exclusive representa
tive o f the bargaining unit with respect to personnel policies and practices
and matters affecting working conditions. But an agency is not required to
negotiate over the content o f its own agency-wide regulations “ for which a
compelling need exists under criteria established by the Federal Labor
Relations Council.” 4
When an agency contends that a subject on which a union proposes to
negotiate is controlled by an agency-wide regulation, the union may ap
peal to the FLRC .5 If the FLRC determines that there is no compelling
need for the regulation, the agency is required to negotiate on the subject.6
Failure to negotiate then becomes an unfair labor practice, and the Assist
ant Secretary o f Labor for Labor-Management Relations may order the
agency to negotiate.7 The agency may appeal the Assistant Secretary’s
decision to the final administrative authority, the FLR C .8
The dispute in question concerns the negotiability o f VA’s procedures
for retaining or dismissing probationary medical professional employees.
Physicians and other medical professionals in the DMS are appointed
“ after [their] qualifications have been satisfactorily established, in accord
ance with regulations prescribed by the Administrator, without regard to
civil service requirem ents.” 38 U.S.C. § 4106(a). Under 38 U.S.C.
§ 4106(b):
Such appointm ents as described in subsection (a) o f this section
shall be for a probationary period o f three years and the record
o f each person serving under such appointm ent in the Medical,
Dental, and Nursing Services shall be reviewed from time to time
by a board, appointed in accordance with regulations o f the A d
ministrator, and if said board shall find him not fully qualified
and satisfactory he shall be separated from the service.
The implementing VA regulations provide that each employee subject to
§ 4106(b) will have his record reviewed in a fair and impartial m anner by a
professional standards board (PSB) during the employee’s probationary
period. Although the regulations authorize the employee to submit a writ
ten or oral statement to the PSB during the review, the employee “ is not
entitled to legal or other representation.’” The Union requested the
Hospital to negotiate the professional employees’ right to legal or other
representation during the review o f their records by the PSB. The VA
1 Exec. Order No. 11491, § 10(a); c f 29 U .S.C . § 159.
4 Exec. Order No. 11491, § 11(a).
’ Exec. Order No. 11491, § ll(c)(4)(ii).
6 Exec. Order No. 11491, § 4(c)(2).
7 Exec. O rder N o. 11491, §§ 6(a)(4); 6(b); 19(a)(6). The agency cannot reopen the nego
tiability dispute in the unfair labor practice proceeding. Exec. O rder No. 11491, § 19(d).
■ Exec. O rder No. 11491, § 4(c)(1).
’ Veterans’ Adm inistration M anual, MP-5, Part 11, Ch. 4, § 4-06(b)(4).
75
determined that the proposal was contrary to its agency-wide regulations,
and the Union appealed to the FLRC for a “ compelling need”
determination.
The VA argued before the FLRC that it was deprived o f jurisdiction by
38 U.S.C. § 4108(a), which provides in pertinent part:
Notwithstanding any law, Executive order, or regulation, the
Adm inistrator shall prescribe by regulation the hours and condi
tions o f employment and leaves o f absence o f physicians, den
tists, podiatrists, optom etrists, nurses, physician assistants, and
expanded-function dental auxiliaries appointed to the Depart
ment o f Medicine and Surgery * * *.
In its decision dated February 28, 1978, the FLRC first decided that it had
jurisdiction over the case. On the merits, it held that no compelling need
existed for the regulation prohibiting probationary professional medical
employees from being assisted by counsel in a PSB review. The VA con
tinues to contend that 38 U .S.C . § 4108(a) excluded this type o f dispute
from the FLRC’s jurisdiction, and therefore, the Hospital refused to
negotiate with the Union on the subject.
The VA claims first, that 38 U .S.C . § 4108(a) exempts it from the
authority o f any other statute or Executive order in determining the
“ hours, conditions o f employment, and leaves o f absence” 10 o f DMS pro
fessional employees. Further, it argues that evaluation procedures under
38 U .S.C . § 4106(b) are “ conditions o f em ploym ent.” Based on these
arguments it concludes that notwithstanding Executive Order No. 11491,
§ 4108(a) deprived FLRC o f jurisdiction, and VA was not required to
negotiate on these procedures. It is not necessary, however, to determine
whether § 4108(a) or the Executive order would control should they con
flict. Such a conflict would arise only if the issue on which the Union
wishes to negotiate—procedures before professional standards review
boards—is in fact a “ condition o f employm ent” within § 4108(a). O ur ex
amination o f the legislative history o f the statute that established the DMS
has convinced us it is not.
The Departm ent o f Medicine and Surgery was established by Pub. L.
No. 293, 79th Cong., 1st sess., 59 Stat. 675. In creating the departm ent the
Congress intended to insure that VA may hire and discharge medical,
dental, and nursing professionals without regard to competitive examina
tion and procedural protections given employees in the classified civil serv
ice." Accordingly, § 6 o f the statute, now 38 U.S.C. § 4106, regulated the
appointm ent, tenure, £nd prom otion o f professional probationary
10 We note that 38 U .S.C . § 4108(a) is incorrectly quoted on page 3 o f your request as em
powering the A dm inistrator to prescribe “ term s and conditions of employm ent.”
" See H . Rept. 1316, 79th C ong., 1st sess., at 1-2; S. Rept. 853, 79th C ong., 1st sess., at 1;
Hearings before the Com mittee on W orld W ar Veterans Legislation o f the House o f Repre
sentatives on H .R . 4225, 79th C ong., 1st sess., at 36-39 (statem ent o f Paul Hawley, Surgeon
General, Veterans’ Adm inistration).
76
employees appointed “ without regard to civil-service requirem ents.” P ro
bationary tenure, governed by § 6(b), 38 U.S.C. § 4106(b), permits the dis
missal o f unsatisfactory probationers after a 3-year period. The pro
cedural protections given classified civil service employees were not
granted to this class o f employees.12 Further, section 10 o f the statute, 38
U .S.C. § 4110, establishes a disciplinary system for permanent employees
independent o f the civil service laws.11
Section 4108(a) o f title 38 was enacted as 7(b) o f the statute. In his re
marks on behalf of the House Committee on World W ar Veterans Legisla
tion, Representative Scrivner explained:
In section (b), we provide that notwithstanding any law, Ex
ecutive order, or regulation, the Adm inistrator shall prescribe by
regulation the hours and working conditions and leaves o f ab
sence o f doctors, dentists, and nurses.14
This is the only discussion o f § 7(b) in the legislative history.
From its context in the statute and its limited legislative history, the
“ conditions o f employment” in 38 U.S.C. § 4108(a) are matters similar to
hours and leave, i.e., duties and workload; tenure and discharge o f pro
fessional employees are regulated by other portions o f the statute.
Moreover, if “ conditions o f employment” included tenure and discharge,
the breadth o f § 4108(a) would have made it unnecessary for Congress to
expressly exclude appointm ents under § 4106 from the civil service laws or
to provide a separate disciplinary system under 38 U.S.C. § 4110. The pro
cedures for professional evaluation are set out in 38 U .S.C . § 4106(b).
Therefore, § 4108(a) does not exempt the Department o f Medicine and
Surgery from the FLRC’s jurisdiction in this case.
Jo h n M . H a rm o n
Assistant A ttorney General
Office o f Legal Counsel
11 Section 6 and subsection 6(b)
Rept. 858, 79th Cong., 2d sess., at 1,
Rec . 11656 (Representative Rogers),
ative Engle).
M See S. Rept. 858, 79th Cong.,
Scrivner).
were extensively discussed in the legislative process. See S.
3; H. Rept. 1316, 79th Cong., 1st sess., at 1-2; 91 C o n g .
11659 (Representative Cunningham ), 11665 (Represent
1st sess., at 4; 91 C o n g . R e c . 11663 (Representative
14 91 C o n g . R e c . 11662-63 (R ep resen ta tiv e Scrivner).
77 |
|
Write a legal research memo on the following topic. | February 2, 1979
79-11
MEMORANDUM OPINION FOR THE
ADMINISTRATOR OF VETERANS AFFAIRS
Federal Labor Relations Council—LaborManagement Relations for Executive Agencies
(Executive Order No. 11491)—Jurisdiction of the
Council in Labor Disputes Concerning the
Conditions of Employment of Medical, Dental,
and Nursing Personnel of the Veterans
Administration
This responds to your request for the opinion o f the Attorney General
concerning the obligation o f the A dm inistrator o f Veterans Affairs (VA)
to abide by the decision o f the Federal Labor Relations Council (FLRC) in
American Federation o f Government Employees, Local 1739 and Vet
erans Administration Hospital, Salem, Va., No. 76A-88 (1978) (Union
and Hospital, respectively), that Executive O rder No. 11491 required the
Hospital to negotiate with the Union the procedures for the evaluation of
probationary professional medical employees. VA contends that 38 U.S.C.
§ 4108(a) exempts its Departm ent o f Medicine and Surgery (DMS) from the
order’s requirement. The A ttorney General referred the m atter to this of
fice. We conclude that 38 U .S.C . § 4108(a) does not exempt VA, and that
VA will not be acting unlawfully in implementing FLRC’s decision.
Executive O rder No. 11491 established a system o f labor-management
relations for executive agencies.' It applied, with exceptions not relevant
here, to all agencies o f the executive branch, including VA.2 The order
authorizes a majority o f the employees in an appropriate unit o f an
1 See, generally. Old Dominion Branch No. 496, National Association o f Letter Carriers v.
Austin, 418 U.S. 264, 273-75 (1974). Exec. O rder N o. 11491 has been superseded, effective
January 13, 1979, by Title Vll o f the Civil Service Reform Act o f 1978, 92 Stat. 1111, 5
U .S.C . § 1101 et seq. (Supp. 1979). However, the Act does not affect administrative pro
ceedings initiated under Exec. O rder No. 11491. See § 902(b), 92 Stat. 1224.
1 Exec. O rder No. 11491, §§ 2(a), 3(a); see 38 U .S.C . § 201.
74
agency to select a union as its exclusive representative.3 To the extent per
mitted by law and executive-branch-wide regulations, § 11(a) of the order
requires an agency to negotiate in good faith with an exclusive representa
tive o f the bargaining unit with respect to personnel policies and practices
and matters affecting working conditions. But an agency is not required to
negotiate over the content o f its own agency-wide regulations “ for which a
compelling need exists under criteria established by the Federal Labor
Relations Council.” 4
When an agency contends that a subject on which a union proposes to
negotiate is controlled by an agency-wide regulation, the union may ap
peal to the FLRC .5 If the FLRC determines that there is no compelling
need for the regulation, the agency is required to negotiate on the subject.6
Failure to negotiate then becomes an unfair labor practice, and the Assist
ant Secretary o f Labor for Labor-Management Relations may order the
agency to negotiate.7 The agency may appeal the Assistant Secretary’s
decision to the final administrative authority, the FLR C .8
The dispute in question concerns the negotiability o f VA’s procedures
for retaining or dismissing probationary medical professional employees.
Physicians and other medical professionals in the DMS are appointed
“ after [their] qualifications have been satisfactorily established, in accord
ance with regulations prescribed by the Administrator, without regard to
civil service requirem ents.” 38 U.S.C. § 4106(a). Under 38 U.S.C.
§ 4106(b):
Such appointm ents as described in subsection (a) o f this section
shall be for a probationary period o f three years and the record
o f each person serving under such appointm ent in the Medical,
Dental, and Nursing Services shall be reviewed from time to time
by a board, appointed in accordance with regulations o f the A d
ministrator, and if said board shall find him not fully qualified
and satisfactory he shall be separated from the service.
The implementing VA regulations provide that each employee subject to
§ 4106(b) will have his record reviewed in a fair and impartial m anner by a
professional standards board (PSB) during the employee’s probationary
period. Although the regulations authorize the employee to submit a writ
ten or oral statement to the PSB during the review, the employee “ is not
entitled to legal or other representation.’” The Union requested the
Hospital to negotiate the professional employees’ right to legal or other
representation during the review o f their records by the PSB. The VA
1 Exec. Order No. 11491, § 10(a); c f 29 U .S.C . § 159.
4 Exec. Order No. 11491, § 11(a).
’ Exec. Order No. 11491, § ll(c)(4)(ii).
6 Exec. Order No. 11491, § 4(c)(2).
7 Exec. O rder N o. 11491, §§ 6(a)(4); 6(b); 19(a)(6). The agency cannot reopen the nego
tiability dispute in the unfair labor practice proceeding. Exec. O rder No. 11491, § 19(d).
■ Exec. O rder No. 11491, § 4(c)(1).
’ Veterans’ Adm inistration M anual, MP-5, Part 11, Ch. 4, § 4-06(b)(4).
75
determined that the proposal was contrary to its agency-wide regulations,
and the Union appealed to the FLRC for a “ compelling need”
determination.
The VA argued before the FLRC that it was deprived o f jurisdiction by
38 U.S.C. § 4108(a), which provides in pertinent part:
Notwithstanding any law, Executive order, or regulation, the
Adm inistrator shall prescribe by regulation the hours and condi
tions o f employment and leaves o f absence o f physicians, den
tists, podiatrists, optom etrists, nurses, physician assistants, and
expanded-function dental auxiliaries appointed to the Depart
ment o f Medicine and Surgery * * *.
In its decision dated February 28, 1978, the FLRC first decided that it had
jurisdiction over the case. On the merits, it held that no compelling need
existed for the regulation prohibiting probationary professional medical
employees from being assisted by counsel in a PSB review. The VA con
tinues to contend that 38 U .S.C . § 4108(a) excluded this type o f dispute
from the FLRC’s jurisdiction, and therefore, the Hospital refused to
negotiate with the Union on the subject.
The VA claims first, that 38 U .S.C . § 4108(a) exempts it from the
authority o f any other statute or Executive order in determining the
“ hours, conditions o f employment, and leaves o f absence” 10 o f DMS pro
fessional employees. Further, it argues that evaluation procedures under
38 U .S.C . § 4106(b) are “ conditions o f em ploym ent.” Based on these
arguments it concludes that notwithstanding Executive Order No. 11491,
§ 4108(a) deprived FLRC o f jurisdiction, and VA was not required to
negotiate on these procedures. It is not necessary, however, to determine
whether § 4108(a) or the Executive order would control should they con
flict. Such a conflict would arise only if the issue on which the Union
wishes to negotiate—procedures before professional standards review
boards—is in fact a “ condition o f employm ent” within § 4108(a). O ur ex
amination o f the legislative history o f the statute that established the DMS
has convinced us it is not.
The Departm ent o f Medicine and Surgery was established by Pub. L.
No. 293, 79th Cong., 1st sess., 59 Stat. 675. In creating the departm ent the
Congress intended to insure that VA may hire and discharge medical,
dental, and nursing professionals without regard to competitive examina
tion and procedural protections given employees in the classified civil serv
ice." Accordingly, § 6 o f the statute, now 38 U.S.C. § 4106, regulated the
appointm ent, tenure, £nd prom otion o f professional probationary
10 We note that 38 U .S.C . § 4108(a) is incorrectly quoted on page 3 o f your request as em
powering the A dm inistrator to prescribe “ term s and conditions of employm ent.”
" See H . Rept. 1316, 79th C ong., 1st sess., at 1-2; S. Rept. 853, 79th C ong., 1st sess., at 1;
Hearings before the Com mittee on W orld W ar Veterans Legislation o f the House o f Repre
sentatives on H .R . 4225, 79th C ong., 1st sess., at 36-39 (statem ent o f Paul Hawley, Surgeon
General, Veterans’ Adm inistration).
76
employees appointed “ without regard to civil-service requirem ents.” P ro
bationary tenure, governed by § 6(b), 38 U.S.C. § 4106(b), permits the dis
missal o f unsatisfactory probationers after a 3-year period. The pro
cedural protections given classified civil service employees were not
granted to this class o f employees.12 Further, section 10 o f the statute, 38
U .S.C. § 4110, establishes a disciplinary system for permanent employees
independent o f the civil service laws.11
Section 4108(a) o f title 38 was enacted as 7(b) o f the statute. In his re
marks on behalf of the House Committee on World W ar Veterans Legisla
tion, Representative Scrivner explained:
In section (b), we provide that notwithstanding any law, Ex
ecutive order, or regulation, the Adm inistrator shall prescribe by
regulation the hours and working conditions and leaves o f ab
sence o f doctors, dentists, and nurses.14
This is the only discussion o f § 7(b) in the legislative history.
From its context in the statute and its limited legislative history, the
“ conditions o f employment” in 38 U.S.C. § 4108(a) are matters similar to
hours and leave, i.e., duties and workload; tenure and discharge o f pro
fessional employees are regulated by other portions o f the statute.
Moreover, if “ conditions o f employment” included tenure and discharge,
the breadth o f § 4108(a) would have made it unnecessary for Congress to
expressly exclude appointm ents under § 4106 from the civil service laws or
to provide a separate disciplinary system under 38 U.S.C. § 4110. The pro
cedures for professional evaluation are set out in 38 U .S.C . § 4106(b).
Therefore, § 4108(a) does not exempt the Department o f Medicine and
Surgery from the FLRC’s jurisdiction in this case.
Jo h n M . H a rm o n
Assistant A ttorney General
Office o f Legal Counsel
11 Section 6 and subsection 6(b)
Rept. 858, 79th Cong., 2d sess., at 1,
Rec . 11656 (Representative Rogers),
ative Engle).
M See S. Rept. 858, 79th Cong.,
Scrivner).
were extensively discussed in the legislative process. See S.
3; H. Rept. 1316, 79th Cong., 1st sess., at 1-2; 91 C o n g .
11659 (Representative Cunningham ), 11665 (Represent
1st sess., at 4; 91 C o n g . R e c . 11663 (Representative
14 91 C o n g . R e c . 11662-63 (R ep resen ta tiv e Scrivner).
77 |
|
Write a legal research memo on the following topic. | (Slip Opinion)
Requests by Individual Members of Congress
for Executive Branch Information
In reviewing requests from Congress, the Executive Branch’s longstanding policy has
been to engage in the established process for working to accommodate congressional
requests for information only when those requests come from a committee, subcommittee, or chairman acting pursuant to oversight authority delegated from a House of
Congress. Departments and agencies, however, may appropriately give due weight and
sympathetic consideration to requests for information from individual members of
Congress not delegated such authority.
Only a committee chairman may request presidential records under section 2205(2)(C) of
the Presidential Records Act, unless the committee has specifically del egated that authority to another member.
February 13, 2019
MEMORANDUM OPINION FOR THE FILES
This memorandum expands upon a letter opinion for the Counsel to the
President issued on May 1, 2017, in which we addressed certain questions
concerning the authority of individual members of Congress to exercise
Congress’s oversight authority. Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. __
(2017) (“Oversight by Individual Members”). This memorandum also
memorializes more recent, informal advice provided to the General Counsel of the National Archives and Records Administration (“NARA”)
concerning the authority of individual members to request presidential
records under the Presidential Records Act (“PRA”).
In Oversight by Individual Members, we concluded that “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 a delegation, by committees and subcommittees (or their
chairmen).” Id. at *1. “Individual members of Congress, including ranking minority members,” we stated, “do not have the authority to conduct
oversight in the absence of a specific delegation by a full house, committee, or subcommittee.” Id.
Oversight by Individual Members “briefly explained” our views concerning requests for information from individual members of Congress.
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43 Op. O.L.C. __ (Feb. 13, 2019)
Id. The Supreme Court has defined the congressional oversight authority
to consist of the inherent power of each House to “gather information in
aid of its legislative function” by means of compulsion, if necessary. Id.
Each House has the authority to delegate that function under its own rules
and procedures. Typically, however, Congress has not delegated such
authority to individual members of Congress who are not committee
chairmen. Although requests for information from individual members of
Congress do not constitute exercises of Congress’s oversight authority,
that does not mean that an individual member’s request should be treated
the same as a Freedom of Information Act request or a request from a
member of the general public. As a matter of comity, the Executive
Branch’s appropriate respect for the legislative functions of individual
members supports Executive Branch officials’ practice of giving due
weight and sympathetic consideration to those requests.
We recently addressed a related question in connection with the Senate
Judiciary Committee’s request for presidential records relevant to the
nomination of then-Judge Brett Kavanaugh to the Supreme Court. In July
2018, the Chairman of the Judiciary Committee requested from NARA
special access to a substantial volume of records concerning Kavanaugh’s
service in the Office of the White House Counsel during the George W.
Bush Administration. Following that request, the Ranking Member of the
Committee requested additional records—those relating to Kavanaugh’s
subsequent work as Staff Secretary—that the Chairman had specifically
declined to request. The PRA provides that a committee of Congress may
request nonpublic records when needed for the conduct of its business. 44
U.S.C. § 2205(2)(C). Consistent with NARA’s past administration of this
statute, as well as our interpretation of a similar provision under the
Privacy Act, we informally advised NARA that only a committee chairman may request presidential records under section 2205(2)(C), unless the
committee has specifically delegated that authority to another member.
I.
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
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Requests by Individual Members of Congress for Executive Branch Information
McGrain v. Daugherty, 273 U.S. 135, 174 (1927). As the Court has explained, “[a] legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself
possess the requisite information—which not infrequently is true—
recourse must be had to others who do possess it.” Id. at 175. Because
“mere requests for such information often are unavailing, and . . . information which is volunteered is not always accurate or complete,” though,
“some means of compulsion are essential to obtain what [information] is
needed.” Id.; see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
504 (1975) (“[I]ssuance of subpoenas . . . has long been held to be a
legitimate use by Congress of its power to investigate.”); Response to
Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 81–82 (1986) (“Response to Congressional Requests”). For purposes of this memorandum,
we refer to each House’s formal “power of inquiry . . . with process to
enforce it,” McGrain, 273 U.S. at 174, as that House’s “oversight” authority.
Each house may exercise its oversight authority directly—for example,
by passing a resolution of inquiry seeking information from the Executive
Branch. See 4 Lewis Deschler, Deschler’s Precedents of the United States
House of Representatives ch. 15, § 2, at 2304–23 (1994) (describing the
practice of resolutions of inquiry and providing examples); Floyd M.
Riddick & Alan S. Frumin, Riddick’s Senate Procedure 882 (1992) (“The
Senate itself could investigate or hear witnesses as it has on rare occasions[.]”). In modern practice, however, each House typically employs its
oversight authority “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 Dolan et al., Cong.
Research Serv., Congressional Oversight Manual 65 (Dec. 19, 2014).
“The 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 authorized to
3
43 Op. O.L.C. __ (Feb. 13, 2019)
exercise the parent assembly’s authority. Watkins v. United States, 354
U.S. 178, 200–01 (1957).
The Senate authorizes committees, “including any subcommittee of any
such committee,” to hold hearings, subpoena witnesses, and require the
production of “correspondence, books, papers, and documents,” Senate
Rule XXVI(1), while the House authorizes “a committee or subcommittee” to exercise similar authority, House Rule XI.2(m)(1). In turn, a committee’s chairman generally may act on behalf of the committee, at least
in the absence of a contrary vote of the majority of its members. See
Letter for David S. Ferriero, Archivist of the United States, National
Archives and Records Administration, from Chuck Grassley, Chairman,
U.S. Senate Committee on the Judiciary at 2 (July 30, 2018); see, e.g.,
House Rule XI.2(m)(3) (providing that the full committee determines the
“rules” and “limitations” for a delegation to a chair). Although the procedures for these compulsory processes vary based on the issuing committee
or subcommittee, they all derive their authority from a delegation by the
relevant House as a whole. See, e.g., Response to Congressional Requests,
10 Op. O.L.C. at 82 (“exercise of subpoena power must be authorized by
the relevant House” (citing Reed v. County Comm’rs, 277 U.S. 376, 389
(1928), and McGrain, 273 U.S. at 158)); Congressional Oversight Manual
at 24 (“Committees of Congress only have the power to inquire into
matters within the scope of the authority delegated to them by their parent
body.”).
By contrast, individual members of Congress who are not serving as the
chairman of a committee, 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 delegated the authority to institute official committee
investigations, hold hearings, or issue subpoenas. See Congressional
Oversight Manual at 65. For example, the Rules of the House state that a
subpoena generally “may be authorized and issued . . . only when authorized by the committee or subcommittee, a majority being present,” except
that the committee may delegate subpoena power to a chairman. House
4
Requests by Individual Members of Congress for Executive Branch Information
Rule XI.2(m)(3)(A)(i); see also Response to Congressional Requests, 10
Op. O.L.C. at 82 (“The rules of each [House] committee flesh out somewhat the requirements for issuance of a subpoena, specifying in particular
if, or under what circumstances, the chairman of the full committee may
issue a subpoena without a vote of the committee.”); Michael L. Koempel,
Cong. Research Serv., R44247, A Survey of House and Senate Committee
Rules on Subpoenas 4–10 (Jan. 29, 2018) (summarizing House rules). The
Standing Rules of the Senate delegate to each committee responsibility to
establish subpoena procedures, Senate Rule XXVI(2), and while some of
those committees delegate subpoena authority to a chairman, none authorizes an individual member who is not a chairman to issue a subpoena
unilaterally. See A Survey of House and Senate Committee Rules on Subpoenas at 11–16 (summarizing Senate rules).
Federal courts have recognized that “no Senator and no Representative,
is free on . . . his own to conduct investigations” without congressional
authorization. Gojack v. United States, 384 U.S. 702, 716 (1966); see
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.”); Lee v. Kelley, 99 F.R.D.
340, 342 n.2 (D.D.C. 1983) (denying Senator leave to intervene to request
access to sealed materials on the grounds that the Senator “appears as an
individual Senator, without Senate authorization, in what is undeniably
an investigatory role”), aff’d sub nom. S. Christian Leadership Conf. v.
Kelley, 747 F.2d 777 (D.C. Cir. 1984). As the Congressional Research
Service has summarized, individual members of Congress not acting
pursuant to delegated oversight authority are entitled only to “the voluntary cooperation of agency officials or private persons.” Congressional
Oversight Manual at 65 (emphasis added).
II.
The distinction between Congress’s constitutionally based oversight
authority and other congressional requests for information informs the
Executive Branch’s obligations and practices when responding to such
requests. 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
5
43 Op. O.L.C. __ (Feb. 13, 2019)
optimal accommodation . . . of the needs of the conflicting branches.”
United States v. Am. Tel. & Tel. (“AT&T ”), 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”); Assertion of Executive Privilege in Response to a
Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“The accommodation required . . . 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.”). Such 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 Senate Rule
XXVI(1); House Rule XI.2(m)(1).
Regardless of whether the chairman or committee has served a subpoena, the Executive Branch will work to accommodate the committee’s
legitimate oversight needs, because a request for information is itself a
valid exercise of Congress’s oversight authority. The Executive Branch
need not, and rarely does, insist upon the service of a subpoena or other
compulsory process. Upon receipt of any request made by a committee,
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 Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982).
In contrast with a committee request, a letter or inquiry from an individual member or members of Congress is not made “pursuant to Congress’s constitutional authority to conduct oversight and investigations.”
Congressional Oversight Manual at 56. As a result, while the Executive
Branch often will respond to and cooperate with such a request, the request differs from an oversight request and does not trigger the “implicit
constitutional mandate to seek optimal accommodation” that a request
from a committee or chairman exercising Congress’s delegated oversight
authority would trigger. AT&T, 567 F.2d at 127.
These distinctions between requests for information made by a chairman or committee and requests made by individual members of Congress
do not mean that individual members have no need for information from
Executive Branch officials, or that Executive Branch officials should
6
Requests by Individual Members of Congress for Executive Branch Information
disregard their requests. “Senators” and “Representatives” compose
Congress as an institution, U.S. Const. art. I, §§ 1–3, and each member of
Congress “participates in the law-making process” and “has a voice and a
vote in that process.” Murphy v. Dep’t of the Army, 613 F.2d 1151, 1157
(D.C. Cir. 1979). Individual members, even those who are not chairmen
of committees that have been delegated the oversight authority of a House
of Congress, thus may “request . . . information from the executive agencies” about Executive Branch programs or activities—whether for legislation, constituent service, committee activities, or other purposes arising
from members’ legislative “responsibilities” (such as Senators’ role in
providing advice and consent for presidential appointments). Id.
The Executive Branch has historically exercised discretion in determining whether and how to respond to requests for information from individual members of Congress. Individual members often have legitimate
interests in seeking information from Executive Branch officials, and
providing this information can aid individual members in carrying out
their legislative responsibilities. When individual members are requesting
information in their official capacity on their own behalf, and not acting
on behalf of a body of Congress, an Executive Branch policy of providing
good-faith responses to their requests exhibits a proper respect for members of a coordinate branch of the government. Departments and agencies,
therefore, appropriately give due weight and sympathetic consideration to
requests for information from individual members of Congress.*
* In response to a letter from Senator Grassley expressing concerns with Oversight by
Individual Members, the White House Director of Legislative Affairs issued a policy
statement regarding requests from individual members on July 20, 2017. That statement
provides, consistent with our conclusion here, that
[t]he Administration’s policy is to respect the rights of all individual Members, regardless of party affiliation, to request information about Executive Branch policies
and programs. The Administration will use its best efforts to be as timely and responsive as possible in answering such requests consistent with the need to prioritize requests from congressional Committees, with applicable resource constraints,
and with any legitimate confidentiality or other institutional interest of the Executive Branch. Moreover, this policy will also apply to other matters on which individual Members may have an interest, whether it be considering possible legislation, evaluating nominees for confirmation, or providing service to constituents.
Letter for Charles E. Grassley, Chairman, U.S. Senate Committee on the Judiciary, from
Marc Short, Director of Legislative Affairs, The White House at 2 (July 20, 2017).
7
43 Op. O.L.C. __ (Feb. 13, 2019)
In doing so, the Executive Branch may—and often does—provide information to individual members that is more than what is required under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. FOIA generally requires only that a department or agency release certain records in its
custody. It does not require the department or agency to explain existing
policies or to create documents that do not already exist. See Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)
(FOIA “does not obligate agencies to create or retain documents; it only
obligates them to provide access to those which it in fact has created and
retained”). Yet the Executive Branch often responds to requests by members of Congress with correspondence that answers substantive questions,
supplies a reasoned justification for existing policy, or explains why the
Executive Branch’s established confidentiality interests preclude it from
providing requested information. Such discretionary responses also furnish the department or agency with an opportunity to correct misperceptions or inaccurate factual statements that may be the basis for a request.
By the same token, departments and agencies often prioritize their responses to the members’ requests in a manner that differs from ordinary
FOIA requests submitted by members of the general public.
Although departments and agencies will generally respond to requests
from individual members of Congress, we recognize that they may decline
to provide information to individual members when doing so would, for
example, be overly burdensome; would inhibit the Executive’s responsibility to protect information that is privileged, confidential, or otherwise
protected by law; or would interfere with the ability to respond in a timely
manner to requests for information submitted pursuant to Congress’s
oversight authority.
Our treatment of requests for information from individual members of
Congress is consistent with the D.C. Circuit’s decision in Murphy v.
Department of the Army. Murphy held that memoranda withheld from
disclosure in response to a FOIA request did not lose their statutorily
exempt character as a result of disclosure to an individual member of
Congress. In reaching this holding, the court pointed to then-5 U.S.C.
§ 552(c), which provided that FOIA “is not authority to withhold information from Congress.” 613 F.2d at 1155. The court reasoned that, “to the
extent that Congress has reserved to itself in section 552(c) the right to
receive information not available to the general public, and actually does
receive such information pursuant to that section . . . , no waiver occurs of
8
Requests by Individual Members of Congress for Executive Branch Information
the privileges and exemptions which are available to the executive branch
under the FOIA with respect to the public at large.” Id. at 1156. The court
found “no basis in the statute or in public policy for distinguishing for
FOIA purposes between a congressional committee and a single Member
acting in an official capacity,” on the grounds that “[a]ll Members have a
constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to
executive information.” Id. at 1157.
Murphy’s holding—that, in light of section 552(c), disclosure of materials to an individual member of Congress does not waive the FOIA
exemptions that are available for requests from the public—does not
erode the legal distinction between requests for information made by a
committee (pursuant to Congress’s delegated oversight authority) and
requests made by individual members of Congress. Murphy involved the
statutory meaning of the word “Congress” “for FOIA [exemption] purposes,” which the court read to include individual members of Congress.
Id.; see id. at 1158 (“What is at issue is the construction to be given to
[section 552(c)] which safeguards congressional access to executive
information notwithstanding the FOIA exemptions and the relationship of
that provision to the question of when confidentiality is waived or destroyed by disclosure to a third party.”). To be sure, Murphy recognized
the significant role that individual members play in congressional processes as providing support for reading “Congress” to include individual
members. But the court’s point was that FOIA was not designed to stymie
the flow of information between Executive Branch agencies and individual members by subjecting those materials to a waiver of privilege. That
holding is entirely consistent with the view that there is a distinction
between a committee request, which is an exercise of Congress’s delegated oversight authority, and a request made by an individual member.
This understanding of Murphy is supported by an opinion by Judge
Wald concurring in part and dissenting in part in a D.C. Circuit decision
issued a few months after Murphy. See FTC v. Owens-Corning Fiberglas
Corp., 626 F.2d 966, 975–79 (1980). There, Judge Wald (who formerly
served as Assistant Attorney General for the Office of Legislative Affairs)
emphasized that only a “formal” congressional request, such as a letter or
subpoena from a committee, would qualify for an exception to a statutory
prohibition on the disclosure of trade-secret information. Two pre-Murphy
D.C. Circuit cases had held that the Federal Trade Commission’s disclo9
43 Op. O.L.C. __ (Feb. 13, 2019)
sure of trade secret information to congressional committees was “not a
public disclosure forbidden by” the Federal Trade Commission Act (“FTC
Act”). Id. at 970 (majority opinion) (citing Exxon, 589 F.2d at 589, and
Ashland Oil, Inc. v. FTC, 548 F.2d 977, 979 (D.C. Cir. 1976)). OwensCorning also concerned disclosure in response to a “formal request” from
a committee, and the majority opinion relied on those cases to support its
conclusion that the disclosure at issue was permissible under the FTC Act.
See id. at 970, 974. However, a passing reference in the opinion to the
recently decided Murphy, see id. at 974 & n.16, elicited a strong dissent
from Judge Wald:
The majority opinion’s footnote 16, suggesting that a single Congressman’s request for confidential information protected by [the
FTC Act], even though the request is unauthorized by any committee
or subcommittee of Congress, may stand on the same footing as a
duly authorized committee or subcommittee request, is especially
troubling. . . .
I cannot agree with the majority’s citation of [Murphy] to support
their position. . . .
Duly authorized Congressional requests were judicially recognized as a narrow exception [under the FTC Act] in Exxon; therefore, it is doubly important to insure that these requests are authorized ones. The majority too casually dismisses Exxon in this regard.
No Member of Congress, acting on his own, has yet been judicially
declared to have access rights to subpoenaed trade secret material for
his own individually-defined legislative purposes, no matter how legitimate his interest.
To suggest that Murphy may expand Exxon’s limited access [for
committees] to cover any Member acting individually is to seriously
dilute the protections of [the FTC Act], and even to undermine the
duly constituted authority and processes of Congress. The Legislative branch operates in the sensitive area of trade secret disclosure
with its coordinate branch, the Executive, through the structure and
delegated powers of Congressional committees and subcommittees.
Only if the Executive and the courts honor that structure will the
Legislature itself, as well as agencies, be able to assure subpoenaed
parties that their trade secret material is not subject to indiscriminate
10
Requests by Individual Members of Congress for Executive Branch Information
disclosure to any or all of the 535 Members of Congress with diverse
political and legislative interests.
Id. at 978–79 (Wald, J., concurring in part and dissenting in part).
Our consideration of congressional access to Executive Branch privileged information raises many of the concerns addressed by Judge Wald
in her consideration of congressional access to statutorily protected trade
secret information. Her rationale for distinguishing between requests from
committees and individual members applies as well in the context of
Congress’s constitutional oversight authority as it does in the context of
congressional requests under the FTC Act. Extending Murphy outside its
FOIA context to apply to individual-member requests for information
protected by executive privilege would intrude upon a comparably “sensitive area” in which the Executive Branch has recognized that Congress
operates “through the structure and delegated powers of Congressional
committees and subcommittees.” Id. at 979. Giving the same access rights
to individual members would also “seriously dilute” the protections that
the accommodation process provides for the Executive Branch’s privileged information and “undermine the duly constituted authority and
processes of Congress.” Id. at 978–79. To say that the Executive Branch
should provide respectful consideration to a request from a member of
Congress is not to say that each and every member may be viewed as
exercising the oversight responsibilities that the Constitution entrusts
collectively to each House of Congress.
III.
We recently confronted a similar issue in advising NARA about the
rights of individual Senators who were seeking records under the PRA
related to the nomination of then-Judge Kavanaugh to the Supreme Court.
In July and August 2018, we informally advised NARA that only a congressional committee or its chairman has authority to request presidential
records under the PRA, unless the committee specifically delegates that
authority to another member.
The PRA restricts access to presidential records after they are accessioned to NARA at the end of a President’s tenure in office. See 44 U.S.C.
§§ 2203(f ), 2204. The PRA includes various exceptions to its restrictions
on access, one of which provides that
11
43 Op. O.L.C. __ (Feb. 13, 2019)
subject to any rights, defenses, or privileges which the United States
or any agency or person may invoke, Presidential records shall be
made available . . . to either House of Congress, or, to the extent of
matter within its jurisdiction, to any committee or subcommittee
thereof if such records contain information that is needed for the
conduct of its business and that is not otherwise available.
Id. § 2205(2)(C). The congressional exception provides that, under appropriate circumstances, NARA may provide access to nonpublic presidential
records in response to a request from either House of Congress or any
committee or subcommittee thereof.
Consistent with Application of Privacy Act, 25 Op. O.L.C. 289, we advised NARA that no individual member of a congressional committee
other than its chairman is authorized to speak for or otherwise represent
the committee for purposes of the PRA’s congressional exception, absent
an express delegation of authority from the committee to that member.
The relevant PRA language in section 2205(2)(C) is identical to the
Privacy Act language in 5 U.S.C. § 552a(b)(9), which we considered in
Application of Privacy Act. In that opinion, we concluded that this language “prohibits the disclosure of Privacy Act-protected information to
[a] ranking minority member,” absent an express authorization from the
committee. 25 Op. O.L.C. at 289. We explained that “[e]xcept where the
Senate or House exercises its investigative and oversight authority directly, . . . each House of Congress exercises its investigative and oversight
authority through delegations of authority to its committees,” which in
turn often delegate that authority to chairmen. Id. In contrast, “[a]s a
general matter, 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.” Id.; see supra
pp. 4–5. Accordingly, “although the congressional-disclosure exception to
the Privacy Act disclosure prohibition is available for disclosures to either
House of Congress or to a committee of Congress,” we concluded that a
“disclosure of Privacy Act information solely to a ranking minority member is not a disclosure to the committee” because “ranking minority members generally do not act on behalf of congressional committees.” Application of Privacy Act, 25 Op. O.L.C. at 289–90. “[T]he congressionaldisclosure exception is therefore unavailable.” Id.
12
Requests by Individual Members of Congress for Executive Branch Information
So, too, under the PRA, no individual member of a committee other
than its chairman may act on behalf of a committee, absent a specific
delegation of authority to that effect, and thus disclosure to the individual
member does not qualify as disclosure to the committee under the statutory exception to restrictions on access. 44 U.S.C. § 2205(2)(C). Nothing in
the PRA suggests that Congress intended those terms to function differently in the PRA than in the Privacy Act. On the contrary, Congress used
the same language in both statutes, enacted only a few years apart, to
establish a similar congressional exception to prohibitions on disclosure.
These similarities are “strong indication[s] that the two statutes should be
interpreted pari passu.” Northcross v. Bd. of Educ., 412 U.S. 427, 428
(1973) (per curiam); see also Smith v. City of Jackson, 544 U.S. 228, 233
(2005) (plurality opinion) (“[W]hen Congress uses the same language in
two statutes having similar purposes, particularly when one is enacted
shortly after the other, it is appropriate to presume that Congress intended
that text to have the same meaning in both statutes.”).
This interpretation of section 2205(2)(C) is consistent with NARA’s
longstanding administration of the statute. See Application of Privacy Act,
25 Op. O.L.C. at 290 (noting that the conclusion that the Privacy Act
prohibits disclosure to ranking minority members “follows the longstanding Executive Branch practice on this question”). NARA informed us that
it has always understood the PRA to give authority to request records only
to the chairman of a committee or the committee itself, and that NARA
has relied on Application of Privacy Act in concluding that ranking minority members could not make requests under section 2205(2)(C). For
example, NARA declined to process requests from the Ranking Members
of the Senate Judiciary Committee in connection with the nomination of
Eric Holder as Attorney General and again with respect to the nomination
of Elena Kagan to the Supreme Court. NARA’s position with respect to
the Kavanaugh nomination therefore was consistent with prior Executive
Branch practice regarding section 2205(2)(C).
IV.
In reviewing requests from Congress, the Executive Branch’s longstanding policy has been to engage in the established process for working
to accommodate congressional requests for information only when those
requests come from a committee, subcommittee, or chairman acting pur13
43 Op. O.L.C. __ (Feb. 13, 2019)
suant to oversight authority delegated from a House of Congress. Departments and agencies, however, may appropriately give due weight and
sympathetic consideration to requests for information from individual
members of Congress not delegated such authority.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
14 |
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Write a legal research memo on the following topic. | Disclosure of Conflicts of Interest of Members of
FDA Advisory Panels
Special government employees who serve as members of a Food and Drug Administration advisory
panel and who seek waivers of conflicts of interest must publicly disclose any conflicts of interest
they may have that relates to the work to be undertaken by the panel. The FDA may not waive a
panel member’s conflict until the panel member makes the public disclosure.
The FDA has considerable discretion to determine how detailed the panel member’s disclosure must
be, so long as such disclosure is adequate to inform the public of the nature and magnitude of the
conflict.
October 5, 2001
MEMORANDUM OPINION FOR THE CHIEF COUNSEL
FOOD AND DRUG ADMINISTRATION
You have asked for our opinion whether the Food and Drug Administration
(“FDA”), in granting conflict of interest waivers to special government employees
serving as members of FDA advisory panels on new drugs and biological products
(“drug advisory panels”), must require panel members to disclose publicly their
conflicts of interest. You have further informed us that the FDA’s current practice
with respect to waivers of such conflicts of interest is to disclose the fact that a
particular panel member has been granted a waiver of a conflict, but not to identify
the nature of the conflict or provide any further details. See Memorandum for
Daniel Troy, Chief Counsel, from Matthew Eckel, Associate Chief Counsel, Food
and Drug Administration, Re: Request for Advice from Office of Legal Counsel,
Department of Justice Concerning Disclosure of Advisory Committee Member
Conflicts of Interest (Sept. 17, 2001) (“FDA Memorandum”).
As discussed below, we conclude that special government employees who
serve as members of an FDA drug advisory panel and who seek waivers of
conflicts of interest must publicly disclose any conflicts of interest they may have
that relate to the work to be undertaken by the panel. 1 The FDA may not waive a
panel member’s conflict until the panel member makes the public disclosure. The
FDA has considerable discretion to determine how detailed the panel member’s
disclosure must be, so long as such disclosure is adequate to inform the public of
the nature and magnitude of the conflict.
1
We have not been asked to, and do not, opine on whether a drug advisory panel member must
publicly disclose a conflict of interest that the member may have with a matter to be undertaken by the
panel if the member, instead of seeking a waiver, chooses not to take part at all in the matter.
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Disclosure of Conflicts of Interest of Members of FDA Advisory Panels
I. Panel Members Must Publicly Disclose Their Conflicts of Interest
Section 355(n) of title 21 provides that “[f]or the purpose of providing expert
scientific advice and recommendations to the Secretary [of Health and Human
Services] regarding a clinical investigation of a drug or the approval for marketing
of a drug under section 355 of this title [(new drugs)] or section 262 of Title 42
[(biological products)], the Secretary shall establish panels of experts or use panels
of experts established before November 21, 1997, or both.” 21 U.S.C. § 355(n)(1)
(Supp. III 1997). Within 90 days after a drug advisory panel makes its recommendations, the FDA must review the panel’s conclusions and recommendations and
notify the affected persons of any final decision. Id. § 355(n)(8).
Section 355(n)(4) sets out specific conflict of interest requirements for members of drug advisory panels:
Each member of a panel shall publicly disclose all conflicts of interest that member may have with the work to be undertaken by the
panel. No member of a panel may vote on any matter where the
member or the immediate family of such member could gain financially from the advice given to the Secretary. The Secretary may
grant a waiver of any conflict of interest requirement upon public
disclosure of such conflict of interest if such waiver is necessary to
afford the panel essential expertise, except that the Secretary may not
grant a waiver for a member of a panel when the member’s own scientific work is involved.
Id. § 355(n)(4). Thus, the plain terms of section 355(n)(4) require that each
member of a drug advisory panel “publicly disclose all conflicts of interest . . .
with the work to be undertaken by the panel” and that the Secretary not waive any
such conflicts before public disclosure has occurred.
You have asked, however, whether various other statutes relating to conflict of
interest requirements for government employees should be read to negate or limit
the obligation that section 355(n)(4) imposes.
Pursuant to section 107(a)(1) of the Ethics in Government Act of 1978, as
amended, 5 U.S.C. app. §§ 101-111 (2000) (“EGA”), the FDA requires each
member of a drug advisory panel to file a confidential financial disclosure report.
See FDA Memorandum at 2. Section 107(a)(2) in turn provides that “[a]ny
information required to be provided by an individual under this subsection shall be
confidential and shall not be disclosed to the public.” 5 U.S.C. app. § 107(a)(2).
You further note that the Office of Government Ethics (“OGE”) has advised that
even with the consent of the individual filer, the agency is barred by section
107(a)(2) from publicly releasing information on the filer’s financial disclosure
report. See Privacy of SF 450 Financial Disclosure Information and Waivers
Issued to Advisory Committee Members under 18 U.S.C. § 208(b)(3), Informal
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Opinions of the Office of Legal Counsel in Volume 25
Advisory Op. 93x34, at 4 (Nov. 16, 1993), available at http://www.oge.gov/OGEAdvisories/Legal-Advisories/Legal-Advisories/ (last visited May 24, 2012) (“OGE
Letter”). 2 You therefore raise the question how section 107(a)(2) is to be read
together with the plain language of section 355(n)(4).
We believe that section 107(a)(2) has no impact on how section 355(n)(4)
should be read. Section 355(n)(4) imposes a disclosure obligation not on the FDA,
but only on individuals who choose to be members of a drug advisory panel. The
OGE Letter provides only that the filer’s consent does not enable the agency to
release the filer’s financial disclosure report. The OGE Letter does not remotely
suggest that section 107(a)(2) bars the filer from publicly releasing his own
financial disclosure report. (Indeed, any such bar, apart from having no evident
purpose, would likely violate the First Amendment.) We therefore see no conflict
between section 107(a)(2) and section 355(n)(4).
Because section 107(a)(2) and section 355(n)(4) do not conflict, FDA regulations that would implement section 355(n)(4)’s command that drug advisory panel
members publicly disclose their conflicts of interest would likewise not violate
section 107(a)(2). We note further that section 355(n)(4) could reasonably be read
to contemplate that panel members use FDA resources to make public disclosure
of their conflicts; in the event that the FDA so reads section 355(n)(4), we believe
that such an FDA role in facilitating panel members’ disclosure would not violate
section 107(a)(2).
You present an argument that the federal criminal conflict of interest statute, 18
U.S.C. § 208 (1994), permits an agency to grant a special government employee
an exemption from its prohibitions in certain circumstances, see id. § 208(b)(3);
that an agency, in providing the public a copy of any determination granting such
an exemption, may withhold from disclosure any information that would be
exempt from disclosure under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 (2000), see 18 U.S.C. § 208(d)(1); that FOIA exempts from its mandatory
disclosure requirements any information specifically exempted from disclosure by
another statute, see 5 U.S.C. § 552(b)(3); and that the FDA, in granting a drug
2
The OGE Letter further advises that “[t]he agency must observe the [section 107(a)(2)] constraint
against release of the information on the form, even if the individual filer has discussed the same or
similar information in another forum or the nature of certain of the filer’s holdings may be known in his
or her industry or community.” Id. at 5. Read broadly, this advice might mean that an agency may
never disclose information if that information happens to be contained in a financial disclosure report,
even if the agency relied on an independent source to obtain the information. Under such a broad
reading, an agency would be barred, for example, from disclosing a filer’s business address if that
business address were contained in the filer’s financial disclosure report, even if the agency relied on
other records to determine the filer’s business address (or even if that business address were in the
phone book). Alternatively, the OGE advice may mean only that under section 107(a)(2) an agency
may not release a financial disclosure report or information obtained from that report but may still
release information from independent sources, even if that information is also contained in the financial
disclosure report. We have not been asked to, and need not, decide which is the better reading of
section 107(a)(2).
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Disclosure of Conflicts of Interest of Members of FDA Advisory Panels
advisory panel member an exemption under 18 U.S.C. § 208(b)(3) from the
application of the criminal conflict of interest prohibitions, is therefore authorized
not to disclose information exempted from disclosure under section 107(a)(2) of
the EGA. See FDA Memorandum at 3-7. We see no need to address the merits of
this argument, for we do not believe that, even if correct, it is in any respect in
tension with the plain language of section 355(n)(4). Just as we conclude above
that a bar on the FDA’s disclosure of a drug advisory panel member’s financial
disclosure report filed pursuant to the EGA is entirely consistent with section
355(n)(4)’s requirement that the member publicly disclose all conflicts of interest
before obtaining a waiver, so we conclude here that the FDA’s permissive
authority not to disclose the member’s report would be consistent with that same
requirement.
We therefore conclude that none of the other statutory provisions you raise
negates or limits the application of section 355(n)(4).
II. The FDA Has Discretion to Determine the Scope of the
Required Disclosure
You have also requested our opinion concerning the scope of any disclosure
required under section 355(n)(4)—in particular, the amount of background
financial information a panel member must disclose with respect to a particular
conflict of interest. See FDA Memorandum at 9, 12. The language of the statute
provides little guidance in interpreting the phrase “publicly disclose all conflicts of
interest,” and thus appears to leave the agency some discretion in determining how
best to implement the statutory mandate. Indeed, just as the statute explicitly gives
the Secretary discretion to decide when the need for an individual’s expertise
justifies waiving a conflict of interest, we believe that it implicitly permits the
Secretary, in developing administrative guidelines for disclosure, to consider the
competing public interests at stake.
In enacting section 355(n)(4), Congress clearly sought to promote the strong
public interest in knowing whether individuals involved in the approval of new
drugs and biological products are potentially biased by conflicting financial
interests. Accordingly, any regulations implementing section 355(n)(4) must
require an advisory panel member, before receiving a waiver of any conflict of
interest, to provide meaningful public disclosure that would adequately enable a
reasonable person to understand the nature of the conflict and the degree to which
it could be expected to influence the recommendations the member would make.
Mere identification of the conflicting interest may be insufficient to meet this
standard; it will often be necessary also to provide information concerning the
magnitude of a particular financial interest (e.g., whether it consists of a few
shares of stock or a controlling interest in a company). On the other hand,
Congress surely did not intend that the disclosure requirement should be so
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Opinions of the Office of Legal Counsel in Volume 25
intrusive or onerous as to make many individuals unwilling to serve on advisory
panels, as such a result would deprive the FDA of the “essential expertise”
Congress intended the advisory panels to provide. The FDA may therefore tailor
the scope of the requirement so that it does not impose a greater burden than
necessary to achieve the statute’s goal.
M. EDWARD WHELAN III
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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|
Write a legal research memo on the following topic. | Application of the Federal Bribery Statute to Civilian
Aides to the Secretary of the Army
A Civilian Aide to the Secretary of the Army is a public official who is barred by 18 U.S.C. §
201(c) from receiving anything of value because of an official action taken.
July 12, 1989
M e m e o r a n d u m O p in io n
for the
D epartm en t
of the
G e n er a l C ounsel
A rmy
This letter responds to your Office’s request for an opinion on whether
the federal bribery statute, 18 U.S.C. § 201(c), applies when a Civilian
Aide to the Secretary of the Army receives an offer for reimbursement of
expenses incurred in the discharge o f Civilian Aide duties.1
We agree, based on the statement o f facts in the Army Letter, that it
was reasonable for the Army to conclude that the Civilian Aide should
not accept the offer for reimbursement from the private, non-profit foun
dation for these services. Although there may be instances in which the
conduct o f a Civilian Aide could give rise to a prosecution under section
201(c), we do not believe that it would be useful or appropriate to spec
ulate now regarding the legality o f future cases that may raise similar
issues. Our reasons for these conclusions are set forth below.
I. Background
A Civilian Aide is a private citizen appointed by the Secretary o f the
Army to represent the civilian community. Army Regulation 1-15,
Civilian Aides to the Secretary of the Arm y. Civilian Aides serve without
salary or other compensation by the federal government, although they
may receive reimbursement for certain travel expenses. A private, non
profit foundation offered to pay the expenses incurred by one o f these
Civilian Aides in the discharge o f her official duties, including the cost o f
any secretarial services needed in the future.2 Your Office advised the
Civilian Aide to decline the offer because o f your concern that the con
1Letter for Mr Douglas W Kmiec, A cting Assistant Attorney General, Office o f Legal Counsel, from
Darrell L. Peck, Acting General Counsel, Department o f the Army (July 8, 1988) ( “Army Letter”)
2Arm y Letter at 1.
202
tribution might be prohibited by 18 U.S.C. § 201(c). You have sought guid
ance about what to do if this situation arises again.
II. Analysis
Section 201(c)(1)(B) o f the federal bribery statute subjects to criminal
liability “ [w]hoever — otherwise than as provided by law for the proper
discharge o f official duty — being a public official, ... directly or indirect
ly ... accepts, or agrees to receive or accept anything o f value personally
for or because o f any official act performed or to be performed by such
official or person.” The requirements for criminal liability under this pro
vision are three-fold: (1) the person must be a “public official”; (2) that
official must accept or agree to receive anything o f value; and (3) the thing
of value must be given for or because o f any official act by such official.
A. Public official
We believe that a Civilian Aide would be considered a “public official”
under the statute. Section 201(a) defines a “public official,” in relevant
part, as a “person acting for or on behalf o f the United States, or any
department ... o f Government thereof ... in any official function, under
or by authority o f any such department.” Civilian Aides act on behalf o f
and by the authority o f the Department o f the Army. The Supreme Court
has enforced a broad construction o f the “public official” provision,
“agreeing with the Government” that section 201 is a comprehensive
statute aimed at all who act on behalf o f the government. Dixson v.
United States, 465 U.S. 482, 496 (1984). The Dixson court stated:
To determine whether any particular individual falls within
this category, the proper inquiry is not simply whether the
person had signed a contract with the United States or
agreed to serve as the Government’s agent, but rather
whether the person occupies a position of public trust with
official federal responsibilities. Persons who hold such
positions are public officials within the meaning o f § 201
and liable for prosecution under the federal bribery statute.
Id. In Dixson, the Court held that the term included “officers o f a private,
nonprofit corporation administering and expending federal community
development block grants” because, as administrators of the subgrant,
they were responsible for a program that distributed federal funds
according to federal guidelines. Id. at 497.3 As the Dixson court noted,
°See also United Slates v Kirby, 587 F2d 876 (7th Cir. 1978) (grain inspector employed by private com
pany but licensed by USDA was public official); United States v Gallegos, 510 F Supp. 1112 (D N.M.
Continued
203
since the original enactment o f the bribery law in 1853 Congress has
enacted successive statutes using “broad jurisdictional language,” id. at
491, and in keeping with this intent, the courts have broadly interpreted
the phrase “person acting for or on behalf o f the United States.” Id. at 492.
Although Civilian Aides are not federal employees, Army Regulation 115, § 5(b), they perform numerous functions that would appear to meet
the test o f “acting for or on behalf of the United States.” See, e.g., Army
Regulation 1-15, § 4(d) (responsibility to provide “individual advice” to
the Secretary o f the Army and others about public attitudes towards the
Army, to develop programs to attain maximum understanding and coop
eration between the civilian community and the Army, and to disseminate
information to the public about the Army’s objectives); id. § 13 (travel as
Civilian Aide paid for by government as official travel); id. § 10 (detailing
Civilian Aides’ access to classified information); id. § 11 (same). This
Office previously has considered the duties and responsibilities o f the
Civilian Aides in determining whether such aides were subject to the
Emoluments Clause o f the Constitution. In that opinion, we noted that
the United States reposes great trust in the Aides, and relies
upon them to perform various duties that further the
national defense.
These same attributes — the reposing of trust, the necessi
ty o f undivided loyalty to the United States, the importance
o f the task performed by those who hold the office, per
sonalized selection and access to classified information —
characterize the “office o f trust” for purposes o f the
Emoluments Clause .... We have no difficulty concluding,
therefore, that the position o f Civilian Aide to the Secretary
o f the Army is an “Office o f Trust” under the United States
for purpose o f the Emoluments Clause.4
In keeping with this view and consistent with the Dixson decision, we
believe that Civilian Aides should be considered “public officials” for pur
poses o f 18 U.S.C. § 201.
3(. continued)
1981) (em p loyee o f state government w h o worked under direct supervision o f federal official in admin
istration o f federal program was public officia l), United States v. G riffin, 401 F. Supp 1222 (S D. Ind
1975), a ffd without opinion sub nom United States v Metro Management Corp., 541 F2d 284 (7th Cir
1976) (em p loyee o f a private company w h o acted as independent contractor for HUD was public o ffi
cial); S. Rep N o 2213, 87th Cong., 2d Sess. 8 (1962) (term “include[s] officers and em ployees o f the three
branches o f government, jurors, and other persons carrying on activities fo r or on behalf o f the
Governm ent”).
4
Memorandum fo r James H. Thessin, Assistant Legal Adviser for Management, Department o f State,
from John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re. Application of
the Emoluments Clause to a Civilian A ide to the Secretary o f the A rm y (Aug. 29, 1988) (citations and
footnotes om itted).
204
B. Thing of value
The second requirement o f criminal liability is that the Civilian Aide
receive “anything o f value.” This requirement appears not to have been
frequently litigated. Based on existing case law, however, we believe that
items such as the reimbursement expenses you describe for prior expens
es incurred by the Civilian Aide and future secretarial services probably
would meet the statute’s test. See, e.g., United States v. Biaggi, 853 F.2d
89 (2d Cir. 1988) (finding vacation expenses provided to Congressman to
be a thing “o f value”), cert, denied, 489 U.S. 1052 (1989); United States v.
Gorman, 807 F.2d 1299 (6th Cir. 1986) (finding future employment
promised by a third party to be a thing “o f value”), cert, denied, 484 U.S.
815 (1987).
C. Received fo r an official act
The legislative history o f the 1962 formulation o f this provision, which
has remained substantially unchanged, states that “ [t]he term ‘official act’
is defined to include any decision or action taken by a public official in
his capacity as such.” S. Rep. No. 2213, 87th Cong., 2d Sess. 8 (1962). One
court has held that the mere use by a public official o f the status o f his
office is sufficient to warrant liability under the statute. See, e.g., United
States v. Biaggi, 853 F.2d at 98 (noting that congressman’s “invocation o f
his position and o f congressional interest in his intercession with others
on behalf o f a constituent” is to be considered an official act). Absent par
ticular facts, it is difficult to postulate the circumstances under which
something o f value would be deemed to be given because o f an official
act by a Civilian Aide.5However, given the apparent breadth o f the Biaggi
court’s holding and our conclusion that Civilian Aides are public officials,
we recommend that you caution the Civilian Aides to discuss with your
Department any offer o f funds or other assistance that they receive from
a third party.
III. Conclusion
We believe that a Civilian Aide is a public official who is barred by 18
U.S.C. § 201(c) from receiving anything o f value because o f an official
action taken. Whether this Department would prosecute a case o f this
type would depend upon the particular facts and circumstances.
We reiterate that we believe your advice to the Civilian Aide in the cir
cumstances you described was appropriate and consistent with the Army
5 For example, unless w e w ere to interview officials at the private foundation that made the offer to the
Civilian Aide in your example, w e would not be able to judge whether the offer was made because o f
longstanding fnendship with the particular Civilian Aide, because o f disinterested community spirit and
pride in her success, or because o f a corrupt motive
205
Regulation’s direction that Civilian Aides “avoid any situation producing
an actual or apparent conflict” o f interest between their private lives and
their roles as Civilian Aides.6 Should this problem arise again, we invite
you to consult with us or with the Public Integrity Section o f the Criminal
Division.
WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
“ Arm y Regulation 1-15, § 6(a)
206 |
|
Write a legal research memo on the following topic. | Authority of HUD’s Chief Financial Officer to Submit
Final Reports on Violations of Appropriations Laws
The Consolidated Appropriations Resolution for Fiscal Year 2003 requires the Chief Financial Officer
of the Department of Housing and Urban Development to report to the President and Congress on
violations by the agency of the Anti-Deficiency Act and other appropriations laws concerning
expenditures, but the CFO must first submit his reports to the Secretary of HUD for review and
approval.
August 31, 2004
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
You have asked for our opinion concerning the proper interpretation of an
appropriations statute that directs the Chief Financial Officer (“CFO”) of the
Department of Housing and Urban Development (“HUD”) to submit final reports
to the Secretary of HUD, the President, and Congress concerning violations of the
Anti-Deficiency Act (“ADA”) and other statutes relating to HUD appropriations.
In particular, you have inquired whether this legislation overrides language in the
ADA that directs “the head of the agency” to report ADA violations to the
President and Congress and, if so, whether the CFO may submit reports on ADA
violations without first seeking the review and approval of HUD’s Secretary. We
conclude that the appropriations statute at issue does require the CFO to report to
the President and Congress on violations of the ADA and other applicable
appropriations statutes, but that he must first submit his reports to the Secretary for
review and approval.
The ADA provides in relevant part that executive branch officials may not
expend funds or enter into contracts that impose financial obligations on the
United States without express congressional authorization in appropriations
legislation. 31 U.S.C. § 1341(a)(1) (2000); see also id. §§ 1341–1342, 1349–1351,
1511–1519. Violations of the ADA—which enforces the Constitution’s directive
that “[n]o Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law,” U.S. Const. art. I, § 9, cl. 7—require “appropriate
administrative discipline,” including possible reprimand, suspension without pay,
or removal from office, and, if the violation is knowing and willful, may result in a
fine or imprisonment. 31 U.S.C. §§ 1349(a), 1350.
To ensure that the President and Congress are made aware of violations of the
Act, Congress directed that “[i]f an officer or employee of an executive agency . . .
violates section 1341(a) or 1342 of this title, the head of the agency . . . shall report
immediately to the President and Congress all relevant facts and a statement of
actions taken.” 31 U.S.C. § 1351. Under the ADA, therefore, the heads of the
executive agencies bear responsibility for reporting violations of the ADA to the
President and Congress.
248
Authority of HUD’s CFO to Submit Final Reports on Violations of Appropriations Laws
In 2003, Congress established specific additional parameters for HUD’s reporting of violations of the ADA and other statutes authorizing obligation of HUD
funds. In the Consolidated Appropriations Resolution for Fiscal Year 2003 (“FY
2003 Appropriations Act” or “2003 Act”), Congress subjected the appropriation of
funds for administrative and other expenses of HUD’s CFO to the following
conditions:
Provided further, That, notwithstanding any other provision of law,
hereafter, the Chief Financial Officer of the Department of Housing
and Urban Development shall, in consultation with the Budget Officer, have sole authority to investigate potential or actual violations
under the Anti-Deficiency Act (31 U.S.C. 1341 et seq.) and all other
statutes and regulations related to the obligation and expenditure of
funds made available in this, or any other Act; shall determine
whether violations exist; and shall submit final reports on violations
to the Secretary, the President, the Office of Management and Budget and the Congress in accordance with applicable statutes and Office of Management and Budget circulars.
Pub. L. No. 108-7, 117 Stat. 11, 499 (2003) (emphasis added).
The question at issue focuses, first, on the relation between the reporting requirements of the FY 2003 Appropriations Act and those of the ADA—in
particular, whether the 2003 Act vests HUD’s CFO with authority, independent of
the Secretary, to report ADA violations to the President and Congress. More
generally, in addressing your question, we must consider the relation between the
reporting authority of the CFO under the 2003 Act and the supervisory authority of
the Secretary of HUD, and ultimately of the President as the head of the Executive
Branch. The General Counsel of HUD has provided his view that the FY 2003
Appropriations Act does not nullify the ADA’s requirement that the “head of the
agency” inform the President and Congress of any ADA violations, or that, at a
minimum, the CFO’s reports must first be reviewed and approved by the Secretary. See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of
Legal Counsel, from Richard A. Hauser, General Counsel, U.S. Department of
Housing and Urban Development (May 10, 2004). For the reasons set forth below,
we conclude that the FY 2003 Appropriations Act does require the CFO to report
to the President and Congress on violations of the ADA and other applicable
appropriations statutes, but that the CFO’s reports are subject to prior review and
approval by the Secretary or the President.1
1
We have not analyzed the question whether the reporting requirements set forth in the FY 2003
Appropriations Act are permanent requirements, but we are informed that HUD treats them as such. See
E-mail for Steffen N. Johnson, Attorney-Adviser, Office of Legal Counsel, from Camille E. Acevedo,
Associate General Counsel for Legislation and Regulations, Department of Housing and Urban
Development (July 22, 2004). See also FY 2003 Appropriations Act, 117 Stat. at 499 (conditioning
249
Opinions of the Office of Legal Counsel in Volume 28
In the FY 2003 Appropriations Act, Congress directed the CFO to submit his
reports “in accordance with applicable statutes and Office of Management and
Budget circulars.” 117 Stat. at 499 (emphasis added). Among the “applicable
statutes” must be the ADA, 31 U.S.C. § 1351, which, as discussed above, imposes
on “the head of the agency,” rather than the CFO, the responsibility of reporting
ADA violations to the President and Congress. Chief among the applicable OMB
circulars is Circular A-11, which implements the requirements of the ADA for the
Executive Branch and specifies that reports of ADA violations are to take the form
of letters that shall be transmitted from the “agency head” to the President through
the Director of OMB. OMB Circular No. A-11, § 145.7 (2004). OMB Circular A11 also directs the agency to “report identical letters to the Speaker of the House of
Representatives and the President of the Senate,” and it specifies: “If the letters to
Congress are identical to the letter to the President, include a statement to this
effect in the letter to the President. If the letters to Congress are not identical to the
letter to the President, you will submit a copy of the letter to Congress with your
letter to the President.” Id. Thus, although the phrase “notwithstanding any other
provision of law” in the 2003 Act would generally override other laws to the
extent they interfere with the CFO’s exercise of his duties under the Act, that
phrase cannot be read to override the terms of the ADA and OMB Circular A-11
entirely, because the requirement in the same provision that the CFO submit his
final reports “in accordance with” applicable statutes and OMB circulars expressly
preserves the procedures prescribed by the ADA and Circular A-11. See Williams
v. Taylor, 529 U.S. 362, 364 (2000) (noting “the cardinal principle of statutory
construction that courts must give effect, if possible, to every clause and word of a
statute”).
On the other hand, the ADA and OMB Circular A-11 have general application
to the deficiency reports of all executive agencies, whereas the 2003 Act is specific
to HUD. It is a usual rule of construction that the specific statutory provision will
trump the general where they conflict or address the same concern. See Edmond v.
United States, 520 U.S. 651, 657 (1997) (“Ordinarily, where a specific provision
conflicts with a general one, the specific governs.”); Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 384 (1992) (“[I]t is a commonplace of statutory
construction that the specific governs the general.”). It is unlikely, in our view, that
Congress intended to create two redundant reporting obligations for ADA
violations at HUD, one requiring a report to be submitted by the Secretary under
the general terms of the ADA and one requiring a separate and independent report
certain HUD appropriations on the requirement that the CFO “hereafter” submit final reports on
violations of the ADA and other appropriations statutes to the Secretary and the President as well as to
Congress); H.R. Rep. No. 108-235, at 77–78 (2003) (describing the changes made in the FY 2003
Appropriations Act as “permanent changes” and stating that they “permanently clarif[ied] responsibilities within the Department for investigating and reporting on potential and actual violations of all
appropriations laws”).
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Authority of HUD’s CFO to Submit Final Reports on Violations of Appropriations Laws
to be submitted by the CFO under the specific terms of the 2003 Act. The
language in the 2003 Act requiring the CFO to “submit final reports on violations”
reinforces the view that only one report on a given violation is contemplated by the
statute. Accordingly, we conclude that the HUD-specific terms of the 2003 Act
were intended to assign to the CFO the duty of submitting reports to the President
and Congress with respect to violations at HUD of the ADA and other applicable
appropriations laws.
But it does not necessarily follow that, simply because the 2003 Act charges the
HUD CFO, rather than the Secretary of HUD, with the duty to submit final reports
on violations, the HUD CFO has independent and unreviewable authority to
prepare and submit final reports to the President and Congress without supervision
by the Secretary. The language of the 2003 Act does not require such a reading,
but rather is reasonably susceptible to the interpretation that the Secretary retains
his ordinary supervisory authority over the CFO, as reflected in the statute spelling
out the CFO’s authority and functions. See 31 U.S.C. § 902(a)(1) (2000) (the CFO
shall “report directly to the head of the agency regarding financial management
matters”). The need to avoid raising a significant constitutional problem requires
that we adopt this interpretation—i.e., that the CFO’s duty to prepare and submit
final reports under the 2003 Act, like his other duties, is subject to the ordinary
supervision of the Secretary, and ultimately of the President through the Secretary.
Accordingly, we conclude that although the CFO is assigned the responsibility for
submitting reports to the President and Congress on all violations of appropriations
laws at HUD, including the reports required by the ADA and OMB Circular A-11,
the CFO’s exercise of that duty is subject to prior review and approval by the
Secretary.2
This result follows from the rule of construction requiring that statutes be interpreted to avoid raising a significant constitutional problem, provided that doing so
does not contravene the clear meaning of the statute. See Solid Waste Agency of N.
Cook Cnty. v. Army Corps of Eng’rs, 531 U.S. 159, 173 (2001) (“[W]here an
otherwise acceptable construction of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.”) (quoting Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568, 575 (1988)). Here, we conclude that it is most reasonable to construe the FY
2003 Appropriations Act to require supervisory review by the Secretary of the
CFO’s reports to the President and Congress because a contrary conclusion would
2
The legislative history does not elaborate on the relationship between the reporting requirements
of the ADA and those of the FY 2003 Appropriations Act. The House Conference Report, which
reflects the conferees’ adoption of the House version of the bill, references an earlier House report that
discusses HUD’s past difficulties in complying with the ADA, but neither document discusses the issue
of reporting in any depth. See H.R. Conf. Rep. No. 108-10, at 1427 (2003); H.R. Rep. No. 107-740, at
78–79 (2002).
251
Opinions of the Office of Legal Counsel in Volume 28
raise serious constitutional problems by interfering with the President’s exercise of
his constitutional responsibility to supervise the unitary Executive Branch.
The President’s ability to supervise and control the work of subordinate officers
and employees of the Executive Branch, through his supervision of the principal
officers of the executive agencies, is vital to the exercise of his constitutional duty
faithfully to execute the laws. See U.S. Const. art. II, § 3 (providing that the President “shall take Care that the Laws be faithfully executed”). As we have elsewhere
explained:
The [judicial] decisions and the long practical history concerning the
right of the President to protect his control over the Executive
Branch are based on the fundamental principle that the President’s
relationship with his subordinates must be free from certain types of
interference from the coordinate branches of government in order to
permit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President,
and he is obligated to “take care that the laws are faithfully executed.” In order to fulfill those responsibilities, the President must be
able to rely upon the faithful service of subordinate officials. To the
extent that Congress or the courts interfere with the President’s right
to control or receive effective service from his subordinates within
the Executive Branch, those other branches limit the ability of the
President to perform his constitutional function.
Constitutionality of Statute Requiring Executive Agency to Report Directly to
Congress, 6 Op. O.L.C. 632, 638–39 (1982).
Applying these general separation of powers principles, we have concluded that
statutory “requirement[s] that subordinate officials within the Executive Branch
submit reports directly to Congress, without any prior review by their superiors,
would greatly impair the right of the President to exercise his constitutionally
based right to control the Executive Branch,” and that statutory reporting requirements should generally be construed to avoid such a result. Id. at 633. Similarly,
we have concluded that inspectors general in the Executive Branch may not be
required to report information to Congress without review and approval by the
head of the relevant agency, explaining that “[r]eports of problems encountered . . .
may be required of the agencies in question, but . . . the statutory head of the
agency . . . must reserve the power of supervision over the contents of those
reports.” Inspector General Legislation, 1 Op. O.L.C. 16, 18 (1977). See also
Authority of the Special Counsel of the Merit Systems Protection Board to Litigate
and Submit Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984) (“Congress may
not grant [Special Counsel] the authority to submit legislative proposals directly to
Congress without prior review and clearance by the President, or other appropriate
authority, without raising serious separation of powers concerns”). Thus, it would
252
Authority of HUD’s CFO to Submit Final Reports on Violations of Appropriations Laws
be constitutionally problematic to interpret the FY 2003 Appropriations Act to
grant HUD’s CFO unreviewable authority to report to the President and Congress
concerning potential violations of the ADA and other appropriations laws.3
Because the plain terms of the 2003 Act, including its directive that reports be
submitted “in accordance with” applicable statutes and OMB circulars, do not
require such an interpretation, it must be avoided. The better reading of the statute
is that the reports prepared by the CFO must be subject to the review and approval
of the Secretary before they are finalized and submitted by the CFO to the
President and Congress.4
In summary, we conclude that the FY 2003 Appropriations Act does give the
CFO of HUD authority to report to the President and Congress on violations by the
agency of the ADA and other appropriations laws concerning expenditures, but
that he must first submit his reports to the Secretary for review and approval.
STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
Office of Legal Counsel
3
The same fundamental constitutional concern would be raised by a statute requiring a principal
officer like the Secretary to make a report directly to Congress without prior review and approval by the
President. We note that the ADA itself could be read to suggest such a requirement, though such a
problematic interpretation of the ADA is not required by the plain language of the statute. Of course,
the President, in his discretion, may permit the heads of departments to make simultaneous reports to
Congress when they report ADA violations to the President through OMB, and that is the policy
reflected in OMB Circular A-11.
4
Our conclusion is not altered by the fact that the FY 2003 Appropriations Act provides that the
CFO “shall . . . prescribe the content, format and other requirements for the submission of final reports
on violations; and . . . prescribe such additional policies and procedures as may be required for
conducting investigations of, and administering, processing, and reporting on, potential and actual
violations of the Anti-Deficiency Act and all other statutes and regulations governing the obligation and
expenditure of funds made available in this or any other Act.” FY 2003 Appropriations Act, 117 Stat. at
500. These responsibilities of the CFO do not foreclose a substantive role for the Secretary in
overseeing and directing the preparation of reports concerning violations of the appropriations laws.
Although the CFO is charged in the first instance with preparing the content of his reports and
establishing policies and procedures for reporting violations, we construe these responsibilities—like
the CFO’s other duties—to be subject to oversight by the President and the Secretary, for the reasons
discussed in the text.
253 |
|
Write a legal research memo on the following topic. | A Sntttimig P r e sid en ts Amemalbility to Imdidtmeimt and Crimimal
PiroseOTttiom
The in dictm ent o r cn m in al prosecution o f a sitting P resident would unconstitutionally underm ine the
cap acity o f the executive branch to p erform its constitutionally assigned functions
October 16, 2000
M
em orandum
O p in io n
for t h e
A tto rn ey G eneral
In 1973, the Department concluded that the indictment or criminal prosecution
of a sitting President would impermissibly undermine the capacity of the executive
branch to perform its constitutionally assigned functions. We have been asked
to summarize and review the analysis provided in support of that conclusion, and
to consider whether any subsequent developments in the law lead us today to
reconsider and modify or disavow that determination.1 We believe that the conclu
sion reached by the Department in 1973 still represents the best interpretation
of the Constitution.
The Department’s consideration of this issue in 1973 arose in two distinct legal
contexts. First, the Office of Legal Counsel ( “ OLC” ) prepared a comprehensive
memorandum in the fall of 1973 that analyzed whether all federal civil officers
are immune from indictment or criminal prosecution while in office, and, if not,
whether the President and Vice President in particular are immune from indictment
or criminal prosecution while in office. See Memorandum from Robert G. Dixon,
Jr., Assistant Attorney General, Office of Legal Counsel, Re: A m en ability o f the
P residen t, Vice P resid en t and o th er C ivil O fficers to F ederal C rim inal Prosecution
w h ile in O ffice (Sept. 24, 1973) ( “ OLC M emo” ). The OLC memorandum con
cluded that all federal civil officers except the President are subject to indictment
and criminal prosecution while still in office; the President is uniquely immune
from such process. Second, the Department addressed the question later that same
year in connection with the grand jury investigation of then-Vice President Spiro
Agnew. In response to a motion by the Vice President to enjoin grand jury pro
ceedings against him, then-Solicitor General Robert Bork filed a brief arguing
that, consistent with the Constitution, the Vice President could be subject to indict
ment and criminal prosecution. S ee Memorandum for the United States Con
cerning the Vice President’s Claim of Constitutional Immunity (filed Oct. 5,
1973), In re P ro ceed in g s o f th e G rand Jury Im paneled D ecem ber 5, 1972:
1 Since that time, the Department has touched on this and related questions in the course of resolving other ques
tions, see, e g . The President — Interpretation o f 18 U.S C. §603 as Applicable to Activities in the White H ouse,
3 Op. O.L.C. 31, 32 (1979); B n ef for the United States as Amicus Curiae in Support of Petitioner at 15 n 8, Clinton
v. Jones, 520 U.S. 681 (1997) (No. 95-1853), but it has not undertaken a comprehensive reexamination of the
matter. W e note that various lawyers and legal scholars have recently espoused a range of views of the matter
See, e .g , Impeachment o r Indictm ent• Is a Sitting President Subject to the Compulsory Criminal Process' Hearings
Before the Subcomm. on the Constitution, Federalism, and Property Rights o f the Senate Comm, on the Judiciary,
105th Cong (1998)
222
A Sitting President's Amenability to Indictment and Criminal Prosecution
A pplication o f Spiro T. Agnew, Vice P residen t o f the U nited States (D. Md. 1973)
(No. 73-965) (“ SG B rie f’). In so arguing, however, Solicitor General Bork was
careful to explain that the President, unlike the Vice President, could not constitu
tionally be subject to such criminal process while in office.
In this memorandum, we conclude that the determinations made by the Depart
ment in 1973, both in the OLC memorandum and in the Solicitor General’s brief,
remain sound and that subsequent developments in the law validate both the
analytical framework applied and the conclusions reached at that time. In Part
I, we describe in some detail the Department’s 1973 analysis and conclusions.
In Part n , we examine more recent Supreme Court case law and conclude that
it comports with the Department’s 1973 conclusions.2
I.
A.
The 1973 OLC memorandum comprehensively reviewed various arguments both
for and against the recognition of a sitting President’s immunity from indictment
and criminal prosecution. What follows is a synopsis of the memorandum’s anal
ysis leading to its conclusion that the indictment or criminal prosecution of a sit
ting President would be unconstitutional because it would impermissibly interfere
with the President’s ability to carry out his constitutionally assigned functions
and thus would be inconsistent with the constitutional structure.
1.
The OLC memorandum began by considering whether the plain terms of the
Impeachment Judgment Clause prohibit the institution of criminal proceedings
against any officer subject to that Clause prior to that officer’s conviction upon
impeachment. OLC Memo at 2. The memorandum concluded that the plain terms
of the Clause do not impose such a general bar to indictment or criminal trial
prior to impeachment and therefore do not, by themselves, preclude the criminal
prosecution of a sitting President. Id. at 7.3
2 Implicit in the Department’s constitutional analysis o f this question in 1973 was the assumption that the President
would oppose an attempt to subject him to indictment or prosecution. We proceed on the same assumption today
and therefore do not inquire whether it would be constitutional to indict or try the President with his consent.
The Department’s previous analysis also focused exclusively on federal rather than state prosecution of a sitting
President. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns
that may be implicated by state cnminal prosecution o f a sitting President. See Clinton v Jones, 520 U S 681,
691 (1997) (noting that a state cnminal prosecution o f a sitting President would raise “ federalism and comity”
concerns rather than separation o f powers concerns)
3 In a memorandum prepared earlier this year, we concluded that neither the Impeachment Judgment Clause nor
any other provision o f the Constitution precludes the prosecution o f a former President who, while still in office,
was impeached by the House o f Representatives but acquitted by the Senate See Whether a Former President May
Continued
223
Opinions o f the Office o f Legal Counsel in Volume 24
The Impeachment Judgment Clause provides:
Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust o r Profit under the United States: but the
Party convicted shall nevertheless be liable and subject to Indict
ment, Trial, Judgment and Punishment, according to Law.
U.S. Const, art. I, § 3, cl. 7. The textual argument that the criminal prosecution
o f a person subject to removal by impeachment may not precede conviction by
the Senate arises from the reference to the “ Party convicted” being liable for
“ Indictment, Trial, Judgment and Punishment.” This textual argument draws sup
port from Alexander Hamilton’s discussion of this Clause in The F ederalist Nos.
65, 69, and 77, in which he explained that an offender would still be liable to
criminal prosecution in the ordinary course of the law after removal by way of
impeachment. OLC Memo at 2.4
The OLC memorandum explained, however, that the use of the term ‘‘neverthe
less” cast doubt on the argument that the Impeachment Judgment Clause con
stitutes a bar to the prosecution o f a person subject to impeachment prior to the
termination of impeachment proceedings. Id. at 3. “ Nevertheless” indicates that
the Framers intended the Clause to signify only that prior conviction in the Senate
would not constitute a bar to subsequent prosecution, not that prosecution of a
person subject to impeachment could occur only after conviction in the Senate.
Id. “ The purpose of this clause thus is to permit criminal prosecution in spite
of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argu
m ent.” Id .5
Be Indicted and Tried f o r the Same Offenses f o r Which He Was Impeached by the House and Acquitted by the
Senate, 24 O p O L.C. I l l (2000)
4 In The Federalist No 69, Hamilton explained:
The President o f the Umted States would be liable to be impeached, tried, and upon conviction . .
removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course
of law. The person o f the King o f Great Britain is sacred and inviolable: there is no constitutional tribunal
to which he is amenable, no punishment to which he can be subjected without involving the cnsis of
a national revolution
The Federalist No. 69, at 416 (Alexander Hamilton) (Clinton Rossiter e d , 1961) (emphasis added). Similarly, in
The Federalist No 65, he stated
the punishment which may be the consequence o f conviction upon impeachment is not to terminate the
chastisement o f the offender. After having been sentenced to a perpetual ostracism from the esteem and
confidence and honors and emoluments of h is country, he will still be liable to prosecution and punishment
m the ordinary course o f law.
Id. at 3 98-99 (emphasis added). Moreover, in The Federalist No. 77, he maintained that the President is “ at all
times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent
prosecution in the common course o f law ” Id. at 464 (emphasis added) In addition, Gouvemeur Morris stated
at the Convention that “ [a] conclusive reason fo r making the Senate instead of the Supreme Court the Judge of
impeachments, was that the latter was to try th e President after the trial of the impeachment.” 2 Records o f the
Federal Convention o f 1787, at 500 (Max Farrand ed., 1974).
5 In our recent memorandum exploring in detail the meaning o f the Impeachment Judgment Clause, we concluded
that the relationship between this clause and double jeopardy principles is somewhat more complicated than the
1973 OLC M emo suggests See Whether a Form er President May Be Indicted and Tried fo r the Same Offenses
224
A Sitting President's Amenability to Indictment and Criminal Prosecution
The OLC memorandum further explained that if the text of the Impeachment
Judgment Clause barred the criminal prosecution of a sitting President, then the
same text would necessarily bar the prosecution of all other “ civil officers”
during their tenure in office. The constitutional practice since the Founding, how
ever, has been to prosecute and even imprison civil officers other than the Presi
dent while they were still in office and prior to their impeachment. See, e.g.,
id. at 4—7 (cataloguing cases). In addition, the conclusion that the Impeachment
Judgment Clause constituted a textual bar to the prosecution of a civil officer
prior to the termination of impeachment proceedings “ would create serious prac
tical difficulties in the administration of the criminal law.” Id. at 7. Under such
an interpretation, a prosecution of a government official could not proceed until
a court had resolved a variety of complicated threshold constitutional questions:
These include, first, whether the suspect is or was an officer of
the United States within the meaning of Article II, section 4 of
the Constitution, and second, whether the offense is one for which
he could be impeached. Third, there would arise troublesome cor
ollary issues and questions in the field of conspiracies and with
respect to the limitations of criminal proceedings.
Id. The memorandum concluded that “ [a]n interpretation of the Constitution
which injects such complications into criminal proceedings is not likely to be a
correct one.” Id. As a result, the Impeachment Judgment Clause could not itself
be said to be the basis for a presidential immunity from indictment or criminal
trial.
2.
The OLC memorandum next considered “ whether an immunity of the President
from criminal proceedings can be justified on other grounds, in particular the
consideration that the President’s subjection to the jurisdiction of the courts would
be inconsistent with his position as head of the Executive branch.” OLC Memo
at 18. In examining this question, the memorandum first considered the contention
that the express, limited immunity conferred upon members of Congress by the
Arrest and Speech or Debate Clauses of Article I, Section 6 of the Constitution
necessarily precludes the conclusion that the President enjoys a broader, implicit
immunity from criminal process.6 One might contend that the Constitution’s grant
fo r Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O L C at 128-30. Nothing in
our more recent analysis, however, calls into question the 1973 OLC M emo’s conclusions.
6 Article I, Section 6, Clause 1 provides
The Senators and Representatives shall . in all Cases, except Treason, Felony and Breach of the Peace,
be privileged from A rrest during their Attendance at the Session o f their respective Houses, and in going
Continued
225
Opinions of the Office o f Legal Counsel in Volume 24
of a limited immunity to members of Congress reflects a determination that federal
officials enjoy no immunity absent a specific textual grant.
The OLC memorandum determined that this contention was not “ necessarily
conclusive.” OLC Memo at 18. “ [I]t could be said with equal validity that Article
I, sec. 6, clause 1 does not confer any immunity upon the members of Congress,
but rather limits the complete immunity from judicial proceedings which they
otherwise would enjoy as members of a branch co-equal with the judiciary.” Id.
Thus, in the absence of a specific textual provision withdrawing it, the President
would enjoy absolute immunity. In addition, the textual silence regarding the exist
ence of a presidential immunity from criminal proceedings may merely reflect
the fact that it “ may have been too well accepted to need constitutional mention
(by analogy to the English Crown), and that the innovative provision was the
specified process of impeachment extending even to the President.” Id. at 19.
Finally, the historical evidence bearing on whether or not an implicit presidential
immunity from judicial process was thought to exist at the time of the Founding
was ultimately “ not conclusive.” Id. at 20.
3.
The OLC memorandum next proceeded to consider whether an immunity from
indictment or criminal prosecution was implicit in the doctrine of separation of
powers as it then stood. OLC Memo at 20. After reviewing judicial precedents
and an earlier OLC opinion,7 id. at 21-24, the OLC memorandum concluded that
“ under our constitutional plan it cannot be said either that the courts have the
same jurisdiction over the President as if he were an ordinary citizen or that the
President is absolutely immune from the jurisdiction of the courts in regard to
any kind of claim.” Id. at 24. As a consequence, “ [t]he proper approach is to
find the proper balance between the normal functions of the courts and the special
responsibilities and functions of the Presidency.” Id.
The OLC memorandum separated into two parts the determination of the proper
constitutional balance with regard to the indictment or criminal prosecution of
a sitting President. First, the memorandum discussed whether any of the consider
ations that had lead to the rejection of the contention that impeachment must pre
cede criminal proceedings for ordinary civil officers applied differently with
respect to the President in light o f his position as the sole head of an entire branch
of government. Id.8 Second, the memorandum considered “ whether criminal pro
to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned
in any other Place
7 See M emorandum from Robert G Dixon, Jr , Assistant Attorney General, Office of Legal Counsel, Re Presi
dential Am enability to Judicial Subpoenas (June 25, 1973).
8 W e note that the statements quoted in footnote 4 above from The Federalist Papers and Gouvemeur Moms,
which provide that the President may be prosecuted after having been tried by the Senate, are consistent with the
conclusion that the President may enjoy an immunity from cnm inal prosecution while in office that other civil
officers do not The quoted statements are not dispositive o f this question, however, as the OLC memorandum
226
A Sitting President's Amenability to Indictment and Criminal Prosecution
ceedings and execution of potential sentences would improperly interfere with the
President’s constitutional duties and be inconsistent with his status.” Id.
a.
The OLC memorandum’s analysis of the first of these questions began with
a consideration of whether the nature of the defendant’s high office would render
such a trial “ too political for the judicial process.” OLC Memo at 24. The memo
randum concluded that the argument was, as a general matter, unpersuasive.
Nothing about the criminal offenses for which a sitting President would be tried
would appear to render the criminal proceedings “ too political.” The only kind
of offenses that could lead to criminal proceedings against the President would
be statutory offenses, and “ their very inclusion in the Penal Code is an indication
of a congressional determination that they can be adjudicated by a judge and
jury.” Id. In addition, there would not appear to be any “ weighty reason to dif
ferentiate between the President and other officeholders” in regard to the “ polit
ical” nature of such a proceeding “ unless special separation of powers based
interests can be articulated with clarity.” Id. at 25.
The memorandum also considered but downplayed the potential concern that
criminal proceedings against the President would be “ too political” either because
“ the ordinary courts may not be able to cope with powerful men” or because
no fair trial could be provided to the President. Id. Although the fear that courts
would be unable to subject powerful officials to criminal process “ arose in Eng
land where it presumably was valid in feudal time,” “ [i]n the conditions now
prevailing in the United States, little weight is to be given to it as far as most
officeholders are concerned.” Id. Nor did the memorandum find great weight in
the contention that the President, by virtue of his position, could not be assured
a fair criminal proceeding. To be sure, the memorandum continued, it would be
“ extremely difficult” to assure a sitting President a fair trial, id., noting that it
“ might be impossible to impanel a neutral jury.” Id. However, “ there is a serious
‘fairness’ problem whether the criminal trial precedes or follows impeachment.”
Id. at 26. And “ the latter unfairness is contemplated and accepted in the impeach
ment clause itself, thus suggesting that the difficulty in impaneling a neutral jury
should not be viewed, in itself, an absolute bar to indictment of a public figure.”
Id.
The OLC memorandum next considered whether, in light of the President’s
unique powers to supervise executive branch prosecutions and assert executive
recognized Some statements by subsequent commentators may be read to contemplate cnminal prosecution of incum
bent civil officers, including the President See, e g., William Rawle, A View o f the Constitution o f the United States
o f America 215 (2d ed 1829) ( “ But the ordinary tnbunals, as we shall see, are not precluded, either before or
after an impeachment, from taking cognizance o f the public and official delinquency.” ). There is also James W ilson’s
statement in the Pennsylvania ratification debates that “ far from being above the laws, he [the President] is amenable
to them in his pnvate character as a citizen, and in his public character by impeachment." 2 The D ebates in the
Several State Conventions on the Adoption o f the Federal Constitution 480 (Jonathan Elliot ed , 2d ed. 1836).
227
Opinions of the Office o f Legal Counsel m Volume 24
privilege, the constitutional balance generally should favor the conclusion that a
sitting President may not be subjected to indictment or criminal prosecution. Id.
at 26. According to this argument, the possession of these powers by the President
renders the criminal prosecution o f a sitting President inconsistent with the con
stitutional structure. It was suggested that such powers, which relate so directly
to the President’s status as a law enforcement officer, are simply incompatible
with the notion that the President could be made a defendant in a criminal case.
The memorandum did not reach a definitive conclusion on the weight to be
accorded the President’s capacity to exercise such powers in calculating the con
stitutional balance, although it did suggest that the President’s possession of such
powers pointed somewhat against the conclusion that the chief executive could
be subject to indictment or criminal prosecution during his tenure in office.
In setting forth the competing considerations, the memorandum explained that,
on the one hand, “ it could be argued that a President’s status as defendant in
a criminal case would be repugnant to his office of Chief Executive, which
includes the power to oversee prosecutions. In other words, just as a person cannot
be judge in his own case, he cannot be prosecutor and defendant at the same
time.” Id. This contention “ would lose some of its persuasiveness where, as in
the W atergate case, the President delegates his prosecutorial functions to the
Attorney General, who in turn delegates them [by regulation] to a Special Pros
ecutor.” Id. At the same time, the status of the Watergate Special Prosecutor
was somewhat uncertain, as “ none of these delegations is, or legally can be,
absolute or irrevocable.” Id. The memorandum suggested, therefore, that even
in the Watergate matter there remained the structural anomaly of the President
serving as the chief executive and the defendant in a federal prosecution brought
by the executive branch.9
The OLC memorandum also considered the degree to which a criminal prosecu
tion of a sitting President is incompatible with the notion that the President pos
sesses the power to assert executive privilege in criminal cases. The memorandum
suggested that “ the problem of Executive privilege may create the appearance
of so serious a conflict of interest as to make it appear improper that the President
should be a defendant in a criminal case.” Id. “ If the President claims the privi
lege he would be accused of suppressing evidence unfavorable to him. If he fails
to do so the charge would be that by making available evidence favorable to
him he is prejudicing the ability o f future Presidents to claim privilege.” Id. Ulti
9 This particular concern might also “ lose som e of its persuasiveness” with respect to a prosecution by an inde
pendent counsel appointed pursuant to the later-enacted Ethics in Government Act of 1978, 28 U.S.C §§49, 591
et seq , whose status is defined by statute rather than by regulation. In Morrison v. Olson, 487 U S 654 (1988),
the Supreme Court rejected the argument that the independent counsel’s statutory protection from removal absent
“ good cau se” or some condition substantially impairing the performance of his duties, id. at 663, violates the
Appointments Clause, U.S Const art. II, §2, cl. 2, or separation o f powers principles more generally, 487 U S.
at 685-96. But since the 1973 OLC memorandum did not place appreciable weight on this argument in determining
a sitting President’s amenability to criminal prosecution, and since we place no reliance on this argument at all
in our reconsideration and reaffirmation of the 1973 memorandum’s conclusion, see infra part IIB, we need not
further explore M orrison's relevance to this argument
228
A Sitting President's Amenability to Indictment and Criminal Prosecution
mately, however, the memorandum did not conclude that the identification of the
possible incompatibility between the exercise of certain executive powers and the
criminal prosecution of a sitting President sufficed to resolve the constitutional
question whether a sitting President may be indicted or tried.
b.
The OLC memorandum then proceeded to the second part of its constitutional
analysis, examining whether criminal proceedings against a sitting President
should be barred by the doctrine of separation of powers because such proceedings
would “ unduly interfere in a direct or formal sense with the conduct of the Presi
dency.” OLC Memo at 27. It was on this ground that the memorandum ultimately
concluded that the indictment or criminal prosecution of a sitting President would
be unconstitutional.
As an initial matter, the memorandum noted that in the Burr case, see U nited
States v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694), President Jefferson
claimed a privilege to be free from attending court in person. OLC Memo at
27. Moreover, “ it is generally recognized that high government officials are
excepted from the duty to attend court in person in order to testify,” and “ [t]his
privilege would appear to be inconsistent with a criminal prosecution which nec
essarily requires the appearance of the defendant for pleas and trial, as a practical
matter.” Id. The memorandum noted, however, that the privilege against personal
appearance was “ only the general rule.” Id. The memorandum then suggested
that the existence of such a general privilege was not. by itself, determinative
of the question whether a sitting President could be made a defendant in a criminal
proceeding. “ Because a defendant is already personally involved in a criminal
case (if total immunity be laid aside), it may be questioned whether the normal
privilege of high officials not to attend court in person applies to criminal pro
ceedings in which the official is a defendant.” Id.
Even though the OLC memorandum suggested that the existence of a general
privilege against personal appearance was not determinative, the memorandum did
conclude that the necessity of the defendant’s appearance in a criminal trial was
of great relevance in determining how the proper constitutional balance should
be struck. By virtue of the necessity of the defendant’s appearance, the institution
of criminal proceedings against a sitting President ‘‘would interfere with the Presi
dent’s unique official duties, most of which cannot be performed by anyone else.”
Id. at 28. Moreover, “ [djuring the past century the duties of the Presidency . . .
have become so onerous that a President may not be able fully to discharge the
powers and duties of his office if he had to defend a criminal prosecution.” Id.
Finally, “ under our constitutional plan as outlined in Article I, sec. 3, only the
Congress by the formal process of impeachment, and not a court by any process
should be accorded the power to interrupt the Presidency or oust an incumbent.”
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Id. The memorandum rejected the argument that such burdens should not be
thought conclusive because even an impeachment proceeding that did not result
in conviction might preclude a President from performing his constitutionally
assigned duties in the course of defending against impeachment. In contrast to
the risks that would attend a criminal proceeding against a sitting President, “ this
is a risk expressly contemplated by the Constitution, and is a necessary incident
of the impeachment process.” Id.
As a consequence of the personal attention that a defendant must, as a practical
matter, give in defending against a criminal proceeding, the memorandum con
cluded that there were particular reasons rooted in separation of powers concerns
that supported the recognition o f an immunity for the President while in office.
With respect to the physical disabilities alone imposed by criminal prosecution,
‘‘in view of the unique aspects of the Office of the President, criminal proceedings
against a President in office should not go beyond a point where they could result
in so serious a physical interference with the President’s performance of his offi
cial duties that it would amount to an incapacitation.” Id. at 29. To be sure, the
concern that criminal proceedings would render a President physically incapable
of performing constitutionally assigned functions would not be “ quite as serious
regarding minor offenses leading to a short trial and a fine.” Id. But “ in more
serious matters, i.e., those which could require the protracted personal involvement
of the President in trial proceedings, the Presidency would be derailed if the Presi
dent were tried prior to removal.” Id.
The OLC memorandum also explained that the “ non-physical yet practical
interferences, in terms of capacity to govern” that would attend criminal pro
ceedings against a sitting President must also be considered in the constitutional
balance o f competing institutional interests. Id. In this regard, the memorandum
explained that ‘ ‘the President is the symbolic head of the Nation. To wound him
by a criminal proceeding is to hamstring the operation o f the whole governmental
apparatus, both in foreign and domestic affairs.” Id. at 30. In light of the conclu
sion that an adjudication o f the President’s criminal culpability would be uniquely
destabilizing to an entire branch o f government, the memorandum suggested that
“ special separation of powers based interests can be articulated with clarity”
against permitting the ordinary criminal process to proceed. Id. at 25. By virtue
of the impact that an adjudication of criminal culpability might have, a criminal
proceeding against the President is, in some respects, necessarily political in a
way that criminal proceedings against other civil officers would not be. In this
respect, it would be “ incongruous” for a “ jury of twelve” to undertake the
“ unavoidably political” task of rendering judgment in a criminal proceeding
against the President. Id. at 30. “ Surely, the House and Senate, via impeachment,
are more appropriate agencies for such a crucial task, made unavoidably political
by the nature o f the ‘defendant.’ ” Id. The memorandum noted further that “ [t]he
genius of the jury trial” was to provide a forum for ordinary people to pass on
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A Sitting President's Amenability to Indictment and Cnminal Prosecution
“ matters generally within the experience or contemplation of ordinary, everyday
life.” Id. at 31. The memorandum therefore asked whether it would “ be fair to
such an agency to give it responsibility for an unavoidably political judgment
in the esoteric realm of the Nation’s top Executive.” Id.
In accord with this conclusion about the propriety of leaving such matters to
the impeachment process, the memorandum noted that “ [u]nder our developed
constitutional order, the presidential election is the only national election, and
there is no effective substitute for it.” Id. at 32. A criminal trial of a sitting Presi
dent, however, would confer upon a jury of twelve the power, in effect, to overturn
this national election. “ The decision to terminate this mandate . . . is more fit
tingly handled by the Congress than by a jury, and such congressional power
is founded in the Constitution.” Id. In addition, the impeachment process is better
suited to the task than is a criminal proceeding because appeals from a criminal
trial could “ drag out for months.” Id. at 31. By contrast, “ [t]he whole country
is represented at the [impeachment] trial, there is no appeal from the verdict, and
removal opens the way for placing the political system on a new and more healthy
foundation.” Id.
4.
The OLC memorandum concluded its analysis by addressing “ [a] possibility
not yet mentioned,” which would be “ to indict a sitting President but defer further
proceedings until he is no longer in office.” OLC Memo at 29. The memorandum
stated that “ [f]rom the standpoint of minimizing direct interruption of official
duties — and setting aside the question of the power to govern — this procedure
might be a course to be considered.” Id. The memorandum suggested, however,
that “ an indictment hanging over the President while he remains in office would
damage the institution of the Presidency virtually to the same extent as an actual
conviction.” Id. In addition, there would be damage to the executive branch
“ flowing from unrefuted charges.” Id. Noting that “ the modem Presidency, under
whatever party, has had to assume a leadership role undreamed of in the eighteenth
and early nineteenth centuries,” the memorandum stated that “ [t]he spectacle of
an indicted President still trying to serve as Chief Executive boggles the imagina
tion.” Id. at 30.
The memorandum acknowledged that, “ it is arguable that . . . it would be pos
sible to indict a President, but defer trial until he was out of office, without in
the meantime unduly impeding the power to govern, and the symbolism on which
so much of his real authority rest.” Id. at 31. But the memorandum nevertheless
concluded that
[g]iven the realities of modem politics and mass media, and the
delicacy of the political relationships which surround the Presidency
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both foreign and domestic, there would be a Russian roulette aspect
to the course of indicting the President but postponing trial, hoping
in the meantime that the power to govern could survive.
Id. In light of the effect that an indictment would have on the operations of the
executive branch, “ an impeachment proceeding is the only appropriate way to
deal with a President while in office.” Id. at 32.
In reaching this conclusion regarding indictment, the memorandum noted that
there are “ certain drawbacks,” such as the possibility that the statute of limitations
might run, thereby resulting in “ a complete hiatus in criminal liability.” Id. As
the statute of limitations is ultimately within the control of Congress, however,
the memorandum’s analysis concluded as follows: “ We doubt . . . that this gap
in the law is sufficient to overcome the arguments against subjecting a President
to indictment and criminal trial while in office.” Id.
B.
On October 5, 1973, less than two weeks after OLC issued its memorandum,
Solicitor General Robert Bork filed a brief in the United States District Court
for the District of Maryland that addressed the question whether it would be con
stitutional to indict or criminally try a sitting President. Then-Vice President
Agnew had moved to enjoin, principally on constitutional grounds, grand jury
proceeding against him. See SG B rief at 3. In response to this motion, Solicitor
General Bork provided the court with a brief that set forth “ considerations based
upon the Constitution’s text, history, and rationale which indicate that all civil
officers of the United States other than the President are amenable to the federal
criminal process either before o r after the conclusion of impeachment pro
ceedings.” Id .10
1.
As had the OLC memorandum, the Solicitor General’s brief began by noting
that “ [t]he Constitution provides no explicit immunity from criminal sanctions
for any civil officer.” SG Brief at 4. Indeed, the brief noted that the only textual
grant of immunity for federal officials appears in the Arrest and Speech or Debate
Clauses of Article I, Section 6. In referring to these clauses, the brief rejected
the suggestion that the immunities set forth there could be understood to be a
partial withdrawal from members o f Congress of a broader implicit immunity that
all civil officers, including the President, generally enjoyed; indeed, “ [t]he intent
10 Unlike the OLC memorandum, the Solicitor General’s brief did not specifically distinguish between indictment
and other phases o f the “ criminal process” W hile explaining that “ the President is immune from indictment and
trial prior to removal from office,” SG Brief at 20, the brief did not specifically opine as to whether the President
could be indicted as long as further process was postponed until he left office.
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of the Framers was to the contrary.” SG Brief at 5.11 In light of the textual omis
sion of any express grant of immunity from criminal process for civil officers
generally, “ it would require a compelling constitutional argument to erect such
an immunity for a Vice President.” Id.
In considering whether such a compelling argument could be advanced, the brief
distinguished the case of the President from that of the Vice President. Although
the Vice President had suggested that the Impeachment Judgment Clause itself
demonstrated that ‘ ‘impeachment must precede indictment’’ for all civil officers,
the records of the debates of the constitutional convention did not support that
conclusion. Id. The Solicitor General argued, in accord with the OLC memo
randum, that the “ principal operative effect” of the Impeachment Judgment
Clause ‘‘is solely the preclusion of pleas of double jeopardy in criminal prosecu
tions following convictions upon impeachments.” Id. at 7. In any event, the
discussion of the Impeachment Judgment Clause in the convention focused almost
exclusively on the Office of the President, and “ the Framers did not debate the
question whether impeachment generally must precede indictment.” Id. at 6.
To the extent that the convention did debate the timing of impeachment relative
to indictment, the brief explained, the convention records “ show that the Framers
contemplated that this sequence should be mandatory only as to the President.”
Id. Moreover, the remarks contained in those records “ strongly suggest an under
standing that the President, as Chief Executive, would not be subject to the ordi
nary criminal process.” Id. The Framers’ “ assumption that the President would
not be subject to criminal process” did not, however, rest on a general principle
applicable to all civil officers. Id. Instead, the assumption was “ based upon the
crucial nature of his executive powers.” Id. As the brief stated:
The President’s immunity rests not only upon the matters just dis
cussed but also upon his unique constitutional position and powers
. . . . There are substantial reasons, embedded not only in the con
stitutional framework but in the exigencies of government, for
distinguishing in this regard between the President and all lesser
officers including the Vice President.
Id. at 7.
2.
In explaining why, as an initial matter, the Vice President could be indicted
and tried while still in office, the brief argued that indictment would not effect
the de facto removal of that officer. SG Brief at 11. “ [I]t is clear from history
11 In this respect, the Solicitor General’s brief more forcefully rejected this suggestion than did the OLC m em o
randum, which reasoned that the clauses gave rise “ with equal validity” to competing inferences on this point
See OLC Memo at 18
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that a criminal indictment, or even trial and conviction, does not, standing alone,
effect the removal of an impeachable federal officer.” Id. at 11-12. The brief
noted the past constitutional practice of indicting and even convicting federal
judges during their tenure, as well as the fact that Vice President Aaron Burr
“ was subject to simultaneous indictment in two states while in office, yet he
continued to exercise his constitutional responsibilities until the expiration of his
term.” Id. at 12. “ Apparently, neither Burr nor his contemporaries considered
him constitutionally immune from indictment. Although counsel for the Vice
President asserted that Burr’s indictments were ‘allowed to die,’ that was merely
because ‘Burr thought it best not to visit either New York or New Jersey.’ ”
Id. at 12 n* (citations omitted). The brief therefore determined that “ [cjertainly
it is clear that criminal indictment, trial, and even conviction of a Vice President
would not, ipso fa c to , cause his removal; subjection of a Vice President to the
criminal process therefore does not violate the exclusivity of the impeachment
power as the means of his removal from office.” Id. at 13.
The brief did conclude, however, that the “ structure of the Constitution” pre
cluded the indictment of the President. Id. at 15. In framing the inquiry into
whether considerations of constitutional structure supported the recognition of an
immunity from criminal process for certain civil officers, the brief explained that
the “ Constitution is an intensely practical document and judicial derivation of
powers and immunities is necessarily based upon consideration of the document’s
structure and of the practical results of alternative interpretations.” Id. As a con
sequence,
[t]he real question underlying the issue of whether indictment of
any particular civil officer can precede conviction upon impeach
m ent— and it is constitutional in every sense because it goes to
the heart of the operation o f government — is whether a govern
mental function would be seriously impaired if a particular civil
officer were liable to indictment before being tried on impeachment.
Id. at 15-16. Given that the constitutional basis for the recognition of a civil offi
cer’s immunity from criminal process turned on the resolution of this question,
the answer “ must necessarily vary with the nature and functions of the office
involved.” Id. at 16.
The brief then proceeded to consider the consequences that criminal prosecu
tions would have on the performance of the constitutional functions that are the
responsibility of various civil officers. As a matter of constitutional structure,
Article III judges should enjoy no constitutional immunity from the criminal
process because while a “ judge m ay be hampered in the performance of his duty
when he is on trial for a felony . . . his personal incapacity in no way threatens
the ability of the judicial branch to continue to function effectively.” Id. at 16.
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Similarly, no such immunity should be recognized for members o f Congress. The
limited immunity in the Arrest and Speech or Debate Clauses reflected
a recognition that, although the functions of the legislature are not
lightly to be interfered with, the public interest in the expeditious
and even-handed administration of the criminal law outweighs the
cost imposed by the incapacity of a single legislator. Such inca
pacity does not seriously impair the functioning of Congress.
Id. at 16-17.
The brief argued that the same structural considerations that counseled against
the recognition of an immunity from criminal process for individual judges or
legislators also counseled against the recognition of such an immunity for the
Vice President:
Although the office of the Vice Presidency is of course a high one,
it is not indispensable to the orderly operation of government. There
have been many occasions in our history when the nation lacked
a Vice President, and yet suffered no ill consequences. And, as has
been discussed above, at least one Vice President successfully ful
filled the responsibilities of his office while under indictment in
two states.
Id. al 18 (citation omitted). The brief noted that the Vice President had only three
constitutional functions: to replace the President in certain extraordinary cir
cumstances; to make, in certain extraordinary circumstances, a written declaration
of the President’s inability to discharge the powers and duties of his office; and
to preside over the Senate and cast the deciding vote in the case of a tie in that
body. Id. at 19. None of these “ constitutional functions is substantially impaired
by [the Vice President’s] liability to the criminal process.” Id.
3The Solicitor General’s brief explained that recognition of presidential immunity
from criminal process, in contrast to the vice presidential immunity, was com
pelled by a consideration of the constitutional structure. After noting that
“ [ajlmost all legal commentators agree . . . that an incumbent President must
be removed from office through conviction upon an impeachment before being
subject to the criminal process,” SG Brief at 17, the brief repeated its determina
tion that the Framers assumed “ that the nation’s Chief Executive, responsible as
no other single officer is for the affairs of the United States, would not be taken
from duties that only he can perform unless and until it is determined that he
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is to be shorn of those duties by the Senate.” Id. A proper understanding of the
constitutional structure reflects this shared assumption; in this regard it is “ note
worthy that the President is the only officer of government for whose temporary
disability the Constitution provides procedure to qualify a replacement.” Id. at
18. This provision constituted a textual recognition “ that the President is the only
officer of government for whose temporary disability while in office incapacitates
an entire branch of government.” Id.
Finally, the brief noted that the conclusion that the Framers assumed that the
President would enjoy an immunity from criminal process was supported by other
considerations of constitutional structure beyond the serious interference with the
capacity of the executive branch to perform its constitutional functions. The
“ Framers could not have contemplated prosecution of an incumbent President
because they vested in him complete power over the execution of the laws, which
includes, of course, the power to control prosecutions.” Id. at 20.
C.
The foregoing review demonstrates that, in 1973, the Department applied a con
sistent approach in analyzing the constitutional question whether a sitting President
may be subject to indictment and criminal prosecution. Both the OLC memo
randum and the Solicitor General’s brief recognized that the President is not above
the law, and that he is ultimately accountable for his misconduct that occurs
before, during, and after his service to the country. Each also recognized, however,
that the President occupies a unique position within our constitutional order.
The Department concluded that neither the text nor the history of the Constitu
tion ultimately provided dispositive guidance in determining whether a President
is amenable to indictment or criminal prosecution while in office. It therefore
based its analysis on more general considerations of constitutional structure.
Because of the unique duties and demands of the Presidency, the Department con
cluded, a President cannot be called upon to answer the demands of another branch
of the government in the same manner as can all other individuals. The OLC
memorandum in particular concluded that the ordinary workings of the criminal
process would impose burdens upon a sitting President that would directly and
substantially impede the executive branch from performing its constitutionally
assigned functions, and the accusation or adjudication of the criminal culpability
of the nation’s chief executive by either a grand jury returning an indictment or
a petit jury returning a verdict would have a dramatically destabilizing effect upon
the ability of a coordinate branch of government to function. The Department
therefore concluded in both the OLC memorandum and the Solicitor General’s
brief that, while civil officers generally may be indicted and criminally prosecuted
during their tenure in office, the constitutional structure permits a sitting President
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A Sitting President’s Amenability to Indictment and Criminal Prosecution
to be subject to criminal process only after he leaves office or is removed there
from through the impeachment process.
II.
Since the Department set forth its constitutional analysis in 1973, the Supreme
Court has decided three cases that are relevant to whether a sitting President may
be subject to indictment or criminal prosecution.12 U nited States v. Nixon, 418
U.S. 683 (1974), addressed whether the President may assert a claim of executive
privilege in response to a subpoena in a criminal case that seeks records of
communications between the President and his advisors. Nixon v. F itzgerald, 457
U.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997), both addressed the
extent to which the President enjoys a constitutional immunity from defending
against certain types of civil litigation, with F itzgerald focusing on official mis
conduct and Jon es focusing primarily on misconduct “ unrelated to any of his
official duties as President of the United States and, indeed, occurr[ing] before
he was elected to that office.” Id. at 686.13
None of these cases directly addresses the questions whether a sitting President
may be indicted, prosecuted, or imprisoned.14 We would therefore hesitate before
,2 We do not consider either Nixon v Administrator o f General Services, 433 U S. 425 (1977), or Morrison v.
Olson, 487 U.S 654 (1988), to be directly relevant to this question, and thus we do not discuss either o f them
extensively. Nixon v Administrator o f General Services involved a suit brought by former President Nixon to enjoin
enforcement of a federal statute taking custody of and regulating access to his Presidential papers and various tape
recordings, in part on the ground that the statute violated the separation of powers While the case did analyze
the separation o f powers claim under a balancing test o f the sort w e embrace here, w e m fm text accompanying
note 17, the holding and reasoning do not shed appreciable light on the question before us
Morrison v Olson considered and rejected various separation o f powers challenges to the independent counsel
provisions o f the Ethics in Government Act of 1978, which authorized a court-appointed independent counsel to
investigate and prosecute the President and certain other high-ranking executive branch officials for violations of
federal cnminal laws Morrison focused on whether a particular type o f prosecutor could pursue cnminal investiga
tions and prosecutions o f executive branch officials, in a case involving the cnminal investigation of an infenor
federal officer The Court accordingly had no occasion to and did not consider whether the Act could constitutionally
be invoked to support an independent counsel’s indictment of a silting President.
,3The Court noted that Jones’s state law claim for defamation based on statements by “ vanous persons authonzed
to speak for the President,” 520 U S . al 685, “ arguably may involve conduct within the outer penm eter of the
President’s official responsibilities ” Id. at 686 For purposes of this memorandum, we use the phrase “ unofficial
conduct,” as did the Court, see id. at 693, to refer to conduct unrelated to the President’s official duties. Compare
Nixon v. Fitzgerald, 457 U S. at 756 (recognizing “ absolute Presidential immunity from damages liability for acts
within the ‘outer perim eter’ of his official responsibility” ).
14 See United States v. Nixon, 418 U S . at 687 n 2 (expressly reserving the question whether the President can
constitutionally be named an unindicted co-conspirator). See also Jones v. Clinton, 36 F Supp 2d 1118, 1134 n.22
(E D Ark 1999) ( “ [T]he question o f whether a President can be held in cnminal contempt o f court and subjected
to cnminal penalties raises constitutional issues not addressed by the Supreme Court in the Jones case.” ) As a
matter of constitutional practice, it remains the case today that no President has ever so much as testified, or been
ordered to testify, in open court, let alone been subject to criminal proceedings as a defendant. Clinton v. Jones,
520 U.S at 692 n 14.
In the reply b n ef for the United States in United States v N ixon, in response to President Nixon’s argument
that a sitting President was constitutionally immune from indictment and therefore immune from being named an
unindicted co-conspirator by a grand jury, Watergate Special Prosecutor Leon Jaworski argued that it was not settled
as a matter of constitutional law whether a sitting President could be subject to indictment. See Reply B n ef for
the United States, United States v. Nixon, 418 U S . 683 (1974) (No 73-1766). He therefore argued that the Court
Continued
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concluding that judicial statements made in the context of these distinct constitu
tional disputes would suffice to undermine the Department’s previous resolution
of the precise constitutional question addressed here. In any event, however, we
conclude that these precedents are largely consistent with the Department’s 1973
determinations that (1) the proper doctrinal analysis requires a balancing between
the responsibilities of the President as the sole head of the executive branch
against the important governmental purposes supporting the indictment and
criminal prosecution of a sitting President; and (2) the proper balance supports
recognition of a temporary immunity from such criminal process while the Presi
dent remains in office. Indeed, U n ited S tates v. Nixon and Nixon v. F itzgerald
recognized and embraced the same type of constitutional balancing test anticipated
in this Office’s 1973 memorandum. Clinton v. Jones, which held that the President
is not immune from at least certain judicial proceedings while in office, even
if those proceedings may prove somewhat burdensome, does not change our
conclusion in 1973 and again today that a sitting President cannot constitutionally
be indicted or tried.
A.
1.
In U n ited S ta tes v. Nixon, the Court considered a motion by President Nixon
to quash a third-party subpoena duces tecum directing the President to produce
certain tape recordings and documents concerning his conversations with aides
and advisers. 418 U.S. at 686. The Court concluded that the subpoena, which
had been issued upon motion by the Watergate Special Prosecutor in connection
should not rely on the assumption that a sitting President is immune from indictment in resolving the distinct question
whether the President could be named an unindicted co-conspirator In so arguing, the Special Prosecutor rejected
the President’s contention that either the historical evidence o f the intent o f the Framers or the plain terms of the
Impeachment Judgm ent Clause foreclosed the indictment o f a sitting President as a constitutional matter See id.
at 24 ( “ nothing in the text o f the Consutuuon o r m its history
. imposes any bar to indictment of an incumbent
President” ), id at 29 ( “ [T]he simple fact is that the Framers never confronted the issue at all ” ) The Special
Prosecutor then argued, as the Department itself had concluded, that “ [pjnm ary support for such a prohibition must
be found, if at all, in considerations of constitutional and public policy including competing factors such as the
nature and role o f the Presidency in our constitutional system, the importance of the administration of criminal
justice, and the principle that under our system no person, no matter what his station, is above the law .” Id. at
24-25. The Special Prosecutor explained that the contention that the President should be immune from indictment
because the functioning o f the executive branch depends upon a President unburdened by defending against criminal
chargcs “ is a weighty argum ent and it is enutled to great respect.” Id. at 31. He noted, however, that “ our constitu
tional system has shown itself to be remarkably resilient” and that “ there are very serious implications to the Presi
dent’s position that he has absolute immunity from criminal indictm ent.” Id at 32 In particular, the Special Pros
ecutor argued that to the extent some cnminal offenses are not impeachable, the recognition of an absolute immunity
from indictment would mean that “ the Constitution has left a lacuna of potentially senous dimensions ” Id. at
34. The Special Prosecutor ulumately concluded that “ [w]hether these factors compel a conclusion that as a matter
of constitutional interpretation a sitting President cannot be indicted for violations of federal criminal laws is an
issue about which, at best, there is presently considerable doubt.” Id. at 25. He explained further that the resolution
of this question was not necessary to the decision in Nixon, because the Court confronted only the question whether
the President could be named an umndicted co-conspirator— an event that “ cannot be regarded as equally burden
some.” Id at 20.
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with the criminal prosecution of persons other than the President, satisfied the
standards of Rule 17(c) of Federal Rules of Criminal Procedure.15 The Court
therefore proceeded to consider the claim “ that the subpoena should be quashed
because it demands ‘confidential conversations between a President and his close
advisors that it would be inconsistent with the public interest to produce.’ ” Id.
at 703 (citation omitted).
In assessing the President’s constitutional claim of privilege, the Court first
considered the relevant evidence of the Framers’ intent and found that it supported
the President’s assertion of a constitutional interest in confidentiality. Id. at 705
n.15. The Court also rejected the suggestion that the textual omission of a presi
dential privilege akin to the congressional privilege set forth in the Arrest and
Speech or Debate Clauses was “ dispositive” of the President’s claim. Id. at 705
n.16. Considering the privilege claim in light of the constitutional structure as
a whole, the Court concluded that,
[w]hatever the nature of the privilege of confidentiality of Presi
dential communications in the exercise of Art. II powers, the privi
lege 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 of the confidentiality of Presidential communications has
similar constitutional underpinnings.
Id. at 705-06 (footnote omitted). Such a privilege must be recognized, the Court
said, in light of “ the importance of . . . confidentiality of Presidential commu
nications in performance of the President’s responsibilities.” Id. at 711. The
interest in the confidentiality of Presidential communications was “ weighty indeed
and entitled to great respect.” Id. at 712.
The Court next considered the extent to which that interest would be impaired
by presidential compliance with a subpoena. The Court concluded that it was quite
unlikely that the failure to recognize an absolute privilege for confidential presi
dential communications against criminal trial subpoenas would, in practical con
sequence, undermine the constitutional interest in the confidentiality of such
communications. “ [W]e cannot conclude that advisers will be moved to temper
15 In response to an earlier subpoena, President Nixon had asserted that, as a constitutional matter, he was absolutely
immune from judicial process while in office The United States Court of Appeals for the District o f Columbia
Circuit rejected that contention. See Nixon v Sirica, 487 F 2 d 700 (D C . Cir. 1973). The D C . Circuit explained
that the President’s constitutional position could not be maintained in light of United Slates v Burr, 25 F Cas
187 (C.C.D Va 1807) (No 14,694), and it rejected the contention that the Supreme Court’s decision in Mississippi
v Johnson, 71 U.S. (4 Wall.) 475 (1866), was to the contrary 487 F.2d at 708-12 We note that the Department’s
1973 analysis did not depend upon a broad contention that the President is immune from all judicial process while
in office Indeed, the OLC memorandum specifically cast doubt upon such a contention and explained that even
Attorney General Stanbery had not made such a broad argument in Mississippi v Johnson See OLC Memo at
23 ( “ Attorney General Stanbery’s reasoning is presumably limited to the power of the courts to review official
action of the President ’’)
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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. Finally, the Court balanced against the President’s
interest in maintaining the confidentiality of his communications “ [t]he impedi
ment that an absolute, unqualified privilege would place in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions.”
Id. at 707. The Court predicated its conclusion on the determination that “ [t]he
need to develop all relevant facts in the adversary system is both fundamental
and comprehensive. The ends of criminal justice would be defeated if judgments
were to be founded on a partial o r speculative presentation of the facts.” Id. at
709.
The assessment of these competing interests led the Court to conclude that “ the
legitimate needs of the judicial process may outweigh Presidential privilege,” id.
at 707, and it therefore determined that it was “ necessary to resolve those com
peting interests in a manner that preserves the essential functions of each branch.”
Id. Here, the Court weighed the President’s constitutional interest in confiden
tiality, se e id. at 707-08, against the nation’s “ historic commitment to the rule
of law,” id. at 708, and the requirement of “ the fair administration of criminal
justice.” Id. at 713. The Court ultimately concluded that the President’s general
ized interest in confidentiality did not suffice to justify a privilege from all
criminal subpoenas, although it noted that a different analysis might apply to a
privilege based on national security interests. Id. at 706.
2.
In Nixon v. F itzgerald, the Supreme Court considered a claim by former Presi
dent Nixon that he enjoyed an absolute immunity from a former government
employee’s suit for damages for President Nixon’s allegedly unlawful official con
duct while in office. The Court endorsed a rule of absolute immunity, concluding
that such immunity is “ a functionally mandated incident of the President’s unique
office, rooted in the constitutional tradition of the separation of powers and sup
ported by our history.” 457 U.S. at 749.
The Court reviewed various statements by the Framers and early commentators,
finding them consistent with the conclusion that the Constitution was adopted on
the assumption that the President would enjoy an immunity from damages liability
for his official actions. Id. at 749, 751 n.31. The Court once again rejected the
contention that the textual grant o f a privilege to members of Congress in Article
I, Section 6 precluded the recognition of an implicit privilege on behalf of the
President. S ee id. at 750 n.31.
But as in U n ited S tates v. N ixon, the Court found that “ the most compelling
arguments arise from the Constitution’s separation of powers and the Judiciary’s
historic understanding of that doctrine,” Id. at 752 n.31. It emphasized that “ [t]he
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President occupies a unique position in the constitutional scheme . . . as the chief
constitutional officer of the Executive Branch.” Id. at 749-50. Although other
government officials enjoy only qualified immunity from civil liability for their
official actions, “ [bjecause of the singular importance of the President’s duties,
diversion of his energies by concern with private lawsuits would raise unique risks
to the effective functioning of government.” Id. at 751. Such lawsuits would be
likely to occur in considerable numbers since the ‘‘President must concern himself
with matters likely to ‘arouse the most intense feelings.’ ” Id. at 752. Yet, the
Court noted, “ it is in precisely such cases that there exists the greatest public
interest in providing an official ‘the maximum ability to deal fearlessly and impar
tially’ with the duties of his office.” Id. (citations omitted). The Court emphasized
that the “ visibility” of the President’s office would make him “ an easily identifi
able target for suits for civil damages,” and that “ [c]ognizance of this personal
vulnerability frequently could distract a President from his public duties, to the
detriment of not only the President and his office but also the Nation that the
Presidency was designed to serve.” Id. at 753.
The Court next examined whether the constitutional interest in presidential
immunity from civil damages arising from the performance of official duties was
outweighed by the governmental interest in providing a forum for the resolution
of damages actions generally, and actions challenging the legality of official presi
dential conduct in particular. The Court concluded that it was appropriate to con
sider the “ President’s constitutional responsibilities and status as factors coun
seling judicial deference and restraint.” Id. at 753. As the Court explained,
[i]t is settled law that the separation-of-powers doctrine does not
bar every exercise of jurisdiction over the President of the United
States. But our cases also have established that a court, before exer
cising jurisdiction, must balance the constitutional weight of the
interest to be served against the dangers of intrusion on the
authority and functions of the Executive Branch.
Id. at 753-54 (citations omitted). In performing this balancing, the Court noted
that recognition of a presidential immunity from such suits “ will not leave the
Nation without sufficient protection against misconduct on the part of the Chief
Executive,” in light of other mechanisms creating “ incentives to avoid mis
conduct” (including impeachment). Id. at 757. The Court concluded that the con
stitutional interest in ensuring the President’s ability to perform his constitutional
functions outweighed the competing interest in permitting civil actions for unlaw
ful official conduct to proceed.
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3.
In C linton v. Jon es, the Court declined to extend the immunity recognized in
F itzg era ld to civil suits challenging the legality of a President’s unofficial conduct.
In that case, the plaintiff sought to recover compensatory and punitive damages
for alleged misconduct by President Clinton occurring before he took federal
office. The district court denied the President’s motion to dismiss based on a con
stitutional claim of temporary immunity and held that discovery should go for
ward, but granted a stay of the trial until after the President left office. The court
of appeals vacated the order staying the trial, while affirming the denial of the
immunity-based motion to dismiss. The Supreme Court affirmed, permitting the
civil proceedings to go forward against the President while he still held office.
In considering the President’s claim of a temporary immunity from suit, the
Court first distinguished Nixon v. F itzgerald, maintaining that “ [t]he principal
rationale for affording certain public servants immunity from suits for money dam
ages arising out of their official acts is inapplicable to unofficial conduct.” Clinton
v. Jones, 520 U.S. at 692-93. The point of immunity for official conduct, the
Court explained, is to “ enabl[e] such officials to perform their designated func
tions effectively without fear that a particular decision may give rise to personal
liability.” Id. at 693. But “ [t]his reasoning provides no support for an immunity
for unofficial conduct.” Id. at 694. Acknowledging F itzg era ld '%additional concern
that “ ‘[b]ecause of the singular importance of the President’s duties, diversion
of his energies by concern with private lawsuits would raise unique risks to the
effective functioning of government,’ ” the Court treated this prior statement as
dictum because “ [i]n context . . . it is clear that our dominant concern” had
been the chilling effect that liability for official conduct would impose on the
President’s performance of his official duties. Id. at 694 n.19 (quoting Nixon v.
F itzg erald, 457 U.S. at 751).
After determining that the historical evidence of the Framers’ understanding
of presidential immunity was either ambiguous or conflicting and thus could not
by itself support the extension of presidential immunity to unofficial conduct, see
id. at 695-97, the Court considered the President’s argument that the “ text and
structure” of the Constitution supported his claim to a temporary immunity. The
Court accepted his contention that “ the doctrine of separation of powers places
limits on the authority of the Federal Judiciary to interfere with the Executive
Branch,” id. at 697-98, and conceded that the powers and obligations conferred
upon a single President suggest that he occupies a “ ‘unique position in the con
stitutional scheme.’ ” Id. at 698 (quoting N ixon v. F itzgerald, 457 U.S. at 749).
But “ [i]t does not follow . . . that separation-of-powers principles would be vio
lated by allowing this action to proceed.” Id. at 699.
Rather than claiming that allowing the civil suit would either aggrandize judicial
power or narrow any constitutionally defined executive powers, the President
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argued that, as an inevitable result of the litigation, “ burdens will be placed on
the President that will hamper the performance of his official duties,” id. at 701,
both in the Jon es case and others that might follow. The Court first rejected the
factual premise of the President’s claim, asserting that the President’s “ predictive
judgment finds little support in either history or the relatively narrow compass
of the issues raised in this particular case.” Id. at 702. “ As for the case at hand,”
the Court continued, “ if properly managed by the District Court, it appears to
us highly unlikely to occupy any substantial amount of petitioner’s time.” Id.
The Court emphasized at the outset that it was not “ confront[ing] the question
whether a court may compel the attendance of the President at any specific time
or place,” id. at 691, and it “ assume[d] that the testimony of the President, both
for discovery and for use at trial, may be taken at the White House at a time
that will accommodate his busy schedule, and that, if a trial is held, there would
be no necessity for the President to attend in person.” Id. at 691-92.
Moreover, the Court explained, “ even quite burdensome interactions” between
the judicial and executive branches do not “ necessarily rise to the level of con
stitutionally forbidden impairment of the Executive’s ability to perform its con
stitutionally mandated functions.” Id.; see also id. at 703 ( “ that a federal court’s
exercise of its traditional Article III jurisdiction may significantly burden the time
and attention of the Chief Executive is not sufficient to establish a violation of
the Constitution” ). Noting that courts frequently adjudicate civil suits challenging
the legality of official presidential actions, the Court also observed that courts
occasionally have ordered Presidents to provide testimony and documents or other
materials. Id. at 703-05 (citing U nited States v. Nixon as an example). By
comparison, the Court asserted, “ [t]he burden on the President’s time and energy
that is a mere byproduct of [the power to determine the legality of his unofficial
conduct through civil litigation] surely cannot be considered as onerous as the
direct burden imposed by judicial review and the occasional invalidation of his
official actions.” Id. at 705.
Finally, the Court agreed with the court of appeals that the district court abused
its discretion by invoking its equitable powers to defer any trial until after the
President left office, even while allowing discovery to continue apace. The Court
observed that such a “ lengthy and categorical stay takes no account whatever
of the respondent’s interest in bringing the case to trial,” id. at 707, in particular
the concern that delay “ would increase the danger of prejudice resulting from
the loss of evidence, including the inability of witnesses to recall specific facts,
or the possible death of a party.” Id. at 707-08. On the other hand, continued
the Court, assuming careful trial management, “ there is no reason to assume that
the district courts will be either unable to accommodate the President’s [sched
uling] needs or unfaithful to the tradition — especially in matters involving
national security — of giving ‘the utmost deference to Presidential responsibil
ities.’ ” Id. at 709 (quoting United States v. Nixon, 418 U.S. at 710-11). On this
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basis, the Court determined that a stay of any trial pending the President’s leaving
office was not supported by equitable principles.16
B.
W e believe that these precedents, U nited S tates v. Nixon, N ixon v. F itzgerald,
and C linton v. Jones, are consistent with the Department’s analysis and conclusion
in 1973. The cases embrace the methodology, applied in the OLC memorandum,
of constitutional balancing. That is, they balance the constitutional interests under
lying a claim of presidential immunity against the governmental interests in
rejecting that immunity. And, notwithstanding C linton's conclusion that civil
litigation regarding the President’s unofficial conduct would not unduly interfere
with his ability to perform his constitutionally assigned functions, we believe that
C linton and the other cases do not undermine our earlier conclusion that the bur
dens of crim in al litigation would be so intrusive as to violate the separation of
powers.
1.
The balancing analysis relied on in the 1973 OLC memorandum has since been
adopted as the appropriate mode o f analysis by the Court. In 1996, this Office
summarized the principles of analysis for resolving separation of powers issues
found in the Court’s recent cases. See The C onstitutional Separation o f P ow ers
B etw een the P resid en t a n d Congress, 20 Op. O.L.C. 124, 133-35 (1996). As noted
there, ‘ ‘ ‘the proper inquiry focuses on the extent to which [a challenged act] pre
16 One final recent precedent m ents bnef m ention, the federal district court’s decision to hold President Clinton
in civil contempt for statements made in the course of a deposition taken in the Jones case and to order him to
pay expenses (including attorneys’ fees) to the plaintiff and costs to the court. See Jones i\ Clinton, 36 F Supp
2d 1118 (E.D. Ark 1999) This decision was not appealed, and for purposes of our analysis here we assume arguendo
that it is correct But a court order cuing a sitting President for civil contempt does not support the proposition
that a sitting President can be subject even to cnm inal contempt sanctions, let alone indictment and criminal prosecu
tion. Civil contem pt differs from criminal contempt because the former is designed to ensure compliance with court
orders or to remedy harms inflicted upon another litigant, while cnminal contempt is intended to punish the commis
sion o f a public w rong See U nited Mine Workers v Bagwell, 512 U.S 821, 826-30 (1994) A civil contempt
proceeding is thus not likely to be either as consum ing o f the defendant’s tim e or as detnmental to the defendant’s
public standing as a criminal contempt proceeding; that is particularly true when the civil contempt sanction takes
the form o f an award o f costs to the court or o th er litigant. Significantly, the distnct court that imposed the contempt
citation em phasized the narrow scope of its decision. See Jones, 36 F Supp. 2d at 1125 (explaining lhat “ the Court
recognizes that significant constitutional issues w ould anse were this Court to impose sanctions against the President
that impaired his decision-making or otherwise impaired him in the performance of his official duties,” and empha
sizing that “ [n]o such sanction will be im posed” ) The court further noted that, while “ the power [upheld by
the Supreme Court in Clinton v. Jones] to determ ine the legality o f the President’s unofficial conduct includes with
it the pow er to issue civil contem pt citations and impose sanctions for his unofficial conduct which abuses the
judicial process,” i d , the Supreme Court’s decision did not imply the existence of any authonty to impose cnminal
sanctions on the President, id. at 1134 n,22 ( “ th e question o f whether a President can be held in criminal contempt
of court and subjected to criminal penalties raises constitutional issues not addressed by the Supreme Court in the
Jones case” ) For these reasons, this distnct court decision does not affect our analysis of the soundness of the
D epartm ent’s 1973 conclusion that it would be unconstitutional to indict or prosecute a President while he remains
in office
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A Sitting President's Amenability to Indictment and Criminal Prosecution
vents the Executive Branch from accomplishing its constitutionally assigned func
tions.’ ” Id. at 133 (quoting A dm inistrator o f G eneral Services, 433 U.S. at 443).
The inquiry is complex, because even where the acts of another branch would
interfere with the executive’s “ accomplishing its functions,” this “ would not lead
inexorably to” invalidation; rather, the Court “ would proceed to ‘determine
whether that impact is justified by an overriding need to promote’ ” legitimate
governmental objectives. Id. (quoting A dm inistrator o f G eneral Services, 433 U.S.
at 443).
These inquiries formed the basis for the Court’s analysis in U nited S tates v.
Nixon, where the Court employed a balancing test to preserve the opposing
interests of the executive and judicial branches with respect to the President’s
claim of privilege over confidential communications. The Court’s resort to a bal
ancing test was quite explicit. See e.g., 418 U.S. at 711-12 (“ In this case we
must weigh the importance of the general privilege of confidentiality of Presi
dential communications in the performance of the President’s responsibilities
against the inroads of such a privilege on the fair administration of criminal jus
tice.” ). In Nixon v. F itzgerald, the Court’s recognition of an absolute presidential
immunity from civil suits for damages concerning official conduct also reflected
a balance of competing interests. As the Court explained, “ [i]t is settled law that
the separation-of-powers doctrine does not bar every exercise of jurisdiction over
the President of the United States. But our cases also have established that a court,
before exercising jurisdiction, must balance the constitutional weight of the interest
to be served against the dangers of intrusion on the authority and functions of
the Executive Branch.” 457 U.S. at 753-54. And in Clinton v. Jones, the Court
again acknowledged that “ ‘[e]ven when a branch does not arrogate power to itself
. . . the separation-of-powers doctrine requires that a branch not impair another
in the performance of its constitutional duties.’ ” 520 U.S. at 701 (quoting Loving
v. U nited States, 517 U.S. 748, 757 (1996)).17
We now explain why, in light of the post-1973 cases, we agree with the 1973
conclusions that indicting and prosecuting a sitting President would “ prevent the
executive from accomplishing its constitutional functions” and that this impact
cannot “ be justified by an overriding need” to promote countervailing and legiti
mate government objectives.
17 Although the Court in Clinton v Jones did not explicitly use the language of “ balancing” to weigh the Presi
dent’s interests against those o f the civil litigant, the Court did assess both what it saw as the rather minor disrupuon
to the President’s office from defending against such civil actions as well as the interests in the pnvate litigant
in avoiding delay in adjudication See id. at 707-08 In any event, the Court may not have explicitly invoked the
second part o f the analysis (weighing the intrusions on the execuUve branch against the legitimate governmental
interests opposed to immunity), because it found the burdens o f civil litigation insufficiently weighty to warrant
an extended inquiry. See Administrator o f General Services, 433 U.S at 443 (emphasis added) (explaining that
when there is a potential for disruption o f presidential authonty, “ the proper inquiry focuses on the extent to which
it prevents the Executive Branch from accomplishing its constitutionally assigned funcuons
Only where the
potential fo r disruption is present must we then determine whether that impact is jusufied by an overriding need
to promote objectives within the constitutional authority o f Congress.” ), cited with approval in Clinton v Jones,
520 U.S. at 701
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2.
Three types of burdens merit consideration: (a) the actual imposition of a
criminal sentence of incarceration, which would make it physically impossible
for the President to carry out his duties; (b) the public stigma and opprobrium
occasioned by the initiation of criminal proceedings, which could compromise the
President’s ability to fulfill his constitutionally contemplated leadership role with
respect to foreign and domestic affairs; and (c) the mental and physical burdens
of assisting in the preparation of a defense for the various stages of the criminal
proceedings, which might severely hamper the President’s performance of his offi
cial duties. In assessing the significance of these burdens, two features of our
constitutional system must be kept in mind.
First, the Constitution specifies a mechanism for accusing a sitting President
of wrongdoing and removing him from office. See U.S. Const, art. II, §4 (pro
viding for impeachment by the House, and removal from office upon conviction
in the Senate, of sitting Presidents found guilty of “ Treason, Bribery or other
high Crimes and Misdemeanors” ). While the impeachment process might also,
of course, hinder the President’s performance of his duties, the process may be
initiated and maintained only by politically accountable legislative officials.
Supplementing this constitutionally prescribed process by permitting the indict
ment and criminal prosecution o f a sitting president would place into the hands
of a single prosecutor and grand jury the practical power to interfere with the
ability of a popularly elected President to carry out his constitutional functions.
Second, “ [t]he President occupies a unique position in the constitutional
scheme.” F itzgerald, 457 U.S. at 749. As the court explained, “ Article II, § 1
of the Constitution provides that ‘[t]he executive Power shall be vested in a Presi
dent of the United States . . . .’ This grant of authority establishes the President
as the chief constitutional officer of the Executive branch, entrusted with super
visory and policy responsibilities o f utmost discretion and sensitivity.” Id. at 74950. In addition to the grant of executive power, other provisions of Article II
make clear the broad scope and important nature of the powers entrusted to the
President. The President is charged to “ take Care that the Laws be faithfully
executed.” S ee U.S. Const, art. II, §3. He and the Vice President are the only
officials elected by the entire nation. S ee id. art. II, § 1. He is the sole official
for whose temporary disability the Constitution expressly provides procedures to
remedy. S ee id. art. II, § 1, cl. 6; id. amend. XXV. He is the Commander in Chief
of the Army and the Navy. See id. art. II, §2, cl. 2. He has the power to grant
reprieves and pardons for offenses against the United States. See id. He has the
power to negotiate treaties and to receive Ambassadors and other public ministers.
S ee id. art. II, §2, cl. 2. He is the sole representative to foreign nations. He
appoints all of the “ Judges of the supreme Court” and the principal officers of
the government. See id. art. II, § 2, cl. 2. He is the only constitutional officer
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A Sitting President's Amenability to Indictment and Criminal Prosecution
empowered to require opinions from the heads of departments, see id. art. II, § 2,
cl. 1, and to recommend legislation to the Congress. See id. art. II, §3. And he
exercises a constitutional role in the enactment of legislation through the presen
tation requirement and veto power. See id. art. I, § 7, els. 2, 3.
Moreover, the practical demands on the individual who occupies the Office of
the President, particularly in the modem era, are enormous. President Washington
wrote that “ [t]he duties of my Office * * * at all times * * * require an
unremitting attention,” Brief for the United States as Amicus Curiae in Support
of the Petitioner at 11, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853)
(quoting Arthur B. Tourtellot, The P residen ts on the P residen cy 348 (1964)). In
the two centuries since the Washington Administration, the demands of govern
ment, and thus of the President’s duties, have grown exponentially. In the words
of Justice Jackson, “ [i]n drama, magnitude and finality [the President’s] decisions
so far overshadow any others that almost alone he fills the public eye and ear.”
Youngstown Sheet & Tube Co. v. Saw yer, 343 U.S. 579, 653 (1952) (Jackson,
J., concurring). In times of peace or war, prosperity or economic crisis, and tran
quility or unrest, the President plays an unparalleled role in the execution of the
laws, the conduct of foreign relations, and the defense of the Nation. As Justice
Breyer explained in his opinion concurring in the judgment in Clinton v. Jones'.
The Constitution states that the “ executive Power shall be vested
in a President.” Art. II, § 1. This constitutional delegation means
that a sitting President is unusually busy, that his activities have
an unusually important impact upon the lives of others, and that
his conduct embodies an authority bestowed by the entire American
electorate. . . . [The Founders] sought to encourage energetic, vig
orous, decisive, and speedy execution of the laws by placing in
the hands of a single, constitutionally indispensable, individual the
ultimate authority that, in respect to the other branches, the Con
stitution divides among many.
520 U.S. at 711-12. The burdens imposed on a sitting President by the initiation
of criminal proceedings (whether for official or unofficial wrongdoing) therefore
must be assessed in light of the Court’s “ long recognition of] the ‘unique position
in the constitutional scheme’ that this office occupies.” Id. at 698 (quoting Nixon
v. Fitzgerald, 457 U.S. at 749).
a.
Given the unique powers granted to and obligations imposed upon the President,
we think it is clear that a sitting President may not constitutionally be imprisoned.
The physical confinement of the chief executive following a valid conviction
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would indisputably preclude the executive branch from performing its constitu
tionally assigned functions. As Joseph Story wrote:
There are . . . incidental powers, belonging to the executive depart
ment, which are necessarily implied from the nature of the func
tions, which are confided to it. Among these, must necessarily be
included the power to perform them, without any obstruction or
impediment whatsoever. T he president cannot, therefore, be liable
to arrest, imprisonment, or detention, while he is in the discharge
o f the duties of his office . . . .
3 Joseph Story, Com m entaries on the C onstitution o f the U nited States 418-19
(1st ed. 1833) ( q u o ted in Nixon v. F itzg era ld , 457 U.S. at 749).18
To be sure, the Twenty-fifth Amendment provides that either the President him
self, or the Vice-President along with a majority of the executive branch’s prin
cipal officers or some other congressionally determined body, may declare that
the President is “ unable to discharge the powers and duties of his office,” with
the result that the Vice President assumes the status and powers of Acting Presi
dent. See U.S. Const, amend. XXV, §§ 3, 4. But it is doubtful in the extreme
that this Amendment was intended to eliminate or otherwise affect any constitu
tional immunities the President enjoyed prior to its enactment. None of the contin
gencies discussed by the Framers of the Twenty-fifth Amendment even alluded
to the possibility of a criminal prosecution of a sitting President.19 O f course,
it might be argued that the Twenty-fifth Amendment provides a mechanism to
ensuring that, if a sitting President were convicted and imprisoned, there could
]8See also A lexander M. Bickel, The Constitutional Tangle, The New Republic, Oct 6, 1973, at 14, 15 (“ In
the presidency is embodied the continuity an d indestructibility o f the state It is not possible for the government
to function without a President, and the Constitution contemplates and provides for uninterrupted continuity in that
office. Obviously the presidency cannot be conducted from jail, nor can it be effecuvely earned on while an incum
bent is defending him self in a cnminal tnal ” ).
,9 The Framers o f the Twenty-fifth Amendment were prim anly concerned with the possibility that a sitting Presi
dent might be unable to discharge his duties due to incapacitation by physical or mental illness See generally
H earings on Presidential Inability Before th e Subcomm. on Constitutional Amendments o f the Senate Comm on
the Judiciary, 88th Cong. (1963), Hearings on Presidential Inability and Vacancies in the Office o f Vice President
Before the Subcomm. on Constitutional Amendm ents o f the Senate Comm, on the Judiciary, 88th Cong. (1964);
H earings on Presidential Inability Before the House Comm on the Judiciary, 89th Cong. (1965), Hearings on Presi
dential Inability and Vacancies in the Office o f Vice President Before the Subcomm on Constitutional Amendments
o f the Senate Comm, on the Judiciary, 89th Cong. (1965) ( “ 1965 Senate H eanngs” ); Selected Materials on the
Twenty-Fifth Am endment, S. Doc. No 9 3 -4 2 (1973) which includes Senate Reports Nos 89-1382 and 89-66 But
the am endm ent’s terms “ unable” and “ inability” were not so narrowly defined, apparently out o f a recognition
that situations o f inability m ight take vanous forms not neatly falling into categones o f physical or mental illness
See, e.g , 1965 Senate H eanngs at 20 ( “ [T ]he intention o f this legislation is to deal with any type of inability,
w hether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy
or anything that is imaginable. The inability to perform the powers and duties of the office, for any reason is inability
under the terms lhat we are discussing ” ) (statement o f Sen Bayh); John D Feerick, The Twenty-fifth Amendment
197 (1976) ( “ A lthough the terms ‘unable’ an d ‘inability* are nowhere defined in either Section 3 or 4 of the Amend
ment (or in Article II), this was not the result o f an oversight. Rather, it reflected a judgm ent that a ngid constitutional
definition was undesirable, since cases of inability could take vanous forms not neatly fitting into such a definition.” ).
Thus, while imprisonment appears not to have been expressly considered by the Framers as a form of inability,
the language o f the Twenty-fifth Amendment might be read broadly enough to encompass such a possibility
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A Sitting President's Amenability to Indictment and Criminal Prosecution
be a transfer of powers to an Acting President rather than a permanent disabling
of the executive branch. But the possibility of Vice-Presidential succession
“ hardly constitutes an argument in favor of allowing other branches to take
actions that would disable the sitting President.” 20 To rationalize the President’s
imprisonment on the ground that he can be succeeded by an “ Acting” replace
ment, moreover, is to give insufficient weight to the people’s considered choice
as to whom they wish to serve as their chief executive, and to the availability
of a politically accountable process of impeachment and removal from office for
a President who has engaged in serious criminal misconduct.21 While the execu
tive branch would continue to function (albeit after a period of serious dislocation),
it would still not do so as the people intended, with their elected President at
the helm.22 Thus, we conclude that the Twenty-fifth Amendment should not be
understood sub silentio to withdraw a previously established immunity and
authorize the imprisonment of a sitting President.
b.
Putting aside the possibility of criminal confinement during his term in office,
the severity of the burden imposed upon the President by the stigma arising both
from the initiation of a criminal prosecution and also from the need to respond
to such charges through the judicial process would seriously interfere with his
ability to carry out his constitutionally assigned functions. To be sure, in Clinton
v. Jones the Supreme Court rejected the argument that a sitting President is con
stitutionally immune from civil suits seeking damages for unofficial misconduct.
But the distinctive and serious stigma of indictment and criminal prosecution
imposes burdens fundamentally different in kind from those imposed by the initi
ation of a civil action, and these burdens threaten the President’s ability to act
as the Nation’s leader in both the domestic and foreign spheres. C linton’s rea
soning does not extend to the question whether a sitting President is constitu
tionally immune from criminal prosecution; nor does it undermine our conclusion
that a proper balancing of constitutional interests in the criminal context dictates
a presidential immunity from such prosecution.
20 1 Laurence H. Tnbe, American Constitutional Law §4 -1 4 , al 755 n.5 (3rd ed. 2000)
21 If the President resists the conclusion that he is “ unable” to discharge his public duties, a transition o f power
to the Vice President as Acting President depends on the concurrence o f both Houses of Congress by a two-thirds
vote But this ultimate congressional decision does not transform the process into a politically accountable one akin
to impeachment proceedings, for the situation forcing Congress’s hand would have been triggered by the decision
o f a single prosecutor and unaccountable grand jury to initiate and pursue the cnminal proceedings in the first
place
22 Although we do not consider here whether an elected President loses his immunity from criminal prosecution
if and while he is temporarily dispossessed of his presidential authonty under either §3 or § 4 o f the Twenty-fifth
Amendment, structural considerations suggest that an elected President remains immune from cnm inal prosecution
until he permanently leaves the Office by the expiration o f his term, resignation, or removal through conviction
upon impeachment
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The greater seriousness of criminal as compared to civil charges has deep roots
not only in the Constitution but also in its common law antecedents. Blackstone
distinguished between criminal and civil liability by describing the former as a
remedy for “ public wrongs” and the latter as a response to “ private wrongs.”
4 William Blackstone, C om m entaries *5. As he explained, “ [t]he distinction of
public wrongs from private, of crimes and misdemeanors from civil injuries, seems
principally to consist in this: that private wrongs, or civil injuries, are an infringe
ment or privation of the civil rights which belong to individuals, considered merely
as individuals; public wrongs, or crimes and misdemeanors, are a breach and vio
lation of the public rights and duties due to the whole community, considered
as a community, in its social aggregate capacity.” Id. This fundamental distinction
explains why a criminal prosecution may proceed without the consent of the
victim and why it is brought in the name of the sovereign rather than the person
immediately injured by the wrong. The peculiar public opprobrium and stigma
that attach to criminal proceedings also explain, in part, why the Constitution pro
vides in Article III for a right to a trial by jury for all federal crimes, see Lew is
v. U n ited S tates, 518 U.S. 322, 334 (1996) (Kennedy, J. concurring), and provides
in the Sixth Amendment for a “ speedy and public trial,” U.S. Const, amend.
VI, see K lo p fe r v. N orth Carolina, 386 U.S. 213, 222 (1967) (pendency of an
indictment “ may subject [the defendant] to public scorn” and “ indefinitely
prolong[ j this oppression, as well as the ‘anxiety and concern accompanying
public accusation’ ” ) (citation omitted).23
The magnitude of this stigma and suspicion, and its likely effect on presidential
respect and stature both here and abroad, cannot fairly be analogized to that caused
by initiation of a private civil action. A civil complaint filed by a private person
is understood as reflecting one person’s allegations, filed in court upon payment
of a filing fee. A criminal indictment, by contrast, is a public rather than private
allegation of wrongdoing reflecting the official judgment of a grand jury acting
under the general supervision of the District Court. Thus, both the ease and public
meaning of a civil filing differ substantially from those of a criminal indictment.
Cf. F D IC v. M allen , 486 U.S. 230, 243 (1988) (“ Through the return of the indict
ment, the Government has already accused the appellee of serious wrong
doing.” ).24 Indictment alone risks visiting upon the President the disabilities that
23 In K lopfer, the Supreme Court held that the Sixth Amendment right to a speedy tnal is violated by the practice
o f having a prosecutor indefinitely suspend a prosecution after a grand jury returns an indictment. One of the purposes
o f the speedy tnal nght is to enable the defendant to be freed, as promptly as reasonably possible, from the “ disabling
cloud o f doubt and anxiety that an overhanging indictment invanably cam es with it ” 1 Laurence H Tnbe, American
Constitutional Law § 4 -1 4 , at 756. Cf In re Winship, 397 U.S. 358, 363 (1970) (“ The accused during a cnminal
prosecution has at stake interests o f immense importance, both because of the possibility that he may lose his liberty
upon conviction and because o f the certainty that he would be stigmatized by the conviction ” ).
24 In M allen, for example, the Court rejected a due process challenge to a statute authorizing the immediate suspen
sion for up to 90 days, without a pre-suspension hearing, of a bank officer or director who is indicted for a felony
involving dishonesty or breach o f trust. In describing the significance of indictment for purposes of the due process
calculus, the Court observed as follows
The returning o f the indictment establishes that an independent body has determined that there is probable
cause to believe that the officer has committed a crime
This finding is relevant in at least two
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A Sitting President's Amenability to Indictment and Criminal Prosecution
stem from the stigma and opprobrium associated with a criminal charge, under
mining the President’s leadership and efficacy both here and abroad. Initiation
of a criminal proceeding against a sitting President is likely to pose a far greater
threat than does civil litigation of severely damaging the President’s standing and
credibility in the national and international communities. While this burden may
be intangible, nothing in the Supreme Court’s recent case law draws into question
the Department’s previous judgment that “ to wound [the President] by a criminal
proceeding is to hamstring the operation of the whole governmental apparatus,
both in foreign and domestic affairs.” OLC Memo at 30.
c.
Once criminal charges are filed, the burdens of responding to those charges
are different in kind and far greater in degree than those of responding to civil
litigation. The Court in Clinton v. Jones clearly believed that the process of
defending himself in civil litigation would not impose unwieldy burdens on the
President’s time and energy. The Court noted that “ [m]ost frivolous and vexatious
litigation is terminated at the pleading stage or on summary judgment, with little
if any personal involvement of the defendant.” 520 U.S. at 708. Moreover, even
if the litigation proceeds all the way to trial, the Court explicitly assumed that
“ there would be no necessity for the President to attend in person, though he
could elect to do so.” Id. at 692.
These statements are palpably inapposite to criminal cases. The constitutional
provisions governing criminal prosecutions make clear the Framers’ belief that
an individual’s mental and physical involvement and assistance in the preparation
of his defense both before and during any criminal trial would be intense, no
less so for the President than for any other defendant. The Constitution con
templates the defendant’s attendance at trial and, indeed, secures his right to be
present by ensuring his right to confront witnesses who appear at the trial. See
U.S. Const, amend. VI; Illinois v. Allen , 397 U.S. 337, 338 (i970) (“ One of
the most basic of the rights guaranteed by the Confrontation Clause is the
accused’s right to be present in the courtroom at every stage of his trial.” ); see
a lso Fed. R. Crim. P. 43(a); U nited States v. G agnon, 470 U.S. 522, 526 (1985)
(Due Process Clause also protects right to be present). The Constitution also
guarantees the defendant a right to counsel, which is itself premised on the defend
ant’s ability to communicate with such counsel and assist in the preparation of
important ways First, the finding o f probable cause by an independent body demonstrates that the suspen
sion is not arbitrary Second, the return of the indictment itself is an objective fact that will in most cases
raise serious public concern that the bank is not being managed in a responsible manner.
486 U S at 244-45.
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his own defense. S ee U.S. Const, amend. VI.25 These protections stand in stark
contrast to the Constitution’s relative silence as to the rights of parties in civil
proceedings, and they underscore the unique mental and physical burdens that
would be placed on a President facing criminal charges and attempting to fend
off conviction and punishment. These burdens inhere not merely in the actual
trial itself, but also in the substantial preparation a criminal trial demands.
It cannot be said of a felony criminal trial, as the Court said of the civil action
before it in C linton v. Jones, that such a proceeding, “ if properly managed by
the District Court, . . . [is] highly unlikely to occupy any substantial amount of
petitioner’s time.” Clinton, 520 U.S. at 702.26 The Court there emphasized the
many ways in which a district court adjudicating a civil action against the Presi
dent could and should use flexibility in scheduling so as to accommodate the
demands of the President’s constitutionally assigned functions on his time and
energy. S ee id. at 706 (noting that a district court “ has broad discretion to stay
proceedings as an incident to its power to control its own docket” ).27 The Court
explicitly “ assume[d] that the testimony of the President, both for discovery and
for use at trial, may be taken at the White House at a time that will accommodate
his busy schedule.” Id. at 691—92. The Court thus concluded that “ [a] 1though
scheduling problems may arise, there is no reason to assume that the district courts
will be . . . unable to accommodate the President’s needs.” Id. at 709.28
Although the Court determined in Clinton v. Jones that “ [t]he fact that a federal
court’s exercise of its traditional Article III jurisdiction may significantly burden
the time and attention of the chief Executive is not sufficient to establish a viola
tion o f the Constitution,” 520 U.S. at 703, this determination must be understood
in light of the Court’s own characterizations o f the manageable burdens imposed
25 In theory, o f course, the President could decline to appear at his own criminal tnal, notwithstanding the strong
Anglo-American tradition against trials in absentia But availability of this option says little about the constitutional
issue, there is no evidence that the Framers intended that the President waive an entire panoply of constitutional
guarantees and n sk conviction in order to fulfill his public obligations.
26W ith respect specifically to concerns about mental preoccupation, the Court in Clinton v. Jones “ recogmze[d]
that a President, like any other official or private citizen, may become distracted or preoccupied by pending litiga
tion,” 520 U.S at 705 n.40, but likened this distraction to other “ vexing” distractions caused by “ a variety of
demands on their time, . . . som e pnvate, som e political, and some as a result of official duty.” Id As a “ predictive
judgm ent,” id. at 702, however, the level o f mental preoccupation entailed by a threat of criminal conviction and
imprisonment would likely far exceed that entailed by a private civil action
27 In his opinion concurring in the judgment, Justice Breyer further emphasized the C ourt’s assumptions with
respect to the scheduling flexibility properly due the President by the district court He explained that he agreed
“ with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits
based upon his private conduct ” 520 U S. at 710. Nevertheless, he emphasized that
once the President sets forth and explains a conflict between judicial proceeding and public duties, the
m atter changes A t that point, the Constitution permits a judge to schedule a tnal in an ordinary civil
damages action (where postponement normally is possible without overwhelming damage to a plaintiff)
only within the constraints o f a constitutional principle — a principle lhat forbids a federal judge in such
a case to interfere with the President’s discharge o f his public duties.
Id.
28 The Court added that, “ [although Presidents have responded to written interrogatories, given depositions, and
provided videotaped tn al testimony, no sitting President has ever testified, or been ordered to testify, in open court ”
Id. at 692 n 14. In cnrrunal litigation, as compared to civil litigation, however, the presence of the accused is a
sina qua non o f a valid trial, absent extraordinary circumstance.
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A Sitting President's Amenability to Indictment and Criminal Prosecution
by civil litigation. By contrast, criminal proceedings do not allow for the flexibility
in scheduling and procedures upon which Clinton v. Jones relied. Although the
Court emphasized that “ our decision rejecting the immunity claim and allowing
the case to proceed does not require us to confront the question whether a court
may compel the attendance of the President at any specific time or place,” id.
at 691, a criminal prosecution would require the President’s personal attention
and attendance at specific times and places, because the burdens of criminal
defense are much less amenable to mitigation by skillful trial management. Indeed,
constitutional rights and values are at stake in the defendant’s ability to be present
for all phases of his criminal trial. For the President to maintain the kind of effec
tive defense the Constitution contemplates, his personal appearance throughout
the duration of a criminal trial could be essential. Yet the Department has consist
ently viewed the requirement that a sitting President personally appear at a trial
at a particular time and place in response to judicial process to raise substantial
separation of powers concerns. See Memorandum for Arthur B. Culvahouse, Jr.,
Counsel to the President, from Douglas W. Kmiec, Assistant Attorney General,
Office of Legal Counsel, Re: C onstitutional C oncerns Im plicated b y D em an d f o r
P residen tial E vidence in a C rim inal Prosecution (Oct. 17, 1988).29
In contrast to ordinary civil litigation, moreover, which the Court in Clinton
v. Jones described as allowing the trial court to minimize disruptions to the Presi
dent’s schedule, the Sixth Amendment’s guarantee to criminal defendants of a
“ speedy and public trial,” U.S. Const, amend. VI, circumscribes the trial court’s
flexibility. Once a defendant is indicted, his right to a speedy trial comes into
play. See U nited States v. M arion, 404 U.S. 307 (1971) (defendant’s speedy trial
right is triggered when he is “ accused” by being indicted). In addition, under
the federal Speedy Trial Act, the trial judge’s discretion is constrained in order
to meet the statutory speedy trial deadlines. See 18 U.S.C. §§3161-3174 (1994).
While a defendant may waive his speedy trial rights, it would be a peculiar con
stitutional argument to say that the President’s ability to perform his constitutional
29 The Kmiec memorandum explained that “ it has been the rule since the Presidency of Thomas Jefferson lhat
a judicial subpoena in a criminal case may be issued to the President, and any challenge to the subpoena must
be based on the nature o f the information sought rather than any immunity from process belonging to the President ”
See Memorandum for Arthur B Culvahouse, Jr., Counsel to the President, from Douglas W Kmiec, Assistant
Attorney General, Office o f Legal Counsel, Re Constitutional Concerns Implicated by Demand fo r Presidential
Evidence in a Criminal Prosecution at 2 (Oct. 17, 1988). However, the memorandum proceeded to explain,
“ (although there are no judicial opinions squarely on point, historical precedent has clearly established that sitting
Presidents are not required to testify in person at cnminal trials.” Id. at 3 (reviewing precedents) The memorandum
noted in particular that Attorney General Wirt had advised President Monroe in 1818 that “ [a] subpoena ad
testificandum may I think be properly awarded to the President o f the U.S .
But if the presence o f the chief
magistrate be required at the seat o f government by his official duties, I think those duties paramount to any claim
which an individual can have upon him, and that his personal attendance on the court from which the summons
proceeds ought to be, and must, o f necessity, be dispensed with .
11 Id at 4 (quoting Opinion of Attorney
General Wirt, January 13, 1818, quoted in Ronald D. Rotunda, Presidents and Ex-Presidents as Witnesses. A B n e f
Historical Footnote," 1975 U. Ill L. F. J, 6) The memorandum concluded that “ the controlling pnnciple that
emerges from the histoncal precedents is that a sitting President may not be required to testify in court at a criminal
tnal because his presence is required elsewhere for his ‘official duties’ — or, in the vernacular of the time, required
at ‘the seat o f government.’ “ Id at 6 (citations and footnote omitted).
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duties should not be considered unduly disrupted by a criminal trial merely
because the President could, in theory, waive his personal constitutional right to
a speedy trial. The Constitution should not lightly be read to put its Chief Execu
tive officer to such a choice.
In sum, unlike private civil actions for damages — or the two other judicial proc
esses with which such actions were compared in Clinton v. Jones (subpoenas for
documents or testimony and judicial review and occasional invalidation of the
President’s official acts, see 520 U.S. at 703-05) — criminal litigation uniquely
requires the President’s person al time and energy, and will inevitably entail a
considerable if not overwhelming degree o f mental preoccupation.30 Indictment
also exposes the President to an official pronouncement that there is probable
cause to believe he committed a criminal act, see, e.g., U nited S tates v. R. E n ter
p rises, Inc., 498 U.S. 292, 297-98 (1991), impairing his credibility in carrying
out his constitutional responsibilities to “ take Care that the Laws be faithfully
executed,” U.S. Const, art. II, § 3, and to speak as the “ sole organ” of the United
States in dealing with foreign nations. U nited States v. C urtiss-W right E xport
C o rp., 299 U.S. 304, 319-20 (1936); see a lso C hicago & Southern A ir Lines
v. W aterm an S.S. C orp., 333 U.S. 103, 111 (1948) (describing the President “ as
the Nation’s organ for foreign affairs” ); U nited States v. Louisiana, 363 U.S. 1,
35 (1960) (“ The President . . . is the constitutional representative of the United
States in its dealings with foreign nations.” ). These physical and mental burdens
imposed by an indictment and criminal prosecution of a sitting President are of
an entirely different magnitude than those imposed by the types of judicial process
previously upheld by the Court.
It is conceivable that, in a particular set of circumstances, a particular criminal
charge will not in fact require so much time and energy of a sitting President
so as materially to impede the capacity of the executive branch to perform its
constitutionally assigned functions. It would be perilous, however, to make a judg
ment in advance as to whether a particular criminal prosecution would be a case
o f this sort. Thus a categorical rule against indictment or criminal prosecution
is most consistent with the constitutional structure, rather than a doctrinal test
that would require the court to assess whether a particular criminal proceeding
is likely to impose serious burdens upon the President.31
30 W hile illustrating the potentially burdensome nature o f judicial review o f Presidential acts with the “ most dra
matic exam ple” o f Youngstown Sheet & Tube Co. v Sawyer, 343 U S 579 (1952) (invalidating President Trum an’s
order directing the seizure and operation of steel mills), the Court mentioned “ the substantial time that the President
must necessarily have devoted to the matter as a result of judicial involvement ” Clinton v Jones, 520 U S at
703. O f course, it is most frequently the case that the President spends little or no time personally engaged in
such confrontations, with the task o f defending hjs policies in court falling to subordinate executive branch officials
See, e g ., M aeva Marcus, Truman and the S teel Seizure Case 102-77 (1977) (describing in detail Department of
Justice attorneys’ involvement in the steel seizure litigation w ithout discussing any role played personally in the
litigation by President Truman). Such a routine delegation o f responsibilities is unavailable when the President person
ally faces cnm inal charges
31 Cf. Clinton v Jones, 520 U.S at 706 ( “ Indeed, if the Framers of the Constitution had thought it necessary
to protect the President from the burdens of private litigation, we think it far more likely that they would have
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A Sitting President’s Amenability to Indictment and Criminal Prosecution
3.
Having identified the burdens imposed by indictment and criminal prosecution
on the President’s ability to perform his constitutionally assigned functions, we
must still consider whether these burdens are “justified by an overriding need
to promote” legitimate governmental objectives, Administrator o f General Serv
ices, 433 U.S. at 443, in this case the expeditious initiation of criminal pro
ceedings. United States v. Nixon underscored the legitimacy and importance of
facilitating criminal proceedings in general. Although Nixon did not address the
interest in facilitating criminal proceedings against the President, it is fair to say
that there exists an important national interest in ensuring that no person —
including the President — is above the law. Clinton v. Jones underscored the legit
imacy and importance of allowing civil proceedings against the President for
unofficial misconduct to go forward without undue delay. Nevertheless, after
weighing the interests in facilitating immediate criminal prosecution of a sitting
President against the interests underlying temporary immunity from such prosecu
tion, considered in light of alternative means of securing the rule of law, we adhere
to our 1973 determination that the balance of competing interests requires recogni
tion of a presidential immunity from criminal process.
Recognizing an immunity from prosecution for a sitting President would not
preclude such prosecution once the President’s term is over or he is otherwise
removed from office by resignation or impeachment.32 The relevant question,
therefore, is the nature and strength of any governmental interests in immediate
prosecution and punishment.
With respect to immediate punishment, the legitimate objectives of retribution
and specific deterrence underlying the criminal justice system compete against
a recognition of presidential immunity from penal incarceration. The obvious and
overwhelming burdens that such incarceration would impose on the President’s
ability to perform his constitutionally assigned functions, however, clearly support
the conclusion that a sitting President may not constitutionally be imprisoned upon
a criminal conviction. See supra note 18 and accompanying text. The public’s
general interest in retribution and deterrence does not provide an “ overriding
need” for immediate as opposed to deferred incarceration.
With respect to immediate prosecution, we can identify three other govern
mental interests that might be impaired by deferring indictment and prosecution
adopted a categorical rule than a rule that required the President to litigate the question whether a specific case
belonged in the ‘exceptional case’ subcategory ” )
32 The temporary nature o f the immunity claimed here distinguishes it from that pressed in Nvcon v. Fitzgerald,
which established a permanent immunity from civil suits challenging official conduct. The temporary immunity
considered here is also distinguishable from that pressed by the President but rejected in United States v. Nixon,
since the claim o f executive privilege justifying the withholding o f evidence relevant to the criminal prosecution
of other persons would apparently have suppressed the evidence without any identifiable time limitation The asserted
privilege might therefore have forever thwarted the public’s interest in enforcing its cnminal laws See United States
v. Nixon, 418 U.S at 713 ( “ Without access to specific facts a cnminal prosecution may be totally frustrated.” ).
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until after the accused no longer holds the office of President: (1) avoiding the
bar o f a statute of limitations; (2) avoiding the weakening of the prosecution’s
case due to the passage of time; and (3) upholding the rule of law. We consider
each of these in turn.
The interest in avoiding the statute of limitations bar by securing an indictment
while the President remains sitting is a legitimate one. However, we do not believe
it is of significant constitutional weight when compared with the burdens such
an indictment would impose on the Office of the President, especially in light
of alternative mechanisms to avoid a time-bar. First, a President suspected of the
most serious criminal wrongdoing might well face impeachment and removal from
office before his term expired, permitting criminal prosecution at that point.
Second, whether or not it would be appropriate for a court to hold that the statute
of limitations was tolled while the President remained in office (either as a con
stitutional implication of temporary immunity or under equitable principles33),
Congress could overcome any such obstacle by imposing its own tolling rule.34
At most, therefore, prosecution would be delayed rather than denied.
Apart from concern over statutes of limitations, we recognize that a presidential
immunity from criminal prosecution could substantially delay the prosecution of
a sitting President, and thereby make it more difficult for the ultimate prosecution
to succeed.35 In Clinton v. Jones, the Court observed that — notwithstanding the
continuation of civil discovery — “ delaying trial would increase the danger of
prejudice resulting from the loss of evidence, including the inability of witnesses
to recall specific facts, or the possible death of a party.” 520 U.S. at 707-08.
33 Federal courts have suggested that, in proper circumstances, criminal as well as civil statutes of limitation are
subject to equitable tolling. See, e .g , United States v. Midgtey, 142 F.3d 174, 178-79 (3d Cir 1998) ( “ Although
the doctrine o f equitable tolling is most typically applied to limitation penods on civil actions, there is no reason
to distinguish between the nghts protected by criminal and civil statutes of limitations.” ) (internal quotation omitted);
c f United States v. Levine, 658 F.2d 113, 119-21 (3d C ir 1981) (noting that cnminal statutes of limitations have
a primary purpose o f providing fairness to the accused, but are “ perhaps not inviolable” and are subject to tolling,
suspension, and waiver). Equitable tolling, however, is invoked only spanngly, in the “ rare situation where [it]
is demanded by sound legal principles as well as the interests o f justice ” Alvarez-Machain v. United States, 107
F 3d 696, 701 (9th Cir 1996) (tolling two-year limitation period for FTCA actions where plaintiff had been incarcer
ated for two years)
34 See, e.g , 18 U S C. § 3287 (1994) (suspension of cnminal statutes of limitation for certain fraud offenses against
the United States until three years after the termination o f hostilities); United States v. Grainger, 346 U.S 235
(1953) (applying this statutory suspension). W e believe Congress denves such authonty from its general power to
“ make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested
by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U S Const,
art I, § 8 , cl. 18. Cf. Clinton v. Jones, 520 U .S. at 709 (“ If Congress deems it appropriate to afford the President
stronger protection, it may respond with appropriate legislation.” ). Indeed, without deciding the question, we note
that Congress may have pow er to enact a tolling provision governing the statute of limitations for conduct that
has already occurred, at least so long as the onginal statutory penod has not already expired C f United States
v. Pow ers, 307 U S . 214 (1939) (rejecung Ex Post Facto challenge to a prosecution based on a statute extending
the life o f a temporary cnm inal statute before its original expiration date); c f, e.g., United States v Grimes, 142
F.3d 1342, 1350-51 (1 1th Cir. 1998) (collecting decisions rejecting Ex Post Facto challenges to statutes extending
the limitations period as applied to conduct for which the original penod had not already run), cert denied, 525
U S. 1088 (1999)
35 In theory, the delay could be as long as 10 years, for a President who onginally assumes the office through
ascension rather than election and then fiilly serves two elected terms. See U S. Const, amend. XXII, § 1 Given
quadrennial elections and the possibility of impeachment, however, it seems unlikely that a President who is senously
suspected o f grave cnm inal wrongdoing would rem ain in office for that length of time
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A Sitting President’s Amenability to Indictment and Criminal Prosecution
The Court considered this potential for prejudice to weigh against recognition of
temporary immunity from civil process. We believe that the costs of delay in
the criminal context may differ in both degree and kind from delay in the civil
context.36 But in any event it is our considered view that, when balanced against
the overwhelming cost and substantial interference with the functioning of an
entire branch of government, these potential costs of delay, while significant, are
not controlling. In the constitutional balance, the potential for prejudice caused
by delay fails to provide an “ overriding need” sufficient to overcome the jus
tification for temporary immunity from criminal prosecution.
Finally, recognizing a temporary immunity would not subvert the important
interest in maintaining the “ rule of law.” To be sure, as the Court has emphasized,
“ [n]o man in this country is so high that he is above the law.” United States
v. Lee , 106 U.S. 196, 220 (1882). Moreover, the complainant here is the Govern
ment seeking to redress an alleged crime against the public rather than a private
person seeking compensation for a personal wrong, and the Court suggested in
Nixon v. Fitzgerald that “ there is a lesser public interest in actions for civil dam
ages than, for example, in criminal prosecutions,” 457 U.S. at 754 n.37; see id.
(describing United States v. Nixon as “ basing holding on special importance of
evidence in a criminal trial and distinguishing civil actions as raising different
questions not presented for decision” ). However, unlike the immunities claimed
in both Nixon cases, see supra note 32, the immunity from indictment and criminal
prosecution for a sitting President would generally result in the delay, but not
the forbearance, of any criminal trial. Moreover, the constitutionally specified
impeachment process ensures that the immunity would not place the President
“ above the law.” A sitting President who engages in criminal behavior falling
into the category of “ high Crimes and Misdemeanors,” U.S. Const, art. II, §4,
is always subject to removal from office upon impeachment by the House and
conviction by the Senate, and is thereafter subject to criminal prosecution.
4.
We recognize that invoking the impeachment process itself threatens to
encumber a sitting President’s time and energy and to divert his attention from
36 On the one hand, there may be less reason to fear a prejudicial loss of evidence in the cnminal context A
grand jury could continue to gather evidence throughout the penod o f immunity, even passing this task down to
subsequently empaneled grand juries if necessary. See Fed. R. C nm . P 6(e)(3)(C)(m) Moreover, in the event of
suspicion of senous wrongdoing by a sitting President, the media and even Congress (through its own investigatory
powers) would likely pursue, collect and preserve evidence as well These multiple mechanisms for securing and
preserving evidence could mitigate somewhat the effect of a particular witness’s failed recollection or demise By
contrast, many civil litigants would lack the resources and incentives to pursue and preserve evidence in the same
comprehensive manner
On the other hand, the consequences of any prejudicial loss o f evidence that does occur in the cnminaJ context
are more grave, given the presumptively greater stakes for both the United States and the defendant in criminal
litigation See United States v Nixon, 418 U S at 711-13, 713 (in emphasizing the importance o f access to evidence
in a pending cnminal trial, giving significant weight in the constitutional balance to “ the fundamental demands
of due process o f law in the fair administration of cnm inal justice” ).
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his public duties. But the impeachment process is explicitly established by the
Constitution. While in some circumstances an impeachment and subsequent Senate
trial might interfere with the President’s exercise of his constitutional responsibil
ities in ways somewhat akin to a criminal prosecution, “ this is a risk expressly
contemplated by the Constitution, and it is a necessary incident of the impeach
ment process.” OLC Memo at 28. In other words, the Framers themselves specifi
cally determined that the public interest in immediately removing a sitting Presi
dent whose continuation in office poses a threat to the Nation’s welfare outweighs
the public interest in avoiding the Executive burdens incident thereto.
The constitutionally prescribed process of impeachment and removal, moreover,
lies in the hands of duly elected and politically accountable officials. The House
and Senate are appropriate institutional actors to consider the competing interests
favoring and opposing a decision to subject the President and the Nation to a
Senate trial and perhaps removal. Congress is structurally designed to consider
and reflect the interests of the entire nation, and individual Members of Congress
must ultimately account for their decisions to their constituencies. By contrast,
the most important decisions in the process o f criminal prosecution would lie in
the hands of unaccountable grand and petit jurors, deliberating in secret, perhaps
influenced by regional or other concerns not shared by the general polity, guided
by a prosecutor who is only indirectly accountable to the public. The Framers
considered who should possess the extraordinary power of deciding whether to
initiate a proceeding that could remove the President — one of only two constitu
tional officers elected by the people as a whole — and placed that responsibility
in the elected officials of Congress. It would be inconsistent with that carefully
considered judgment to permit an unelected grand jury and prosecutor effectively
to “ remove” a President by bringing criminal charges against him while he
remains in office.
Thus, the constitutional concern is not merely that any particular indictment
and criminal prosecution of a sitting President would unduly impinge upon his
ability to perform his public duties. A more general concern is that permitting
such criminal process against a sitting President would affect the underlying
dynamics of our governmental system in profound and necessarily unpredictable
ways, by shifting an awesome power to unelected persons lacking an explicit con
stitutional role vis-a-vis the President. Given the potentially momentous political
consequences for the Nation at stake, there is a fundamental, structural incompati
bility between the ordinary application of the criminal process and the Office of
the President.
For these reasons we believe that the Constitution requires recognition of a
presidential immunity from indictment and criminal prosecution while the Presi
dent is in office.
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A Sitting President's Amenability to Indictment and Criminal Prosecution
5.
In 1973, this Department concluded that a grand jury should not be permitted
to indict a sitting President even if all subsequent proceedings were postponed
until after the President left office. The Court’s emphasis in Clinton v. Jones on
the interests of Article III courts in allowing ordinary judicial processes to go
forward against a sitting President, and its reliance on scheduling discretion to
prevent those processes from interfering with performance of the President’s con
stitutional duties, might be thought to call this aspect of the Department’s 1973
determination into question. We have thus separately reconsidered whether, if the
constitutional immunity extended only to criminal prosecution and confinement
but not indictment, the President’s ability to perform his constitutional functions
would be unduly burdened by the mere pendency of an indictment against which
he would need to defend himself after leaving office.
We continue to believe that the better view of the Constitution accords a sitting
President immunity from indictment by itself. To some degree, indictment alone
will spur the President to devote some energy and attention to mounting his even
tual legal defense.37 The stigma and opprobrium attached to indictment, as we
explained above, far exceed that faced by the civil litigant defending a claim.
Given “ the realities of modem politics and mass media, and the delicacy of the
political relationships which surround the Presidency both foreign and domestic,”
there would, as we explained in 1973, “ be a Russian roulette aspect to the course
of indicting the President but postponing trial, hoping in the meantime that the
power to govern could survive.” OLC Memo at 3 1.38 Moreover, while the burdens
imposed on a sitting President by indictment alone may be less onerous than those
imposed on the President by a full scale criminal prosecution, the public interest
in indictment alone would be concomitantly weaker assuming that both trial and
punishment must be deferred, and weaker still given Congress’ power to extend
the statute of limitations or a court’s possible authority to recognize an equitable
tolling.
Balancing these competing concerns, we believe the better view is the one
advanced by the Department in 1973: a sitting President is immune from indict
ment as well as from further criminal process. Where the President is concerned,
37 C f Moore v. Arizona, 414 U.S. 25, 27 (1973) (indictment with delayed tnal “ may disrupt [a defendant’s]
employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety
in him, his family and his friends” ) (citations omitted) Indeed, indictment coupled with temporary immunity from
further prosecution may even magnify the problem, since the President would be legally stigmatized as an alleged
cnminal without any meaningful opportunity to respond to his accusers in a court of law
38 Our conclusion would hold true even if such an indictment could lawfully be filed, and were filed, under seal.
Given the indictment’s target it would be very difficult to preserve its secrecy C f United States v Nixon, 418
U S. at 687 n.4 (noting parties’ acknowledgment that “ disclosures to the news media made the reasons for continu
ance of the protective order no longer meaningful,” with respect to the “ grand jury’s immediate finding relating
to the status of the President as an unmdicted co-conspirator” ) Permitting a prosecutor and grand jury to issue
even a sealed indictment would allow them to take an unacceptable gamble with fundamental constitutional values
259
Opinions o f the Office o f Legal Counsel in Volume 24
only the House of Representatives has the authority to bring charges of criminal
misconduct through the constitutionally sanctioned process of impeachment.
in.
In 1973, the Department of Justice concluded that the indictment and criminal
prosecution of a sitting President would unduly interfere with the ability of the
executive branch to perform its constitutionally assigned duties, and would thus
violate the constitutional separation of powers. No court has addressed this ques
tion directly, but the judicial precedents that bear on the continuing vaUdity of
our constitutional analysis are consistent with both the analytic approach taken
and the conclusions reached. Our view remains that a sitting President is constitu
tionally immune from indictment and criminal prosecution.
RANDOLPH D. MOSS
Assistant Attorney General
Office o f Legal Counsel
260 |
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Write a legal research memo on the following topic. | Funding of Grants
by the National Institutes of Health
The National Institutes o f Health may, consistent with 31 U.S.C. § 1502(a), fund an entire
research grant out of a single fiscal year’s appropriations regardless of how long it takes to
complete the work under the grant.
February 11, 1986
M
O p in io n
em orandum
D epa rtm en t
of
for th e
H ealth
and
G eneral C o un sel,
H u m a n S e r v ic e s
This responds to the request of your Office for the Department of Justice’s
opinion whether the National Institutes of Health (NIH) may use the appropria
tion for one fiscal year to fund a grant when the work under the grant may take
two or three fiscal years to complete, or whether NIH must fund each year’s
work from a separate appropriation. You have asked this question because the
Comptroller General has concluded that:
the executive branch plan to fund some 646 NIH research grants
on a 3-year basis with fiscal year 1985 funds is unlawful,
because in the absence of specific statutory authority, such
actions violate 31 U.S.C. § 1502(a).1
For the reasons stated below, we believe GAO’s conclusion that NIH may not
lawfully fund grants on a multi-year basis is incorrect. We believe, based on the
pertinent statutes as well as the principles articulated in prior Comptroller
General opinions, that NIH may, under the circumstances outlined below, use
the appropriation for one fiscal year to fund the entire cost of a grant made
during that fiscal year, regardless of how long it takes to complete work under
that grant.
I. Statutory Language
The Comptroller General’s conclusion is based on 31 U.S.C. § 1502(a),
which provides:
1 Letter to Hon. Lowell W eicker, Jr., C hairm an, Subcom m ittee on Labor, Health and H um an Services, and
Education o f the Senate Com m ittee on A ppropriations from M ilton J. Socolar, Office o f the C om ptroller
G eneral, G eneral A ccounting O ffice (GA O ) (M ar. 18, 1985) (GAO letter).
19
The balance of an appropriation or fund limited for obligation to
a definite period is available only for payment of expenses
properly incurred during the period of availability or to com
plete contracts properly made within that period of availability
and obligated consistent with § 1501 of this title. However, the
appropriation or fund is not available for expenditure for a
period beyond the period otherwise authorized by law.
The plain language of this provision does not support GAO’s conclusion that
NIH may not use funds appropriated for one fiscal year to pay for work to be
done in subsequent years under a multi-year grant. Although 31 U.S.C. § 1502(a)
makes no reference to grants, the statute does refer to “contracts,” and NIH
research grants are a form of contract, as GAO itself has previously recog
nized.2 Thus, under § 1502(a), the balance of an appropriation “limited for
obligation to a definite period” — such as a particular fiscal year — may be
used to “complete grants properly made” within that fiscal year and properly
obligated consistent with 31 U.S.C. § 1501.3 In other words, § 1502(a) contains
two requirements: first, that the grant be “properly made” within the fiscal year
being charged and, second, that the grant be “obligated” — i.e., recorded as an
obligation — consistent with § 1501.
The second of these requirements — that a grant be properly obligated
consistent with 31 U.S.C. § 1501 — has no bearing on the general question of
NIH funding of multi-year grants, but rather concerns the handling of particular
obligations. Moreover, the papers we have reviewed contain no suggestion that
the particular NIH grants that gave rise to the NIH-GAO dispute were not
obligated consistent with § 1501. Absent facts to the contrary, we assume that
issuance of each NIH grant is supported by appropriate documentary evidence
and authorized by statute.
We also do not believe that GAO’s position is supported by the first require
ment, i.e., that each grant be “properly made” within the fiscal year charged.
The plain meaning of this statutory language is that it must be proper for NIH to
make the grant within the fiscal year charged. Applying this interpretation, we
see no reason why NIH may not make a multi- year grant during the first year
of the grant. Indeed, we do not understand GAO to argue that NIH may not
2 See 50 C om p. G en. 4 7 0 ,4 7 2 (1970) (“th e acceptance o f a grant . . creates a valid contract"). See also 62
C om p. G en. 701, 702 (1983).
3 Section 1501 states in pertinent part:
(a) An am ount shall be recorded a s an obligation o f the United States G overnm ent only when
supported by docum entary evidence o f —
*
*
*
(5) a grant o r subsidy payable —
(A ) from appropriations made fo r paym ent of, o r contributions to, amounts required to be
p aid in specific am ounts fixed by law or under form ulas prescribed by law; [or]
*
*
*
(C) un d er plans approved consistent with and authorized by law . . . . There is no dispute that
the N IH grants at issue here were o bligated consistent with these requirem ents.
20
make such grants at that time, but only that NIH must spread the cost over the
length of the grant. The plain meaning of the “properly made” language,
however, does not require such cost spreading.4
II. The GAO’s Traditional Analysis
We also believe that the conclusion expressed in the GAO letter does not
follow from its own prior opinions. Over the years, GAO has added a gloss to
§ 1502, known as the bona fid e need rule. As stated in Principles o f Federal
Appropriations Law (GAO 1982) (Principles ), GAO has taken the position that
“[a] fiscal year appropriation may be obligated only to meet a legitimate, or
bona fid e need arising in the fiscal year for which the appropriation was made.”
Id. at 4-9. This principle would appear to require that a multi-year grant meet a
bona fid e need of the fiscal year whose appropriation is being charged.
The GAO letter states that the NIH grants were improperly made because the
work done under them in subsequent years will not meet a bona fid e need of
fiscal year 1985. In arriving at this conclusion, GAO cites a series of cases
involving funding for “continuous and recurring services [that] are needed on a
year-to-year basis,” such as repairs of typewriters and delivery of supplies. Id.
at 6-7. However, as HHS points out:
Without exception, th[e] decisions [cited by GAO] deal with the
provision of materials and services of a routine and recurring
nature that should appropriately be funded out of a current year
appropriation. None of those decisions involved grants, and
none dealt with a discrete project designed to meet a current
need the accomplishment of which would take longer than a
single fiscal year.
Id. at 6.
While relying on this strained analogy between grants for scientific study
and routine office expenses,5 the GAO letter makes no mention of its extensive
body of opinions concerning the application of the bona fide need rule to
contracts and grants that cannot be completed in one year. This body of
opinions is summarized as follows in the GAO’s Principles, supra, at 4-9,4—10:
Bona fid e need questions [frequently] arise where a given trans
action covers more than one fiscal year. In the typical situation,
a contract is made (or attempted to be made) in one fiscal year,
with performance and payment to extend at least in part into the
4 G A O ’s position finds no support in case law. M oreover, form er A ttorneys General, in interpreting the
predecessor statutes to § 1S02, sim ilarly reached the conclusion that balances o f appropriations may be used
“to pay dues upon contracts properly made w ithin the form er [fiscal] year, even if the contracts be not
perform ed till w ithin the latter o r current year.” 13 Op. A tt’y Gen. 288, 291 (1870). See also 18 Op. A tt’y
Gen. 566, 5 6 9 (1 8 8 7 ).
5The G A O letter itse lf recognizes the w eakness o f this analogy: “ [W]e recognize that there are fundam ental
differences betw een a contract for materials or services and a research grant.”
21
following fiscal year. The issue is which fiscal year should be
charged with the obligation. In this context, the rule is that, in
order to obligate a fiscal year appropriation for payments to be
made in a succeeding fiscal year, the contract imposing the
obligation'must have been made within the fiscal year sought to
be charged, and the contract must have been made to meet a
bona fid e need of the fiscal year to be charged.
*
*
*
It follows from the above statement of the rule that there are
situations in which performance or delivery can extend into a
subsequent fiscal year with payment to be charged to the prior
fiscal year, as long as the need arose in the fiscal year to be
charged. This principle applies even though the funds are not to
be disbursed and the exact amount owed by the Government
cannot be determined until the subsequent fiscal year.
In deciding whether a contract should be charged to the fiscal year in which it is
made, GAO has taken the following position:
The fact that a contract covers a part of two fiscal years does not
necessarily mean that payments thereunder are for splitting
between the two fiscal years involved upon the basis of services
actually performed during each fiscal year. In fact, the general
rule is that the fiscal y e a r appropriation current at the time the
contract is m ade is chargeable with paym ents under the con
tract, although performance thereunder may extend into the
ensuing fis c a l year.
23 Comp. Gen. 370,371 (1943) (emphasis added) (quoted in Principles, supra,
at 4-13).
GAO has issued many opinions reiterating this “general rule.” See, e.g., 56
Comp. Gen. 351, 352 (1977); 50 Comp. Gen. 589, 591 (1971); 21 Comp. Gen.
822, 823-24 (1951); 20 Comp. Gen. 436, 437 (1941); 16 Comp. Gen. 37, 38
(1936). It has likewise made clear “that the question of whether to charge the
appropriation current on the date the contract is made, or to charge the funds
current at the time services are rendered, depends on whether the services are
‘severable’ or ‘entire.’” Principles, at 4-13. Thus, the “determining factor” for
whether a contract (or grant) for a multi-year project is “properly made” is
whether the project “represent[s] a single undertaking” and should therefore be
viewed as a single project. Id. at 4—14.6 If it is, a bona fid e need for the project
arises in the first fiscal year, and that is the appropriation that should be
charged.
The contract at issue in the 1943 opinion, quoted above, provides an example
of a contract that was viewed by GAO as a single project. Under that contract,
6 The G A O le tte r agrees that the fundamental issue is w hether the grants are single research projects or are
severable annual projects.
22
individuals were to prepare the ground, plant rubber-bearing plants, and bring
them to harvest. GAO concluded that this contract:
involved one undertaking, which although extending over a part
of two fiscal years, nevertheless was determinable both as to the
services needed and the price to be paid therefor at the time the
contract was entered into. Such being the case, the fiscal year
appropriation current at the time the contract was made was
obligated for payments to be made thereunder.
23 Comp. Gen. at 371. GAO therefore rejected a Department of Agriculture
voucher that would have divided the cost between the two fiscal years it took to
complete the contract.
GAO opinions treating a variety of other contracts as single projects are also
illustrative. For example, when the Government contracted in 1938 to have
cattle inspected and slaughtered if infected with tuberculosis, GAO concluded
that the 1938 appropriation should be charged for recompense paid to farmers
for diseased animals found and slaughtered in later years. 18 Comp. Gen. 363
(1938). The need to test the animals arose in fiscal year 1938, and therefore any
liability under the contract, regardless of when discovered, had to be charged to
the 1938 appropriation. Id. at 365.
More recently, in 1980, GAO insisted that a 1977 appropriation be charged
for the cost of printing a book for the Commission of Fine Arts even though the
printing took three years, from 1977 to 1979. 59 Comp. Gen. 386, 387-88
(1980). GAO explicitly rejected the Commission’s argument that the printing
costs should be charged against the 1977, 1978, and 1979 GAO appropriations
in proportion to the amount of work done each year. GAO said:
[T]he fact that performance under a contract extends over more
than one fiscal year does not mean that payments are to be split
among the fiscal years on the basis of services actually per
formed. Rather, the general rule is that payments due under a
Government contract are to be charged to the fiscal year appro
priation current at the time the legal obligation arose; that is, the
fiscal year in which a bona fide need for the goods or services
arose and in which a valid contract or agreement was entered
into.
59 Comp. Gen. at 387-88. See also 50 Comp. Gen. 589, 591-92 (1971)
(lawyers hired for case must be GAO paid from the appropriation for the year
in which they were hired, no matter how protracted the litigation); GAO
Opinion B-141839-O.M. (May 2, 1960) (NIH contracts for cancer research
with Stanford University are “an entire job” and must be paid out of appropria
tion for fiscal year in which contracts were signed, “even though the period of
performance may extend beyond the fiscal year until the object thereof is
accomplished.”); 31 Comp. Gen. 608, 610 (1952) (FY 1952 appropriation
reimbursing states for civil defense expenditures charged although states did
23
not buy equipment until subsequent years); 23 Comp. Gen. 82, 83 (1943) (FY
1942 appropriation charged although printing of legal opinions not completed
until FY 1943); 21 Comp. Gen. 574, 577 (1941) (FY 1940 appropriation
charged although telescopes not shipped until FY 1941); 20 Comp. Gen. 436
(1941) (FY 1940 appropriation charged for cost of move although move not
completed until FY 1941).
This general rule has also been applied by GAO to grants. For example,
GAO concluded in 1940 that all expenses incident to a fellowship granted to
South Americans for the study of public health in the United States could be
charged “to the fiscal-year appropriation current and available at the time the
fellowship is awarded” even though the fellowship extended into the succeed
ing fiscal year and some expenses, such as travel and maintenance, would not
be incurred until the next year. 20 Comp. Gen. 185, 189 (1940). See also GAO
Opinion B-37609, 267 Manuscript Series 1039 (1943) (grants for cultural
programs with South America);7 GAO Opinion B-34477, 261 Manuscript
Series 1960 (1943) (grants to Chinese professors for study in the United
States);8 39 Comp. Gen. 317 (1959). In this last opinion, the National Science
Foundation sought GAO’s opinion on issues relating to the obligation of
certain appropriations. GAO stated:
It is explained in the letter that the major portion of funds
appropriated to the National Science Foundation is obligated
and expended in the form of grants to educational institutions
for the purpose of conducting basic scientific research activities.
It is stated — and correctly so — that such grants are adminis
tratively recorded as obligations at the time the funds are for
mally granted to the grantee by letter, and that there is no
deobligation of any unexpended portion of the grants as of June
30 [the end of the fiscal year]. See 31 Comp. Gen. 608.
7 The 1943 opinion statesBy decision o f A p n l 3, 1942, B -2 4 2 7 ,. . . it was held, in substance, that a grant o f funds . . .
constituted a legal obligation o f th e am ount granted, even though the final obligation and
expenditure for definite projects in th e various American republics w as [sic] to be accom plished
by the said corporation in the follow ing fiscal y e a r .. . In the said decision, it was stated:
“H aving in view the authority given by the C ongress to the Coordinator to make
grants . . . the conclusion appears ju stified that funds so granted . . . were not intended to
rem ain subject to the fiscal y ear lim itation o f the appropriations from which the funds
were derived, and that, insofar as concerns the C oordinator o f Inter-A m encan A ffairs,
such funds are legally obligated w hen form ally granted to an authorized grantee. . . . Cf.
21 C om p. Gen. 498 ”
*
*
*
[YJour above-quoted letter appears to be so sim ilar . . as to warrant a sim ilar conclusion — that
is, that funds form ally granted or form ally agreed to be furnished to an institution or facility . . .
are legally obligated at the time o f th e said grant or agreem ent to grant and properly may be made
available and expended thereafter by the grantee institution or facility without regard to the
fisca l year limitation o f the appropriations from which the funds were derived.
267 M anuscript Series at 1041, 1042 (citations om itted; em phasis added).
8 “It should seem obvious that all expenses connected with the second phase of the program — the bringing
o f C hinese professors to this country — a re chargeable to the funds in question [i.e., to funds from the fiscal
year in w hich the grant w as ma d e ] . . . 2 6 1 M anuscript S eries at 1963
24
39 Comp. Gen. at 318 (1959) (emphasis added). See also 48 Comp. Gen. 186,
190 (1968) (FY 1968 appropriation “would be the only appropriation legally
available to pay amounts due the grantee as a result of any required upward
adjustment” in later years); 20 Comp. Gen. 370, 373 (1941) (grants may be
used to pay for courses extending over two fiscal years). GAO has embodied
this rule for grants in Principles, supra:
In order to properly obligate an appropriation for an assistance
program, some action creating a definite liability against the
appropriation must occur during the period of the obligational
availability of the appropriation. In the case of grants, the obli
gating action will usually be the execution of a grant agreement.
*
*
*
Once the appropriation has been properly obligated, perfor
mance and the actual disbursement of funds may carry over
beyond the period of obligational availability.
Id. at 13-16, 13-17 (citations omitted).
In sum, GAO’s opinions and Principles hold that § 1502 permits contracts
and grants to be charged against the appropriation for a single fiscal year even
though payments may extend over more than one year. They also hold that a
grant may meet the bona fid e need of an agency for a single fiscal year, even
though work under the grant extends over more than one year. Our review of
§ 1502 and of GAO’s opinions thus leads us to conclude that GAO’s recent
determination that NIH may not fund multi-year grants from a single appro
priation is incorrect.
You have also asked whether a certifying officer who does not follow the
Comptroller General’s opinion would be liable under 31 U.S.C. § 3528(a)(4).9
We believe that he would not be liable as, in our view, 31 U.S.C. § 1502
permits NIH lawfully to charge the entire cost of a grant against the appropria
tion for the fiscal year in which the grant was made. Because payment of the
grant is not illegal, the provisions of § 3528(a)(4) are not applicable, and we
would so inform GAO if they referred the matter to this Department.
Finally, you have asked whether charging the grant to the appropriation for
one fiscal year would violate.the Anti-Deficiency Act, 31 U.S.C. § 1341.10 As
9 That section provides.
(a) A certifying official certifying a voucher is responsible for
*
*
*
(4) repaying a paym ent
(A ) illegal, improper, or incorrect because o f an inaccurate or m isleading certificate;
(B) prohibited by law , or
(C) that does not represent a legal obligation under the appropriation or fund involved
1031 U.S.C. § 1341 provides in relevant part:
(a) (1) An officer or em ployee o f the U nited Slates G overnm ent or of the District o f Columbia
governm ent may not —
(A) make o r authorize an expenditure o r obligation exceeding an amount available in an
appropriation o r fund for the expenditure o r obligation; or
(B) involve either governm ent in a contract o r obligation for the paym ent of money before an
appropriation is made unless authorized by law.
25
we have concluded that charging the grant to the appropriation for a single
fiscal year is lawful, we do not believe a grant official following our opinion
would violate this section.
Conclusion
For the reasons stated above, we believe that NIH may charge the appropria
tion for a single fiscal year with the entire cost of a single grant.
C harles
J.
Cooper
Assistant Attorney General
Office o f Legal Counsel
26 |
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Write a legal research memo on the following topic. | The President’s Authority to Make a Recess
Appointment to the National Labor Relations Board
The President may make a recess appointment to the National Labor Relations Board of a person
whose term as a Senate-confirmed member expired during the current recess of the Senate.
August 31, 2001
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether the President may make a recess appointment to the
National Labor Relations Board (“NLRB” or “Board”) of a person whose term as
a Senate-confirmed member expired during the current recess of the Senate. We
believe that the President may make this recess appointment.
Members of the NLRB are appointed to five-year terms by the President, with
the Senate’s advice and consent. 29 U.S.C. § 153(a) (2000). As we understand the
facts, the member in question had been serving under such an appointment for a
term that ended August 27, 2001.
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. Here, the member’s term has expired, and the office he previously occupied
is vacant. And because there is no bar on reappointment and indeed the statute
declares that “[e]ach member of the Board . . . shall be eligible for reappointment,”
29 U.S.C. § 154(a), no question about eligibility to serve is raised by the recess
appointment of someone who has been appointed before.
The Senate, moreover, is in “recess.” It adjourned August 3, 2001, and will
return September 4, 2001. 147 Cong. Rec. 16,196 (2001). “The longstanding view
of the Attorneys General has been that the term ‘recess’ includes intrasession
recesses if they are of substantial length.” Recess Appointments During an
Intrasession Recess, 16 Op. O.L.C. 15 (1992) (“Intrasession Recess Appointments”). The seminal 1921 opinion by Attorney General Daugherty affirmed the
President’s power to make a recess appointment in an intrasession recess of
twenty-eight days. Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20,
24 (1921). Since then, Presidents have acted on the conclusion that even much
shorter intrasession recesses were sufficiently substantial to allow recess appointments. See, e.g., Intrasession Recess Appointments, 16 Op. O.L.C. at 16 (discussing appointments during recesses of fifteen and eighteen days). Although there is
scant judicial authority on the President’s power to make recess appointments
during intrasession recesses, see Gould v. United States, 19 Ct. Cl. 593, 595 (1884)
(accepting such an appointment), the Executive Branch precedents establish that
the current recess of thirty-two days could amply support a recess appointment.
182
227-329 VOL_25_PROOF.pdf 192
10/22/12 11:10 AM
President’s Authority to Make Recess Appointment to NLRB
Finally, the Pay Act, 5 U.S.C. § 5503 (2000), by which Congress has sought to
bar the pay of recess appointees in some circumstances, would not apply here.
Because the statute applies only “if the vacancy existed while the Senate was in
session,” id. § 5503(a), it does not reach a vacancy that first arises during a recess
and is filled before the Senate returns. See Memorandum for the Attorney General,
from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Recess Appointments at 7-8 (July 7, 1988); Memorandum for the
Attorney General, from Ralph E. Erickson, Acting Assistant Attorney General,
Office of Legal Counsel, Re: Recess Appointments at 3 (Dec. 21, 1971).
DANIEL L. KOFFSKY
Acting Assistant Attorney General
Office of Legal Counsel
183
227-329 VOL_25_PROOF.pdf 193
10/22/12 11:10 AM |
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Write a legal research memo on the following topic. | December 18, 1978
78-67 MEMORANDUM OPINION FOR THE SPECIAL
ASSISTANT TO THE ATTORNEY GENERAL
Immigration and Nationality Act (8 U.S.C.
§ 1182(d)(5))—Cuban Parole Program
This responds to your request that we address the following questions:
1. Can a parole visa be revoked once the parolee has entered the
United States? If so, under what conditions?1
2. Does the law allow any Cuban who holds dual U.S.-Cuban
citizenship to immigrate to the United States with his or her
entire family?
I. Parole Revocation
Parole of aliens into the United States is governed by § 212(d)(5) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(d)(5). That
provision reads as follows:
The Attorney General may in his discretion parole into the United
States temporarily under such conditions as he may prescribe for
emergent reasons or for reasons deemed strictly in the public interest
any alien applying for admission to the United States, but such parole
of such alien shall not be regarded as an admission of the alien and
when the purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or be re
turned to the custody from which he was paroled and thereafter his
case shall continue to be dealt with in the same manner as that of any
other applicant for admission to the United States.
Thus, when the Attorney General determines that the purposes of parole have
been served, parole is revoked and the parolee faces exclusion proceedings as
described in §§ 235 and 236 of the Act, 8 U.S.C. §§ 1225, 1226, as would any
alien initially applying for admission into the United States. Section 212.5(b) of
'An alien who is paroled into the United States does not receive a visa. A visa is a document
issued by a consular officer to immigrants and nonimmigrants coming to the United States.
Moreover, a parolee does not ‘‘enter" the United States in a legal sense. See 8 U.S.C.
§ 1182(d)(5).
299
Title 8 of the Code of Federal Regulations provides that parole shall be
terminated and pre-parole status restored upon an alien’s receiving written notice
of the following: expiration of his parole period; that the purpose for which the
parole was authorized has been accomplished; or when the District Director of
the Immigration and Naturalization Service (INS) in charge of the area where
the alien is located determines that neither emergency reasons nor public
interest warrants his continued presence in the United States. In parole
revocation proceedings, parolees are not entitled to the full panoply of
procedural rights accorded aliens in deportation proceedings.2 See, Leng May
Ma v. Barber, 357 U.S. 185 (1958); Rogers v. Quart, 357 U.S. 193 (1958); Siu
Fung Luk v. Rosenberg, 409 F. (2d) 555 (9th Cir. 1969), cert, dismissed, 396
U.S. 801 (1969). Moreover, as stated above, the discretion to terminate parole
resides in the Attorney General or his delegates and none of the statutory
grounds for deportation under § 241 of the Act, 8 U.S.C. § 1251, need be
alleged.
However, in one case, United States v. Murjf, 260 F. (2d) 610 (2d Cir.
1958), the court held that the parole of certain refugees may be revoked only if
they are accorded the same rights as those given aliens in deportation cases.
The court after acknowledging that parolees may, in the normal case, have their
parole summarily revoked, held that under the particular facts involved
additional procedural protections were required before parole could be revoked.
It noted that the circumstances under which the Hungarian refugees there
involved were paroled into the United States made the case sui generis. In
concluding that the refugees were “ invited” to this country, the court stressed
that the President had directed the Attorney General to exercise his § 212(d)(5)
parole power to admit a certain number of Hungarian refugees in excess of the
visas authorized under the Refugee Relief Act. Id., at 613. It also stressed the
fact that Congress had passed legislation endorsing the President’s action.
The M urff case seems to stand alone; other courts have consistently
distinguished Murjf. See, Ahrens v. Rojas, 292 F. (2d) 406 (5th Cir. 1961)
(case involving Cuban refugees); Siu Fung Luk v. Rosenberg, 409 F. (2d) 555
(9th Cir. 1969), cert, dismissed, 396 U.S. 801 (1969). But see the dictum of the
Board of Immigration Appeals in Matter o f O, Interim Decision 2614 (1977),
suggesting that M urff might have some applicability to parole revocations of
certain aliens paroled into the United States as part of the Vietnam evacuation.
However, it would seem that even if the M urff rationale were invoked, a court
would not necessarily require the full range of procedural protections required
in deportation proceedings. See the comments of the Board of Immigration
Appeals in Matter o f O, supra.
Once parole is revoked, the alien becomes subject to an exclusion proceed
ing, in which he may seek asylum in the United States as a political refugee.
Previously the law was unsettled. See, Sannon v. United States, 421 F. Supp.
1270 (S. D. Fla. 1977) (asylum claims must be heard in exclusion proceed
2The procedural rights due aliens subject to deportation proceedings are set forth in § 242 of the
Act, 8 U.S.C. § 125;.
300
ings), and Pierre v. United Stales, 547 F. (2d) 1281 (5th Cir. 1977) (asylum
claims are not required to be considered in exclusion proceedings).3 However,
the issue has been mooted since the Solicitor General represented to the
Supreme Court that the Government would grant a hearing on asylum
applications in exclusion proceedings. See Memorandum Suggesting Mootness,
in Pierre v. United States, O. T. 1977, No. 77-53. The Court granted
certiorari, vacated the judgment, and remanded the case to the Court of Appeals
to determine the mootness question. Pierre v. United States, 434 U.S. 962
(1977). In the meantime, INS has proposed a regulation to grant hearings on
asylum claims in exclusion proceedings. 43 F.R. 48629. Thus, asylum claims
must now be heard in an exclusion proceeding.
II. Dual United States and Cuban Citizenship
A U.S. citizen possessing dual citizenship may leave and reenter the United
States without regard to any restrictions applicable to aliens. Cuban residents
related to U.S. citizens and who are themselves U.S. citizens at birth by virtue
of section 301(a) of the Act, 8 U.S.C. § 1401(a), may also enter the United
States without regard to such restrictions.
Alien “ immediate relatives” of U.S. citizens may be admitted to this country
without regard to quota limitations pursuant to § 201(a) of the Act, 8 U.S.C.
§ 1151(a). That term includes a U.S. citizen’s children, spouse, and where the
U.S. citizen is at least 21 years old, his parents. § 201(b), 8 U.S.C. § 1151(b).
Also, it is permissible first to parole these persons into the United States and
permit them thereafter to seek adjustment of their status to that of persons
admitted for permanent residence. § 245, 8 U.S.C. § 1255. Other members of
the U.S. citizen’s family may be paroled into the United States although they
may not enjoy the status of immediate relatives of a U.S. citizen.
John M . H arm on
Assistant Attorney General
Office o f Legal Counsel
3The issue in these cases centered on the interpretation of the United Nations Convention and
Protocol Relating to the Status of Refugees, 19 U .S.T. 6223, TIAS 6557, to which the United
States became a signatory on November 1, 1968.
Article I of that document incorporates by reference the 19 5 1 Geneva Convention Relating to the
Status of Refugees. Article 1, as modified by the Protocol, defines a refugee as one who—
. . . owing to well-founded fear of being prosecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail himself
of the protection of that country, or who. not having a nationality and being outside the
country of his former habitual residence, is unable or, owing to such fear, is unwilling to
return to it.
Article 33 of the Protocol provides in pertinent part that ''[n]o Contracting State shall expel or
return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion.”
301 |
|
Write a legal research memo on the following topic. | December 28, 1979
79-91
MEMORANDUM OPINION FOR THE
GENERAL COUNSEL, CENTRAL
INTELLIGENCE AGENCY
Polygraph Tests—Central Intelligence Agency—
Industrial Polygraph Program—
Constitution—Supremacy Clause (Article VI,
Clause 2)
A member o f your staff has asked us for additional assistance with
respect to the Central Intelligence Agency’s (CIA ’s) Industrial Polygraph
Program. Implementation o f this program in Massachusetts has been
delayed because o f potential conflict with a Massachusetts statute penaliz
ing an employer who requires employees to take polygraph tests. Mass.
Gen. Laws, ch. 149, § 1913. In response to an earlier request, we presented
o u r view, in a m em orandum dated December 18, 1978, that a State law
prohibiting the adm inistration o f polygraph tests to employees may not
legitimately be applied to either the CIA o r its contractors in a m anner that
precludes necessary security precautions. We reasoned that the Supremacy
Clause would not allow a State law to disrupt Federal programs, even if
the State law is applied only to a contractor and not to the Federal Govern
ment itself. We cautioned, however, that the validity o f application o f
State law to Federal contractors is generally dependent on the facts and
circumstances o f a particular setting and that prelitigation predictions o f
success must be cautious.
By letter dated December 20, 1978, we expanded on these views. We
repeated that the adm inistration o f polygraph tests to contractor
employees who have access to, or are being considered for access to, sen
sitive com partm ented inform ation would meet the requirements of
§ 1-811 o f Executive O rder No. 12036, because, in the considered judg
ment o f CIA officials, the tests are necessary to maintain appropriate
standards o f security. We did not suggest that administration o f polygraph
tests on a broader basis would be prohibited, but emphasized that the
504
limiting language o f § 1—811 and the potential conflict with State law re
quired that any such program not sweep more broadly than is deemed nec
essary by knowledgeable personnel in your agency.
We are now informed that the CIA wishes to proceed with the program
in Massachusetts. At our request, your staff has provided further explana
tion o f the CIA ’s need for the Industrial Polygraph Program . The ex
planation can be summarized as follows:
After the discovery o f leaks o f classified docum ents to foreign govern
ments by a contractor’s employee, the CIA Office o f Security examined
security standards governing access to sensitive com partm ented inform a
tion and determined that the standards were insufficient to protect such in
formation. Although a contractor’s personnel often have access to infor
mation not revealed even to CIA staff officers, the industry personnel are
not subjected to the rigorous investigation required for staff positions.
The Office o f Security concluded that the personal history statem ent,
background investigation, and personal interview were insufficient to
identify at least three types o f persons: (1) persons with vulnerabilities
making them particularly susceptible to recruitment by hostile powers,
(2) persons who have already been recruited by such powers but whose
personal history statements are otherwise correct, and (3) persons who
have developed false identities. Based on substantial experience with
polygraphs, the Office o f Security determined that the polygraph device
would be an invaluable tool for improving security determinations. A fter
successful completion o f a pilot program, the Director o f Central In
telligence ordered institution o f the Industrial Polygraph Program.
The polygraph is not used as a substitute for less intrusive investigative
measures. Instead, we have been informed that it is intended to enhance,
upgrade, and extend those measures, and is, for these reasons, deemed a
necessary adjunct. We have also been told that the examination is n ar
rowed to the extent necessary to protect SCI inform ation. To ensure that
the tests will not be applied to employees indiscriminately, the CIA has
identified the categories o f persons who will be required to undergo a poly
graph test.
As we set forth in our previous letters to you, courts reviewing State
regulation o f Federal contractors appear to apply the same standard as is
applied to regulation o f the Federal Government itself, that is, whether the
State statute would defeat a legitimate Federal purpose or frustrate a
Federal policy or function. See, United States v. Georgia Public Service
Com m ’n, 371 U.S. 285, 292-93 (1963); Leslie Miller, Inc. v. Arkansas,
352 U.S. 186, 190(1956); Railway Mail Assoc, v. Corsi, 325 U.S. 88, 93-96
(1945). The determinative question is whether the State’s regulation o f the
contractor conflicts with Federal legislation or with iany legitimate discern
ible Federal policy. See, Penn Dairies, Inc. v. Milk Control Control
Com m ’n, 318 U.S. 257,271 (1943).
505
Protection o f sensitive intelligence inform ation is required by statute
and executive order, and clearly is a legitimate Federal function. See 50
U .S.C . §§ 403(d)(3), 403g; Executive O rder No. 12065, 43 F.R. 28949
(1978). It appears to us that the CIA reasonably has determined that im
plementation o f the Industrial Polygraph Program is necessary to protect
adequately SCI inform ation. If adm inistration o f the test to each included
category o f employees is reviewed carefully by CIA officials and deter
mined necessary to protect sensitive inform ation, it is our view that the
State o f Massachusetts may not interfere by enforcing its law against the
Agency’s contractors.
La r r y A . H a m m o n d
D eputy Assistant A ttorney General
Office o f Legal Counsel
506 |
|
Write a legal research memo on the following topic. | January 19, 1978
78-2
MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION
Rebates in Violation of Shipping Act— Applicability
of Conspiracy Statute (18 U.S.C. § 371)
This responds to your inquiry concerning a group o f cases involving ocean
freight rebating. The question is whether the 1972 amendment to § 16 of the
Shipping Act of 1916 precludes conspiracy prosecutions under 18 U .S.C . § 371
in these cases. The Fraud Section of the Criminal Division has taken the
position that the cases may be prosecuted under the conspiracy statute; the
Government Regulations and Labor Sections disagree.
Our conclusions may be summarized as follows:
As a general matter, a statutory prohibition the violation of which
is subject only to a civil penalty may be an “ offense against the
United States” for purposes of the conspiracy statute. The 1972
amendment to § 16 does not rule out the possibility o f prosecuting a
corporate shipper and a corporate carrier for conspiring to violate
paragraph Second of § 16. Congress’ action, as well as principles
analogous to those underlying the Wharton rule, indicate, however,
that any such prosecution must be based upon more than a minimal or
ordinary violation o f the provisions of the Shipping Act. That is, the
prosecution must be able to show, that because of its nature or extent,
the conduct contemplated by the conspiracy agreement involved
harm to society beyond that ordinarily presented by the substantive
offense itself. Similarly, depending upon the particular circumstances,
cases of the present type may constitute a conspiracy to defraud the
Federal M aritime Commission.
We are, however, not familiar enough with the facts of the present cases to
make specific recommendations.
Background
1.
Section 16 of the Shipping Act of 1916, as amended, 46 U .S.C . § 815
(1975 Supp.), reads as follows:
5
It shall be unlawful for any shipper, consignor, consignee, for
warder, broker, or other person, or any officer, agent, or employee
thereof, knowingly and willfully, directly or indirectly, by means of
false billing, false classification, false weighing, false report of
weight, or by any other unjust or unfair device or means to obtain or
attempt to obtain transportation by water for property at less than the
rates or charges which would otherwise be applicable.
It shall be unlawful fo r any common carrier by wafer, or other
person subject to this chapter, either alone or in conjunction with any
other person, directly or indirectly —
First. To make or give any undue or unreasonable preference or
advantage to any particular person, locality, or description o f traffic
in any respect whatsoever, or to subject any particular person,
locality, or description of traffic to any undue or unreasonable
prejudice or disadvantage in any respect whatsoever . . . .
Second. To allow any person to obtain transportation fo r property
at less than the regular rates or charges then established and
enforced on the line o f such carrier by means o f fa lse billing, false
classification, fa lse weighing, fa lse report o f weight, or by any other
unjust or unfair device or means.
Third. To induce, persuade, or otherwise influence any marine
insurance company or underw riter, or agent thereof, not to give a
competing carrier by water as favorable a rate of insurance on vessel
or cargo, as is granted to such carrier or other person subject to this
chapter.
Whoever violates any provision o f this section other than paragraphs
First and Third h ereo f shall be subject to a civil penalty of not more
than $5,000 for each such violation.
W hoever violates paragraphs First and Third hereof shall be guilty
of a misdem eanor punishable by a fine of not more than $5,000 for
each offense. [Emphasis added.]
The principal provision discussed herein is paragraph Second.
2. Investigations of ocean freight rebate practices are being conducted by the
U.S. Attorneys (regarding several carriers, including United States Lines and
Sealand Services, Inc. and Seatrain Lines, Inc.). As a result o f one of these
investigations, Sealand has made extensive disclosures to the Federal Maritime
Commission concerning rebates amounting to some $19 million and has agreed
to pay a civil penalty of almost $5 million. The U .S. Attorney in Newark has
forwarded to some 53 other U.S. Attorneys cases involving more than 300
shippers that received the rebates.
Your memorandum indicates that:
The investigations have disclosed that employees of the carriers
would obtain freight business by agreeing with employees or officers
of the shippers to pay freight rate rebates. Books and records of the
carriers were falsified by identifying rebate payments as, inter alia,
6
“ promotional expenses.” Rebate payments were made by laundering
the funds through both domestic and overseas subsidiaries of the
carriers, obviously with the assistance and knowledge of employees
of the subsidiaries.
Discussion
1. This inquiry relates to the possibility o f prosecution under the general
conspiracy statute. That statute, 18 U .S.C . § 371, provides as follows:
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object o f the conspiracy, each
shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
If, however, the offense, the commission of which is the object of
the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided for
such misdemeanor.
It is established that, for purposes o f 18 U .S.C . § 371, the term “ offense
against the United States” , is not limited to crim es.1 It also encompasses
conduct prohibited by a Federal statute and “ made punishable only by a civil
suit for a statutory penalty.” Hunsaker v. United States, infra, at 112. Thus, it
may follow that violation of paragraph Second of § 16 as amended, which is
punishable by civil penalty, is an “ offense” within the meaning o f 18 U .S.C .
§ 371.2 The first issue is whether that result is foreclosed, because of the 1972
amendment to § 16.
2. Section 16 o f the Shipping Act prohibits several types of practices by
shippers, common carriers by water, and others. Before the 1972 amendment
of § 16, violation o f any o f those prohibitions was a misdemeanor punishable
by a fine of not more than $5,000.3 The principal effect of the 1972 legislation
is to provide, with respect to paragraph Second and all other provisions except
paragraphs First and Third, that a violation thereof is no longer a crime, but is
subject to a civil penalty.4
The legislative history of the 1972 amendment is brief and contains no
1See U nited States v. H utto, 256 U .S. 524, 529 (1921) (offense o f Federal official’s having
financial interest in Indian trade); H unsaker v. United Slates, 279 F. (2d) 111, 112 (9th Cir. I960),
cert, denied, 464 U.S. 819 (1960) (Gold Reserve Act); United Stales v. W eisner, 216 F. (2d) 739,
742 (2d Cir. 1954) (Gold Reserve Act). In W eisner, the court rejected the argum ent that 18 U .S .C .
§ 1, which deals with the classification o f criminal offenses, governed the m eaning of " o ffe n se ”
for purposes o f 18 U .S .C . § 371.
2It should be noted that § 16, as am ended, refers to a civil penalty for each "v io latio n ” of
paragraph Second. In contrast, with regard to paragraph First and Third, the statute refers to a fine
for each " o ffe n se .” There is no reason, how ever, to treat this difference in term inology as decisive
regarding the applicability o f 18 U .S .C . I 371.
3See 46 U .S .C . § 815 (1970).
‘See Pub. L. No. 92-416 (1972), § 1(b).
7
mention of the possibility o f prosecutions under the conspiracy statute. Thus,
an effort must be made to infer Congress’ intent.
The bill which was ultimately enacted differed in certain respects from the
version introduced and initially passed by the House of Representatives. As
enacted, the law provides that the civil penalties for violation of the Shipping
Act “ may be compromised by the Federal Maritime Commission, or may be
recovered by the United States in a civil action.” 5 The original House bill
contained the change from criminal to civil sanctions, but under that bill 6 the
Federal Maritime Commission would have been empowered to assess the civil
penalties, subject to review of its action in the courts of appeals.
The purpose o f the House bill was to strengthen the ability of the
Commission to carry out its regulatory functions under the Shipping Act, in
part by amending the penalty provisions in the “ areas that give the Commission
most o f its enforcement problems in day-to-day operations.” 7 The House report
stated that the then-existing situation (i.e ., investigation of matters by the
Commission and referral to the Department of Justice for prosecution) was
unsatisfactory because it involved delay and also overlapping of effort on the
part of the Commission and the D epartm ent.8 Another disadvantage cited in the
House report was that frequently (because o f the time elapsed between the
occurrence o f the infraction and the criminal trial) the sentence imposed by the
courts was too light and was insufficient to defer future violations.9
Although the House report stressed that the amendments would mean m ore.
effective regulation by the Comm ission, it also said that the proposed procedure
(assessment o f penalties by the Com m ission, with review in the courts of
appeals) “ would, in most instances, reduce the total litigation expenses to both
the Government and private parties [and] relieve the overburdened Federal
courts . . . . ” 10
The Senate, however, amended the bill so as to restrict the authority of the
Commission to seeking to compromise a civil penalty. Thus, under the Senate
bill (which was enacted), absent such a compromise, the Commission may
refer the matter to the Department of Justice for the bringing of a civil action to
recover a penalty.
Evidently, the basis for the Senate amendment to the House bill was industry
opposition to granting the Commission authority to assess civil penalties.11 The
Senate report referred to “ contentions” that such a procedure would be
contrary to due process, because the “ nature of the administrative agency
process necessarily makes the agency . . . ill-suited for the imposition of
punitive sanctions.” 12
sId., § 3;
46 U .S .C . 814 note (1975 Supp.).
6See 117 Cong. Rec. 32415 (1971).
7H. Rept. No. 92-478, 92d C o n g ., 1st sess. (1971), p. 1.
ald., p. 2.
Vd„ p. 3.
'°ld., p. 4.
11See S. Rept. No. 92-1014, 92d C ong., 2d sess. (1972), p. 3.
nld., p. 2.
8
In explaining the shift from criminal sanctions to civil, the Senate report
noted, as did the House report, the unsatisfactory, time-consuming nature of
the then-existing means of enforcem ent.13 Furthermore, the Senate report
stated:
To change the penalties for violations of these provisions from
criminal to civil should make the documentation of violations
simpler, thereby expediting final consideration by the Commission,
or the Department of Justice and the courts. Since proving a violation
would be easier, the threat of imposition of the prescribed penalty
should act as a more effective deterrent to further violations.
Continuing, the Senate report stated14 that enactment o f the bill
. . . should provide the Federal Maritime Commission with needed
additional authority to more effectively discharge its statutory •
responsibilities, encourage compromised settlements for violations of
the shipping statutes, and help to avoid needless litigation in our
over-crowed [sic] Federal courts.
The legislative history indicates that C ongress’ main purpose in substituting
civil sanctions was to enhance enforcement by the Commission. The possibility
of bringing conspiracy prosecutions seems consistent with the main purpose of
the 1972 amendments. Such prosecutions need not interfere with enforcement
by the Commission and, indeed, could be a useful supplement. Still, consideration
must be given to other objectives mentioned in the congressional reports.
ThesHouse report and, to a lesser extent, the Senate report expressed concern
regarding duplication of effort by the Commission and the Department. This
problem could be exacerbated if, for example, there should be a conspiracy
prosecution in regard to a matter that had already been the subject of a
Commission investigation and a civil action for recovery o f a penalty.
Both of the reports indicated a desire to avoid increasing the backlog of cases
in the Federal courts. This may be some evidence that, except for the means
provided in § 16, Congress did not contemplate Federal enforcement in this
area.
As the Fifth Circuit has pointed o u t,15 the 1972 amendments were clearly
not based upon a belief that criminal punishment was too severe. Both
committee reports stressed the need for a more effective deterrent. Nonetheless,
Congress was also concerned with fairness to the regulated firms and, in
particular, with reducing their litigation expense (as well as that of the
Government). This is another aspect o f congressional intent that casts doubt on
the availability o f conspiracy prosecutions.
Finally, it must be noted that Congress could have provided for both civil and
l3S. R ept., p. 2.
14I d p. 3.
15United States v. B lue Sea Line. 553 F. (2d) 445, 450 (5th Cir. 1977) (upholding the dismissal
o f indictm ents charging pre-1972 rebates in violation of 8 16. paragraph Second).
9
criminal sanctions for violation of the provisions in question, but did not do
s o .16
The basic conclusion we draw from the legislative history is that there is no
absolute conflict between Congress’ intent in amending § 16 and the bringing
o f conspiracy prosecutions in this area. On the other hand, the concerns
expressed by the congressional committees with regard to avoiding overlap
between the Commission and the Department, fairness to regulated entities,
and reducing the burden on the courts are entitled to some weight. Those
concerns suggest that if there are to be conspiracy prosecutions related to
violations o f § 16 great care must be used in selecting the cases. For reasons
discussed below, the same conclusions are suggested by principles analogous to
those underlying the W harton rule.
.3. The nature o f the W harton rule was thoroughly considered by the
Supreme Court in lannelli v. United States, 420 U .S. 770 (1975).17 The Court
described the rule by quoting from its original source, W harton’s treatise on
criminal law :18
When to the idea of an offense \e.g ., dueling] plurality of agents is
logically necessary, conspiracy, which assumes the voluntary accession
of a person to a crime of such a character that it is aggravated by a
plurality o f agents, cannot be maintained . . . .
Had the present issues arisen before the 1972 amendment of § 16— that is,
when criminal sanctions were prescribed for conduct such as rebating— it
would have been necessary to determine the applicability of the Wharton rule.
In our opinion, however, because the substantive violations are no longer
crim es, the W harton rule as such does not app ly.19
Nonetheless, since the substantive violations are “ offenses” for the purpose
of 18 U .S.C . § 371, it should be proper to consider principles similar to those
underlying the W harton rule. In lannelli, the Court stated, 420 U .S ., at 782,
that the W harton rule does not rest on principles o f double jeopardy,20 but is
merely a “ judicial presum ption, to be applied in the absence of legislative
intent to the contrary.” The rule was explained as follows (420 U .S. at
785-86, footnotes omitted):
l6For exam ple, w illful violations m ight have been made subject to criminal sanctions.
The D epartm ent o f Justice sent a report on the House bill to both the House and the Senate
com m ittees. See H. R ept., p. 10; S. R ept., p. 6. The Departm ent stated that it had no objection to
enactm ent o f the bill. Its report did not suggest the need to retain criminal sanctions and did not
m ention the possibility o f prosecutions under 18 U .S .C . § 371.
l7In la n nelli, the C ourt, in a five-to-four decision, sustained convictions for violation o f 18
U .S .C . § 1955, prohibiting large-scale gam bling activities, and for conspiring to com m it that
offense.
I8420 U .S . at 773. quoting 2 F. W harton, C rim inal L aw § 1604 (12th e d ., 1932) p. 1862.
lvO ne indication that the rule applies only when the substantive offense is a crim e is the
discussion in la n n elli o f the procedural effect o f the rule. The Court stated, 420 U .S. at 786,
footnote 18, that in cases covered by the rule dism issal of the conspiracy charge is not required. The
Court added, “ W hen both charges are considered at a single trial, the real problem is the avoidance
o f dual punishm ent. T his problem is analogous to that presented by the threat o f conviction for a
greater and a lesser included offense, and should be treated in a sim ilar m anner.”
20Bui see footnote 19, supra.
10
W harton’s Rule applies only to offenses that require concerted
criminal activity, a plurality of criminal agents. In such cases, a
closer relationship exists between the conspiracy and the substantive
offense because both require collective criminal activity. The substantive
offense therefore presents some of the same threats that the law of
conspiracy normally is thought to guard against, and it cannot
automatically be assumed that the Legislature intended the conspiracy
and the substantive offense to remain as discrete crimes upon
consummation of the latter. Thus, absent legislative intent to the
contrary, the Rule supports a presumption that the two merge when
the substantive offense is proved. [Emphasis as in original.]
Here, the question raised is whether violation of § 16, paragraph Second,
requires concerted activity. If so, it could be argued, by analogy to the Wharton
rule, that Congress did not intend any separate sanction for a two-party
conspiracy to commit that offense.21
Under paragraph Second, it is “ unlawful for any common carrier by
w ater . . . alone or in conjunction with any other person, directly or
indirectly . . . [to] allow any person to obtain transportation for property at less
than the regular rates . . . by means of false billing . . . [or] any other
unjust . . . m eans.” If this provision is read literally, the minimum number
required for violation is one— the carrier.22 (A shipper who knowingly and
willfully obtains or attempts to obtain below-standard rates by such false means
violates another provision, the initial paragraph of § 16.) In our opinion,
however, such analysis is not entirely satisfactory.
Logically, it is possible that a carrier could provide transportation at less than
the regular rate without the shipper’s realizing that any false or unfair means
had been used. Still, it seems reasonable to assume that often the violation
would involve concerted action, e .g ., an agreement that the carrier will pay a
rebate to the shipper. If so, it may be asserted that the mere existence of some
concerted action is not a basis for going beyond the civil penalties prescribed by
Congress; this supports our conclusion (derived from the legislative history)
that special care should be used in selecting cases to be prosecuted under 18
U.S.C . § 371.
4. Our recommendation is that a distinction be drawn between what might
2lThe W harton rule is subject to several exceptions. One is that a conspiracy prosecution is
perm issible when the num ber o f conspirators exceeded the minim um num ber o f persons required
for com m ission o f the substantive offense. See. lannelli v. United States, supra, 420 U .S ., at 782,
footnote 15.
22The phrase "alo n e or in conjunction with any other person" does not alter our conclusion
regarding the m inimum .
Cf. M ay v. United States. 175 F. (2d) 994, 1003 (D .C . C ir., 1949), cert, denied, 338 U .S. 830
( 1949) (conspiracy to com m it offense o f Congressm an’s accepting paym ent for services regarding a
claim against the Governm ent); E x parte O 'L eary, 53 F. (2d) 956, 957 (7th C ir., 1931), cert,
denied, 283 U .S. 830 (1931) (conspiracy to com m it offense of Federal officer’s receiving a bribe).
These cases applied an exception to the W harton rule; this exception perm its a conspiracy
prosecution where the substantive offense (e .g .. accepting a bribe) is such that only one o f the
parties could com m it it.
11
be called “ ordinary” violations of § 16, paragraph Second, and aggravated
cases. Such determinations depend o f course upon the particular facts.
Particular care must be given to the bases for treating a conspiracy and a
completed substantive offense as separate, that is, the “ distinct kinds of threats
to society that the law of conspiracy seeks to av ert.” 23
Factors to be considered include the nature and extent of the conspiracy and
the num ber o f parties. For exam ple, whether the agreement relates to an
isolated transaction or to a long-continuing series o f transactions.
There is no violation of paragraph Second unless false billing or some other
unfair means is used. Thus, ordinarily, some concealment will be involved.
W hen, however, the parties go to unusual lengths to conceal their conduct
(e.g ., the use o f foreign subsidiaries24), there may be special risks to society.
Moreover, where such a scheme is agreed upon, there may also be a sound
basis for charging a conspiracy to defraud the Federal Maritime Commission.25
Because Congress gave primary responsibility for enforcement to the
Commission, consideration should be given to the action (or the position) taken
by the Commission. For example, if the question of defrauding the Commission is
raised, what is its view regarding the matter?
In terms of fairness, it may be more difficult to justify proceeding with a
conspiracy charge if, with regard to the underlying conduct, a civil penalty has
been paid.
O ur approach may be illustrated by the following hypothetical cases:
a. In the first hypothetical situation, a carrier and a shipper agree, with
respect to a particular shipment or a series o f shipments, that the carrier will pay
a rebate to the shipper. It is understood that the rebate will be paid in cash and
that the carrier’s books will not disclose the true nature of the payment. The
amounts involved are relatively small, and there is no history o f such practices
on the part of the parties involved.
We question whether a conspiracy prosecution would be appropriate in a
case o f this type. The parties could argue, with some force, that their conduct is
at most an ordinary violation o f § 16 and that Congress intended use of the
sanction o f civil penalties and nothing more.
b. In the second hypothetical situation, the Federal Maritime Commission
obtains evidence that a carrier may be engaged in paying improper rebates. It
warns the carrier that such practices are illegal. Then, the carrier and the
shipper enter into a secret agreement for the payment o f rebates. The agreement
includes use of an elaborate scheme for making the payments— that is, several
stages of laundering are effected, in part, by foreign subsidiaries of the carrier.
23la nnelli v. U nited States, supra, 420 U .S ., at 783 (footnote om itted).
“ Because o f our basic conclusion, it is not necessary to discuss the question w hether a carrier
can conspire with one (or m ore) o f its subsidiaries. S e e , P erm a L ife M ufflers, Inc. v. International
P arts C orp., 392 U .S . 134 (1968) (treble-dam age action under Sherm an Act may be based on a
conspiracy between corporate entities with com m on ow nership); Note, Developm ents in the
Law-C rim inal C onspiracy, 72 Harv. L. Rev. 920, 1000 (1959). See also Departm ent o f Justice,
“ Antitrust G uide for International O perations,’’ (January 26, 1977), p. 12.
25See, H unsaker v. U nited States, supra, 279 F. (2d), at 114.
12
Concerted action of this type would seem to pose special risks of harm to
society, e .g ., the risk that the laundering scheme will be used to effect
violations of other Federal laws. The action of the shipper and the carrier could
properly be regarded as a conspiracy (1) to violate § 16, paragraph Second, and
(2) to defraud the Commission.
We do not have detailed information regarding the present cases and,
accordingly, are unable to make specific recommendations concerning them.
We hope that the above discussion will assist you in determining how to
proceed.
John M . H arm on
Assistant Attorney General
Office o f Legal Counsel
13 |
|
Write a legal research memo on the following topic. | Authority of the Federal Bureau of Investigation
To Override International Law
In Extraterritorial Law Enforcement Activities
At the direction of the President or the Attorney General, the FBI may use its statutory
authority to investigate and arrest individuals for violating United States law, even if the
FBI’s actions contravene customary international law.
The President, acting through the Attorney General, has the inherent constitutional author
ity to deploy the FBI to investigate and arrest individuals for violating United States law,
even if those actions contravene customary international law.
Extraterritorial law enforcement activities that are authorized by domestic law are not
barred even if they contravene unexecuted treaties or treaty provisions, such as Article
2(4) of the United Nations Charter.
An arrest that is inconsistent with international or foreign law does not violate the Fourth
Amendment.
June 21, 1989
M e m o r a n d u m O p in io n
fo r the
Attorney G eneral
This memorandum responds to the request o f the Federal Bureau o f
Investigation ( “FBI”) that we reconsider our 1980 opinion that the FBI
has no authority under 28 U.S.C. § 533(1) to apprehend and abduct a fugi
tive residing in a foreign state when those actions would be contrary to
customary international law. Extraterritorial Apprehension by the
Federal Bureau of Investigation, 4B Op. O.L.C. 543 (1980) (the “ 1980
Opinion” or “Opinion”). After undertaking a comprehensive review o f the
applicable law, we conclude that the 1980 Opinion erred in ruling that the
FBI does not have legal authority to carry out extraterritorial law
enforcement activities that contravene customary international law.
First, we conclude that, with appropriate direction, the FBI may use its
broad statutory authority under 28 U.S.C. § 533(1) and 18 U.S.C. § 3052 to
investigate and arrest individuals for violations o f United States law even
if those investigations and arrests are not consistent with international
law. Second, we conclude that the President, acting through the Attorney
General, has inherent constitutional authority to order the FBI to investi
gate and arrest individuals in a manner that departs from international
law. The international law that may be abridged in this manner includes
163
not only customary international law but also Article 2(4) o f the U.N.
Charter and other unexecuted treaties or treaty provisions that have not
become part o f the domestic law o f the United States. Finally, we reaffirm
the conclusion o f the 1980 Opinion that an arrest departing from interna
tional law does not violate the Fourth Amendment, and we further con
clude that an arrest in violation o f foreign law does not abridge the
Fourth Amendment.1
We caution that this memorandum addresses only whether the FBI has
the legal authority to carry out law enforcement operations that contra
vene international law. It does not address the serious policy considera
tions that may weigh against carrying out such operations.
I. The 1980 Opinion
The 1980 Opinion addressed the legal implications o f a proposed oper
ation in which FBI agents would forcibly apprehend a fugitive in a foreign
country that would not consent to the apprehension. That Opinion
acknowledges that 28 U.S.C. § 533(1), the statute authorizing FBI investi
gations, contains no explicit geographical restrictions. It also refers to a
previous opinion issued by this Office that concluded that the statute’s
general authorization to detect and prosecute crimes against the United
States appears broad enough to include such law enforcement activity no
matter where it is undertaken.2 4B Op. O.L.C. at 551. The 1980 Opinion
asserts, however, that customary and other international law limits the
reach o f section 533(1). Under customary international law, as viewed by
the 1980 Opinion, it is considered an invasion o f sovereignty for one
country to carry out law enforcement activities within another country
without that country’s consent. Thus, the Opinion concludes that section
533(1) authorizes extraterritorial apprehension o f a fugitive only where
the apprehension is approved by the asylum state. Id.
1The 1980 Opinion concluded that FBI agents who participate in overseas arrests in violation o f inter
national law might be subject to civil liability Because w e now conclude that FBI agents do have author
ity to engage in such actions, we do not believe they w ill be subject to civil liability. We do not discuss
that issue in this memorandum, however, because the FBI agreed that our opinion concerning the FBI's
substantive authority should precede any analysis o f civil liability issues. See Memorandum fo r John O
McGinnis, Deputy Assistant Attorney General, O ffice o f Legal Counsel, from Margaret Love, Deputy
Associate Attorney General (Mar 15, 1989).
Th e 1980 Opinion also addressed several other issues, including whether bringing a fugitive before the
court b y forcible methods would impair the court’s pow er to try the fugitive. We agree with the 1980
O pinion’s conclusion that, absent cruel o r outrageous treatment, the fact that the fugitive was brought
within the court’s jurisdiction by means o f forcible abduction would not impair the court’s pow er to try
the fugitive. See Pnsbie v Colltns, 342 U.S. 519 (1952); K er v. Illinois, 119 U S. 436 (1886), United States
v. Toscanino, 500 F.2d 267 (2d Cir 1974). We do not reconsider any issues addressed by the 1980 Opinion
that are not specifically discussed in this memorandum.
2 The referenced opinion is a June 8, 1978 Memorandum for the Counselor to the Attorney General,
from the Deputy Assistant Attorney General, Office o f Legal Counsel, on FBI investigative activities in a
foreign country (the “ 1978 Opinion”)
164
The Opinion supports this conclusion with “two distinct but related
lines o f analysis.” Id. at 552. First, citing The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) (Marshall, C.J.), the
Opinion concludes that the authority o f the United States outside its ter
ritory is limited by the sovereignty o f other nations. The Opinion does not
explain the juridical source o f this limitation on the authority o f the
United States. In The Schooner Exchange, however, Chief Justice
Marshall relies on customary international law for many o f his conclu
sions, and this part o f the 1980 Opinion appears to suggest that custom
ary international law imposes absolute jurisdictional limitations on the
United States’ lawmaking authority.
Second, the Opinion implicitly relies on the principle o f statutory con
struction that statutes should be construed, when possible, so as to avoid
conflict with international law. The Opinion notes that a statute imposing
a duty ordinarily is construed to authorize all reasonable and necessary
means o f executing that duty. The Opinion concludes that although the
law enforcement methods at issue may be necessary to carry out the FBI
agents’ duties under section 533(1), those methods are “unreasonable”
and hence, unauthorized, if executed in violation o f international law.
Thus, the Opinion concludes that without asylum state consent, “the FBI
is acting outside the bounds o f its statutory authority when it makes an
apprehension o f the type proposed here — either because § 533 could not
contemplate a violation o f international law or because the powers o f the
FBI are delimited by those o f the enabling sovereign.” Id. at 553.
The 1980 Opinion’s impact on the ability o f the United States to execute
necessary law enforcement operations may be significant. The reasoning
o f the 1980 Opinion would seem to apply to a broad range o f law enforce
ment activities other than forcible apprehension. United States law
enforcement agents frequently are required to travel to foreign countries
to conduct investigative activities or to meet foreign informants. Formal
consent cannot always be obtained from the foreign government, and
indeed, in many cases to seek such consent would endanger both the
agents and their investigation. Although such activities are less intrusive
than forcible apprehension and removal o f the fugitive, under the 1980
Opinion they nonetheless may be viewed as encroachments on the asy
lum state’s sovereignty and hence, violations of international law, if not
authorized by that state. See Ian Brownlie, Principles o f Public
International Law 307 (3d ed. 1979) ( “Brownlie”) ( “Police or tax investi
gations may not be mounted ... on the territory o f another state, except
under the terms o f a treaty or other consent given.”); 6 Marjorie M.
Whiteman, Digest of International Law 179-83 (1968) (describing inci
dents in which American authorities sought and received permission
from host country to interview persons held in foreign custody and to
examine records). Thus, the 1980 Opinion has the potential to preclude
the United States not only from apprehending fugitives in foreign eoun165
tries, but also from engaging in a variety o f more routine law enforcement
activities.
The United States is facing increasingly serious threats to its domestic
security from both international terrorist groups and narcotics traffick
ers. While targeting the United States and United States citizens, these
criminal organizations frequently operate from foreign sanctuaries.
Unfortunately, some foreign governments have failed to take effective
steps to protect the United States from these predations, and some for
eign governments actually act in complicity with these groups.
Accordingly, the extraterritorial enforcement o f United States laws is
becoming increasingly important to the nation’s ability to protect its own
vital national interests.
II. Analysis
A. The Scope o f the F B I’s Statutory Authority
The general investigative authority o f the FBI derives from 28 U.S.C. §
533(1), which provides that “ [t]he Attorney General may appoint officials
to detect and prosecute crimes against the United States.” This provision
was first enacted in 1921 as part o f the Department o f Justice
Appropriations Act, ch. 161, 41 Stat. 1367, 1411 (1921). As originally
enacted, it also provided that the officials appointed by the Attorney
General “shall be vested with the authority necessary for the execution of
[their] duties.” Id. This provision was carried forward in successive
appropriations acts and received permanent codification in 1966. Pub. L.
No. 89-554, § 4(c), 80 Stat. 378, 616 (1966). At that time, the reference to
“necessary” authority was dropped as surplusage because “the appoint
ment o f the officials for the purposes indicated carries with it the author
ity necessary to perform their duties.” H.R. Rep. No. 901, 89th Cong., 1st
Sess. 190 (1965).
The FBI’s arrest authority derives from 18 U.S.C. § 3052,3 which pro
vides:
The Director, Associate Director, Assistant to the
Director, Assistant Directors, inspectors, and agents o f the
Federal Bureau of Investigation o f the Department o f
Justice may carry firearms, serve warrants and subpoenas
issued under the authority o f the United States and make
arrests without warrant for any offense against the United
States committed in their presence, or for any felony cog
nizable under the laws o f the United States if they have rea
3
The 1980 Opinion did not discuss section 3052, apparently believing that section 533(1) also provided
the authonty fo r the FB I’s pow er to make arrests
166
sonable grounds to believe that the person to be arrested
has committed or is committing such felony.
We believe, consistent with earlier opinions o f this Office, that sections
533(1) and 3052 authorize extraterritorial investigations and arrests.4
Section 533(1) has been described as granting “broad general investiga
tive power.” United States v. Marzani, 71 F. Supp. 615, 617 (D.D.C. 1947),
aff’d, 168 F.2d 133 (D.C. Cir.), affd, 335 U.S. 895 (1948) (per curiam).
Section 3052 confers an equally broad arrest power. Neither statute by its
terms limits the FBI’s authority to operations conducted within the
United States.5 Moreover, reading these sections as applying extraterritorially accords with Congress’ intent to give certain criminal statutes
extraterritorial reach.6 In many statutes, Congress has extended the
United States’ substantive criminal jurisdiction extraterritorially. See,
e.g., 18 U.S.C. § 844(i) (enacting penalties for destruction o f property
used in foreign commerce); 18 U.S.C. § 1116(c) (implementing Con
vention on the Prevention and Punishment o f Crimes Against Inter
nationally Protected Persons); 18 U.S.C. § 1203(b)(1) (implementing
Hostage Convention); 49 U.S.C. § 1472(1) (enacting penalties for carrying
weapons or explosives aboard aircraft). These statutes are enforced
principally by the FBI. In order for the FBI to have the authority neces
sary to execute these statutes, its investigative and arrest authority must
have an equivalent extraterritorial scope.7
4 Our 1978 Opinion concluded that section 533(1) authorized extraterritorial investigations, and our
1980 Opinion did not disagree with that conclusion.
6The Court repeatedly has held that Congress’ intent to have its laws apply extraterritorially need not
he explicitly stated where the statute involves the sovereign’s ability to defend itself against cnm cs
against the sovereign See, e g , Blackmer v United States, 284 U S 421, 437 (1932), United States v.
Bowman, 260 U S. 94, 98 (1922).
6Courts frequently have held that Congress has the pow er to criminalize extraterritorial conduct,
whether committed by American citizens or foreign citizens, if the conduct (i) threatens the country’s
security or interferes with governmental operations or (ii) is intended to have an illegal effect in the
United States. See e g , United States v Columba-Colella, 604 F.2d 356, 359 (5th Cir 1979) (collecting
cases), United States v King, 552 F2d 833 (9th Cir. 1976), cert denied, 430 U.S. 966 (1977) As the Court
held in United States v Bowman, cnminal statutes that are enacted because o f the government’s right
to defend itself must apply abroad, otherwise, “to limit their locus to the stnctly territorial junsdiction
would ... greatly curtail the scope and usefulness o f the statute ” 260 U.S at 98 Although Bowman
involved Congress’ prescnptive power, the Court also applied this pnnciple to an enforcem ent action in
Blackmer v. United States Blackmer upheld a contempt citation against an American citizen residing in
France who refused to appear as a witness in a criminal trial. The Court noted that the sovereign’s pow er
to protect itself would be meaningless if the court’s enforcement powers were not coextensive with the
legislature’s pow er to cnminalize the conduct See 284 U.S at 438-39
7Other considerations support this conclusion. As discussed infra at p. 172, a general enabling statute
that confers broad authority on an agency to effectuate core executive functions should, absent explicit
restnction, be read as conferring on the agency authonty that is commensurate with the inherent ex ec
utive functions it is effectuating Since the President’s law enforcement authonty has extraterritonal
scope, the FBI’s basic statutory authority should be read as having the same scope.
It has been suggested to us that because professional bail bondsmen lack power to arrest bail jumpers
outside the tem to ry o f the United States, seeKearv. Hilton, 699 F2d 181, 182 (4th Cir 1983), FBI agents
Continued
167
B. The Effect o f Customary International Law on the F B I’s
Extraterritorial Powers
The 1980 Opinion offers tw o bases for its conclusion that customary
international law limits the FBI’s extraterritorial powers. First, the
Opinion asserts that the FBI’s powers are delimited by those o f the
enabling sovereign and that the United States itself lacks the legal author
ity to take actions that contravene customary international law. The
implication is that both Congress and the Executive are powerless to
authorize actions that impinge on the sovereignty o f other countries.
Second, the Opinion concludes that the FBI’s statutory authority must be
read as constricted by the requirements o f customary international law.
We conclude that both bases fo r decision are erroneous.
1. Effect on the Sovereign’s Power
The 1980 Opinion was clearly wrong in asserting that the United States
is legally powerless to carry out actions that violate international law by
impinging on the sovereignty o f other countries. It is well established that
both political branches — the Congress and the Executive — have, with
in their respective spheres, the authority to override customary interna
tional law. Indeed, this inherent sovereign power has been recognized
since the earliest days of the Republic.
In The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812),
Chief Justice Marshall explicitly stated that the United States has the
authority to override international law. At issue was whether a French
warship was immune from judicial process within the territory o f the
United States. Relying on customary international law, Marshall conclud
ed that it was immune, but stated that the Court had followed these cus
tomary international law principles only in default o f any declaration by
the United States government that they were not to be followed:
It seems then to the Court, to be a principle o f public law,
that national ships o f war, entering the port o f a friendly
power open for their reception, are to be considered as
exempted by the consent o f that power from its jurisdiction.
7(.. continued)
similarly lack extraterritorial arrest authority, regardless o f whether the arrest violates international law.
However, the arrest authority o f professional bail bondsmen is denved from common law, see Taylor v.
Taintor, 83 U.S (16 Wall ) 366, 371 (1872), and thus is amenable to judicial limitation; this does not sug
gest that the F B I’s broad statutory authority under 28 U S C. § 533 and 18 U S.C. § 3052 may be similar
ly limited Indeed, because responsibility fo r the conduct o f foreign relations is vested in the Executive,
not pn vate citizens, it is appropriate that the Executive’s authonty should extend extraterritonally, while
the authority o f bail bondsmen should be deem ed restncted to the boundaries o f the United States.
168
Without doubt, the sovereign of the place is capable of
destroying this implication. He may claim and exercise
jurisdiction, either by employing force, or by subjecting
such vessels to the ordinary tribunals. But until such power
be exerted in a manner not to be misunderstood, the sover
eign cannot be considered as having imparted to the ordi
nary tribunals a jurisdiction, which it would be a breach of
faith to exercise.
Id. at 145-46 (emphasis added).8
Chief Justice Marshall unequivocally reaffirmed the validity o f this
principle in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), in
which he stated:
This usage [the rule o f customary international law] is a
guide which the sovereign follows or abandons at his will.
The rule, like other precepts o f morality, o f humanity, and
even o f wisdom, is addressed to the judgment o f the sover
eign; and although it cannot be disregarded by him without
obloquy, yet it may be disregarded.
Id. at 128 (emphasis added). The understanding that the political branch
es have the power under the Constitution to exercise the sovereign’s right
to override international law (including obligations created by treaty) has
been repeatedly recognized by the courts. See The Paquete Habana, 175
U.S. 677, 700 (1900) (courts must apply customary international law
unless there is a treaty or a controlling executive or legislative act to the
contrary); The Chinese Exclusion Case, 130 U.S. 581, 602 (1889) (noting
that “[t]he question whether our government is justified in disregarding
its engagements with another nation is not one for the determination o f
the courts”); Diggs v. Shultz, 470 F.2d 461, 466 (D.C. Cir. 1972) (stating
that “[u]nder our constitutional scheme, Congress can denounce treaties
if it sees fit to do so”), cert, denied, 411 U.S. 931 (1973); Tag v. Rogers, 267
F.2d 664, 668 (D.C. Cir. 1959) (concluding that “ [w]hen, however, a con
stitutional agency adopts a policy contrary to a trend in international law
or to a treaty or prior statute, the courts must accept the latest act o f that
8
In concluding that the United States does not have the legal authonty to assert extraterritorial
enforcement jurisdiction in violation o f international law, the 1980 Opinion relies exclusively on a state
ment in The Schooner Exchange that the “pow er o f a nation within its own territories, must be traced up
to the consent o f the nation itself. They can flo w from no other legitimate source.” 11 U S. (7 Cranch) at
136. However, this statement was made in connection with explaining that any restriction on an
American court’s jurisdiction over the foreign warship could not flow from an external source, but had
to be based on domestic law. Id The statement thus provides no support fo r the 1980 Opinion’s analysis.
Moreover, the Opinion ignores the case’s explicit recognition o f the principle that a sovereign has the
pow er to act inconsistently with customary international law.
169
agency”), cert, denied, 362 U.S. 904 (1960); The Over the Top, 5 F.2d 838,
842 (D. Conn. 1925) (stating that “[international practice is law only in so
far as we adopt it, and like all common or statute law it bends to the will
o f the Congress”). Leading commentators also agree that the United
States, acting through its political branches, has the prerogative to take
action in disregard o f international law.9
Indeed, the sovereign’s authority to override customary international
law necessarily follows from the nature o f international law itself.
Customary international law is not static: it evolves through a dynamic
process o f state custom and practice. States ultimately adhere to a norm
o f practice because they determine that upholding the norm best serves
their long-run interests and because violation o f the norm may subject
the nation to public obloquy or expose it to retaliatory violations. See
Brow n v. United States, 12 U.S. (8 Cranch) 110 (1814). States necessari
ly must have the authority to contravene international norms, however,
for it is the process of changing state practice that allows customary
international law to evolve.10 As Chief Justice Marshall stated in Brown,
“ [t]he rule is, in its nature, flexible. It is subject to infinite modification. It
is not an immutable rule o f law, but depends on political considerations
which may continually vary.” 12 U.S. (8 Cranch) at 128. If the United
States is to participate in the evolution o f international law, the Executive
must have the pow er to act inconsistently with international law where
necessary. “It is principally the President, ‘sole organ’ o f the United States
in its international relations, who is responsible for the behavior o f the
United States in regard to international law, and who participates on her
9A s P rofessor Henkin has noted, “the Constitution does not forbid the President (o r the Congress) to
violate international law, and the courts w ill give effect to acts within the constitutional powers o f the
political branches without regard to international la w ” Louis Henkin, Foreign Affairs and the
Constitution 221-22 (1972). The Restatement also expressly maintains that Congress by subsequent
enactment may supersede a rule o f international law or international agreement. See Restatement
(T h ird ) o f the Foreign Relations Law o f the United States § 11 5 (l)(b ) (1987) ( “Restatement (Third)")- The
reporters’ notes also agree that “[t]here is authority for the view that the President has the power, when
acting within his constitutional authonty, to disregard a rule o f international law or an agreement o f the
United States/ Id § 1 5 (l)(b ) note 3 W hile the Restatement (Third) does not explicitly address whether
the President or his delegate may violate international law when acting pursuant to statutory rather than
constitutional authonty, this proposition appears to be a direct corollary to the Restatement (Th ird )’s
conclusion with respect to legislative authority. I f Congress has the authonty to enact a statute contrary
to international law, it may also enact a statute that delegates to the Executive authonty that can be exer
cised contrary to international law Thus, w e believe that the Restatement (Third) substantially agrees
w ith our vie w that the political branches, under the authonty o f either constitutional or statutory domes
tic law, legally may act in a manner that is inconsistent with international law
10A recent exam ple involves international territory and econom ic sovereignty over the seas In 1945,
the contiguous sea outside the tem tonal sea (from three to twelve m iles) was generally considered to
be international w aters See Brownlie, supra, at 218. Shortly thereafter, however, a number o f states
began asserting 200-rrule fishery conservation zones Id. These claims were, at times, supported by mili
tary force. Sayre A. Swarztrauber, The Three-Mile L im it o f Territorial Seas 152-77 (1972). The interna
tional law norm that w aters beyond the tem ton al sea w ere not subject to the junsdiction o f the coastal
states collapsed. Restatement (Third), supra, § 5 1 4 (l)(a ). By 1979, there was general acceptance o f an
exclu sive econom ic zone o f 200 miles Brownlie, supra, at 219-20.
170
behalf in the indefinable process by which customary international law is
made, unmade, remade.” Louis Henkin, Foreign Affairs and the
Constitution 188 (1972). Thus, the power in the Executive to override
international law is a necessary attribute o f sovereignty and an integral
part of the President’s foreign affairs power. Indeed, the absence o f such
authority in the Executive would profoundly and uniquely disable the
United States — rendering the nation a passive bystander, bound to fol
low practices dictated by other nations, yet powerless to play a role in
shaping those practices.11
Thus, we think it clear that, contrary to the 1980 Opinion’s assertions,
customary international law does not impose absolute legal limits on the
power of the United States to exercise its law enforcement jurisdiction in
foreign countries. Both the Congress and the President, acting within
their respective spheres, retain the authority to override any such limita
tions imposed by customary international law.
2. Effect on the FBI’s Statutory Authority
We also believe that the 1980 Opinion erred in concluding that the
statutes granting the FBI its investigative and arrest powers must be con
strued as limited by customary international law. The 1980 Opinion notes
that a conventional rule o f statutory construction states that where a
statute prescribes a duty, by implication it authorizes all reasonable and
necessary means to effectuate that duty. 4B Op. O.L.C. at 552. The
Opinion concludes, based principally on the disapproval expressed in
several academic journals, that an extraterritorial apprehension is
“unreasonable,” and hence, unauthorized, when it violates international
law. Id. at 552. In substance, though not explicitly, the 1980 Opinion relies
on the canon o f statutory interpretation — enunciated in Murray v.
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) — that a
11
Because customary international law consists o f evolving state customs and practice, it is an inher
ently uncertain area o f law, from which clear rules rarely emerge Some extraterritorial law enforcement
actions in which the FBI might engage without the foreign country’s consent would not necessarily con
travene international law. For instance, because sovereignty over territory derives not from the posses
sion o f legal title, but from the reality o f effective control, see Brownlie, supra, at 117-18, logic would sug
gest there would be no violation o f international law in exercising law enforcement activity in foreign
territory over which no state exercises effective control In addition, if the United States w ere the target
o f attacks that violated international law, it would be justified in making a proportional unilateral
response, even though its actions might otherwise be contrary to international law See generally
Restatement (Third), supra, § 905(1); U.N. Charter art 51 (recognizing a nation’s inherent right o f selfdefense). Other circumstances may exist, as well, under which extraterritorial law enforcem ent is appro
priate under international law. See generally D Cameron Findley, Abducting Tenvrists f o r Trial in the
United States. Issues o f International and Domestic Law, 23 Tex Int’l L J. 1,25 (1988) (discussing other
such circumstances) In addition, some unilateral actions by the United States, though inconsistent with
pn or international practice, may constitute justifiable efforts by the United States to shape the content
o f international norms. Such unilateral actions may be legitimate means by which the United States sig
nals its rejection o f a putative norm or seeks to gain acceptance fo r an alternative norm.
171
statute should be construed when possible so as not to conflict with
international law.12 We believe this line o f analysis is wholly inapposite.
First, this canon does not apply to the kind o f statutes at issue here.
Sections 533(1) and 3052 are broad authorizing statutes “carrying into
Execution” core Executive powers. See U.S. Const, art I, § 8, cl. 18. In cre
ating the FBI and conferring on it broad investigative and arrest authori
ty, Congress has created an agency through which the President carries
out his constitutionally assigned law enforcement functions. Such gener
al enabling statutes, in the absence o f an explicit restriction, must be read
as conferring on the agency a scope o f authority commensurate with that
o f the Executive. Because, as part o f his law enforcement powers, the
President has the inherent authority to override customary international
law, it must be presumed that Congress intended to grant the President’s
instrumentality the authority to act in contravention o f international law
when directed to do so. Unless Congress places explicit limitations on
the FBI’s investigative and arrest powers, it must be presumed that
Congress did not intend to derogate from Presidential authority by limit
ing those statutory powers.13
This presumption is all the more compelling where, as here, the
President’s foreign relations powers are implicated. Courts have long rec
ognized that delegations o f discretion involving the President’s constitu
tional powers must be construed broadly, especially in matters involving
foreign affairs. See e.g., Dames & Moore v. Regan, 453 U.S. 654, 677
(1981) (Hostage Act and International Emergency Economic Powers Act,
12Actually, M urray v. Schooner Charming Betsy, 6 U S. (2 Cranch) 64 (1804), and Launtzen v Larsen,
345 U S. 571, 578 (1953), are examples o f cases applying the general rule o f construction that prescrip
tive statutes not expressly purporting to apply extraterritorially ordinarily w ill not be presumed to have
such an effe ct The presumption anses in those cases where it is apparent that extraterritorial applica
tion o f a legal prohibition would gratuitously interfere with the sovereignty o f foreign countries, while
not advancing the United States’ interest in preserving its own sovereignty In Schooner Charming Betsy,
fo r example, the Court held that a non-intercourse act prohibiting trade between the United States and
France could not be applied to justify seizure o f a Danish ship 6 U.S (2 Cranch) at 118. To d o so would
have needlessly infringed on Danish sovereignty without protecting the interest o f the United States in
prohibiting its own citizens from trading with an enemy. However, such cases certainly cannot be read
as suggesting that Congress does not have the power to enact statutes with extraterritorial effect. Nor do
such cases apply w here Congress actually intends a statute to have extraterritorial reach See Blackmer
v. United States, 284 U S. at 437, United States v. King, 552 F.2d at 850-51.
13The court in United States v Postal, 589 F.2d 862 (5th Cir.), cert denied, 444 U.S. 832 (1979), recog
nized the need to apply enforcement statutes broadly to effectuate Congress’ intent to reach certain drug
trafficking. It held that the statute granting the power to search and seize vessels m all cases in “‘which
the United States has jurisdiction,’" for purposes o f enforcing United States law, granted authonty to the
Coast Guard to seize vessels in violation o f Article 22 o f the Convention on the High Seas Id. at 884 (quot
ing 14 U S C. § 89(a) (1976)). (The United States was a party to that Convention, but the Court held it was
non-self-executing) The Court based this conclusion on an earlier decision in which it had construed the
statute as granting “junsdiction” in the typ e o f case at issue — a conspiracy to violate federal narcotics
statutes. Id. at 884. Indeed, since the cou rt viewed the statute as ‘“ intended to give the Coast Guard the
broadest authonty available under law,’” it held that a Coast Guard regulation requiring boarding o f ves
sels only in conform ity with a treaty could not be applied to limit the Coast Guard’s authonty under the
statute. Id at 885 (quoting United States v. Warren, 578 F2d 1058, 1068 (5th Cir. 1978) (en banc))
172
although not providing specific authorization for the President’s actions,
are still relevant because they “indicate] congressional acceptance o f a
broad scope for executive action” in settling claims against Iran);
Sordino v. Federal Reserve Bank of New York, 361 F.2d 106, 111 (2d Cir.),
cert, denied, 385 U.S. 898 (1961) (noting that especially with respect to
foreign affairs, statutory delegations of power to the President must be
read more broadly than other delegations). See Chicago & Southern A ir
Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 110-14 (1948)
(denying availability o f judicial review over presidential decisions based
on statutory authority involving broad foreign policy matters); see also
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)
(upholding broad statutory delegation that implicated President’s foreign
affairs responsibilities).14
In contrast, the 1980 Opinion reverses the presumptions o f our constitu
tional system. The Opinion imputes to Congress an intent to make the
scope o f domestic legal authority for law enforcement operations depend
on the vague and fluctuating standards of international custom. In effect,
this would delegate to foreign nations the power to define, on a continuing
basis, the content o f United States law, according to standards that are out
side the direct control o f the political branches. Such an intent should not
be presumed. To the contrary, Congress must be presumed to entrust such
vital law enforcement decisions directly to the democratically accountable
President and his subordinates. See Chevron, U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837 (1984) (holding that it is for the executive
branch, not the judiciary, to make policy choices within the ambit o f dele
gated statutory authority when Congress has not spoken).
In enacting sections 533(1) and 3052, Congress was legislating against
the background o f the well-recognized principle that international law is
part o f the law o f the United States only insofar as it has not been over
ridden by actions o f the political branches. In The Paquete Habana,
Justice Gray stated:
International law is part o f our law, and must be ascer
tained and administered by the courts o f justice o f appro
priate jurisdiction, as often as questions of right depending
upon it are duly presented for their determination. For this
purpose, where there is no treaty, and no controlling exec
14 Two recent cases refusing to apply statutory enforcement jurisdiction abroad are inapposite. See
Commodity Futures Tt'ading Comm’n v. Nalias, 738 F.2d 487, 493 (D.C. Cir. 1984) (C F T C could not
enforce investigative subpoena on foreign citizen in a foreign nation), FTC v. Compagnie de SamlGobam-Pont-a-Mousson, 636 F.2d 1300, 1324-27 (D C Cir 1980) (F TC could not enforce document sub
poena on a foreign citizen residing abroad). In each case, the agency whose authority was at issue was
an independent agency that exercised statutory authority thought to be shielded from direct presidential
control. Thus, the statutory authorities at issue in those cases, unlike those exercised by the FBI, may
not have been understood to effectuate directly the Presidents constitutional authority, and thus need
not be interpreted as commensurate with that authority.
173
utive or legislative act or judicial decision, resort must be
had to the customs and usages o f civilized nations ....
175 U.S. at 700 (emphasis added). Thus, the Court held that United States
forces unlawfully had seized Cuban fishing vessels as prizes o f war where
such vessels were “exempt by the general consent o f civilized nations
from capture, and ... no act o f Congress or order o f the President ha[d]
expressly authorized [such an action] to be taken.” Id. at 711.
In 1986, the Eleventh Circuit applied The Paquete Habana to uphold
executive branch action taken pursuant to a broad statutory delegation in
circumstances analogous to those here. In Garcia-Mir v. Meese, 788 F.2d
1446 (11th Cir.), cert, denied, 479 U.S. 889 (1986), the issue was whether
the United States was authorized to detain indefinitely Cuban aliens who
had arrived as part o f the Mariel boatlift, notwithstanding that such a
detention violated customary international law.
The Attorney General ordered the detention pursuant to 8 U.S.C.
§ 1227(a), which, like 28 U.S.C. § 533(1) and 18 U.S.C. § 3052, contained
a broad grant o f authority to the Attorney General, but did not specifical
ly authorize indefinite detention.15 With respect to one group o f the
Mariel detainees, the court concluded that there was insufficient evi
dence o f an express congressional intention to override international law.
Id. at 1453-54.16 The court found, however, that the Attorney General’s
decision to incarcerate them indefinitely constituted a “controlling exec
utive act” o f the kind required by The Paquete Habana, and the court thus
found that the detention was lawful. Id. at 1454. Garcia-Mir therefore
may be understood as holding that the Executive acting within broad
statutory discretion may depart from customary international law, even
in the absence o f an affirmative decision by Gongress that international
law may be violated.17Accordingly, we believe that Garcia-Mir provides
15 The relevant portion o f 8 U S.C § 1227(a) provides that u[a]ny alien
arriving in the United States
w h o is excluded under this chapter, shall be immediately d ep orted ,. . unless the Attorney General, in an
individual case, in his discretion, concludes that immediate deportation is not practicable or proper.”
1CAs to another group o f Manel Cubans — those who had been incarcerated continuously since their
arrival in the United States — the court concluded that Pub L No. 96-533, tit VII, § 716, 94 Stat. 3131,
3162 (1980), provided sufficient evidence o f congressional intention to override international law. See 788
F.2d at 1453-54 n 9.
17 There are tw o different ways to read the holding in Gaixda-Mir. One is that the Executive has broad
discretionary authority, pursuant to general power delegated by statute, to determine whether to act incon
sistently with international law Certain language in the district court’s decision suggests that it viewed the
“controlling executive act” as having been taken pursuant to statutory authorization. See Femandez-Roque
v. Smith, 622 F. Supp 887,903 (N D. Ga. 1985) ( “[T]his Court is reluctant to hold that the Attorney General’s
involvement in plaintiffs' detention cannot be considered a ‘controlling executive act,’ especially since
Congress has delegated to the Attorney General broad discretion over the detention o f unadmitted aliens.”)
In affirming, the Eleventh Circuit may have intended to adopt the statutory rationale
Alternatively, G arcia -M ir may be understood as holding that the President has inherent constitutional
authonty, independent o f the statutory grant o f power, to determine whether to act inconsistently with
international law. The Eleventh Circuit quoted a draft o f the Restatement referring to the President
Continued
174
additional support for the proposition that broad statutory grants o f
Executive authority must be interpreted in light o f the political branches’
inherent power to override international norms.18
In sum, then, we conclude that the FBI has authority under sections 533(1)
and 3052 to cany out overseas investigations and arrests that contravene
customary international law. Those statutes do not explicitly require the FBI
to conform its activities to customary international law, and there is no basis
for gratuitously assuming that Congress intended to impose such limitations
on the FBI. On the contrary, in view of the President’s authority to override
customary international law, it must be presumed that Congress granted the
FBI commensurate statutory authority.19
17(...continued)
“acting within his constitutional authonty” in support o f its holding, see 788 F.2d at 1454-55, and it may
therefore have been relying on the President’s inherent constitutional authority This is the interpretation
o f G aivia-M ir adopted by the Restatement (Third), supra, § 115, note 3, and particularly by the C hief
Reporter. See Louis Henkin, The Constitution and United States Sovereignty A Century o f Chinese
Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 883-86 (1987) ( “ Henkin”). We think that the decision
in Garcia-M ir is correct under either interpretation
Professor Henkin disagrees with the result in Garcia-M ir because he does not believe that the
President has an inherent constitutional authority to exclude aliens. See id at 884 n 131. We disagree on
this specific point with Professor Henkin. See United States ex rel Knaujfv. Shaughnessy, 338 U S. 537,
543 (1950) ( “[T]h e pow er o f exclusion o f aliens is also inherent in the executive department o f the sov
ereign ..”); see also Nishimura Ekiu v. United Stales, 142 U S. 651,659 (1892). In any event, this debate
pertains only to the particular issue in Garcia-Mir, it does not go to the basic question o f whether the
President has inherent constitutional authonty to violate customary or other international law — a
proposition with which both the Restatement (Third) and Professor Henkin agree. Restatement (Third),
supra, § 115, note 3; Henkin, supra, at 882 ( “Thus, a domestic court espousing this view would not, fo r
example, eryoin the President from directing United States officers to overfly another country’s tem tory without that country’s con sen t... or to kidnap a wanted cnminal from a foreign country . (but] would
have to accept such directives as an exercise by the President
o f the prerogative o f the United States
to take such measures regardless o f its international obligations.”).
18Recent legislation reflects Congress’ intent that the United States be able to exercise its law enforce
ment powers abroad when necessary to counter international terrorism. For instance, in introducing leg
islation (now codified at 18 U S C § 2331) to criminalize murder and other acts against U S. nationals
committed abroad, Senator Specter noted that
In many cases, the terronst murderer will be extradited or seized with the cooperation o f
the government in whose junsdiction he or she is found Yet, if the terrorist is hiding in a
country like Lebanon, w here the government, such as it is, is powerless to aid in his removal,
or in Libya, where the Government is unwilling, we must be willing to apprehend these cnminals ourselves and bnng them back fo r tnal
131 Cong Rec. 18,870 (1985)
19We do not here discuss limitations on the scope o f the FBI’s authonty for such actions that may be
denved from other statutes We know o f no provisions by which Congress generally has prohibited the
use o f agents to enforce United States laws contrary to pnnciples o f customary international law. We
believe, however, that such provisions would have to be quite explicit before they would be so construed,
because the extratem tonal enforcement o f United States laws relates to tw o areas o f the President’s con
stitutional authority — the conduct o f foreign relations and his duty to execute the laws See Youngstown
Sheet & Tube Co v Sawyer, 343 U S. 579, 645 (1952) (Jackson, J., concum ng) ( “I should indulge the
widest latitude o f interpretation to sustain [the President’s] exclusive function to command the instru
ments o f national force, at least when turned against the outside world for the secunty o f our society.”).
For example, w e do not believe that the Mansfield Amendment circumscnbes the FBI’s authonty to make
arrests abroad fo r violations o f United States anti-drug laws, because its restrictions relate solely to
United States participation in operations to enforce foreign anti-dmg laws See 22 U S C § 2291(c).
175
C. The President’s Constitutional Power to Authorize Actions
Inconsistent with Customary International Law
We believe that the 1980 Opinion also erred because it failed to con
sider the President’s inherent constitutional power to authorize law
enforcement activities. Pursuant to the constitutional command to “take
Care that the laws be faithfully executed,”20 the President has the power
to authorize agents o f the executive branch to engage in law enforcement
activities in addition to those provided by statute.
The Court so held in In re Neagle, 135 U.S. 1 (1890). There, the life o f
Justice Field had been threatened, and as a result, the Attorney General
assigned a Deputy United States Marshal to accompany the Justice. Id. at
42-52. While performing the duties assigned to him by the Attorney
General, Neagle shot and killed a man whom he believed was about to
attack Justice Field. Id. at 52-53. Neagle was arrested and charged with
murder by California authorities.
The Court assumed that the authorizing statute did not empower the
U.S. Marshals or their deputies to accompany and guard Supreme Court
Justices as they traveled through their circuits. Id. at 58. Nevertheless,
the Court held that the constitutional command that the President “shall
take Care that the laws be faithfully executed” gave him the power to
authorize agents o f the executive branch to take enforcement actions in
addition to those provided by statute. Id. at 63-64. The Court concluded
that the President’s constitutional duty is not limited to the enforcement
o f acts o f Congress or treaties according to their terms, but that it
extends also to the “rights, duties and obligations growing out o f the
Constitution itself, our international relations, and all the protection
implied by the nature of the government under the Constitution.” Id. at
64-67. The Court thus concluded that the President had the legal author
ity, acting through the Attorney General, to direct the Deputy Marshal’s
actions, and that the authority overrode any contrary California law. Id.
at 67-68.21
20 U.S. Const, art. n, § 3.
21 See also United Stales ex ret Martinez-Angosto v. Mason, 344 F.2d 673, 688 (2d Cir. 1965) (Friendly,
J., concurring) (noting that congressional silence did not preclude the inference that the President has
the p o w e r to decide w hether to follow provisions o f a non-self-executing treaty)
Durand v. Hollins, 8 F. Cas. I l l (C C.S D N Y. 1860) (N o . 4,186) is also apposite. In 1854, Lieutenant
Hollins o f the U.S.S. Cyane ordered the bombardment o f Greytown, Nicaragua in retaliation for the fail
ure o f local authorities to make reparation fo r a mob attack on the United States Consul. Hollins was
then sued for the value o f property alleged to have been destroyed in the bombardment Justice Nelson,
on circuit, held Hollins not liable on the grounds that he was acting pursuant to orders o f the President
and the Secretary o f the Navy He ruled that
A s the Executive head o f the nation, the President is made the only legitimate organ o f the
general government, to open and carry on correspondence o r negotiations with foreign
nations, in matters concerning the interests o f the country or o f its citizens It is to him, also,
that citizens abroad must look fo r protection o f person and o f property, and fo r the faithful
Continued
176
The Neagle Court pointed particularly to the President’s power in the
area o f foreign affairs as an area in which there exists considerable inher
ent presidential power to authorize action independent o f any statutory
provision. See id. at 64. The Court’s decision reflects the fundamental
principle stated by John Jay that “ [a]ll constitutional acts o f power,
whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the legislature.”
The Federalist No. 64, at 394 (John Jay) (Clinton Rossiter ed., 1961).
This Office also has previously opined that the President, pursuant to
his inherent constitutional authority, can authorize enforcement actions
independent o f any statutory grant o f power. See Memorandum for
Wayne B. Colbom, Director, United States Marshals Services, from
Leon Ulman, Deputy Assistant Attorney General, Office o f Legal
Counsel, Re: Law Enforcement Authority o f Special Deputies
Assigned to D O T to Guard Against A ir Privacy (Sept. 30, 1970) (the
“ 1970 Opinion”). In that opinion, this Office ruled that the President’s
inherent constitutional authority permitted Department o f Trans
portation personnel to be deputized as Deputy U.S. Marshals and autho
rized to carry firearms, to take necessary action to prevent air piracy
while an American carrier is in flight anywhere in the world, and to
make arrests for violations o f United States laws regarding air piracy
and related offenses. Id. at 1. The opinion recognized that there was no
statute expressly authorizing this protection and enforcement action.
Id. at 2.22 Relying on In re Neagle and In re Debs, 158 U.S. 564, 581
(1895), however, it concluded that “since the United States has jurisdic
tion to punish air piracy and related offenses, it likewise has inherent
authority to take reasonable and necessary steps to prevent these
offenses.” 1970 Opinion at 2-3. In its analysis, the 1970 Opinion noted
that “the exercise o f their authority ... could give rise to conflicts with
the countries involved o f an international nature. But this would not, in
21 (
continued)
execution o f the laws existing and intended for their protection. For this purpose, the whole
executive pow er o f the country is placed in his hands, under the constitution, and the laws
passed in pursuance thereof; and different departments o f government have been organized,
through which this power may be most conveniently executed, whether by negotiation or by
force — a department o f state and a department o f the navy.
Now, as respects the interposition o f the executive abroad, for the protection o f the lives
or property o f the citizen, the duty must, o f necessity, rest in the discretion o f the president
Acts o f lawless violence, or o f threatened violence to the citizen or his property, cannot be
anticipated and provided for, and the protection, to be effectual or o f any avail, may, not
unfrequently, require the most prompt and decided action. Under our system o f Government,
the citizen abroad is as much entitled to protection as the citizen at home The great object
and duty o f government is the protection o f the lives, liberty, and property o f the people com
posing it, whether abroad or at home, and any government failing in the accomplishment o f
the object, or the performance o f the duty, is not worth preserving
Id at 112
22The authonzing statute o f the U S. Marshals, 18 U S.C. § 3053, like 28 U S C § 33(1) and 18 U S.C
3052, contains no express extraterritorial arrest or enforcement authonty
177
our view, affect the legality o f their actions under U.S. domestic law.”
Id. at 6.23
Accordingly, we believe that even if sections 533(1) and 3052 are con
strued as authorizing enforcement action only within the limits imposed
by international law, the President retains the constitutional authority to
order enforcement actions in addition to those permitted by statute. As
discussed supra pp. 168-71, this constitutional authority carries with it
the pow er to override customary international law. Thus, Executive
agents, when appropriately directed pursuant to the President’s constitu
tional law enforcement authority, may lawfully carry on investigations
and make arrests that contravene customary international law.
D. The Status o f Article 2 (4 ) o f the U.N. Charter and Other
Unexecuted Treaties or Treaty Provisions
To this point, we have discussed the Executive’s power to override cus
tomary international law. Another issue is whether Article 2(4) o f the
U.N. Charter would prohibit the Executive as a matter o f domestic law
from authorizing forcible abductions absent acquiescence by the foreign
government.24 We do not believe that it does.
The text o f Article 2(4) does not prohibit extraterritorial law enforce
ment activities, and we question whether Article 2(4) should be con
strued as generally addressing these activities. Nevertheless, even if
Article 2(4) were construed as prohibiting certain forcible abductions, we
believe that the President has the authority to order such actions in con
travention o f the Charter.
Treaties that are self-executing can provide rules o f decision for a
United States court,25 see Cook v. United States, 288 U.S. 102, 112 (1933),
but when a treaty is non-self-executing, it “addresses itself to the politi
cal, not the judicial department; and the legislature must execute the
[treaty] before it can become a rule for the Court.” Foster v. Neilson, 27
U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.). Accordingly, the decision
whether to act consistently with an unexecuted treaty is a political issue
23 We understand that as a matter o f international law the United States may exercise jurisdiction on
United States carriers flying over foreign territories Convention on Offenses and Certain Other Acts
Com m itted On Board Aircraft, Sept 14, 1963, art. 3, 20 U S.T. 2941, 2944 The 1970 Opinion, however, did
not rely on the Convention and, to the contrary, appeared to assume that exercise o f such junsdiction
would be view ed as infringing on the sovereignty o f other nations,
24A rticle 2 (4 ) provides:
A ll M em bers shall refrain in their international relations from the threat or use o f force
against the tem toria l integnty or political independence o f any state, or in any other manner
inconsistent with the Purposes o f the United Nations.
U.N. Charter, art 2, U 4.
25See Restatem ent (Th ird ), supra, § 111, introductory note (declaring that “ [ujnder the Supremacy
Clause, self-executed treaties concluded by the United States becom e law o f the United States”), id, §
111, com m ent h (noting that unexecuted treaty does not furnish a rule o f decision in the United States).
178
rather than a legal one,26 and unexecuted treaties, like customary inter
national law, are not legally binding on the political branches. The
President, acting within the scope o f his constitutional or statutory
authority, thus retains full authority to determine whether to pursue
action abridging the provisions o f unexecuted treaties.27
We agree with the 1980 Opinion that Article 2(4) is not self-executing.28
4B Op. O.L.C. at 548. See also Sei F u jii v. State, 242 P.2d 617, 620 (C a l
1952) (human rights provisions o f U.N. Charter not self-executing);
Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C. 1958), affd, 278 F.2d
252 (D.C. Cir.), cert, denied, 364 U.S. 835 (1960) (finding other sections of
Charter not self-executing). Article 2(4) relates to one o f the most funda
mentally political questions that faces a nation — when to use force in its
international relations. For these reasons, we conclude that as a matter
o f domestic law, the Executive has the power to authorize actions incon
sistent with Article 2(4) o f the U.N. Charter.29
E. The President’s Ability to Delegate to the Attorney General the
Power to Authorize Enforcement Actions Inconsistent with
International Law
Even though the Constitution vests the “executive power” in the
President, see U.S. Const, art. II, § 1, we do not believe that the President’s
statutory or constitutionally based Executive power to override custom
ary or other international law can be exercised only by him. Rather, we
believe that this Executive power can be exercised by the Attorney
General as well, and that this conclusion obtains regardless o f whether
26O f course, there may be significant political reasons for not abridging an unexecuted treaty, ju st as
the President may decide it is politically unwise to act inconsistently with customary international law.
Such political decisions necessarily depend on the facts o f each case, and w e do not address their rami
fications here.
27As discussed above, law enforcement activities outside the United States implicate the President’s
constitutional authority to conduct the international relations o f the United States and to execute our
laws Pursuant to these constitutional authorities, the President has the pow er to decide whether o r not
to operate within the terms o f an unexecuted treaty If the President acts inconsistently with the terms
o f a treaty, the treaty is not automatically terminated. It may simply mean that the treaty is rendered inop
erative to the extent it is inconsistent with the President’s actions. In any event, the determination o f
whether a treaty has been rendered inoperative is largely a decision made by the Executive as part o f the
conduct o f the foreign relations o f the United States. C f Charlton v Kelly, 229 U S 447 (1913) (holding
that the President must decide whether the actions o f a foreign government have voided a treaty)
28The 1980 Opinion speaks somewhat loosely o f the U N Charter not being “a self-executing treaty.”
4B Op. O L C at 548. More properly, the question should be whether individual provisions o f the treaty
are self-executing See, e g , United States v Postal, 589 F.2d at 884 n 35.
29We do not address the effect on the FBI’s authority o f treaties that have become part o f United States
law, either because they are self-executing or because they have been implemented by legislation. As
noted above, such treaties do have domestic legal effect, although they can be denounced by the
Executive. C f The Chinese Exclusion Case, 130 U S. 581 (1889). See also Louis Henkin, Foreign Affairs
and the Constitution, supra, at 171 We are unaware, however, o f any treaties o f general application that
would limit the law enforcement authority o f the United States. Applicable treaties should, o f course, be
examined in the context o f any particular operation.
179
the authority is viewed as derived from statute or from the President’s
inherent constitutional authority.
Section 533(1) designates the Attorney General as the responsible
executive branch official. Thus, all enforcement action authorized pur
suant to this statute, including enforcement action that departs from cus
tomary or other international law, may be undertaken by the Attorney
General.30 The Garcia-Mir decision, confirmed this conclusion by hold
ing that the Attorney General performed the “controlling executive act”
that sufficed to override customary international law in that case. 788
F.2d at 1454-55.
The Attorney General also may exercise the President’s constitutional
pow er to override customary international law because “ [t]he President
speaks and acts through the heads o f the several departments in relation
to subjects which appertain to their respective duties.” Wilcox v.
Jackson, 38 U.S. (13 Pet.) 498, 513 (1839). See also Wolsey v. Chapman,
101 U.S. 755, 769 (1879). Specific direction from the President, or even
explicit invocation o f his authority, cannot reasonably be expected and is
not generally required. 7 Op. A tt’y Gen. 453, 480-82 (1855).31
Thus, we believe that the Attorney General has the power to authorize
departures from customary o r other international law in the course o f
law enforcement activities and that the President need not personally
approve such actions. We would not recommend, however, that the
Attorney General delegate the authority to more subordinate officials.
Even if he is viewed as exercising statutory authority pursuant to section
533(1) or section 3052, we think that as a prudential matter the Attorney
General should, in this case, exercise it personally. Decisions such as
G a rcia-M ir rely on the theory that the Executive has the constitutional
authority to make political decisions affecting our international relations.
To the extent that such decisions are made by officials below cabinet
rank, however, the factual basis for this theory may be weaker.
Specifically, we recommend that any overseas law enforcement activi
ty that presents a significant possibility o f departing from customary or
other international law be approved directly by the President or the
Attorney General. As an administrative matter, the Attorney General may
30The sam e is true with respect to section 3052.
31In re Neagle, provides an example o f a case in which the Court upheld the exercise by the Attorney
General o f the President’s inherent constitutional authority 135 U.S at 67-68. More recent examples are
the cases upholding the President’s constitutional authonty to order warrantless wiretaps relatmg to for
eign intelligence activities. United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert denied, 419
U.S. 881 (1974), United States v. Brown, 484 F2d 418 (5th Cir. 1973), cert denied, 415 U.S. 960 (1974);
United States v. Truong, 629 F.2d 908 (4th Cir. 1980), cert denied, 454 U S 1144 (1982); United States v
Buck, 548 F.2d 871 (9th Cir.), cert denied, 434 U.S. 890 (1977). In all o f these cases, the warrantless w ire
taps w ere ordered by the Attorney General, and the courts accepted his authority to act on behalf o f the
President. See also United States v. Ehrlichman, 546 F2d 910, 925-26 (D C Cir. 1976), cert denied, 429
U S . 1120 (1977) (holding that, if a national security exception for warrantless foreign intelligence
searches exists, such searches must be authorized by the President or by “his alter ego for these matters,
the A ttorney General”).
180
wish to promulgate guidelines specifying what actions could be taken by
the FBI overseas, when consent should be obtained from foreign govern
ments, and when such consent need not be obtained. Such guidelines
also could provide general authorization for certain types of non-intrusive
law enforcement activities (such as interviews with informants) in for
eign countries that nonetheless might depart from customary interna
tional law if not authorized by the foreign government. Nevertheless, it
would be prudent for such guidelines to require individual approval by
the Attorney General for any operation, such as an apprehension and
abduction, that would involve the use o f force in the territory o f another
country without that country’s consent.
F. International and Foreign Law and the Fourth Amendment
The 1980 Opinion concluded that an arrest in violation o f customary
international law did not violate the Fourth Amendment.32 4B Op. O.L.C.
at 554 n.34. We agree. The Opinion did not address whether the violation
o f foreign statutes or other law would create a Fourth Amendment viola
tion.33 We conclude that it would not.
The central question is whether an arrest that violates international law
or foreign statutory law is “unreasonable” within the meaning of the
Fourth Amendment’s proscription o f unreasonable searches and
seizures. The Fourth Amendment is an autonomous rule o f federal law
that represents a judgment by the United States as to the appropriate bal
ance between individual rights and the authority o f the government to
enforce the law. The Court recently held that state standards for reason
able searches and seizures are irrelevant to determining whether the
32The Bill o f Rights applies to actions o f American officials directed at American nationals overseas
Reid v Covert, 354 U S 1, 5-6 (1957). There remains some dispute as to the extent to which the Bill o f
Rights, particularly the Fourth Amendment, applies to actions o f American officials directed at non
resident aliens overseas Compare Steven A. Saltzburg, The Reach o f the B ill o f Rights Beyond the Terra
F iim a o f the United States, 20 Va J. Int’ l L. 741 (1980) ( “Saltzburg") with Paul B. Stephan III,
Constitutional L im its on International Rendition o f Crim inal Suspects, 20 Va J Int’ l L. 777 (1980)
( “Stephan”) and Paul B Stephan III, Constitutional Lim its on the Struggle Against International
Terrorism: Revisiting the Rights o f Overseas Aliens, 19 Conn L. Rev 831 (1987) The Supreme Court
recently granted certiorari in a case holding the Fourth Amendment applicable to warrantless searches
by DEA officials o f foreign nationals in their ow n country. United States v. Verdugo-Urquidez, 856 F2d
1214 (9th Cir 1988), [rev’d, 494 U S. 259 (1990)]. We are addressing here, however, only the general ques
tion o f whether a violation o f foreign or international law results in a violation o f the Fourth Amendment,
regardless o f whether the individual arrested is a citizen or alien
33Presumably this omission was based on the Opinion’s conclusion that the FBI had “the authonty to
violate the local law o f another country as long as that country does not object." 4B Op O.L.C at 552
n.29 This conclusion was principally based on the notion that it is for the sovereign, not an individual,
to determine whether objection should be made to an infnngement on sovereignty Id. While we think
this analysis correctly resolves any question o f violation o f international law, it does not necessarily
answer the Fourth Amendment question, fo r it is at least theoretically possible that the Fourth
Amendment itself contains a requirement that arrests comply with applicable foreign laws I f such a nght
were contained m the Fourth Amendment, it is difficult to see how a foreign government could extin
guish the individual’s nght by failing to object. We address this issue in the text infra
181
Fourth Amendment has been violated. California v. Greenwood, 486 U.S.
35 (1988). The Court stated:
We reject respondent’s] ... alternative argument for affir
mance: that his expectation of privacy ... should be deemed
reasonable as a matter o f federal constitutional law because
the warrantless search and seizure ... was impermissible as
a matter o f California law .... We have never intimated ... that
whether or not a search is reasonable within the meaning of
the Fourth Amendment depends on the law o f the particular
State in which the search occurs.... Respondent’s argument
is no less than a suggestion that concepts o f privacy under
the laws o f each State are to determine the reach o f the
Fourth Amendment. We do not accept this submission.
Id. at 43-44. See also Oliver v. United States, 466 U.S. 170, 183-84 (1984)
(police officers who trespassed upon posted and fenced land did not vio
late the Fourth Amendment, even though their action was subject to
criminal sanctions); Olmstead v. United States, 277 U.S. 438, 466-69
(1928) (illegality o f a wiretap under state law irrelevant in considering
whether evidence was inadmissible under the Fourth Amendment);
Hester v. United States, 265 U.S. 57, 59 (1924) (trespass in “open fields”
does not violate the Fourth Amendment). By analogy, the standards
imposed by the Fourth Amendment, insofar as it applies abroad, see Reid
v. Covert, 354 U.S. 1, 5-6 (1957), must be determined by United States law.
It would be contrary to the Fourth Amendment’s purpose to incorpo
rate into it rules o f international law or analogous foreign statutes autho
rizing only local law enforcement officers to investigate and arrest. Such
laws would have as their purpose the protection o f another country’s sov
ereignty. In contrast, the Fourth Amendment is concerned with the pro
tection o f individual rights. As the Fifth Circuit has stated:
Whether the search and seizure were Fourth-Amendmentunreasonable must be established by showing that the
interests to be served by the Fourth Amendment were vio
lated, and not merely by establishing the violation o f gener
al principles o f international law.
United States v. Cadena, 585 F.2d 1252, 1264 (5th Cir. 1978).34
34 In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), the court reviewed whether evidence
derived from wiretaps illegal under Philippine law was subject to the exclusionary rule Without analy
sis, the court stated that the “local law o f the Philippines governs whether the search was reasonable ”
Id. at 491 We do not accept this automatic incorporation o f local law into the Fourth Amendment,
because it is inconsistent with California v. Greenwood, 486 U.S. 35 (1988). Moreover, the statement in
Peterson was o f no consequence to the decision because the court proceeded to admit the evidence
under the good faith exception to the exclusionary rule. 812 F2d at 491-92.
182
We believe that the requirements o f the Fourth Amendment are met
when officers with authority under United States law arrest with probable
cause.35See United Slates v. Reed, 639 F.2d 896, 902 & n.2 (2d Cir. 1981).
Section 3052 of title 18 authorizes agents of the FBI to arrest without war
rant if probable cause exists, which is all the Constitution requires, at least
for an arrest in a public place. United States v. Watson, 423 U.S. 411, 41417 (1976); Henry v. United States, 361 U.S. 98, 100 (1959).36
Accordingly, we conclude that an arrest in violation o f foreign law does
not violate the Fourth Amendment.37 In addition, based on the analysis in
the 1980 Opinion, we reaffirm that an arrest departing from international
law does not violate the Fourth Amendment.
IV. Conclusion
This Office concludes that at the direction o f the President or the
Attorney General the FBI may use its statutory authority under 28 U.S.C.
§ 533(1) and 18 U.S.C. § 3052 to investigate and arrest individuals for vio
lations o f applicable United States law, even if those actions depart from
customary international law or unexecuted treaties. Moreover, we con
clude that the President, acting through the Attorney General, has inher
ent constitutional authority to deploy the FBI to investigate and arrest
individuals for violations o f United States law, even if those actions con
travene international law. Finally, we conclude that an arrest that is
35
There is som e doubt whether the Fourth Amendment standard includes a requirement o f domestic
law authority to arrest. The 1980 Opinion concluded that it does 4B Op O L C at 553-54. That Opinion
relied principally on United States v. D i Re, 332 U S 581, 589-92 (1948), a case involving exclusion o f ev i
dence obtained incident to an unauthorized arrest by federal officials. But it is not clear that Di Re was
a Fourth Amendment decision, and it is also unclear that the-Constitution requires statutory or other
authonty to arrest. See 1 Wayne R. LaFave, Search- and Seizure § 1 5(b) at 107 (2d ed. 1987) (concluding
that D i Re is not a Fourth Amendment case but “simply an instance o f the court utilizing its supervisory
pow er to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional
federal arrest”). C f George E Dix, Fourth Amendment Federalism: The Potential Requirement o f State
Law Authorization fo r Law Enforcement Activity, 14 Am J. Crim L. 1, 10 (1987) ( “There is consider
able d o u b t.
as to whether the Court has . . committed itself to the position that the fourth amendment
reasonableness o f an arrest depends upon the existence o f state Jaw and the arrest’s validity under that
law.”). In any event, as w e have previously stated, w e believe that authority exists for the Executive to
authorize the FBI to make arrests in foreign countnes
3r’ As to an arrest in a non-public place, there are circumstances in which an arrest warrant is required.
Payton v New York., 445 U S 573, 576 (1980). While presumably an arrest warrant often could be
obtained, there are limitations to the extraterritonal junsdiction o f the magistrate’s writ See 18 U.S C §§
3041-3042 Commentators have questioned, however, whether the warrant requirements o f Payton and
other cases should apply overseas. See Saltzburg, supra, 20 Va J Int’l L. at 762; Stephan, supra, 20 Va. J
Int’l L at 792 n.44
37 We note that fear that our agents w ill be extradited for violations o f foreign law during an en force
ment operation authonzed by the President or the Attorney General is not a warranted concern The
Secretary o f State always has discretion to refuse to extradite, even if the offense is covered by an extra
dition treaty entered into with another country See 18 U S C. § 3186 (Secretary o f State “may” extradite
the person committed under section 3184); Stndona v Grant, 619 F.2d 167 (2d Cir 1980), Wacker v.
Bisson, 348 F.2d 602, 606 (5th Cir 1965).
183
i
inconsistent with international or foreign law does not violate the Fourth
Amendment.
WIT J JAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
184 |
|
Write a legal research memo on the following topic. | Presidential Authority to Permit the Withdrawal of
Iranian Assets Now in the Federal Reserve Bank
In order to allow Iran to w ithdraw its assets in the Federal Reserve Bank, the President
has the power, under the International Em ergency Econom ic Powers Act (IEE PA ), to
nullify existing attachm ents licensed under the Iranian Assets C ontrol Regulations.
Since in consenting to attachm ents against the blocked Iranian assets the G overnm ent
reserved the right to revoke its consent at any time, their nullification does not
constitute a compensable taking o f private property.
T he Federal Reserve Bank may release Iranian assets which have been attached but are
not yet subject to a licensed final judgm ent, in reliance on the Presidents’ action under
the IE E PA , without applying to the court to vacate its attachm ent orders. The
considerations which ordinarily mandate compliance with court orders would not
justify a contem pt citation w here the conduct in question has been clearly mandated by
supervening executive action, where com pliance would defeat the President’s exercise
o f his em ergency pow er under the IE E PA , and where the IE E PA itself provides an
express exception to contem pt liability for com pliance with an order issued under its
authority.
W here Congress has immunized good faith compliance with a presidential order issued
under the IE E PA , the Federal Reserve Bank would not be held liable to disappointed
attachment creditors even if the presidential orders nullifying the attachm ent orders
were later held unlawful. N or is there any basis, in the Constitution or otherwise, on
which creditors whose attachm ents were nullified would be likely to recover against
the United States itself.
October 8, 1980
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
This responds to your request for our opinion whether the President
has authority to permit the Central Bank of Iran and the Bank Markazi
to withdraw the blocked assets they now have on deposit with the
Federal Reserve Bank (FRB) notwithstanding the outstanding orders of
attachment entered against such assets. You have also asked whether it
is necessary to approach the courts that have entered the orders of
attachment and obtain orders of dissolution before transferring the
funds. We have concluded that the President has the authority under
the International Emergency Economic Powers Act (IEEPA), 50
U.S.C. § 1701 et seq. (Supp. I 1977), to return those assets by revoking
the existing licenses for attachments against them and by licensing
withdrawals. It is our view that such action is sufficient as a legal
matter to authorize the return of those assets. Moreover, it is our
opinion that the Federal Reserve Bank, relying upon that authority,
may release the assets without applying to the court to vacate the
273
attachment orders. We believe it would be an abuse of discretion for a
court to use the contempt power to penalize noncompliance with an
attachment order that has been rendered unenforceable by the Presi
dent’s order. Finally, Congress has immunized good faith compliance
with emergency orders issued under IEEPA; therefore, it is our opinion
that the Federal Reserve Bank could not be held liable to the attach
ment creditors for damages even if a court should later determine that
the President’s order was beyond the scope of his power under IEEPA.
Similarly, we have found no basis for any action for damages by the
attachment creditors against the United States.
I. Presidential Authority to Nullify Outstanding Attachments
Under IEEPA, the President has broad powers to issue orders block
ing or releasing Iranian assets.1 Pursuant to that power, the President
issued Executive Order No. 12,170 on November 14, 1979, blocking all
property subject to the jurisdiction of the United States in which the
government of Iran or any of its instrumentalities had an interest.
3 C.F.R. 457 (1979). The order also delegated to the Secretary of the
Treasury presidential authority under IEEPA to implement the block
ing order. On the same day, the Treasury Department issued the first of
its Iranian Assets Control Regulations (IACR), which provided in part
(31 C.F.R. § 535.203(e)):
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.
On November 19, 1979, § 535.805 was added, providing that any li
censes or authorizations “may be amended, modified or revoked at any
time.” A limited modification to the general ban on unlicensed judicial
proceedings was made subsequently on November 23, 1979, with the
adoption of § 535.504, which authorized judicial proceedings but con
tinued 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 (§ 535.418 (1980)):
'T h e IE E P A ’s principal operative provision, § 1702(a)(1), provides that the President may:
(A) investigate, regulate o r prohibit—
(i) 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 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, importation
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 or a
national thereof has any interest. . . .
274
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 or blocked
property is prohibited without a specific license. It would
not be consistent with licensing policy to issue such a
license.
All of the attachment orders entered against the Iranian assets held
by the Federal Reserve Bank exist pursuant to Treasury’s general
license. In order to effect Iran’s withdrawal of the assets in the FRB,
we believe the President has the power to nullify the licensed attach
ments by revoking the existing general licenses for attachments.
While there is no case law addressing the President’s power under
IEEPA to nullify attachments issued under a licensing scheme such as
the one presently in effect under the IACR, we believe that Orvis v.
Brownell, 345 U.S. 183 (1953), provides strong support for the general
principle that the President may, under IEEPA, condition his consent
to the creation of property interests in blocked property and, by invok
ing those conditions, nullify such property rights. In Orvis, claimants in
a New York court attached a credit, previously frozen by executive
order, which had been owed to Japanese nationals by a stock associa
tion. The claimants obtained a judgment and, as required by regulation,
applied for a federal license to permit the stock association to pay over
the amount in judgment. The application was denied, and the Custodian
vested the credit and received payment from the stock association. The
judgment creditors, asserting that they had a right to the funds, filed an
action under § 9(a) of the Trading with the Enemy Act, after the
Custodian denied their notice of claim to those funds.
The Supreme Court, in rejecting the judgment creditors’ § 9(a) claim,
noted that the government had consented to the unlicensed attachment
of the funds for the limited purpose of determining the rights and
liabilities between the creditors and the enemy debtors.2 The Court
2 Prior to the attachm ent in Orvis, Treasury had issued a general ruling that any unlicensed transfers,
including attachm ents, w ere null and void. D epartm ent of Treasury Ruling No. 12, § 131.12, 7 Fed.
Reg. 2991 (1942). Paragraph 4 of the ruling, however, recognized unlicensed transfers, including
attachm ents, as valid and enforceable for the purpose of determ ining the rights and liabilities o f the
parties to the action. One day after the issuance o f the ruling. T reasury announced its position with
respect to unlicensed attachm ents in an amicus curiae brief in the N ew York C ourt of Appeals, stating
that unlicensed attachm ents w ere desirable to clarify the rights and liabilities o f private parties. Brief
o f the United States as amicus curiae at 52, 53 Commission for Polish Relief v. Banca Nationala a
Rumaniei, 288 N.Y. 332, 43 N .E. 2d 345 (1942), quoted in Zittman v. McGrath, 341 U.S. 446, 454-57
(1951) (Zittman I). Nine years later in Zittman 1, the C ourt relied on T reasury’s adm inistrative practice
and interpretation of Ruling No. 12 to deny Treasury's request that an attachm ent obtained in state
court against blocked G erm an bank accounts be declared null and void and decided that the attach*
ment was valid betw een the private parties to the action. A ccordingly, the C ourt held that an order of
the Custodian vesting the “right, title and interest” of the G erm an banks placed the Custodian in the
shoes of the G erm an banks and, therefore, subject to the attachm ent. In a com panion case, Zittman v.
Continued
275
held, nonetheless, that the government’s permission to attach the credit
in state court proceedings created no property interest that could be
asserted against the government because the government had reserved
the right to withhold licenses for judgment. The Court reasoned that
the government’s initial consent to proceed with state court
attachments
did not extend so far as to recognize them as effecting a
transfer. To so interpret it would ignore the express condi
tions on which the consent was extended. Realistically, these
reservations deprive the assent of much substance; but
that should have been apparent on its face to those who
chose to litigate. The opportunity to settle their accounts
with the enemy debtor was all that the permission to
attach granted.
Id. at 187 (emphasis added).
Three important principles emerge from a careful analysis of Orvis.
First, the President has the power under IE E PA 3 to prevent the cre
ation of property interests in blocked alien property. Second, this
power includes the power to reserve the right to withdraw any consent
he may give to the creation of property rights or to condition the
exercise of any property right created pursuant to his consent. Third,
this power to reserve the right to withdraw consent or condition the
exercise of property rights is paramount and supersedes any rights
creditors may acquire under state law.
Application of these principles to the release of Iranian assets held by
the FRB leads to the conclusion that the President has the power under
IEEPA to nullify the attachments against those assets. Treasury, as the
President’s delegee, has consented to attachments against the blocked
Iranian assets. 31 C.F.R. § 535.504 and 535.418. In giving its consent,
Treasury reserved two crucial rights. Treasury withheld its consent to
McGrath, 341 U.S. 471 (1951) (Zittman II), the C ourt held that the Custodian’s order, w ithout such
restrictive language, directing that certain G erm an bank accounts previously attached by creditors be
turned over was valid. Since the Custodian had sought only possession of the funds and, unlike
Zittman I, had not asked for a judgm ent declaring the attachm ents to be invalid, the C ourt addressed
only the question w hether the Custodian had the pow er to possess and adm inister those funds. The
Court expressly reserved the question w hether the state court judgm ents and attachm ents w ould have
any conclusive effect on the final disposition of the accounts. Id. at 474. T hat question was decided in
the negative tw o years later in Orvis.
3T he case law under the Trading w ith the Enem y A ct as amended in 1941, is fully applicable to
our analysis o f the President's authority under its successor statute, IEE PA . As the legislative history
o f IE E P A notes, the “grant o f authorities [in IE E P A ] basically parallels section 5(b) of the Trading
with the Enem y A ct.’’ H. R. Rep. No. 459, 95th Cong., 1st Sess. at 14-15 (1977). Indeed, because the
blocking order in Orvis was issued prior to the 1941 am endm ents to the Trading w ith the Enem y A ct,
which added inter alia the pow ers to nullify o r void any interest in alien property, it could be strongly
argued that the President’s pow ers to nullify or void the attachm ents against the locked assets are even
greater than the pow ers o f the President w hen the Orvis blocking order was issued. N ot only does the
President have the pow er recognized in Orvis to condition the creation of property interests and to
nullify said interests by invoking the stated conditions; he arguably also has the pow er to nullify or
void any interest in blocked property even in the absence o f any stated conditions or reservations. The
exercise o f that pow er, how ever, may raise a substantial “takings” question under the Fifth
Amendm ent.
276
judgment, a reservation which Orvis regarded as permitting the govern
ment to nullify any attachments vis-a-vis itself. Treasury also reserved
the right to revoke its consent to attach at any time. 31 C.F.R.
§ 535.805.4 Thus, the government reserved not only the right to nullify
attachments vis-a-vis the government, but also the right to nullify them
totally.5 This latter reservation was critical in order to ensure that the
President would have maximum flexibility in negotiating with Iran for
the release of the hostages. Because the license to attach was subject to
these reservations, the attaching creditors in initiating attachments pro
ceedings assumed the risk that the license to attach would be with
drawn at any time. But, like the attachment creditors in Orvis, that risk
“should have been apparent on its face to those who chose to litigate.”
345 U.S. at 187. .
II. Judicial Dissolution of Attachment Orders
We have concluded that the President has authority under IEEPA to
prevent the continuing assertion of interests in Iranian property through
the provisional remedy of attachment. The President may exercise that
authority by issuing an order prescribing that attachments shall create
no interests in Iranian property. Moreover, with respect to any pending
litigation involving Iranian property already subject to attachment but
not yet subject to a licensed final judgment, the President may provide
(1) that the plaintiff shall no longer enjoy provisional rights in the
property through attachment, and (2) that the garnishee may lawfully
transfer the property notwithstanding the plaintiffs attempt to secure it
pending final judgment.
We now come to a procedural issue. If the President promulgates an
order that (1) prevents the continued assertion of provisional rights
through pending attachment orders and (2) authorizes garnishees to
transfer Iranian property notwithstanding attempts to secure it through
attachment, may garnishees assume that the President’s action, if in
tended to do so, leaves them legally free to proceed directly with any
authorized transfer, or must the garnishees apply first to the appropriate
court or courts for orders formally vacating the attachments?
In ordinary circumstances, the general interest in preserving orderly
judicial process would militate strongly in favor of the latter course.
Procedures are provided by law for the modification or dissolution of
court orders that stand in need of modification or dissolution because of
4 In § 535.503, Treasury also reserved the right lo exclude any person from ihe operation of any
license or “to restrict the applicability [of any license] with respect to particular persons, transactions
or property or classes thereof.’* Thus, Treasury reserved the right not only to revoke all licenses for
attachm ents, but also to revoke selectively particular classes of licenses, e.g.. all general licenses for
attachm ents against blocked assests held by the Federal Reserve Bank.
5 Because o f the reservation o f the right to revoke these attachm ents, it is clear that they can be
revoked under IEEPA without 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).
277
changed circumstances. Such procedures are available here. See N.Y.
Civ. Prac. Law § 6223 (McKinney 1980). Ordinarily, these procedures
provide an adequate means of obtaining relief from court orders that
have been rendered void or unenforceable by a change in law. See
generally Pasadena City Board of Education v. Spangler, A ll U.S. 424
(1976). Moreover, from a purely pragmatic standpoint, the use of these
procedures in the present case would avoid the two risks presented by
the alternative course—namely, (1) the risk that action in defiance of an
undissolved attachment order will be regarded as contumacious and
punishable as contempt, and (2) the risk the courts may yet hold the
attachments lawful and the garnishee liable civilly for any damages
suffered by the plaintiffs in consequence of violation of the attachment
orders.6 We will assess both of those risks below.
A. Contempt
Our research to date has revealed only one decision by the Supreme
Court dealing with the precise question presented here. See Pennsylva
nia v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855). In
Wheeling the Court was asked to decide whether certain individuals
should be held in contempt of an order that the Court itself had issued
enjoining construction of a bridge over the Ohio River. Congress had
subsequently enacted a statute declaring that this bridge was a lawful
structure. The defendants, in reliance upon that Act, had proceeded
with construction of the bridge without first applying to the Court for
dissolution of the outstanding injunction. On the motion for contempt,
the Court held that the Act of Congress was valid, that the previous
injunction could not be enforced in futuro, that the motion for con
tempt was addressed to the discretion of the Court, and that under all
the circumstances of the case the motion should be denied.
Wheeling does not hold that a court is powerless to punish defiance
of an outstanding court order that has been rendered unenforceable by
subsequent legislation. Indeed, the implication of the decision is to the
contrary; and in that respect the decision is fully consistent with the
settled rule, applicable in a different context, that the contempt power
may be used to punish noncompliance with court orders that are erro
neous or unlawful at the time they are issued. See United States v.
United Mine Workers of America, 330 U.S. 258 (1947); Walker v. City of
Birmingham, 388 U.S. 307 (1967). The Supreme Court has deemed this
to be a necessary rule, given the need for a means of enforcing compli
ance with orderly process. The courts must be able to ensure that
aggrieved litigants will appeal erroneous orders and not resort to self
6It goes without saying that (he executive’s belief in the legality of any given executive action in
response to the hostage crisis will not in itself prevent a court from deciding that the action is or was
unlawful. If the underlying issue is justiciable and can be brought before a court with jurisdiction to
decide it, there is always the risk that the court will rule against the G overnm ent.
278
help. Nonetheless, it is our view that Wheeling does stand for the
proposition that the usual considerations supporting the rule of compli
ance do not justify a contempt citation where the conduct in question
has been clearly mandated or authorized by subsequent legislation.7 To
be sure, the rule of compliance is not suspended by any and every
change in circumstance, see Spangler, supra; but Wheeling suggests that
it may be suspended by a clear and specific change in law.
In our opinion, the case at hand is an appealing case for application
of the Wheeling rule. It is more appealing than was Wheeling itself. The
builders of the bridge over the Ohio could have easily applied for
dissolution of the injunction before resuming their work; yet the Court
thought it inappropriate to hold them in contempt for boldly proceed
ing in the face of the outstanding order. This result cut against the
traditional policy. The demand for compliance with orderly process has
generally rested upon the assumption that existing procedures for the
modification or correction of outstanding orders will be adequate to the
exigencies of the case, that they will fully vindicate the rights in
question, and that individuals can therefore be expected to comply with
them without resorting to self-help. At the same time, the courts have
recognized that in unusual cases the usual procedures may be inad
equate; and in these cases the courts have been willing to countenance
refractory conduct that would be held contumacious in other contexts.
For example, where the rights of an individual would be wholly lost by
complying with an outstanding order, his refusal to comply with it
pending appeal is not punishable as contempt. There is no justification
for requiring aggrieved litigants to comply with procedures that defeat
the right at issue. See United States v. Dickinson, 465 F.2d 496, 511-12
(5th Cir. 1972), citing Walker v. City of Birmingham, supra, Malloy v.
Hogan, 378 U.S. 1 (1964), Gelbard v. United States, 408 U.S. 41 (1972).
As we have said, Congress has given the President emergency power
to nullify these attachments and to authorize transfer of the attached
property. The President may attempt to use that power to resolve the
hostage crisis. If, however, the government and the banks, to imple
ment his order, must first pursue the usual judicial procedure for modi
fication of outstanding attachments (a procedure involving motions,
arguments, further litigation, and inevitable delay), then the President
may be unable to use his power effectively to achieve the purpose
authorized by Congress. If settlement of the crisis requires expedition
and certainty, not uncertainty and the law’s delay, we believe it would
be an abuse of discretion for a court to use the contempt power to
penalize noncompliance with an attachment order that has been ren7 We do not believe our reliance on Wheeling is undercut by the evident distinction betw een
supervening congressional action and supervening executive action taken under authority conferred by
a preexisting statute (IE E PA ). We believe that the assertion o f supervening pow er under IE E P A
would be entitled to as much respect by the judicial branch as supervening action by Congress.
279
dered unenforceable by lawful action under IEEPA. Continuing
compliance with the order, followed by a motion for dissolution, argu
ment, and further litigation, would defeat the emergency power that
Congress has sought to create.
Finally, we observe that IEEPA itself provides that “[n]o person
shall be held liable in any court for or with respect to anything done or
omitted in good faith in connection with the administration of, or
pursuant to and in reliance on, this [Act], or any regulation, instruction,
or direction issued under this [Act].” 50 U.S.C. § 1702(a)(3). Without
expressing any view regarding the general question of the power of
Congress to deprive the courts of a means of enforcing compliance
with their own process, we are of the opinion that, in the face of this
expression of congressional intent, the use of the contempt power to
punish necessary and otherwise lawful action under IEEPA would be
an abuse of discretion, and, therefore, unlikely. We have found one
state court case, involving the Trading with the Enemy Act and the
Federal Reserve Bank of New York, that supports this conclusion. See
Von Opel v. Von Opel, 154 N.Y.S. 2d 616 (Sup. Ct. 1956). We have
found no decision to the contrary.
B. Civil Liability
The second risk of proceeding in the face of outstanding attachment
orders is the risk of civil liability. If the attached funds are released
before the courts have determined that the President has power to
nullify the attachments, the United States, the Federal Reserve Bank or
both will almost certainly be asked to account to the creditors for any
damages they sustain as a result of the release. If the courts ultimately
decide (1) that IEEPA does not authorize the President to nullify these
attachments and (2) that the attachments are otherwise valid under the
Foreign Sovereign Immunities Act (FSIA), the question will arise
whether the courts can go further and hold either the United States or
the Federal Reserve Bank accountable to the attachment creditors for
loss of the pre-judgment security.
We have several observations to make on this point. We shall discuss,
first, the potential liability of the Federal Reserve Bank and, second,
the potential liability of the United States.
1. Liability of Federal Reserve Bank
As a matter of practice, the Federal Reserve Bank of New York has
not resisted the attempts of domestic creditors to attach foreign funds
on deposit with that Bank. See, e.g., National American Corp. v. Federal
Republic of Nigeria, 448 F. Supp. 622 (S.D.N.Y. 1978). Whether this
practice is necessary, we do not know. It is obviously in harmony with
the interests of domestic creditors, including the member banks of the
280
New York district. As you may know, these banks elect a majority of
the directors of the Board of Directors of the Reserve Bank.
Under New York law the garnishee of a valid attachment order is
accountable to the attachment creditor for any losses sustained by the
creditor as a result of release of the attached property in violation of
the order. See Fitchburg Yarn Co. v. Wall & Co., 361 N.Y.S.2d 170
(App. Div. 1974). Whether this rule, or an analogous federal rule, will
be enforced against the garnishee of a federal attachment order issued
by a district court in New York under Rule 64 of the Rules of Civil
Procedure, we cannot say. We have found no case on point. We can
say, however, that if federal law (Rule 64) permits a third party to be
subjected to garnishment in the first instance, it is a small thing to
conclude that the third party may then be held to account for any
violation of his duty as garnishee. The imposition of the duty implies a
remedy for its breach. Again, we have not found a case on point; but
we know of no reason why, as a general proposition, the garnishee of a
federal attachment order issued under Rule 64 of the Rules of Civil
Procedure cannot be subjected to civil liability for violation of the
order.
What is the rule where the garnishee is a Federal Reserve Bank?
Federal Reserve Banks are the tools of the Federal Reserve System,
but they are corporate entities, they are owned by their shareholders,
and they can “sue and be sued.” The relevant statutes and the case law
contain no hint that they enjoy general immunity from suit or liability
for the wrongs they commit in the conduct of their business. Indeed,
the relevant jurisdictional statute assumes that they can and will be
subject (in federal court) to “suits of a civil nature at common law or in
equity.” See 12 U.S.C. § 632. This statute grants them a special immu
nity from prejudgment remedies in cases in which they themselves are
parties defendant, but it does not provide them with immunity from
execution on final judgment. Moreover, the shareholders of Federal
Reserve Banks (the private “member” banks of the Federal Reserve
System) are, by statute, responsible “individually” for all the “contracts,
debts and engagements” of the Reserve Banks. See 12 U.S.C. § 502
(emphasis added). If a private national bank can be held civilly liable
for wrongful release of attached funds, we find no clear indication that
a Federal Reserve Bank can or should be accorded a different treat
ment.
We have expressed the view that a presidential order nullifying these
attachments would be lawful. We think the Federal Reserve Bank
could not incur liability to any attachment creditor for making a trans
fer that is authorized by a lawful presidential order. Moreover, there is
281
a serious question whether these attachments are valid in any event.8 If
the attachments are invalid, then as a matter of general law the gar
nishee can incur no liability to the attachment-creditors for transferring
the attached funds. See, e.g., United Collieries v. Martin, 248 Ky. 808, 60
S.W. 2d 125 (1933); Smith, Thorndike & Brown Co. v. Mutual Fire Ins.
Co., 110 Wis. 602, 86 N.W. 241 (1901); Henkel v. Bi-Metallic Bank, 13
Colo. App. 410, 58 P. 336 (1899). Finally, even if the attachments are
valid and even if they cannot be revoked under IEEPA, it is clear that
the attachment creditors will sustain actual damage from a present
transfer of the attached funds only if (1) their underlying claims are
good on the merits, (2) their claims are not extinguished by a claims
settlement,9 (3) their claims can be reduced to final judgment, and
(4) the relevant law, including FSIA, would permit those judgments to
be paid out of the attached funds. With regard to the last point, we
note that the present IEEPA regulations prevent any final judgment
from being paid out of this property. Our view is that the creditors will
be unable to demonstrate that they have been damaged by any transfer
of the attached property unless they can show that this prohibition
against the payment of final judgments could not lawfully be sustained
in the future to bar the perfection (through execution on final judg
ment) of the mere provisional interests now being asserted in this
property through attachment.
In all, there are so many contingencies standing in the way of
garnishee liability in this case that it is difficult to make a realistic
assessment of the actual risk. At the same time, given the amount of
money in question, it is obvious that any risk of liability militates
strongly in favor of a conservative approach to the transfer question, all
other things being equal. This brings us to our final point.
Congress knew that any significant presidential action under IEEPA
would upset existing legal relations, and give rise to claims and counter
8 Invoking a creative legal theory in his interpretation of FSIA , Judge D uffy has recently held that
these attachm ents are not barred by FSIA and are otherw ise valid. We disagree w ith the holding.
FSIA provides that the assets of a foreign governm ent are immune from prejudgm ent attachm ent
unless the foreign governm ent explicitly waives its immunity. 28 U.S.C. § 1610(d). This statutory
imm unity is subject to existing international agreem ents. 28 U.S.C. § 1609. O ne district court has held
that w hile there has been no explicit w aiver o f imm unity by Iran, the T reaty o f Amity betw een Iran
and the United States, w hich pre-dated FSIA , w aived immunity from attachm ent w ith respect to
m ilitary property. Behring International, Inc. v. Imperial Iranian Air Force, 475 F. Supp. 383 (D .N .J.
1979). FSIA provides that the assets of a foreign central bank are immune from attachm ent and
execution unless the bank or its parent foreign governm ent explicitly waives immunity. 28 U.S.C.
§ 1611(b)(1). As yet, there are no published opinions addressing the immunity of foreign central banks
from attachm ent under FSIA . T w o district courts have held, how ever, that FSIA renders the assets of
the governm ent o f Iran immune from attachm ent because Iran has not w aived immunity from
attachm ent. See Reading & Bates Corp. v. National Iranian Oil, 478 F. Supp. 724 (S.D.N.Y. 1979) and
E-Systems, Inc. v. Islamic Republic o f Iran, 491 F. Supp. 1294, (N .D . Tex. 1980).
9 W e do not think that the acquisition o f a provisional interest in foreign property through
attachm ent immunizes the underlying claim from the governm ent's pow er to settle that claim as part
o f an overall claims settlement. T he provisional interest is only as good as the underlying claim. It dies
if the claim dies. T he pow er o f the governm ent to extinguish claims through settlement is clear. See
M em orandum for the A ttorney G eneral dated Septem ber 16, 1980, “ Presidential A uthority to Settle
the Iranian Crisis" [p. 248, supra\
282
claims among persons subject to the presidential order. Recognizing
that these persons might be reluctant to rely on the order for fear of
liability, Congress took care to preserve in IEEPA the exculpatory
provision that had long been present in the Trading with the Enemy
Act. We have referred to that provision above.
We know of no reason why this provision cannot be read for what it
says. In our opinion, it would exculpate a garnishee (a mere stake
holder) who has relied in good faith upon a lawful presidential order
authorizing release of attached funds under IEEPA. Would the excul
pation be effective if the presidential action were ultimately held to be
unlawful? The whole purpose of this provision is to resolve legal
doubts and to encourage persons to rely upon emergency presidential
action under IEEPA wherever they can do so in good faith. That
purpose would be wholly frustrated if the provision were read to
expose compliant individuals to liability for presidential mistakes. If
individual liability were to depend in the end on the legality of what
the President has done, no one with significant exposure would comply
willingly with any presidential order until all the legal questions pre
sented by the action had been definitively resolved. In our opinion,
Congress has undertaken to prevent that impasse. Congress has immu
nized good faith compliance with emergency orders under IEEPA
whether the orders are mistaken or not. We have found one district
court opinion, Garvan v. Marconi Wireless Tele. Co., 275 F. 486 (D.N.J.
1921), that supports this conclusion.
2. Liability of the United States
Either IEEPA authorizes nullification of these attachments, or it does
not. If it authorizes nullification, there is a possibility that the United
States may incur a constitutional liability as a result of nullification, i.e.,
a liability imposed by the Fifth Amendment, which requires the United
States to pay compensation when it “takes” private property for public
use. That liability would provide a basis for an action by the creditors
against the United States in the Court of Claims. We have expressed
the view, however, that nullification of these attachments under
IEEPA will not constitute a taking of private property in the Fifth
Amendment sense.
Paradoxically, if IEEPA does not authorize nullification, the risk of
constitutional liability is even smaller. As a general proposition, unau
thorized executive action that destroys or harms private interests in
property does not subject the United States to liability for a taking
under the Fifth Amendment. See, e.g., Hooe v. United States, 218 U.S.
322 (1910); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952); 42 Op. Att’y Gen. 441, 445-46. To be sure, unauthorized action
may be tortious, and it may subject the executive officer himself to
283
individual liability; 10 but it generally does not give rise to a constitu
tional claim against the government itself.
Is there any other basis for liability? The Federal Tort Claims Act is
a possibility. It makes the United States liable for “tort claims” arising
from the wrongful acts or omissions of officers and employees of the
United States in certain circumstances. See 28 U.S.C. § 2674. But Con
gress has expressly excepted from the provisions of that Act “[a]ny
claim based upon an act or omission of an employee of the Govern
ment, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or based upon the
exercise or performance of the failure to exercise or perform a discre
tionary function or duty on the part of a federal agency or employee of
the government, whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a). In our opinion, this express exception to the Tort
Claims Act would be fully applicable in the case presented here,
whether or not the President’s action is ultimately approved by the
courts.11
Aside from the question of tort claims, we think it very doubtful that
any other statute—IEEPA itself, Rule 64, the organic legislation estab
lishing the Federal Reserve Bank, etc.—can be construed to grant a
right of action against the United States in these circumstances. Such a
grant must be made with specificity. See United States v. Testan, 424
U.S. 392, 400 (1976). Absent a contract or a claim for the return of
money paid by the claimant to the government, there can be no private
right to money damages in a suit against the United States unless, a
federal statute “can fairly be interpreted as mandating compensation by
the Federal Government for the damage sustained.” Id. at 400, citing
Eastport S.S. Corp. v. United States, 372 F.2d 1002-09 (Ct. Cl. 1967).
We know of no federal statute that specifically grants a right of action
against the United States for wrongful release of attached funds by a
Federal Reserve Bank or “mandates” compensation by the United
States for the damages sustained by the attachment creditors.
Finally, there is at least a theoretical possibility of liability based on
contract. It is clear, of course, that the United States can be held to
account in a Court of Claims for damages resulting from a breach of an
express contract and a contract implied in fact. Over the years, creative
lawyers have been able to exploit this potential liability by arguing
10 W e believe that in this case, how ever, the executive officer would be relieved of liability by the
exculpatory provision in IEE PA .
11 T he Federal T ort Claims A ct has always contained a separate, express exception for claims
arising out of the adm inistration o f the T rading w ith the Enem y A ct. See 28 U.S.C. § 2680(e). When
Congress created IE E P A , lifting it from the Trading w ith the Enem y A ct, it neglected to amend this
provision to include IE E P A within the term s of the traditional exception. We think this was an
innocent oversight. W e find nothing in the relevant legislative history that suggests that Congress
intended to subject the United States to liability for the mistakes made by officers and agencies o f the
United States in the adm inistration o f IE E P A w hile preserving sovereign immunity w ith respect to
mistakes made under the identical provisions o f the T rading w ith the Enem y A ct. In any case, the
general exception contained in 28 U.S.C. § 2680(a) applies to action under IE E P A , in our view.
284
where all else fails that their claims rest upon implied “promises” of
one kind or another. We do not know what express or implied repre
sentations the Federal Reserve Bank or the organs of the government
may have made to the creditors in the present case, or what consider
ation the creditors may have advanced in return; but we do know that
the government has formally and expressly represented from the very
start, in the blocking regulations themselves, that the authorization for
these attachments may be withdrawn, and the government has ex
pressly declined to provide assurance that the attached funds will ever
be available to satisfy any final judgments. It seems to us that -these
formal representations leave relatively little room for a successful claim
that the government has somehow promised to keep these funds secure
for the creditors’ benefit. We do not know all the facts, but. we see little
risk of a successful contract claim against the government itself.
John M . H arm on
Assistant Attorney General
Office of Legal Counsel
285 |
|
Write a legal research memo on the following topic. | Emergency Authority of the Secretary of Health and Human
Services Under 42 U.S.C. § 243(c)(2)
U n d e r § 311 o f th e P ublic H ealth S e rv ice A c t, 42 U .S .C . § 243(c)(2), w h ic h au th o rizes the
S e c re ta ry o f H ealth and H u m an S ervices, at the request o f th e a p p ro p ria te sta te o r
lo cal a u th o rity , to ex ten d te m p o ra ry assistance to states and localities in m eeting health
em erg en cies, th e P ublic H e a lth S e rv ice m ay p ro v id e relo catio n assistance to residents
liv in g n ear th e L o v e C anal for a p erio d not to exceed 45 days, for p u rp o ses o f assessing
an d d ealin g w ith th e h ealth e m e rg e n c y in th a t area.
May 17, 1980
M EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E
PR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS
This responds to your request for our opinion whether the Secretary
of Health and Human Services is authorized by 42 U.S.C. § 243(c)(2) to
assist state and local authorities in temporarily relocating certain resi
dents who now live near the Love Canal in Niagara Falls, New York,
to cities removed from health hazards of the Canal.* In our opinion,
this section does give the Secretary that authority.
The section in question was enacted in 1967 as an addition to § 311 of
the Public Health Service Act. Partnership for Health Amendments of
1967, Pub. L. No. 90-174, §4, 81 Stat. 533, 536 (1967). As enacted, the
statute provided:
The Secretary may enter into agreements providing for
cooperative planning between Public Health Service med
ical facilities and community health facilities to cope with
health problems resulting from disasters and for participa
tion by Public Health Service medical facilities in carry
ing out such planning. He may also, at the request o f the
appropriate State or local authority, extend temporary (not in
excess o f forty-five days) assistance to States or localities in
• N o t e : L ove C anal, an uncom pleted excavation originally designed to link the N iagara R iver and
Lake O ntario, was used as a chem ical dum psite betw een 1920 and 19S3. D uring the 1970's, homes
bo rd erin g th e landfill began to smell o f chem icals, and residents o f the area w ere found to be suffering
unusually high rates o f cancer, birth defects, and o th e r illnesses. In 1978, an investigation by the N ew
Y ork State D epartm ents o f H ealth and E nvironm ental C onservation led to the discovery that the
landfill was leaking dangerous chem ical com pounds, and the area w as declared by the State to be “an
extrem ely serious th reat to health and w elfare.” O n M ay 21, 1980, President C arter signed an
em ergency o rd e r authorizing federal assistance in the tem porary relocation o f the 710 families w ho
had rem ained in the area. Ed.
638
meeting health emergencies o f such a nature as to warrant
Federal assistance. The Secretary may require such reim
bursement of the United States for aid (other than plan
ning) under the preceding sentences of this subsection as
he may determine to be reasonable under the circum
stances. Any reimbursement so paid shall be credited to
the applicable appropriation of the Public Health Service
for the year in which such reimbursement is received.
Id. (Emphasis added). In 1976, the section was amended to authorize
the Secretary to develop and implement a plan to use resources of the
Public Health Service and other agencies under the Secretary’s jurisdic
tion to control epidemics and to meet other health emergencies. Na
tional Consumer Health Information and Health Promotion Act of
1976, Pub. L. No. 94-317, § 202(b), 90 Stat. 695, 703 (1976). The 1976
amendment divided § 243(c) into two parts. Section 243(c)(1) author
ized the development and implementation of plans to meet emergencies
or problems resulting from disasters or epidemics. Section 243(c)(2),
which sets forth the Secretary’s authority to extend assistance to states
or localities in meeting health emergencies, is the section which grants
the authority about which you have inquired. This section now
provides:
The Secretary may, at the request of the appropriate
State or local authority, extend temporary (not in excess
of forty-five days) assistance to States or localities in
meeting health emergencies of such a nature as to warrant
Federal assistance. The Secretary may require such reim
bursement of the United States for assistance provided
under this paragraph as he may determine to be reason
able under the circumstances. Any reimbursement so paid
shall be credited to the applicable appropriation for the
Service for the year in which such reimbursement is re
ceived.
Id. The 1976 amendment did not substantively change the Secretary’s
authority respecting temporary health emergency assistance to states or
localities.
To determine the scope of the Secretary’s authority under this sec
tion, we have reviewed the legislative history of both the 1967 and the
1976 Acts. This review yielded little guidance as to the meaning of the
operative phrases in the statute, such as the 45-day limitation on assist
ance. There is also little indication of the legislative intent as to what
may satisfy the requirement of a request from “the appropriate State or
local authority” or as to what type of health emergency was contem
plated. We found nothing in this review to indicate that the Secretary
639
may not extend federal assistance for relocating Love Canal residents to
temporary housing.1
The 1967 amendment, which added the section authorizing the Secre
tary to act in health emergencies, was part of a lengthy bill which
modified the Public Health Service Act. The House Committee on
Interstate and Foreign Commerce explained the new section as follows:
This section adds a new subsection (c) to section 311 of
the Public Health Service Act. Under this proposed new
subsection, the Secretary would be authorized to enter
into agreements providing for cooperative planning be
tween public health medical facilities and community
health facilities to cope with health problems resulting
from disasters, and for participation by Public Health
Service medical facilities in carrying out such planning.
He could also, at the request o f appropriate State or local
authority, extend temporary (not in excess o f 45 days) assist
ance to States or localities in meeting health emergencies o f
such a nature as to warrant Federal assistance. He could
also require such reimbursement of the United States for
aid (other than planning) received under this subsection as
he determines to be reasonable under the circumstances.
Any such reimbursement would be credited to the appli
cable appropriation of the Public Health Service.2
H.R. Rep. No. 538, 90th Cong., 1st Sess. 38 (1967) (emphasis added).
The reference to the new section in the Senate report indicates that the
Congress intended the section to grant broad authority to the Secretary
so that the Public Health Service could play an active role in delivering
disaster assistance services. In explaining this expanded role, the com
mittee wrote:
Under present statutory authority, the Public Health
Service may provide emergency care and treatment in its
hospitals and outpatient facilities to persons who are not
legal beneficiaries of the Service, but the Service does not
have clear authority to provide such emergency care or
treatment outside of its own facilities. If Public Health
Service hospitals are to be responsible members of the
medical communities in which they are located, they must
be able to play a more active role in meeting such com
munity emergency health needs as arise in the case of
floods, fires, and other disasters. The proposed new au
1 T h e re are no judicial decisions o r regulations interpreting this section.
2 T h e S ecretary must determ ine w h e th er to require reim bursem ent from the state or locality. In
1967, it was suggested to the com m ittee that the reim bursem ent be m andatory, but this suggestion was
not follow ed. See H .R . Rep. No. 538, 90th C ong., 1st Sess. 49 (1967).
640
thority would not create any direct Federal obligation to
provide such emergency assistance, but it would authorize
Public Health Service medical facilities to cooperate with
other community agencies in the development and execu
tion of disaster assistance services.
S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this refer
ence could be read to suggest that the section authorizes only emer
gency assistance in the form of assistance by Public Health Service
facilities, we do not believe the section properly should be construed so
narrowly. In its section-by-section analysis, the committee noted that
§ 4 authorized agreements for cooperative planning between public
health medical facilities and community health facilities and that the
Secretary could also extend temporary assistance to meet health emer
gencies. There is no limitation on the type of temporary assistance that
may be provided. See S. Rep. No. 724, 90th Cong., 1st Sess. 25 (1967).3
Most of the discussion on the floor focused on other, more contro
versial sections of the bill. The few comments on § 4 simply refer to the
strengthened role of the Public Health Service in assisting states and
localities to cope with health emergencies and disasters. See, e.g., 113
Cong. Rec. 26,016 (1967) (Statement of Mr. Donohue). Hearings on the
bill were held by the Senate Committee on Labor and Public Welfare.
As with the floor debates, the few comments on § 4 at the hearings
summarily referred to the section as a clarification and strengthening of
existing authority for assistance to states and localities. See, e.g., Partner
ship For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418
Before the Subcomm. on Health o f the Sen. Comm, on Labor and Public
Welfare, 90th Cong., 1st Sess. 62 (1967).
The 1976 amendment, as stated earlier, did not substantively modify
the Secretary’s authority to assist during emergencies. The amendment
to § 4 appeared in the House bill. The committee simply paraphrased
the existing provision in its report, without shedding any light on the
meaning of the section. H.R. Rep. No. 1007, 94th Cong., 2d Sess. 30
(1976).
The plain language of the statute authorizes the Secretary to provide
the assistance at the request of the appropriate state or local authority.
This request is a prerequisite to the provision of any assistance. The
Secretary must determine whether the authority requesting the aid is
the appropriate authority.4 The Secretary must determine whether the
circumstance is a health emergency of such a nature as to warrant
3 A conference com m ittee was convened to resolve differences on o ther portions o f the bill. T h e
conference report does not discuss this section. H .R. Rep. No. 974, 90th C ong., 1st Sess. (1967).
4 A lthoug h the A ct states that "the" state o r local authority may make the request, w e d o not think
this m eans that there is only one official so authorized. In the absence o f regulations, the Secretary
must determ ine in each circum stance w h eth er the request com es from an appropriate authority.
641
federal assistance.5 Once the Secretary makes this determination, tem
porary federal assistance may be provided for a period of 45 days. The
legislative sources cited above do not reveal the purpose of the 45-day
limitation. Because the purpose of the section is to authorize temporary
assistance to states and localities, it may be inferred that the provision
was added to prevent prolonged federal involvement. Financial com
mitments may not be made beyond the 45-day period. If the financial
commitments are made within the 45-day period, and if they are in
tended to provide “temporary” aid, we believe the section allows the
benefits of the commitments to extend beyond the 45 days.
Finally, based upon our review of the statute and its legislative
history, as discussed above, at least in the circumstances as you have
described them in the case, the Public Health Service is authorized to
provide temporary relocation assistance. Any removal of families, and
their temporary relocation in other housing, will be for purposes
closely related to assessing and dealing with the health emergency.
Congress intended to confer on the Secretary of Health and Human
Services authority broad enough to respond as contemplated here.
L a r r y A. H am m ond
Acting Assistant Attorney General
Office o f Legal Counsel
8 W e h ave been advised by th e G eneral C ounsel's O ffice o f the D epartm ent o f H ealth and H um an
Services that a standard internal operating pro ced u re requires that the Surgeon G eneral determ ine that
there is indeed a “ health em ergency.*’ T h e statu te itself does not require this procedure, and the
process is not set forth in the Public H ealth S ervice's regulations.
642 |
|
Write a legal research memo on the following topic. | Emergency Authority of the Secretary of Health and Human
Services Under 42 U.S.C. § 243(c)(2)
U n d e r § 311 o f th e P ublic H ealth S e rv ice A c t, 42 U .S .C . § 243(c)(2), w h ic h au th o rizes the
S e c re ta ry o f H ealth and H u m an S ervices, at the request o f th e a p p ro p ria te sta te o r
lo cal a u th o rity , to ex ten d te m p o ra ry assistance to states and localities in m eeting health
em erg en cies, th e P ublic H e a lth S e rv ice m ay p ro v id e relo catio n assistance to residents
liv in g n ear th e L o v e C anal for a p erio d not to exceed 45 days, for p u rp o ses o f assessing
an d d ealin g w ith th e h ealth e m e rg e n c y in th a t area.
May 17, 1980
M EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E
PR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS
This responds to your request for our opinion whether the Secretary
of Health and Human Services is authorized by 42 U.S.C. § 243(c)(2) to
assist state and local authorities in temporarily relocating certain resi
dents who now live near the Love Canal in Niagara Falls, New York,
to cities removed from health hazards of the Canal.* In our opinion,
this section does give the Secretary that authority.
The section in question was enacted in 1967 as an addition to § 311 of
the Public Health Service Act. Partnership for Health Amendments of
1967, Pub. L. No. 90-174, §4, 81 Stat. 533, 536 (1967). As enacted, the
statute provided:
The Secretary may enter into agreements providing for
cooperative planning between Public Health Service med
ical facilities and community health facilities to cope with
health problems resulting from disasters and for participa
tion by Public Health Service medical facilities in carry
ing out such planning. He may also, at the request o f the
appropriate State or local authority, extend temporary (not in
excess o f forty-five days) assistance to States or localities in
• N o t e : L ove C anal, an uncom pleted excavation originally designed to link the N iagara R iver and
Lake O ntario, was used as a chem ical dum psite betw een 1920 and 19S3. D uring the 1970's, homes
bo rd erin g th e landfill began to smell o f chem icals, and residents o f the area w ere found to be suffering
unusually high rates o f cancer, birth defects, and o th e r illnesses. In 1978, an investigation by the N ew
Y ork State D epartm ents o f H ealth and E nvironm ental C onservation led to the discovery that the
landfill was leaking dangerous chem ical com pounds, and the area w as declared by the State to be “an
extrem ely serious th reat to health and w elfare.” O n M ay 21, 1980, President C arter signed an
em ergency o rd e r authorizing federal assistance in the tem porary relocation o f the 710 families w ho
had rem ained in the area. Ed.
638
meeting health emergencies o f such a nature as to warrant
Federal assistance. The Secretary may require such reim
bursement of the United States for aid (other than plan
ning) under the preceding sentences of this subsection as
he may determine to be reasonable under the circum
stances. Any reimbursement so paid shall be credited to
the applicable appropriation of the Public Health Service
for the year in which such reimbursement is received.
Id. (Emphasis added). In 1976, the section was amended to authorize
the Secretary to develop and implement a plan to use resources of the
Public Health Service and other agencies under the Secretary’s jurisdic
tion to control epidemics and to meet other health emergencies. Na
tional Consumer Health Information and Health Promotion Act of
1976, Pub. L. No. 94-317, § 202(b), 90 Stat. 695, 703 (1976). The 1976
amendment divided § 243(c) into two parts. Section 243(c)(1) author
ized the development and implementation of plans to meet emergencies
or problems resulting from disasters or epidemics. Section 243(c)(2),
which sets forth the Secretary’s authority to extend assistance to states
or localities in meeting health emergencies, is the section which grants
the authority about which you have inquired. This section now
provides:
The Secretary may, at the request of the appropriate
State or local authority, extend temporary (not in excess
of forty-five days) assistance to States or localities in
meeting health emergencies of such a nature as to warrant
Federal assistance. The Secretary may require such reim
bursement of the United States for assistance provided
under this paragraph as he may determine to be reason
able under the circumstances. Any reimbursement so paid
shall be credited to the applicable appropriation for the
Service for the year in which such reimbursement is re
ceived.
Id. The 1976 amendment did not substantively change the Secretary’s
authority respecting temporary health emergency assistance to states or
localities.
To determine the scope of the Secretary’s authority under this sec
tion, we have reviewed the legislative history of both the 1967 and the
1976 Acts. This review yielded little guidance as to the meaning of the
operative phrases in the statute, such as the 45-day limitation on assist
ance. There is also little indication of the legislative intent as to what
may satisfy the requirement of a request from “the appropriate State or
local authority” or as to what type of health emergency was contem
plated. We found nothing in this review to indicate that the Secretary
639
may not extend federal assistance for relocating Love Canal residents to
temporary housing.1
The 1967 amendment, which added the section authorizing the Secre
tary to act in health emergencies, was part of a lengthy bill which
modified the Public Health Service Act. The House Committee on
Interstate and Foreign Commerce explained the new section as follows:
This section adds a new subsection (c) to section 311 of
the Public Health Service Act. Under this proposed new
subsection, the Secretary would be authorized to enter
into agreements providing for cooperative planning be
tween public health medical facilities and community
health facilities to cope with health problems resulting
from disasters, and for participation by Public Health
Service medical facilities in carrying out such planning.
He could also, at the request o f appropriate State or local
authority, extend temporary (not in excess o f 45 days) assist
ance to States or localities in meeting health emergencies o f
such a nature as to warrant Federal assistance. He could
also require such reimbursement of the United States for
aid (other than planning) received under this subsection as
he determines to be reasonable under the circumstances.
Any such reimbursement would be credited to the appli
cable appropriation of the Public Health Service.2
H.R. Rep. No. 538, 90th Cong., 1st Sess. 38 (1967) (emphasis added).
The reference to the new section in the Senate report indicates that the
Congress intended the section to grant broad authority to the Secretary
so that the Public Health Service could play an active role in delivering
disaster assistance services. In explaining this expanded role, the com
mittee wrote:
Under present statutory authority, the Public Health
Service may provide emergency care and treatment in its
hospitals and outpatient facilities to persons who are not
legal beneficiaries of the Service, but the Service does not
have clear authority to provide such emergency care or
treatment outside of its own facilities. If Public Health
Service hospitals are to be responsible members of the
medical communities in which they are located, they must
be able to play a more active role in meeting such com
munity emergency health needs as arise in the case of
floods, fires, and other disasters. The proposed new au
1 T h e re are no judicial decisions o r regulations interpreting this section.
2 T h e S ecretary must determ ine w h e th er to require reim bursem ent from the state or locality. In
1967, it was suggested to the com m ittee that the reim bursem ent be m andatory, but this suggestion was
not follow ed. See H .R . Rep. No. 538, 90th C ong., 1st Sess. 49 (1967).
640
thority would not create any direct Federal obligation to
provide such emergency assistance, but it would authorize
Public Health Service medical facilities to cooperate with
other community agencies in the development and execu
tion of disaster assistance services.
S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this refer
ence could be read to suggest that the section authorizes only emer
gency assistance in the form of assistance by Public Health Service
facilities, we do not believe the section properly should be construed so
narrowly. In its section-by-section analysis, the committee noted that
§ 4 authorized agreements for cooperative planning between public
health medical facilities and community health facilities and that the
Secretary could also extend temporary assistance to meet health emer
gencies. There is no limitation on the type of temporary assistance that
may be provided. See S. Rep. No. 724, 90th Cong., 1st Sess. 25 (1967).3
Most of the discussion on the floor focused on other, more contro
versial sections of the bill. The few comments on § 4 simply refer to the
strengthened role of the Public Health Service in assisting states and
localities to cope with health emergencies and disasters. See, e.g., 113
Cong. Rec. 26,016 (1967) (Statement of Mr. Donohue). Hearings on the
bill were held by the Senate Committee on Labor and Public Welfare.
As with the floor debates, the few comments on § 4 at the hearings
summarily referred to the section as a clarification and strengthening of
existing authority for assistance to states and localities. See, e.g., Partner
ship For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418
Before the Subcomm. on Health o f the Sen. Comm, on Labor and Public
Welfare, 90th Cong., 1st Sess. 62 (1967).
The 1976 amendment, as stated earlier, did not substantively modify
the Secretary’s authority to assist during emergencies. The amendment
to § 4 appeared in the House bill. The committee simply paraphrased
the existing provision in its report, without shedding any light on the
meaning of the section. H.R. Rep. No. 1007, 94th Cong., 2d Sess. 30
(1976).
The plain language of the statute authorizes the Secretary to provide
the assistance at the request of the appropriate state or local authority.
This request is a prerequisite to the provision of any assistance. The
Secretary must determine whether the authority requesting the aid is
the appropriate authority.4 The Secretary must determine whether the
circumstance is a health emergency of such a nature as to warrant
3 A conference com m ittee was convened to resolve differences on o ther portions o f the bill. T h e
conference report does not discuss this section. H .R. Rep. No. 974, 90th C ong., 1st Sess. (1967).
4 A lthoug h the A ct states that "the" state o r local authority may make the request, w e d o not think
this m eans that there is only one official so authorized. In the absence o f regulations, the Secretary
must determ ine in each circum stance w h eth er the request com es from an appropriate authority.
641
federal assistance.5 Once the Secretary makes this determination, tem
porary federal assistance may be provided for a period of 45 days. The
legislative sources cited above do not reveal the purpose of the 45-day
limitation. Because the purpose of the section is to authorize temporary
assistance to states and localities, it may be inferred that the provision
was added to prevent prolonged federal involvement. Financial com
mitments may not be made beyond the 45-day period. If the financial
commitments are made within the 45-day period, and if they are in
tended to provide “temporary” aid, we believe the section allows the
benefits of the commitments to extend beyond the 45 days.
Finally, based upon our review of the statute and its legislative
history, as discussed above, at least in the circumstances as you have
described them in the case, the Public Health Service is authorized to
provide temporary relocation assistance. Any removal of families, and
their temporary relocation in other housing, will be for purposes
closely related to assessing and dealing with the health emergency.
Congress intended to confer on the Secretary of Health and Human
Services authority broad enough to respond as contemplated here.
L a r r y A. H am m ond
Acting Assistant Attorney General
Office o f Legal Counsel
8 W e h ave been advised by th e G eneral C ounsel's O ffice o f the D epartm ent o f H ealth and H um an
Services that a standard internal operating pro ced u re requires that the Surgeon G eneral determ ine that
there is indeed a “ health em ergency.*’ T h e statu te itself does not require this procedure, and the
process is not set forth in the Public H ealth S ervice's regulations.
642 |
|
Write a legal research memo on the following topic. | Presidential Authority to Direct the Chairman of the
Council of Economic Advisers Not to Comply
With a Congressional Subpoena Seeking
Testimony About Private Activities
Although there has been a practical construction, extending back to the earliest days of this Republic,
of the respective powers of the Congress and the Executive, under which the President may order his
subordinates in the Executive Branch to withhold information from the Congress when he deems
such action to be in the public interest, it is difficult to justify application of this principle with
respect to a congressional subpoena seeking an official’s testimony regarding his private activities
prior to the time of his close official connection with the President.
February 19, 1952
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
The question has been raised as to whether Mr. Leon R. Keyserling, Chairman
of the Council of Economic Advisers, could be directed by the President not to
appear and testify, in response to a subpoena issued by a subcommittee of a
committee of the Senate, with respect to his political views and his expressions of
these views, through a period of time beginning several years before he was made
a member of the President’s immediate official family after the enactment of the
Employment Act of 1946, Pub. L. No. 79-304, § 4, 60 Stat. 23, 24, codified at 15
U.S.C. § 1023, which established the Council in the Executive Office of the
President.
There are in general two theories on which such a refusal might be justified.
Most frequently, support is found in the power of the President to hold information
confidential in the public interest. Another theory that has been suggested is that
the official subpoenaed cannot be spared from his conduct of the public business.
The latter ground would seem to be the most difficult to justify in the present
case. The only cited instance of its recognition that has been found occurred in
1806, in a case where the Secretary of State, the Secretary of War, and the
Secretary of the Navy had been summoned to appear in the United States Circuit
Court in New York. Declining to honor the subpoena, they wrote to the judges
presiding at the trial that, in view of the state of public affairs, the President was
unable to dispense with their services at that moment, and that it was uncertain
whether they would at any subsequent time be able to absent themselves from
their official duties. In order not to prejudice the court in the exercise of its
functions, however, they signified their willingness to give testimony by deposition. United States v. Smith, 27 F. Cas. 1192, 1194 (C.C.D.N.Y. 1806) (No.
16,342). Conceivably, the assertion could be made that the President is unable to
spare Mr. Keyserling at any time, now or in the indefinite future, to appear before
a congressional subcommittee, but it is questionable whether such a statement
142
Presidential Authority to Direct Non-Compliance With Congressional Subpoena
would be accepted without serious reservations, either by the public or by a court
sitting in judgment on a possible prosecution for contempt of Congress.
A more frequently used basis for the refusal of an official close to the President
to obey a congressional subpoena exists in the well-established practice of the
Presidents in their discretion to hold information of various types to be confidential in the public interest, and to decline to permit its divulgence outside of the
Executive Branch of the government.
Instances of the practice may be adduced as far back as the administration of
George Washington. In 1796, for example, President Washington declined to
comply with a request of the House of Representatives to furnish it with a copy of
the instructions to ministers of the United States who had initiated a treaty with
Great Britain.
In 1803, in his famous opinion in Marbury v. Madison, Chief Justice Marshall
recognized the right of Attorney General Levi Lincoln, who had been Secretary of
State as of the time of the transactions in question, to refrain from disclosing to the
court information which had been communicated to him in confidence. 5 U.S.
(1 Cranch) 137, 143–44 (1803). In so doing, the Chief Justice recognized that
“[t]he intimate political relation, subsisting between the president of the United
States and the heads of departments, necessarily renders any legal investigation of
the acts of one of those high officers peculiarly irksome, as well as delicate; and
excites some hesitation with respect to the propriety of entering into such investigation.” Id. at 169; see also Appeal of Hartranft, 85 Pa. 433, 443–50 (1877).
There are more recent instances as well of the refusal of an official of the Executive Branch to appear and testify before courts or congressional committees in
response to direction or subpoena.
In 1905, Attorney General Moody advised the Secretary of Commerce and
Labor, who had been subpoenaed by a state court to appear and testify before it,
that he was not legally bound to obey the subpoena. Executive Departments—
Official Records—Testimony, 25 Op. Att’y Gen. 326 (1905).
In 1909, President Theodore Roosevelt instructed his Attorney General not to
respond to that portion of a Senate resolution which directed the latter to inform
the Senate as to why legal proceedings had not been instituted against the United
States Steel Corporation. In a strongly worded message to the Senate, the President declared that “I have instructed the Attorney-General not to respond to that
portion of the resolution which calls for a statement of his reasons for nonaction. I
have done so because I do not conceive it to be within the authority of the Senate
to give directions of this character to the head of an executive department, or to
demand from him reasons for his action. Heads of the executive departments are
subject to the Constitution, and to the laws passed by the Congress in pursuance of
the Constitution, and to the directions of the President of the United States, but to
no other direction whatever.” 43 Cong. Rec. 528 (1909).
143
Supplemental Opinions of the Office of Legal Counsel in Volume 1
In 1944, the Director of the Federal Bureau of Investigation refused to answer
certain questions put to him by a congressional committee, and further declined to
show the committee a copy of the President’s directive to him on which his refusal
was based. Study and Investigation of the Federal Communications Commission:
Hearings Before the Select Committee to Investigate the Federal Communications
Commission, 70th Cong. pt. 2, at 2334, 2337 (1944). In the same investigation, a
congressional request for the appearance of several Army and Navy officers was
refused. Id. pt. 1, at 14, 21, 67–68 (1943).
In 1948, the Secretary of Commerce refused to obey a House Resolution directing him to supply certain information relating to the loyalty of the head of a
Bureau in that Department. H.R. Doc. No. 80-625 (1948).
These instances, and many others, are evidence of a practical construction,
extending back to the earliest days of this Republic, of the respective powers in
this field of the Congress and the Executive, under which the President may order
his subordinates in the Executive Branch to withhold information from the
Congress when he deems such action to be in the public interest.
It is difficult, however, to justify the application of the principle with respect to
information relating, as I understand it, mainly to Mr. Keyserling’s private
activities prior to the time of his close official connection with the President.
In order to support application of the principle in this instance, it might be
asserted that, because of Mr. Keyserling’s current close official association with
the President, the risk of his disclosing confidential official information would be
present even though the questions themselves were directed to Mr. Keyserling’s
activities before the time of his intimate association with the President. Alternatively, it might be urged that if the President feels, on whatever grounds seem to
him to be persuasive, that revelation of the information sought by the committee
would be prejudicial to the public interest even though the information itself is not
in the category of public documents or “official” information, he would be
justified in directing Mr. Keyserling not to appear before a congressional subcommittee for the purpose of supplying such information while Mr. Keyserling is
in his immediate official service. Such a position would represent an extension of
the presidential prerogative beyond any precedent with which I am acquainted,
and I am unable to predict whether or not it would command sufficient support to
be sustained if the question were forced to litigation in a contempt prosecution.
It should be pointed out that, if the President should decide to direct Mr. Keyserling not to obey the subpoena, the refusal itself need not necessarily state the
theory of justification on which the President is relying. In 1948, for example, in
reply to subpoenas served personally upon John R. Steelman, one of the assistants
to the President, directing him on two separate occasions to appear before a House
subcommittee, Mr. Steelman did not appear but returned the subpoenas to the
chairman of the subcommittee with a letter stating, among other things, that “in
each instance the President directed me, in view of my duties as his assistant, not
144
Presidential Authority to Direct Non-Compliance With Congressional Subpoena
to appear before your subcommittee.” H.R. Rep. No. 80-1595, at 3 (1948). The
theory underlying a refusal, however, would seem to be largely determinative of
the degree to which public opinion receives the refusal with favor, and must of
course be depended upon for a successful defense against a prosecution for
contempt of Congress.
Even if the course of refusal to appear is decided upon, it is suggested that it
might be wise for the President to demonstrate his desire to cooperate with the
subcommittee in any appropriate inquiry which it might make, by authorizing Mr.
Keyserling to submit to the subcommittee for its use a statement of affirmance or
denial of specific allegations that have been made, together with such additional
remarks as might be considered appropriate. It would appear that such a statement
should meet the needs of the subcommittee. Nevertheless, the President might also
make it known that he has further authorized Mr. Keyserling to transmit to the
subcommittee, if that body after receiving and considering his statement should
wish to ask him additional specific questions, such additional relevant information
in his possession as may properly be disclosed. Such a course should succeed in
preserving the confidential nature of information that ought not to be disclosed in
the public interest, while at the same time lending every assistance to the committee in its work. For use in drafting such a letter to the subcommittee, if it is the
decision of the President to follow that course, a suggested form which such a
letter might take is attached.
In addition to the question of Mr. Keyserling’s position in this matter, there has
also been raised the question of the status of his wife, as to her obligation to obey a
similar senatorial subpoena to appear and testify on the same alleged activities of
Mr. Keyserling, and possibly of herself. I understand that Mrs. Keyserling is
employed as an economist at the Department of Commerce.
As an employee of the federal government, it would appear that in general Mrs.
Keyserling is equally subject with any other federal employee to a congressional
subpoena. To justify her refusal to appear, it would seem necessary flatly to assert
that her husband’s position is such that the President cannot permit any federal
employee to disclose the information requested. I know of no precedent for such
action. On the other hand, there has been no previous instance, as far as I am
aware, where the question has been raised.
JOSEPH C. DUGGAN
Assistant Attorney General
Executive Adjudicative Division
145
Supplemental Opinions of the Office of Legal Counsel in Volume 1
ATTACHMENT
My dear Mr. Chairman:
I am returning herewith the subpoena issued under date of __________, 1952,
by the Subcommittee on Internal Security of the Senate Committee on the
Judiciary, and signed by you as Chairman of that Subcommittee, directing me to
appear before it on __________, 1952, to testify concerning certain alleged
associations or conversations attributed to me. The President has directed me, in
view of my duties as Chairman of the Council of Economic Advisers, not to
appear before the Subcommittee for that purpose.
However, in view of the President’s desire not to interfere with or impede
appropriate inquiries of the Subcommittee, he has permitted me to transmit for the
use of the Subcommittee the accompanying statement relating to certain specific
allegations which have been reported in the newspapers. In my opinion, the
statement speaks for itself and is complete. Should the Subcommittee, however,
after receiving and considering this statement, desire any further specific information from me, I shall be glad to transmit to it in response to specific questions
such additional relevant information as I may have which may appropriately be
disclosed.
Sincerely,
__________
146 |
|
Write a legal research memo on the following topic. | June 5, 1978
78-31
MEMORANDUM OPINION FOR THE DEPUTY
ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION
Intelligence— Warrantless Electronic Surveillance—
Common Carriers (18 U.S.C. §§ 2510-2520, 47
U.S.C. § 605)
This is in response to your request for our opinion regarding the legality of
cooperation by common carriers in providing the Federal Government with
technical assistance in connection with warrantless electronic surveillance for
foreign intelligence purposes.1 We conclude that such activities are not
prohibited by § 605 of the Communications Act, 47 U.S.C. §605; nor do they
violate chapter 119 or title 18, United States Code, 18 U.S.C. §§ 2510 -2520,
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as
amended.
I. Section 605 of the Communications Act
Section 605 provides in pertinent part that:
Except as authorized by chapter 119, Title 18, no person receiving,
assisting in receiving, transmitting, or assisting in transmitting, any
interstate or foreign communication by wire or radio shall divulge or
publish the existence, contents, substance, purport, effect or meaning
thereof, except through authorized channels of transmission or
reception, (1) to any person other than the addressee, his agent, or
attorney, (2) to a person employed or authorized to forward such
communication to its destination, (3) to proper accounting or distrib
uting officers of the various communicating centers over which the
communication may be passed, (4) to the master of a ship under
whom he is serving, (5) in response to a subpoena issued by a court
of competent jurisdiction, or (6) on demand of other lawful
authority. . . .
'Y ou have indicated that only limited technical assistance, not interception and disclosure perse,
would be requested. The scope o f this m em orandum is limited accordingly.
123
This language, found in the first sentence of § 605, is designed to regulate the
conduct of communications personnel. S. Rept. No. 1097, 90th Cong., 2d
sess., 1968 U.S. Code Cong. & Admin. News, at 2197. The remainder of the
section deals only with radio communications. The current language was
adopted in 1968 as § 803 of the Omnibus Crime Control and Safe Streets Act.
The provision was “ not intended merely to be a reenactment of (old] section
605. . . [but was] intended as a substitute.” Id., at 2196.
Although the 1968 changes have in certain respects rendered pre-1968
judicial interpretations inapplicable,2 certain interpretations may have contin
ued vitality. Thus, in United States v. Russo, 250 F. Supp. 55, 58-59 (E.D. Pa.
1966), the court treated the first clause of § 605 as applicable under only very
narrow circumstances, unlike those here at issue, indicating that the statute’s
language was
. . . designed to apply to persons such as telegram or radiogram
operators, who must either learn the content of the message or handle
a written record of communications in the course of their employ
ment. Clause 1 recognizes that the integrity of the communication
system demands that the public be assured that employees who thus
come to know the content of messages will in no way breech the trust
which such knowledge imposes on them.
Also significant is the holding of the Court of Appeals for the Third Circuit,
in United States v. Butenko, 494 F. (2d) 593 (en banc), cert, denied sub nom.,
Ivanov v. United States. 419 U.S. 881 (1974), that in its earlier form the
provision was simply not intended to reach wiretapping undertaken pursuant to
Presidential order for foreign intelligence purposes.The provision of technical
assistance for this limited purpose, using similar reasoning, would also seem to
fall outside the current scope of § 605, particularly since an express disclaimer
of such coverage appears in 18 U.S.C. § 2511(3), discussed below, which was
enacted at the same time.
The language and legislative history of § 605, as amended, provide addi
tional support for the view that the provision presents no bar to a carrier’s
technical assistance in connection with warrantless intelligence taps. In its
present form, the section simply bars divulgence of the existence or content of
wire communications. Cooperation in identifying lines or otherwise providing
necessary technical information to facilitate Government taps does not involve
disclosures of this sort. Moreover, the legislative history of the amended
provision states that “ [T]he regulation of the interception of wire and oral
communications in the future is to be governed by proposed new chapter 119 of
title 18, United States Code [18 U.S.C. §§ 2510-2520].” S. Rept. No. 1097,
supra, 1968 U.S. Code Cong. & Admin. News, at 2196. Rather than assuming
that Congress intended separately to regulate interceptions (in title 18) and
disclosures (in § 605), the courts have indicated that Congress effectively
“'Significantly, under the earlier version the restrictions contained in the second through fourth
sentences o f the current provision, now applicable only to radio com m unications, also governed
com m unications by wire.
124
shifted control of electronic surveillance operations to 18 U.S.C. §§ 2510-2520.
See, United States v. Falcone, 505 F. (2d) 478, 482 (3d Cir. 1974), cert,
denied, 420 U.S. 955 (1975). Cf., Hodge v. Mountain States Telegraph &
Telephone Co., 555 F. (2d) 254, 264 (9th Cir. 1977) (Hufstedler, J.,
concurring) (pen registers not barred by chapter 119 of title 18 and therefore not
covered by § 605).
For these reasons we believe that communication carriers who provide
limited technical assistance in connection with Presidentially authorized warrantless
electronic surveillance undertaken for foreign intelligence purposes will not
violate § 605 of the Communications Act.
II. 18 U.S.C. §§ 2510-2520 (Title III)
Section 2511(1) of title 18, United States Code, forbids interception of wire
or oral communications, use of various devices to intercept oral communica
tions, disclosure of the content of wire or oral communications, and use of the
contents of such communications knowing that they have been obtained
through illegal interception. “ Intercept” is defined as “ the aural acquisition of
the contents of any wire or oral communication through the use of any
electronic, mechanical, or other device” 18 U.S.C. § 2510(4). Identification of
particular telephone lines or provision of other technical assistance, knowing
that another intends to undertake electronic surveillance, does not fall within
the statutory language. Only actual interception or disclosure is forbidden, not
lesser acts facilitating such consequences. The possibility that such conduct
would be treated by a court as falling within the terms of the statute for the
purpose of aiding or abetting or of a conspiracy charge where the electronic
surveillance is not authorized pursuant to title III. cf.. White v. Weiss, 535 F.
(2d) 1067 (8th Cir. 1976) (private detective’s participation in interception by
providing equipment and instruction in its installation held basis for liability
under § 2520), appears to be foreclosed by reference to the limitation on the
scope of the title III prohibitions appearing in 18 U.S.C. § 2511(3).
Section 2511(3) provides:
Nothing contained in this chapter or in section 605 of the Communi
cations Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the
constitutional power of the President to take such measures as he
deems necessary to protect the Nation against actual or potential
attack or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the
United States, or to protect national security information against
foreign intelligence activities. Nor shall anything contained in this
chapter be deemed to limit the constitutional power of the President
to take such measures as he deems necessary to protect the United
States against the overthrow of the Government by force or other
unlawful means, or against any other clear and present danger to the
structure or existence of the Government. . . .
125
The Supreme Court, in United States v. United States District Court (Keith),
407 U.S. 297 (1972), a case involving warrantless surveillance of a domestic
organization allegedly inclined to attack and subvert the existing structure of
Government, interpreted this provision not as a grant of authority to conduct
warrantless national security searches, but as a disclaimer of congressional
intent to define Presidential powers in matters affecting national security. In
this limited context, the Court held that the Fourth Amendment warrant
requirement did apply; in so doing, however, it appeared to assume that title III
limitations were inapplicable, for it discussed at some length the possible
variations in procedural requirements that might be permissible under the
Constitution. Id., at 322-323. The Keith decision provides guidance concern
ing the President’s constitutional power to undertake surveillance, while at the
same time it construes § 2 5 11 (3) broadly to exempt from coverage under title III
Presidential action with regard to both national security and foreign intelligence
surveillance, at least in the absence of further action by Congress.'' The Court’s
clear language supports this interpretation: “ We therefore think the conclusion
inescapable that Congress only intended to make clear that the Act simply did
not legislate with respect to national security surveillance.” Id., at 306.
An alternative interpretation of Keith was suggested in Zweibon v. Mitchell,
516, F. (2d) 594 (D.C. Cir. 1975), cert, denied, 425 U.S. 944 (1976). In an
opinion joined by Judges Leventhal and Robinson, and concurred in by Judge
Bazelon, Judge Wright there asserted that the requirements of title III should
be deemed to apply as fully as possible where warrantless electronic surveil
lance at the behest of the President was not found to be constitutionally
authorized; specifically where such surveillance was directed against members
of a domestic organization whose activities could affect the foreign relations of
the United States, but who were neither agents of nor collaborators with a
foreign power.4 At the same time, both Judge Wright and the other members of
the court were careful to stress that the case did not require them to resolve the
more difficult question left undecided in Keith, see 407 U.S. at 322, i.e.,
whether a warrant is constitutionally required in connection with electronic
surveillance of collaborators or agents of a foreign power. Courts of appeal in
three circuits have squarely held that warrants are not required under those
circumstances. United States v. Buck, 548 F. (2d) 871 (9th Cir. 1977); United
States v. Butenko, supra; United States v. Brown, 484 F. (2d) 418 (5th Cir.
1973). See also, United States v. Humphrey, Crim. No. 78-25-A (E.D. Va.,
March 31, 1978), memorandum opinion at 8. In light of this clear and growing
authority, we do not believe that Judge Wright’s analysis in Zweibon regarding
3In a recent decision, the U .S . District C ourt for the Eastern District of Pennsylvania adopted this
view, holding that if it is established that surveillance is conducted for national security purposes,
no right o f action based on failure to com ply with title III will lie. despite the conclusion that in that
case there was a constitutional requirem ent that a warrant be procured. See. Burkhart v. Saxbe. 448
F. Supp. 588 (E .D . Pa. 1978).
4Judges W ilkey, M acK innon, and M cG ow an rejected this interpretation of Keith; Judge Robb,
concurring in the result but not in the relevant portion o f the W right opinion, found title III
applicable on the facts presented. It is therefore far from clear that the W right view should be seen
as controlling.
126
the breadth of application to be given the provisions of title III will be extended
to render telephone companies liable for providing technical assistance in
connection with even constitutionally flawed surveillances undertaken pursuant
to Presidential authorization for foreign intelligence purposes.5
Given our conclusion that the proscriptions of title III do not apply where,
pursuant to Presidential authorization, Federal agents carry out warrantless
electronic surveillance for foreign intelligence purposes, we must nevertheless
inquire whether telephone companies which provide necessary technical
assistance at the request of the Government are equally exempt from liability. It
would seem to follow that Congress, intending to leave unimpaired the
President’s authority in this regard, did not seek to bar cooperation by
telephone companies where needed to accomplish the permitted end. Cf.,
Fowler v. Southern Bell Telephone & Telegraph Co., 343 F. (2d) 150, 156-157
(5th Cir. 1965) (recognizing a common law immunity from liability for
telephone companies engaged in assisting immune State officials). This notion
is strengthened by analogy to § 251 l(2)(a), as amended in 1970, to provide that
(ii) It shall not be unlawful under this chapter for an officer,
employee, or agent of any common carrier to provide information,
facilities, or technical assistance to an investigative or law enforce
ment officer who, pursuant to this chapter, is authorized to intercept a
wire or oral communication.
Section 2511 (2)(a) and two other contemporaneous amendments to title III6
specifically provide for limited assistance in connection with court-authorized7
electronic surveillance which complies with the procedural protections of title
III, but do not in terms immunize carriers who provide such limited assistance
5See Burkhart v. Saxbe, supra. It should, nevertheless, be noted that the Humphrey decision may
be viewed as raising particular questions in this regard. T here, the court held that a w arrant was
required by virtue o f the Fourth Am endm ent once the gathering o f evidence o f crim inal activity,
rather than the accum ulation o f foreign intelligence inform ation, had becom e the primary purpose
o f Presidentially authorized electronic surveillance, but did not analyze the issue in term s o f title
HI. W e do not believe that such a recognition of the G overnm ent’s obligation under the
Constitution to seek a judicial warrant at this later tim e should affect the liability o f telephone
com panies under title III. Section 2 5 11 (3) states that nothing in chapter 119 o f title 18 (title III) is to
be read as lim iting the President’s constitutional pow er to undertake foreign intelligence
surveillances as necessary. Interpreting title 111 to render telephone com panies liable for providing
necessary technical assistance w henever an investigation later changes in character (without their
knowledge) so that a warrant is constitutionally required would effectively deter their participation
at the outset. This result is questionable since it im pinges upon the carefully preserved and
judicially recognized Presidential pow er with regard to foreign intelligence surveillances.
6See 18 U .S .C . § 2518(4) (on request o f the applicant for a court order com pelling a
com m unications com m on carrier to fum ish inform ation, facilities, and technical assistance in
connection with court-authorized interception); 18 U .S .C . § 2520 (expanding the defense o f good
faith reliance on court orders or on the provisions o f § 2518(7) to include reliance on court order or
"legislative authorization").
7The Suprem e Court in Keith, as earlier discussed, found that § 2511(3) did not constitute
congressional “ authorization” o f w arrantless intelligence surveillance undertaken pursuant to
Presidential order.
127
in connection with Presidentially authorized surveillance.8 At the same time,
however, they do demonstrate Congress’ intent not to penalize under title 111
those who render this sort of aid in connection with electronic eavesdropping
that is lawfully undertaken.9 The decision in Halperin v. Kissinger, .424, F.
Supp. 838 (D.D.C. 1974), provides some support for this view insofar as the
district court there found a telephone company which had provided limited
technical assistance while acting in reliance on the representations of Govern
ment officials to be without liability.10 Based on the above reasoning and this
limited authority, we therefore believe that it may properly be concluded that
title III imposes no criminal or civil liability on common carriers which provide
limited technical assistance pursuant to a Government request in connection
with Presidentially authorized electronic surveillance for foreign intelligence
purposes.
III. Conclusion
There have been few judicial decisions considering the liability of telephone
companies which provide technical assistance in the conduct of foreign
intelligence surveillances. However, based on relevant statutory provisions, we
believe that no liability is likely to be found under 47 U.S.C. § 605, as
amended. Additionally, it is our view that liability for rendering technical
assistance at least in connection with Presidentially authorized warrantless
electronic surveillance of an agent or collaborator of a foreign power could not
be founded on the provisions of Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, as amended.
Jo h n M . H a rm o n
Assistant Attorney General
Office o f Legal Counsel
“The am endm ents were adopted in 1970 as part o f the District o f Colum bia Court Reorganization
Act. Their limited legislative history indicates that they were intended m erely to clarify C ongress’
intent under title III o f the 1968 Act. 115 Cong. Rec. 37192-93 (1970) (rem arks by Senator
M cClellan). The Suprem e Court has held that the am endm ents were primarily designed to overrule
the Ninth C ircu it’s decision in Application o f the United States, 427 F. (2d) 639 (1970), which had
concluded that district courts lack pow er to compel a telephone com pany to assist in a wiretap
conducted pursuant to title III. United States v. New York Telephone Co.. 434 U. S. 159, 177, n.
25 (1977). T he use o f such language to clarify C ongress’ intent in enacting title III does not compel
the conclusion that the earlier version o f the law did not permit the rendering o f such assistance.
C f. ibid.
''That lim ited technical aid was expressly sanctioned does, how ever, by im plication, suggest that
direct telephone com pany involvem ent in interception and disclosure was not at the same time
approved.
l0It is unclear which o f these distinguishable grounds and statutory bases (§ 251 l(2)(a),
concerning technical assistance, o r § 2520, concerning good faith reliance) served ultim ately as the
basis for the co u rt’s ruling.
128 |
|
Write a legal research memo on the following topic. | 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
Title 18, section 207, U.S. Code, would not prohibit a former government official from representing a
former President or former Vice President in connection with his role under the Presidential Records
Act, 44 U.S.C. §§ 2201-2207 (1994).
June 20, 2001
MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT
You have requested our opinion whether 18 U.S.C. § 207 (1994 & Supp. II
1996) would prohibit a former government official from representing a former
President in connection with his role under the Presidential Records Act, 44
U.S.C. §§ 2201-2207 (1994) (“PRA”), and whether it would prohibit such a
person from representing a former Vice President in a similar capacity. We
conclude that 18 U.S.C. § 207 would not prohibit such representation. 1
I.
Title 18, section 207 imposes restrictions on the ability of former federal
employees to represent third parties on certain matters before certain federal
agencies and other entities. Specifically, 18 U.S.C. § 207(a)(1) prohibits
[a]ny person who [was] an officer or employee (including any special Government employee) of the executive branch of the United
States . . . [from] knowingly mak[ing], with the intent to influence,
any communication to or appearance before any officer or employee
of any department, agency, court, or court-martial of the United
1
On January 19, 2001, Counsel to the President Beth Nolan asked our opinion on this same question, limited to the representation of a former President. At that time, we orally advised Ms. Nolan that
if the individual representing the former President were employed under the Presidential Transition
Act, 3 U.S.C. § 102 note (1994) (“PTA”), and did not receive compensation for the representation from
any source other than the transition, he or she would not be barred by 18 U.S.C. § 207 from providing
such representation during the six months covered by the PTA (i.e., six months following the change in
presidential administrations). That advice was based upon a 1988 opinion of this Office. See Letter for
Hon. Frank Q. Nebeker, Director, Office of Government Ethics, from Douglas W. Kmiec, Assistant
Attorney General, Office of Legal Counsel (Nov. 18, 1988). You have now requested our opinion
whether 18 U.S.C. § 207 permits a former government official to represent a former President in
connection with his advisory role under the PRA even after the six-month period covered by the PTA.
You have also asked us to address the same question with regard to representation of a former Vice
President.
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Applicability of Post-Employment Restrictions in 18 U.S.C. § 207
States or the District of Columbia, 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 or the District of Columbia is a
party or has a direct and substantial interest,
(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.
Under 18 U.S.C. § 207(c), certain senior personnel face an additional prohibition.
Specifically, a person falling within categories set out in section 207(c)(2) may
not,
within 1 year after the termination of his or her service or employment . . . knowingly make[], with the intent to influence, any communication or appearance before any officer or employee of the
department or agency in which [the] person served . . . , on behalf or
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. 2
Section 207 also specifies an exception to its various prohibitions that is particularly relevant here: It provides that “[t]he restrictions contained in this section shall
not apply to acts done in carrying out official duties on behalf of the United
States.” Id. § 207(j)(1).
Under the PRA, the Archivist of the United States is directed to restrict public
access to prior presidential administrations’ records that meet certain criteria
defined by the statute. See 44 U.S.C. § 2204(a)-(b)(1). The PRA further provides
that “[d]uring the period of restricted access . . . the determination whether access
to a Presidential record or reasonably segregable portion thereof shall be restricted
2
Section 207(d) may also be relevant. That section establishes further restrictions on the postemployment activities of certain “very senior personnel” of the Executive Branch and independent
agencies. Specifically, it prohibits a person (defined in section 207(d)(1)(A)-(C)), within one year
following the termination of his or her service, from communicating on behalf of any other person
(except the United States) with any officer or employee of the agency or department where the covered
person previously served in the year before his or her service terminated, and with any person
appointed to an executive position listed in 5 U.S.C. §§ 5312, 5313, 5314, 5315, or 5316 (Supp. V
1999). Those subject to section 207(d) include persons appointed by the President under 3 U.S.C.
§ 105(a)(2)(A) (1994) or by the Vice President under 3 U.S.C. § 106(a)(1)(B).
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Opinions of the Office of Legal Counsel in Volume 25
shall be made by the Archivist, in his discretion, after consultation with the former
President.” Id. § 2204(b)(3). 3 In the case of Vice-Presidential records, the PRA
provides that they “shall be subject to the provisions of [the PRA] in the same
manner as Presidential records,” and that “[t]he duties and responsibilities of the
Vice President, with respect to Vice-Presidential records, shall be the same as the
duties and responsibilities of the President under this chapter with respect to
Presidential records.” Id. § 2207.
Regulations implementing the PRA anticipate that former Presidents may
designate representatives in matters relating to their consultative role under the
PRA. See 36 C.F.R. § 1270.46(a) (2001) (“The Archivist or his designee shall
notify a former President or his designated representative(s) before any Presidential records of his Administration are disclosed.”); see also Exec. Order No. 12667
(Jan. 18, 1989) (providing that the Archivist shall notify a former President “or his
designated representative” of the Archivist’s decision whether to honor the former
President’s assertion of executive privilege). 4 During the Clinton Administration,
the White House Counsel’s Office expressed the view that a former President
would require legal advice in order to consult effectively with the Archivist as
contemplated by the PRA, and that an attorney advising a former President on
such matters would need to communicate on the former President’s behalf not just
with the Archivist, but with the current White House and possibly other federal
agencies as well. The question here is whether, under section 207’s postemployment restrictions, an attorney could engage in such communications on the
former President’s behalf if the attorney had served in the White House Counsel’s
Office or elsewhere in the federal government during the former President’s
administration. The same question applies to representation of a former Vice
President in connection with the PRA. The National Archives and Records
Administration (“NARA”) states that although the designated representatives of
former Presidents Reagan and Bush are former officials from their respective
administrations, “concern about this issue was simply never contemplated by
NARA, OGE, DOJ, or any incumbent or former President or Vice President or
designated representative prior to the end of the Clinton Administration.” See
Letter for Robert W. Cobb, Associate Counsel to the President, from Gary M.
Stern, General Counsel, National Archives and Records Administration at 1
(May 3, 2001) (“Stern Letter”).
3
The PRA also specifies that none of its provisions is to be construed to “confirm, limit, or expand
any constitutionally-based privilege which may be available to an incumbent or former President.” 44
U.S.C. § 2204(c)(2).
4
Similarly, the PRA itself recognizes that former Presidents may, in certain limited circumstances,
be represented by third parties for purposes of the PRA. Specifically, the PRA provides that, “[u]pon
the death or disability of a . . . former President, any discretion or authority the . . . former President
may have had under this chapter shall be exercised by the Archivist unless otherwise previously
provided by the . . . former President in a written notice to the Archivist.” 44 U.S.C. § 2204(d).
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Applicability of Post-Employment Restrictions in 18 U.S.C. § 207
II.
The key question is whether an individual who communicates with federal
agencies on behalf of a former President or Vice President in these circumstances
is, within the meaning of section 207, acting “on behalf of any other person
(except the United States or the District of Columbia).” 5 18 U.S.C. § 207(a); see
id. § 207(c). If so, section 207’s prohibitions apply. If, however, such an individual
is “carrying out official duties on behalf of the United States,” id. § 207(j)(l), or is
otherwise not acting “on behalf of any other person (except the United
States . . .),” section 207’s prohibitions do not apply. For the reasons discussed
below, we conclude that section 207’s prohibitions do not apply to this sort of
representation.
This Office has previously concluded that in using the phrase “on behalf of” in
section 207, “Congress intended . . . to reach only communications made as a
representative of another, not communications that merely support another or
another’s position.” 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 3 (Oct. 17, 1990) (“Luttig
Memorandum”). Typically, the hallmark of such a relationship is “at least some
degree of control by the principal over the agent who acts on his or her behalf.” Id.
at 6; see Restatement (Second) of Agency § 1(1) (1958). An attorney representing
a former President in connection with the President’s consultative role under the
PRA would be acting “on behalf of” the former President as defined in section
207. See Public Citizen, Inc. v. Department of Justice, 111 F.3d 168, 172 (D.C.
5
In at least three circumstances, we could conclude that at least some of section 207 would not
apply, without reaching the “on behalf of” issue. None of these circumstances, however, allows us to
avoid the “on behalf of” issue here. First, we assume that the attorney representing the former President
or Vice President would be a former employee of the White House or Vice President’s Office,
respectively, and that the kind of communications being contemplated here would include communications with either the White House or Vice President’s Office. If this were not the case, then section
207(c) would not apply, since it covers only appearances before and communications with the federal
agency in which the person was previously employed. Section 207(a) would apply, however, since it
covers appearances before and communications with any federal agency or department. As to some
former officials, moreover, section 207(d) would apply if the communications at issue were with either
the White House or any official appointed to an Executive Branch position listed in 5 U.S.C. § 5312,
5313, 5314, 5315, or 5316.
Second, we assume that at least some of the contemplated communications would take place within
one year of the attorney’s departure from the government. If this were not the case, sections 207(c) and
(d) would again not apply, this time because they each establish only a one-year ban on communications. Section 207(a) would still apply, however, since it imposes a lifetime ban.
Third, we assume that the contemplated communications might involve “matter[s] in which [the
attorney concerned] participated personally and substantially” while in the government. 18 U.S.C.
§ 207(a)(1)(B). If this were not the case, section 207(a) would not apply. Sections 207(c) and 207(d)
would still apply, however, since their prohibitions are not so confined.
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Opinions of the Office of Legal Counsel in Volume 25
Cir. 1997) (describing attorneys employed by former Presidents in connection with
their consultative roles under the PRA as having “served solely in a representative
capacity”). The same is true for an attorney representing a former Vice President
in such a capacity. Whether the attorney is thereby acting on behalf of the United
States or on behalf of “any other person” turns on whether, in the unique circumstances of the PRA, a former President or Vice President is viewed as retaining at
least some aspects of his official role rather than as occupying solely the position
of a private person.
As this Office has previously explained, Congress’s “only concern” in passing
and amending section 207 “was with preventing government employees from socalled ‘revolving door’ representation of private parties before the government.”
Luttig Memorandum at 4 (citing S. Rep. No. 95-170, at 32 (1977)) (emphasis
added). We have found no evidence that Congress thought of former Presidents
fulfilling their role under the PRA as “private parties.” On the contrary, “the
former President in this context can hardly be viewed as an ordinary private
citizen.” Public Citizen, 111 F.3d at 170. Rather, the PRA assigns former Presidents a special, quasi-official role because, in certain circumstances, they may be
uniquely situated to address the interests of the United States. Typically, those
circumstances involve questions of executive privilege. See id. (In the context of
the PRA, a former President “retains aspects of his former role—most importantly . . . the authority to assert the executive privilege regarding Presidential
communications.”). When the Archivist is called upon to determine whether
certain presidential records created during a former President’s administration
ought to be released, considerations of executive privilege may inform that
determination. And although the privilege belongs to the Presidency as an
institution and not to any individual President, the person who served as President
at the time the documents in question were created is often particularly well
situated to determine whether the documents are subject to a claim of executive
privilege and, if so, to recommend that the privilege be asserted and the documents
withheld from disclosure. Cf. id. at 171 (“The former President clearly qualifies as
an expert on the implications of disclosure of Presidential records from his
administration.”). In providing advice to the Archivist on such matters, a former
President helps to support the institution of the Presidency and the constitutionally-based executive privilege.
The Supreme Court reached a similar conclusion in Nixon v. Administrator of
General Services, 433 U.S. 425 (1977). In that case, the Court addressed the issue
whether a former President may assert executive (sometimes styled “Presidential”)
privilege as to certain documents relating to his term as President and held by the
current administration. Because the current administration did not support the
former President’s assertion of privilege, the Court recognized that the case
involved an “assertion of a privilege against the very Executive Branch in whose
name the privilege is invoked.” Id. at 447-48. The Court acknowledged that, to the
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Applicability of Post-Employment Restrictions in 18 U.S.C. § 207
extent effective communication between a sitting President and his advisers might
be chilled by the disclosure of documents relating to a prior administration, an
incumbent may decide to assert a privilege as to “confidences of a predecessor
when he believes that the effect [of disclosure] may be to discourage candid
presentation of views by his contemporary advisers.” Id. at 448. Nevertheless, a
sitting President is not the only one competent to assert the privilege:
Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank
submissions of facts and opinions upon which effective discharge of
his duties depends. The confidentiality necessary to this exchange
cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the
privilege is not for the benefit of the President as an individual, but
for the benefit of the Republic. Therefore, the privilege survives the
individual President’s tenure.
Id. at 448-49 (quoting, and adopting, Brief for the Solicitor General on Behalf of
Federal Appellees). Thus, because protection of the executive privilege is “for the
benefit of the Republic,” and because a former President is in a special position to
determine the propriety of asserting that privilege regarding records produced
during his tenure, former Presidents are competent to assert the privilege as to
such records. Indeed, in asserting this privilege, a former President speaks not only
for “the benefit of the Republic” but also in the “name” of the Executive Branch.
Id. at 448. 6 Accordingly, an individual who represents a former President in this
context is not engaged in the kind of representation of a purely private entity at
which section 207’s prohibitions are aimed.
Moreover, prohibiting a former government official from representing a former
President in connection with his consultative role under the PRA would not further
the underlying policy aims of section 207. The problems of undue influence and
divided loyalties that characterize most representational relationships prohibited
by section 207 are absent in this context. Here, Congress has expressly defined a
consultative role for former Presidents. In faithfully advising and representing the
6
That a former President and a current President may differ as to the propriety of disclosing certain
presidential documents from the former President’s administration does not alter this conclusion. In
Nixon itself, President Nixon’s attempted assertion of executive privilege was not supported by either
President Ford or President Carter. See 433 U.S. at 449. But that did not prevent the Court from
concluding that President Nixon was competent to assert the privilege as to certain documents from his
time in office. Moreover, it is not uncommon for different agencies or departments of the Executive
Branch to take different public positions on certain legal questions, each one claiming to speak on
behalf of the United States. See generally Michael Herz, United States v. United States: When Can the
Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893 (1991).
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Opinions of the Office of Legal Counsel in Volume 25
former President as he fulfills that role, an attorney would simply be helping the
President to effectuate a special role expressly approved by Congress.
Our conclusion accords with practice. As NARA notes, former Presidents
Reagan and Bush have both been represented by former government officials in
connection with their consultative roles under the PRA. Stern Letter at 1. Although
it appears that the representation in both cases was undertaken without any explicit
consideration of section 207’s possible application, see id., this practice lends
some support to our conclusion that section 207 simply does not apply to representation provided to a past President in connection with his role under the PRA.
We reach the same conclusion with respect to the representation of former Vice
Presidents. In directing that “Vice-Presidential records shall be subject to the
provisions of [the PRA] in the same manner as Presidential records, “ 44 U.S.C.
§ 2207, the PRA establishes a consultative role for former Vice Presidents so that
they, like former Presidents, may identify the interests of the United States at stake
in the record disclosure process. And while it is true that only a President or
former President is competent to assert executive privilege, a former Vice
President may make recommendations to incumbent or former Presidents whether
to assert the privilege in particular cases. We see no basis in the text or legislative
history of the PRA for concluding that an individual representing a former Vice
President in connection with the PRA should be subject to the strictures of section
207 any more than if he were representing a former President.
Finally, we note that to the extent it remains unclear whether section 207’s
prohibitions apply in this context, the rule of lenity requires that any remaining
ambiguity in the statute be construed so as to narrow, not broaden, the statute’s
prohibitions. That rule “demand[s] resolution of ambiguities in criminal statutes in
favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422 (1990); see
Liparota v. United States, 471 U.S. 419, 427 (1985) (“[A]mbiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity.”) (quoting Rewis v.
United States, 401 U.S. 807, 812 (1971)); Luttig Memorandum at 5 (invoking the
rule of lenity as one justification for a narrow reading of “on behalf of” as used in
section 207).
DANIEL L. KOFFSKY
Acting Assistant Attorney General
Office of Legal Counsel
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|
Write a legal research memo on the following topic. | The Effect of an Appropriations Rider on the Authority of the
Justice Department to File a Supreme Court Amicus Brief
A rid er in the 1990 appropriations legislation for the Justice D epartm ent, the F ederal C o m m u
nications C om m ission, and other agencies that provides that no funds appropriated by th at
legislation m ay be used to repeal, m odify, or reexam ine certain F C C policies does not forb id
the Ju stice D epartm ent from filing a Suprem e C ourt am icus b rie f in a case in w hich those
policies are at issue.
Febrary 5, 1990
Me m
orandum
O p in io n
for the
Ac t i n g S o l i c i t o r G e n e r a l
This responds to your request for our opinion on whether a rider in the
Departments o f Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1990 (“ 1990 Appropriations Act”), Pub. L.
No. 101-162, 103 Stat. 988 (1989) forbids the Department of Justice from
filing an amicus brief with the Supreme Court in Metro BroadcastingInc. v.
FCC, No. 89-453, and Astroline Communications Co. v. Shurberg Broad
casting, No. 89-700.1 For the reasons discussed below, we agree with your
conclusion that the rider does not forbid such a filing.
I. Background
The 1990 Appropriations Act provides funding for several federal govern
ment entities, including the Department of Justice (title II), the Judiciary
(title IV), and a variety of agencies, among them the Federal Communica
tions Commission (title V). A rider appears in the provision of title V
making appropriations for the Federal Communications Commission (“FCC”),
which is also found in materially the same language in the two prior annual
appropriations acts.2 It reads:
'S e e M em orandum for William P. Barr. Assistant Attorney General, Office of Legal Counsel, from
John G. Roberts, Jr., Acting Solicitor General, Re: Use o f Departmental Appropriations to File Briefs
Amicus Curiae in Metro Broadcasting, Inc. v. FCC, No. 89-453 and Astroline Comm. Co. v. Shurberg
Broadcasting, No. 89-700 (Jan. 11, 1990) (“Roberts Memorandum”).
2 The original provision from which the current rider is derived appears in Pub. L. No. 100-202, 101
Stat. 1329-1, 1329-31 (1987). See also Pub. L. No. 100-459, 102 Stat. 2186, 2216-17 (1988).
13
[N]one of the funds appropriated by this Act shall be used to
repeal, to retroactively apply changes in, or to continue a re
examination of, the policies of the Federal Communications
Commission with respect to comparative licensing, distress
sales and tax certificates granted under 26 U.S.C. 1071, to
expand minority and women ownership of broadcasting licenses
. . . other than to close MM Docket No. 86-484 . . . .
103 Stat. at 1020.
No such rider appears in title II, which appropriates funds for the Justice
Department, not even in the “General Provisions” of that title. 103 Stat. at
995-1006.3 Nor does any such rider appear in title IV, which appropriates
m onies for the federal courts, including the Supreme Court. Id. at 1010-16.
Finally, no such rider appears in title VI (“General Provisions”), which sets
forth general restrictions on the use of the funds appropriated under all of
the preceding titles of the Act. Id. at 1031-40.
The questions of the FCC rider’s possible application to a Justice Depart
m ent amicus filing initially arose in August 1988, when the Civil Rights
Division sought permission to file an amicus brief with the Court of Appeals
for the District of Columbia Circuit in what is now the Metro Broadcasting
case.4 Both the Civil Rights Division and the Solicitor General concluded,
as do we here, that the rider does not prohibit amicus filings by the Depart
ment. The Solicitor General authorized Civil Rights to file an informational
amicus brief with the court of appeals,5 and such a brief was in fact filed.6
II. AmaEysns
The FCC rider prohibits the use of “funds appropriated by this Act . . . to
repeal, to retroactively apply changes in, or to continue a reexamination of,
the [specified] policies of the Federal Communications Commission.” 103
Stat. at 1021. It is clear from the language and purpose of the rider, and
from the overall structure of the 1990 Appropriations Act, that the rider was
3The “G eneral Provisions" o f title II do otherwise impose restrictions on the use of Justice Department
funds. See 1990 Appropriations Act §§ 205-206, 103 Stat. at 1005 (restrictions on abortion-related use
o f funds).
4 See M em orandum for the Solicitor General, from W illiam Bradford Reynolds, Assistant Attorney
G eneral, Civil Divison, Re: Steele v. FCC and Winter Park Communications, Inc. v. FCC. Nos. 84-1176
& 85-1755 (D.C. Cir.) (July 22, 1988) (rider did not prohibit amicus filing in court of appeals); hand
written com m ents o f the Solicitor General on M emorandum for the Solicitor General, from Thomas W.
M errill, D eputy Solicitor General, Re: Steele v. FCC (Aug. 3, 1988) (rider did not prohibit filing of an
“inform ational" am icus brief).
5 In his handw ritten marginal comments authorizing a filing, the Solicitor General wrote that “ [t]he
argum ent relating to the appropriations rider is troublesome but I think Civil Rights has the better of it."
He further observed that a purely “informational” filing would not “come within ten miles of the appro
priation rid er’s prohibition (even on its m ost expansive interpretation).”
6See B rie f fo r the U nited States as Am icus Curiae. Winter Park Comm., Inc. v. FCC & Metro Broad
casting, Inc. v FCC. D.C. Cir. Nos. 85-1755 & 85-1756 (Aug. 29, 1988).
14
intended to impose restrictions only on the FCC, and thus does not forbid the
filing o f an amicus (or any other) brief by the Department of Justice. Even if
this conclusion were less than clear, we would resolve any ambiguity in favor
o f this construction to avoid the very serious constitutional problems that
would exist were the rider interpreted to prevent the Department from filing
in the Court.
The 1990 Appropriations Act is essentially an omnibus enactment com
prising a number of separate and unrelated appropriations “Acts” (titles I-V),
and a number of general provisions that apply to all titles of the Act (title
VI). Each of titles I-IV is expressly designated an “Act.” Id. at 995, 1006,
1010, 1016. For example, title II, which appropriates funds for the Justice
Department, provides that title II “may be cited as the 'Department of Jus
tice Appropriations Act, 1990.” ’ Id. at 1006.7 With the exception of title VI,
which for understandable reasons Congress might not separately designate an
“Act,” title V is the only title that is not expressly designated an Act. Be
cause it is not designated an “Act ” there is some question as to whether the
term “this Act” in title V was intended to refer only to title V or to the entire
1990 Appropriations Act.
We believe that title V also should be considered a separate act for the
purpose of construing the provisions within that title, which appears to be
the only purpose for Congress’ separate designation of titles I-IV as “Acts.”
We can think of no substantive reason why Congress would have wanted
title V treated any differently in this respect from titles I-IV. Indeed, it
appears that the only reason title V may not have been designated an “Act”
is that, unlike titles I-IV, it appropriates monies to a number of different
federal government entities8 and, as a consequence, would not have been
easily entitled. It follows from the fact that title V was intended to be
understood as a separate “Act” for the same purposes that titles I-IV are to
be so understood that the term “this Act” in the title refers only to title V,
not to the entire 1990 Appropriations Act.9 Accordingly, we conclude that
the expenditure restriction in the rider applies only to the FCC appropria
tions made in title V.10
Interpreting the rider as applicable only to the FCC is the interpretation
’ The Act provides that title I “may be cited as the 'Departm ent of Commerce Appropriations Act,
1990"', see 103 Stat. at 995; that title III “may be cited as the 'Departm ent o f State Appropriations Act,
1990',” id. at 1010; and that title IV “may be cited as "The Judiciary Appropriations Act, 1990',” id. at
1016.
•Each o f titles I-IV appropriates monies for a single agency or, in the case o f title IV, an entire branch
o f government (the federal judiciary).
’ This interpretation of the term is consistent with the other uses o f the term in title V. See 103 Stat. at
1018 (Commission on the Bicentennial of the United States Constitution); id. at 1022 (Securities and
Exchange Commission); id. at 1023 (Small Business Administration); id. at 1024 (same); id. at 1028
(same).
10The restriction would apply to, although presumably have no practical effect on, the other agencies
for which appropriations are made in title V.
15
most consistent with the rider’s character as a proviso. Sums are appropri
ated “[f]or necessary expenses of the Federal Communications Commission
. . . Provided!” that the rider’s terms are observed. 103 Stat. at 1020. While
it would be possible to read the provision as conditioning the FCC appro
priations on Commerce, Justice, State and other agency compliance with the
terms o f the rider, clearly the most natural reading of the proviso is as a
condition only on the immediately preceding appropriation to the FCC. It
would be odd indeed for Congress to condition one agency’s appropriations
on compliance by other agencies with enacted prohibitions. This is espe
cially the case where, as here, the other agencies have no apparent authority
to engage in the prohibited activities.
The legislative history confirms that Congress intended the rider to apply
only to the FCC. The Senate Report on the bill that first included the rider
explains the purpose of the rider as follows:
The Committee has inserted a provision in the bill which
bars the Federal Communications Commission from expend
ing funds to repeal, retroactively restrict, or continue a pending
reexamination of, longstanding rules to promote the owner
ship o f broadcasting licenses by minority group members and
women. The FCC has commenced an inquiry, In the Matter
of Reexamination of the Commission’s Comparative Licens
ing, Distress Sales and Tax Certificate Policies Premised on
Racial, Ethnic or Gender Classifications, MM Docket No. 86484, which calls into question the advisability and legality of
these rules.
The Committee believes the inquiry is unwarranted . . . .
S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987) (emphasis added) (“Sen
ate Report”). The report continues with instructions to the FCC to close
MM Docket No. 86-484, and to resolve within sixty days certain proceed
ings that had been either remanded by the District of Columbia Circuit
Court o f Appeals — including the Shurberg case — or held in abeyance
pending the outcome of the FC C ’s rulemaking, “in a manner consistent with
the policies that mandated incentives for minorities and women in broadcast
ownership.” Id. at 77.
These passages make clear that the purpose of the rider was to prevent
the FCC from using its appropriated funds to continue the then-pending
FCC administrative proceeding reexamining the minority and gender prefer
ence policies11 or, at most, to prevent the FCC from conducting any such
reexamination in the future. The rider even identifies by docket number
11 The FC C ’s rulem aking followed a request by the FCC to the D.C. Circuit — before which a constitu
tional challenge to the F C C ’s comparative licensing gender preference policy was pending — to permit
the agency to reexam ine its preferences. See Race and Gender Preferences, 1 F.C.C. Red 1315 (1986)
Continued
16
(MM Docket No. 86-484) and, almost verbatim, the title of the specific FCC
rulemaking (or “reexamination”) with which it was concerned.12
The structure of the 1990 Appropriations Act also supports the conclusion
that Congress did not intend the rider as a restriction on the use o f all funds
appropriated in the 1990 Appropriations Act. If Congress intended to apply
the rider’s restrictions to all of the federal entities, presumably it would have
inserted language of restriction in the respective titles— each of which in
cludes other restraints on the use of the appropriated monies—or, more likely,
in title VI, a catch-all section that includes provisions limiting the use of
funds appropriated in any of the earlier titles. Neither titles I-IV nor title VI
contains any restriction substantively similar to that in the rider.
Even assuming that the rider extends to the funds appropriated to the
Department of Justice, we do not believe that filing an amicus brief would
be prohibited. The rider only prohibits the expenditure of funds “to repeal,
to retroactively apply changes in, or to continue a reexamination o f ’ the
specified FCC policies. The Department of Justice does not even have the
power to “repeal” or to “apply changes in” an FCC policy. That administra
tive power rests in the FCC and, through legislation, Congress.
Nor, we think, can the filing of an amicus (or any other) brief be regarded
as “continufing] a reexamination” of the FCC policies at issue.13 First, read
in the context of the immediately preceding proscriptions on “repeal” and
“changes in” the FCC policies, the term “continu[ing] a reexamination” is
" (...continued)
(MM Docket No: 86-484), modified, 2 F.C.C. Red 2377 (1987). The FCC had sought this reexam ination
in part because o f its opinion at that time that both the racial and the gender preferences were unconstitu
tional. See B rief f o r the Federal Communications Commission on Rehearing En Banc in Steele v. FCC,
D.C. Cir. No. 84-1176. The FCC was engaged in preparing findings in the rulemaking when Congress
decided to abort the proceedings. In obedience to Congress’ directive, the FCC closed the rulemaking
and reinstituted the preferences on January 14, 1988. See FCC 88-17.
"T h ere is no suggestion in either the text or legislative history o f the subsequently-enacted riders that
Congress’ purposes for including the rider in the FCC appropriation has changed since the rider was
first enacted in 1987. See S. Rep. No. 144, 101st Cong., 1st Sess. 86 (1989) (Committee “recom mends
retention” of provisos enacted previously); S. Rep. No. 388, 100th Cong., 2d Sess. 79 (1988) (Com m it
tee has "continued language from previous appropriations acts with regard to . . . minority and women
ow nership o f broadcasting licenses”).
13 Arguably, no expenditure made after closure of the rulemaking proceeding in MM Docket No. 86484 by any o f the federal entities for which appropriations were made in the 1990 Appropriation Act
could run afoul o f this portion of the rider’s prohibition. The rider could fairly be interpreted to prohibit
only the expenditure of funds to continue the particular “reexamination” o f the FCC policies then in
progress in MM Docket No. 86-484, which was closed on January 14, 1988. See, e.g., S. Rep. No. 182
at 76 (rider inserted to prohibit expenditures to “continue a pending reexamination" of the FCC policies
(em phasis added)). If the rider were so interpreted, it would not prohibit a new “reexamination” o f the
policies.
Congress clearly understood and appreciated the difference between beginning a reexam ination and
continuing a reexam ination of a particular matter, as evidenced by its prohibition in the same appro
priations act o f expenditures “to repeal, to retroactively apply changes, or to begin or continue a reex
amination of the rules and policies established to administer such rules o f the Federal Com m unications
Commission as set forth at section 73.3555(c) of title 47 of the Code of Federal Regulations.” See 103
Stat at 1021 (em phasis added).
17
best understood to refer only to administrative reexamination of the poli
cies.14 A court does not examine policies qua policies; it reviews the legality
o f the policies. Thus, while the prohibition might prevent commencement
o f a new administrative inquiry into the wisdom (or even the legality) of the
agency’s racial and gender preference policies, we do not believe it would stand
as a bar to a legal challenge to those policies before the courts of law.15
Second, even if the rider were interpreted to extend to challenges in a
judicial forum, we do not believe that the filing of a brief once the Court has
decided to hear a challenge entails the use of funds “to continue a reexami
nation” o f the FCC policies. The Court perhaps expended funds to continue
the reexamination by docketing the cases, and will continue to do so by
retaining the case on its docket for briefing, argument and disposition. With
certiorari granted, however, the Department would only be expending funds
to participate in a “reexamination” that has already been continued; it would
not be expending funds “to” continue a reexamination. The reexamination,
if that it be, see discussion infra, is underway and will continue, whether or
not the Department participates. The Department fully complied with the
terms o f the prohibition (assuming that it applies) by opposing the grant of
certiorari.
Finally, the Supreme Court’s review of these cases would not properly be
considered a “reexamination” of the FCC policies because the Court has
never previously examined these policies. One could argue that any second
and successive examination constitutes a “reexamination” because the FCC
has already once examined them. We believe, however, that the better read
ing of the rider (regardless to whom it applies) is as a prohibition on a
second and successive examination by the same entity. This especially would
seem to be the better interpretation, given that the prohibition is against
“continuing” a reexamination, not merely reexamining, the specified poli
cies. One does not ordinarily think of a second body “continuing” a
reexamination begun by another body. O f course, this interpretation finds
substantial support in the legislative history. See discussion supra at 16.
For the aforementioned reasons, we believe it is clear that Congress did
not intend the rider to serve as a limitation on Department of Justice expen
ditures. Even if Congress’ intent were less than clear, however, we would
14 In the Senate Report accompanying the first appropriations bill to which the rider was attached, the
C om m ittee instructed the FCC to resolve certain pending cases in a manner consistent with the FCC’s
racial and gender preference policies. S. Rep. No. 182 at 77. The Com m ittee’s instruction identifies
the cases to w hich it refers as ones w hich had been either remanded to the FCC by the District of
C olum bia C ircuit Court o f Appeals, o r held in abeyance by the FCC pending reexam ination of its
policies. T he Com m ittee thus merely instructed the FCC to apply the racial and gender preference
policies in adm inistrative adjudication, which is consistent with our view that the rider was directed
only at adm inistrative actions that might lead to reversal of the specified FCC policies.
13 Indeed, if the prohibited “reexamination” of FCC's policies bars a Justice Department legal challenge
to those policies, it would also preclude judicial review o f those policies, since the federal judiciary is
funded by title IV o f the Act, and would be subject to the same restrictions in the rider. Apart from the
serious constitutional issue that would be presented by a provision purporting to prevent constitutional
challenges to a law, see, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988), it would be extraordinary to
construe a provision to prevent judicial review sub silentio.
18
interpret the rider to permit an amicus filing so as to avoid the serious consti
tutional problems, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979), that
would otherwise exist. A statute that purported to prohibit the Executive from
filing an amicus or other brief on the constitutionality of federal agency action or
policy would raise the most serious constitutional concerns.16
The President is constitutionally required to take care that the laws, in
cluding the Constitution, be faithfully executed. See U.S. Const, art. II, § 3.
Before entering office, the Constitution requires that he “solemnly swear”
that he will “to the best of [his] Ability, preserve, protect and defend the
Constitution of the United States.” Id. art. II, § 1, cl. 8. The filing of briefs
in courts of law through his subordinates—particularly as such filings may
bear on the legality of action taken by Executive departments or agencies—
is integral to the discharge of his constitutional duty to see that the laws are
faithfully executed. As a consequence, while the question never has been
and may never be litigated, it is doubtful that Congress, through exercise of
its appropriations power or otherwise, could ever prevent the Executive from
advancing before the courts a particular view of the constitutionality o f an
Executive agency action or policy.
C O N C L U SIO N
For the foregoing reasons, we conclude that the 1990 Appropriations Act
does not bar the Department of Justice from filing an amicus brief with the
Supreme Court in the Metro Broadcasting litigation.
J. MICHAEL LUTTIG
Principal Deputy
Assistant Attorney General
Office o f Legal Counsel
'‘ Interpreting the rider so that it would extend to the Department of Justice would result in its applica
tion to the judiciary, as well. Application of the rider to prohibit the judiciary from expending any o f its
appropriated funds "to continue a reexamination” of the FCC policies would raise separate, but equally
serious, constitutional questions.
19 |
|
Write a legal research memo on the following topic. | Application of the Neutrality Act to
Official Government Activities
Section 5 o f the Neutrality Act, 18 U.S.C. § 960, forbids preparation for, or participation in,
m ilitary expeditions against a foreign state w ith which the United States is at peace. This
provision is intended solely to prohibit persons acting in a private capacity from taking
actions that m ight interfere with the foreign policy and relations of the United States. It does
not proscribe activities conducted by Governm ent officials acting within the course and scope
o f their duties as officers of the United States.
April 25, 1984
M
em orandum
O
p in io n f o r t h e
Attorney G eneral
This memorandum is written in connection with recent allegations1 that
several United States Government officials may have violated § 5 of the
Neutrality Act, 18 U.S.C. § 960, which forbids the planning of, provision for,
or participation in “any military or naval expedition or enterprise to be carried
on from [the United States] against the territory or dominion of any foreign
prince or state . . . with whom the United States is at peace.” To assist you in the
discharge of your responsibility under Title VI of the Ethics in Government
Act, 28 U.S.C. §§ 591-598, to determine preliminarily whether such charges,
if true, might constitute a crime, we have undertaken a thorough examination of
the Neutrality Act (Act), with particular attention toward § 5, its legislative
history, the historical circumstances surrounding its enactment, existing judi
cial precedent regarding the Act, and the history of Executive and Legislative
relations with respect to the Act’s application. Based upon these consider
ations, we have concluded that the Act does not proscribe activities conducted
by Government officials acting within the course and scope of their duties as
officers of the United States but, rather, was intended solely to prohibit actions
by individuals acting in a private capacity that might interfere with the foreign
policy and relations of the United States.
1 T he m ost recent assertions in this re g a rd that have b een brought to o u r attention are those made in a letter
to you, d ated A pril 9, 1984, from a m ajority o f the D em ocratic Party members o f the Com m ittee on the
Judiciary o f the H ouse o f Representatives, taking the position that several G overnm ent officials may have
violated th e A ct by participating in a p lan “to covertly aid , fund and participate in a military expedition and
enterprise utilizing N icaraguan exiles fo r the purpose o f attacking and overthrow ing the governm ent of
N icaragua, a country w ith which the U n ited States is officially at peace."
58
I. Evolution of the Neutrality Act
A. President W ashington’s Proclamation o f 1793
The Neutrality Act was enacted in 1794 following President Washington’s
Proclamation of April 22, 1793, regarding the war between France and Great
Britain, requiring the citizens of the United States “with sincerity and good
faith [to] adopt and pursue a conduct friendly and impartial toward the belliger
ent powers,” warning citizens “to avoid all acts and proceedings whatsoever,
which may in any manner tend to contravene such disposition,” and threatening
to prosecute those “who shall, within the cognizance of the courts of the United
States, violate the law of nations with respect to the powers at war, or any of
them.”2 The President viewed the Proclamation as a necessary measure toward
restraining the natural sympathy and enthusiastic support of the American
people for the French cause, bom of France’s generous aid to the colonists
during the American Revolution and the Americans’ strong identification with
the goals of the French Revolution. See generally C. Fenwick, The Neutrality
Laws o f the United States 16-23 (1913) (Fenwick).3 Writing nearly one2 The Proclam ation provided:
W hereas it appears that a state o f w ar exists betw een Austria, Prussia, Sardinia, G reat B ritain,
and the U nited N etherlands, on the one part, and France on the other; and the duty and interest o f
the U nited States require, that they should with sincerity and good faith adopt and pursue a
conduct friendly and impartial tow ards the belligerent powers:
I have therefore thought fit by these presents, to declare the disposition o f the U nited States to
observe the conduct aforesaid tow ards those pow ers respectively; and to exhort and w arn the
citizens o f the U nited States carefully to avoid all acts and proceedings w hatsoever, which may in
any m anner tend to contravene such disposition.
And I do hereby also make known, that w hosoever o f the citizens o f the U nited States shall
render him self liable to punishm ent o r forfeiture under the law o f nations, by com m itting, aiding,
or abetting hostilities against any o f the said pow ers, o r by carrying to any o f them, those articles
which are deem ed contraband by the m odem usage o f nations, will not receive the protection of
the United States, against such punishm ent o r forfeiture; and further, that 1 have given instruc
tions to those officers, to whom it belongs, to cause prosecutions to be instituted against all
persons, who shall, w ithin the cognizance o f the C ourts o f the U nited States, violate the law of
nations, with respect to the powers at w ar, o r any o f them.
32 Writings o f George Washington 430 (J. Fitzpatrick ed 1939). See also 1 Messages and Papers o f the
Presidents 156 (J. Richardson ed. 1896).
3 President W ashington wrote to Secretary o f State Jefferson on A pril 12, 1793:
Your letter o f the 7 instant was brought to me by the last post. W ar having actually com m enced
betw een France and G reat Britain, it behoves the G overnm ent o f this C ountry to use every m eans
in its pow er to prevent the citizens thereof from em broiling us w ith either o f those pow ers, by
endeavouring to m aintain a strict neutrality. I therefore require that you w ill give the subject
mature consideration, that such m easures as shall be deem ed m ost likely to effect this desirable
purpose may be adopted w ithout delay; for 1 have understood that vessels are already designated
privateers, and are preparing accordingly.
Such other m easures as may be necessary for us to pursue against events which it may not be in
our pow er to avoid or controul, you w ill also think of, and lay them before me at my arrival in
Philadelphia, fo r w hich place I shall set out Tom orrow ....
On the same date, W ashington wrote to Secretary o f the Treasury Hamilton:
H ostilities having com m enced betw een France and England, it is incum bent on the G overn
ment o f the U nited States to prevent, as far as in it lies, all interferences o f our C itizens in them ;
C ontinued
59
hundred years later, a committee of Congress described the historical circum
stances immediately preceding President Washington’s Proclamation and the
passage of the Act as follows:
The enthusiasm of republicans for France, and their hostility to
England, was not much less marked in America than in France.
It brought public opinion to the verge of revolt against the
peaceful policy of Washington. Accountable to the people for its
resistance to popular clamor and the consequences of its timid
submission to the demands of England, whose arrogant preten
sions intensified the popular friendship for France, the adminis
tration was threatened with formidable resistance, if not the
overthrow of its policy.
H.R. Rep. No. 100, 39th Cong., 1st Sess. 2 (1866).
In addition, the United States and France had entered into two “treaties” in
1778, both of which threatened the new nation’s posture of neutrality regarding
the military affairs of the European countries.4 The more serious threat was
posed by the Treaty of Amity and Commerce, 8 Stat. 12,5 which made it lawful
for French ships and privateers to enter United States ports with their prizes of
war and unlawful for ships of other foreign nations carrying subjects or
property of France as their prizes of war to enter American ports. See generally
Fenwick, supra, at 16-32.
In the spring of 1793, Edmund Charles Genet, French Minister to the United
States, arrived in this country and, pursuant to the Treaty of Amity and
Commerce, began issuing commissions to commanders of vessels willing to
serve France and authorizing the outfitting of privateers from American ports.
Secretary of State Jefferson protested to the French Minister that such conduct
was not “warranted by the usage of nations, nor by the stipulations existing
between the United States and France,” but met with continued resistance from
Genet that “no article of [the Treaties] impose[d] . . . the painful injunction of
abandoning us in the midst of the dangers which surround us.” Fenwick, supra,
at 18-19. Finally, Jefferson informed Genet that “after mature consideration,”
President Washington had concluded:
3 (. . . continued)
and im m ediate precautionary m easures ought, I conceive, to be taken for that purpose, as 1 have
reason to believe (from some th in g s I have heard) that m any Vessels in different parts of the
U nion are designated for Privateers and are preparing accordingly. The m eans to prevent it, and
fo r the U nited States to m aintain a strict neutrality betw een the powers at war, I wish to have
seriously thought of, that I may a s soon as I arrive at the Seat o f the Governm ent, take such steps,
tending to these ends, as shall b e deem ed proper and effectual. W ith great esteem etc.
32 Writings o f George Washington, supra, at 415, 416.
4 T hese “treaties” w ere entered into b y the colonists during the A m erican Revolution in exchange for aid
from France, see 8 Stat. 6, 12, and w ere not annulled by Acts o f C ongress until 1798.
5 T he o th er treaty w as the Treaty o f A lliance, 8 Stat. 6, regarding which there existed a serious question
w ithin W ashington’s C abinet as to w h eth er the U nited States w as obligated to take up arm s in France's
defense. H ow ever, because France apparently never forced a resolution o f the issue, it rem ained unresolved.
See Lobel, The Rise and Decline o f the Neutrality Act: Sovereignty and Congressional War Powers in United
States Foreign Policy, 24 Harv. Int’l L .J. 1, 12-13 (1983).
60
[T]hat the arming and equipping [of] vessels in the ports of the
United States, to cruise against nations with whom we are at
peace, was incompatible with the territorial sovereignty of the
United States; that it made them instrumental to the annoyance
of those nations, and thereby tended to compromit their peace;
and that he thought it necessary, as an evidence of good faith to
them, as well as a proper reparation to the sovereignty of the
country, that the armed vessels of this description should depart
from the ports of the United States.
*
*
*
After fully weighing again, however, all the principles and
circumstances of the case, the result appears still to be, that it is
the right of every nation to prohibit acts of sovereignty from
being exercised by any other within its limits, and the duty of a
neutral nation to prohibit such as would injure one of the war
ring Powers; that the granting [of] military commissions, within
the United States, by any other authority than their own, is an
infringement on their sovereignty, and particularly so when
gran ted to their own citizens, to lead them to commit acts
contrary to the duties they owe their own country[.]
Fenwick, supra, at 19 (quoting 1 American State Papers, Foreign Relations
149 (emphasis added)).6
Notwithstanding the President’s Proclamation and the continued public rep
rimands of Minister Genet, privateers continued to be outfitted in American
ports for the service of France,7 with the individuals involved suffering few
legal reprisals by the United States Government. Although there were several
prosecutions of individual citizens charged with attacking the property and
citizens of nations at peace with the United States, the prosecutions were
unsuccessful, largely because there were no federal statutes defining such acts
as crimes and legal opinion was divided on the question whether violations of
international law could provide a basis for a common law federal offense. The
6 In reporting this incident, Fenwick states that in this passage, “Jefferson set forth in clear and simple term s
the pnnciples o f neutrality as understood by the President." Fenw ick, supra, at 19.
7 H ow ever, the instructions — “deductions from the laws o f neutrality, established and received am ong
nations” — issued by Secretary H am ilton on August 7, 1793 to custom s collectors in m ajor ports appears to
have had some effect in decreasing the incidence o f privateering. Fenwick describes the instructions as follows:
The instructions called upon the collectors to be vigilant in detecting any acts in violation of
the law s o f neutrality, and to give im m ediate notice o f such attem pts to the proper authorities No
asylum was to be given to vessels, nor to their prizes, o f either o f the pow ers at war w ith France,
in accordance w ith the Treaty o f 1778 w ith France, nor to armed vessels which had been
originally fitted out in any port o f the U nited States by either o f the parties at war. The purchase
o f contraband articles, as m erchandise, was to be free to both parties. The names o f citizens o f the
U nited States in the service o f either o f the parties w ere to be notified to the local state governor
V essels contravening these regulations were to be refused clearance. V essels, except those in the
im m ediate service o f foreign governm ents, w ere to be exam ined as to their military equipm ent
upon entering and upon leaving port.
Fenwick, supra, at 2 2 -2 3 .
61
most celebrated of these cases is H enfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa.
1793) (No. 6360), in which Henfield was prosecuted at common law for
enlisting on the French privateer, “Citizen Genet,” in violation of the treaties of
the United States and the law o f nations. Although, upon the urging of Attorney
General Randolph, the court recognized such actions as violations of the
sovereignty of the United States in its charge to the jury, Henfield nevertheless
was acquitted. See generally Lobel, The R ise and Decline o f the Neutrality Act,
supra, at 13-14; Fenwick, supra, at 24. Regarding this case, Jefferson wrote in
a letter to James Monroe:
The Atty General gave an official opinion that the act was
against law, & coincided with all our private opinions; & the
lawyers of this State, New York & Maryland, who were applied
to, were unanimously of the same opinion. Lately mr. Rawle,
Atty of the U.S. in this district, on a conference with the District
judge, Peters, supposes the law more doubtful. New acts, there
fore, of the same kind, are left unprosecuted till the question is
determined by the proper court, which will be during the present
w eek.. . . I confess I think myself that the case is punishable, &
that, if found otherwise, Congress ought to make it so, or we
shall be made parties in every maritime war in which the pirati
cal spirit of the banditti in our ports can engage.
6 W ritings o f Thomas Jefferson 347-48 (P. Ford ed. 1895) (emphasis added).
In addition, in the summer of 1793, United States officials became aware of
Minister Genet’s efforts to organize armies to invade New Orleans and the
Floridas, then in the possession of Spain, an ally of Great Britain. As a result of
these and other similar events, and the apparent ineffectiveness of existing
legal mechanisms to restrain such activities, President Washington sought to
enact into legislation the principles of neutrality set forth in his Proclamation.
B. The N eutrality A ct of 1794
In his annual address to Congress in December 1793, President Washington
articulated his views regarding the role of the principle of neutrality in sover
eign states and called upon Congress to implement such principles through
legislation. President Washington proclaimed:
In this posture of affairs, both new and delicate, I resolved to
adopt general rules, which should conform to the treaties and
assert the privileges o f the United States. These were reduced
into a system, which will be communicated to you.
*
*
*
It rests with the wisdom of Congress to correct, improve, or
enforce this plan of procedure; and it will probably be found
expedient to extend the legal code and the jurisdiction of the
62
Courts of the United States to many cases which, though dependent
on principles already recognised, demand some further provisions.
Where individuals shall, within the United States, array them
selves in hostility against any of the Powers at war[;] or enter
upon military expeditions or enterprises within the jurisdiction
of the United States; or usurp and exercise Judicial authority
within the United States; or where the penalties on violations of
the law of nations may have been indistinctly marked, or are
inadequate — these offences cannot receive too early and close
an attention, and require prompt and decisive remedies.
4 Annals o f Congress 11 (1793).
The Neutrality Act was enacted on June 5, 1794. 1 Stat. 381. Although
originally enacted as a temporary measure,8 the Act was continued in force by
the Act of Mar. 2, 1797, 1 Stat. 497, and finally made permanent by the Act of
Apr. 24, 1800, 2 Stat. 54. Through several amendments9 and the re-enactment
of its provisions in the revision and codification of Title 18 in 1909, 35 Stat.
1088, 1089, and again in 1948, 62 Stat. 683, 744, the Act today remains
substantially similar to that which was first enacted in 1794.
Section 1 of the Act, 18 U.S.C. § 958, provides:
Any citizen of the United States who, within the jurisdiction
thereof, accepts and exercises a commission to serve a foreign
prince, state, colony, district, or people, in war, against any
prince, state, colony, district, or people, with whom the United
States is at peace, shall be fined not more than $2,000 or impris
oned not more than three years, or both.
Section 2, 18 U.S.C. § 959, provides in pertinent part:10
(a) Whoever, within the United States, enlists or enters him
self, or hires or retains another to enlist or enter himself, or to go
beyond the jurisdiction of the United States with intent to be
enlisted or entered in the service of any foreign prince, state,
colony, district, or people as a soldier or as a marine or seaman
on board any vessel of war, letter of marque, or privateer, shall
8 That the A ct's operation was originally lim ited to a term o f tw o years testifies to “the character o f the act,
and the extent to which it cam e in conflict with the opinions o f the people, as well as the extraordinary
influences under which it was enacted.’’ H.R. Rep. No. 100, supra, at 2.
9 See, e.g.. Act o f Mar. 3, 1817, 3 Stat. 370; Act o f Apr. 20, 1818, 3 Stat. 447, Act o f Mar. 10, 1838, 5 Stat.
212. Parts o f the Act were also am ended in 1917, in the “Act to punish acts o f interference w ith the foreign
relations, the neutrality, and the foreign com m erce o f the U nited States, to punish espionage, and better to
enforce the crim inal laws o f the U nited States,” com m only referred to as the “Espionage A ct,” 40 Stat. 217.
10 Subsection (b) o f § 2 generally exem pts from subsection (a)’s coverage “citizens or subjects of any
country engaged in w ar with a country with which the U nited States is at w ar;” subsection (c) generally
exem pts from the A ct’s coverage citizens o f the foreign nations who are “transiently within the United States
. . . [who] enlist on board any vessel o f war . . . which at the tim e o f its arrival within the U nited States was
fitted and equipped as such.”
63
be fined not more than $1,000 or imprisoned not more than three
years, or both.
Section 3, 18 U.S.C. § 962, provides in pertinent part:
Whoever, within the United States, furnishes, fits out, arms,
or attempts to furnish, fit out or arm, any vessel, with intent that
such vessel shall be employed in the service of any foreign
prince, or state, or of any colony, district, or people, to cruise, or
commit hostilities against the subjects, citizens, or property of
any foreign prince or state, or of any colony, district, or people
with whom the United States is at peace; or
Whoever issues or delivers a commission within the United
States for any vessel, to the intent that she may be so employed —
Shall be fined not more than $10,000 or imprisoned not more
than three years, or both.
Section 4, 18 U.S.C. § 961, provides in pertinent part:
Whoever, within the United States, increases or augments the
force of any ship o f war . . . which, at the time of her arrival
within the United States, was a ship of war . . . in the service of
any foreign prince or state, or of any coiony, district, or people,
or belonging to the subjects or citizens of any such prince or
state, colony, district, or people, the same being at war with any
foreign prince or state, or of any colony, district, or people, with
whom the United States is at peace, by adding to the number of
the guns of such v essel. . . or by adding thereto any equipment
solely applicable to war, shall be fined not more than $1,000 or
imprisoned not more than one year, or both.
Section 5, 18 U.S.C. § 960 provides:
Whoever, within the United States, knowingly begins or sets
on foot or provides or prepares a means for or furnishes the
money for, or takes part in, any military or naval expedition or
enterprise to be carried on from thence against the territory or
dominion of any foreign prince or state, or of any colony,
district, or people with whom the United States is at peace, shall
be fined not more than $3,000 or imprisoned not more than three
years, or both.
Although the debates in Congress regarding these provisions focused largely
on the immediate problems posed by the 1778 “treaties” with France and how
they would be affected by the anti-privateering and confiscation of goods
provisions of the Act,11 the Act’s legislative history nevertheless reveals other
11 Section 3 o f the Act provided fo r the confiscation o f goods on arm ed vessels, outfitted within the U nited
States, that com m itted hostile acts ag ain st territories w ith which the U nited States was at peace.
64
key issues that were addressed by the Act’s passage. Several commentators
have suggested, and the speeches of President Washington, Secretary Jefferson,
and various Senators and Representatives support the view, that the United
States, in the early stages of its development as a republic, embraced the
general principle of neutrality as a means, in view of its military weakness and
geographic isolation, of advancing its commercial interests by avoiding in
volvement in European wars and protecting its independence and sovereignty
from violation by foreign states, as well as of consolidating its federal powers
and strengthening the sovereignty of the federal government over its individual
citizens. See generally Fenwick, supra; Lobel, The Rise and Decline o f the
Neutrality Act, supra, and sources cited therein. See also United States v.
O'Sullivan, 27 F. Cas. 367,373-75 (S.D.N.Y. 1851) (No. 15974) (providing an
account of the Act’s passage).
In 1866, the House Committee on Foreign Affairs, which was engaged in an
extensive review of the Act’s history, described the state of the new nation after
1783 and the historical circumstances that compelled the Act’s passage:
The independence of the American colonies was acknowl
edged by Great Britain in 1783. The participation of the colonies
in the Indian and French wars, and the severe and long-contin
ued struggle of the Revolution made it necessary that the new
government under the Constitution should husband its resources,
and, if possible, avoid all complications with foreign nations.
The foreign policy of the administration of Washington — as
wise and necessary as it was successful — was based upon this
idea. It is now conceded that the safety of the republic imperi
ously demanded this policy.
H.R. Rep. No. 100, supra, at 1. In his Farewell Address to the Nation on
September 19, 1796, President Washington reiterated these themes:
The Great rule of conduct for us, in regard to foreign Nations
is in extending our commercial relations to have with them as
little political connection as possible. So far as we have already
formed engagements let them be fulfilled, with perfect good
faith. Here let us stop.
Europe has a set of primary interests, which to us have none,
or a very remote relation. Hence she must be engaged in fre
quent controversies, the causes of which are essentially foreign
to our concerns. Hence therefore it must be unwise in us to
implicate ourselves, by artificial ties, in the ordinary vicissi
tudes of her politics, or the ordinary combinations and collisions
of her friendships, or enmities;
Our detached and distant situation invites and enables us to
pursue a different course. If we remain one People, under an
65
efficient government, the period is not far off, when we may
defy material injury from external annoyance; when we may
take such an attitude as will cause the neutrality we may at any
time resolve upon to be scrupulously respected; when belligerent
nations, under the impossibility of making acquisitions upon us, will
not lighdy hazard giving us provocation; when we may choose
peace or war, as our interest guided by our justice shall Counsel.
35 W ritings o f G eorge Washington, supra, at 233-34.
Critical to the effort to remain detached from foreign entanglements was
establishing to foreign powers and to the citizens of the United States that only
the G overnm ent was authorized to articulate United States foreign policy.
Unauthorized acts by private individuals in this regard were not to be recog
nized by foreign nations, and, indeed, were to be punished by the United States,
“because no citizen should be free to commit his country to war.” 6 Writings o f
Thomas Jefferson, supra, at 347. In reviewing the history and purposes of the
Act, the United States District Court for the Southern District of New York, in
a landmark decision in 1851, analogized the neutrality obligations that the
drafters sought to impose on individuals through the enactment of civil penal
laws to those imposed by the law of nations on sovereign governments:
As the representative of the people, — their agent, delegated
by the people of the United States, — the government adopted
an administrative and legislative policy embracing both its di
rect relationship to foreign states, and the coordinate obligations
of the citizens individually to uphold and effectuate that rela
tionship. What the government might not do in its public capac
ity, without an infraction of the law of nations and subjecting
itself to reprisals and war, it claimed the people should be
prohibited doing individually___It is most manifest, that, at the
earliest day the subject was acted on, the United States govern
m ent intended to make the person al duties o f citizens co-equal
with those o f the nation, in respect to acts of hostility against other
states . . . [and] to compel the citizens to conform in all respects to
the principles o f the law o f nations, recognized and observed on the
part of the government, in regard to friendly powers.
U nited States v. O ’Sullivan, 27 F. Cas. at 374, 375 (emphasis added). See also
Fenwick, supra, at 1-14.
During the debate on the Neutrality Act, Representative Ames spoke of the
weakness of the United States’ general authority and of the threat of “be[ing]
driven into a war by the licentious behavior of some individuals.” 4 Annals o f
Congress 743 (1794). Representative Wadsworth expressed a similar view:
If the Executive cannot hinder these people from going to sea in
this way, we must be forced into hostilities immediately. We
send an Ambassador to England to secure peace; and we follow
66
up this application by sending out privateers. Will any nation, in
such a case, believe that our desire of peace is sincere? Is the
seizing of their ships a sign of it?
Id. at 744. Representative Murray reiterated the importance of securing govern
mental control over the power of individuals to affect foreign policy:
[W]ere people only meeting to form the very first elements of a
civil compact, they would have a right to say to each member of
their society, that he should not enlist in any foreign service, to
invade a nation perhaps friendly to them, without their consent.
To countenance recruiting for foreign service, was admitting
into the heart of the country an engagement against the sover
eignty of the country.
Id. at 746 (emphasis added). This view was reiterated again by the court in the
O ’Sullivan case as an underlying purpose of the Act:
[T]his government . . . possesses the unquestionable power to
prohibit.. . citizens, individually, or in association with others,
from entering into engagements or measures within the Ameri
can territory, or upon American vessels, in hostility to other
nations, and which may compromit [sic] our peace with them. It
would be m ost deplorable if no such controlling p o w er existed
in this government, and if men might be allowed, under the
influence o f evil, o r even good, motives, to set on fo o t warlike
enterprises from our shores, against nations at peace with us,
and thus, fo r private objects, sordid or criminal in themselves — or
under the impulse of fanaticism or wild delusions — bring upon this
country, at their own discretion, the calamities o f war. The will of
the nation is expressed in this respect, by the statute of [1794],
United States v. O ’Sullivan, 27 F. Cas. at 383 (emphasis added). Thus, the
Neutrality Act, by outlawing private warfare, would ensure that the nation’s
foreign policy was made by the President, with appropriate participation by
Congress, working through the political process in fulfillment of their constitu
tional roles, and not by the unilateral and unrestricted acts of private individuals.12
12 In arguing that the Act was intended to proscribe actions by the G overnm ent as w ell as those o f
individuals acting in their private capacities, some com m entators have pointed to the English predecessor to
§ 2 o f the Act, w hich excepted from the English a c t’s prohibitions those enlistm ents that w ere authorized by
the Queen, and the failure o f the U nited States Congress to make explicit sim ilar exceptions in its Act. See,
e.g., Lobel, The Rise and Decline o f the Neutrality Act, supra, at 31-33. H ow ever, it was clear to early
scholars that the d rafters’ use o f the term “any person” in § 2 was not intended to bar enlistm ents duly
authorized by the Governm ent.
Sections 1 and 2 o f the A ct were designed to protect the nation’s sovereignty over its territory and its
independence in w orld affairs by prohibiting belligerents from recruiting troops w ithin its borders “w ithout
the consent o f the sovereign,’’ 7 Op. A tt'y Gen. 367, 368, 381 (18SS), and by prohibiting its citizens from
engaging in private acts o f warfare, i.e., accepting and exercising com m issions in the service of nations
against nations w ith which the U nited Slates was at peace, which could be interpreted erroneously by foreign
C ontinued
67
In calling for amendments to the Act in 1803 to strengthen its provisions to
respond more effectively to the involvement of American citizens in the South
American colonial wars,13 President Jefferson re-emphasized the Act’s pur
pose to prevent individual citizens from embarking on private expeditions in
contravention of the Government’s foreign policy goals:
[L]et it be our endeavor, as it is our interest and desire, to
cultivate the friendship of the belligerent nations by every act of
justice and of innocent kindness; to receive their armed vessels
with hospitality from the distresses of the sea, but to administer
the means of annoyance to none;. . . to restrain our citizens from
em barking individually in a w ar in which their country takes no
p a rt; to punish severely those persons, citizen or alien, who shall
usurp the cover of our flag for vessels not entitled to it, infecting
thereby with suspicion those o f real Americans and committing us
into controversies for the redress o f wrongs not our own\_.\
12 (. . . continued)
pow ers as acts o f the U nited States G overnm ent. See generally W arren, A ssistant A ttorney G eneral, ‘‘Memo
randum o f L aw on the C onstruction o f S ectio n 10 o f the Federal Code [currently 18 U.S.C. § 959]” (1915). In
his m em orandum . A ssistant Attorney G en eral W arren traced the developm ent o f § 95 9 ’s predecessors from
th eir origins in the B ritish Act of 13 A nne, ch. 10 (1713), which prohibited the “listing of Her M ajesties
subjects to serve as soldiers without H e r M ajesties license,” to 1915. In discussing the evolution o f this
prohibition in the U nited States, W arren noted that although the A m erican C ongress had extended the Act
beyond th e p rohibitions contained in the English act to p rohibit “ any person" w ithin the United States from
enlisting in foreign service, and thus m ade “unlaw ful the recruiting o r enlisting o f all foreign citizens within
this c o u n try ,” C ongress implicitly retained the A ct’s prohibition against acts to which the Governm ent had
not consented. Id. at 3 -1 1 . See also 4 Annals o f Congress 746 (1794); 7 Op. A tt’y Gen. at 381 (“The main
consid eratio n is the sovereign right o f th e U nited States to exercise com plete and exclusive jurisdiction
w ithin their ow n territory; to remain stric tly neutral, if they please, in the face o f the w arring nations of
E u ro p e . . . . A ll w hich it concerns a foreign governm ent to know is w hether we, as a government, permit such
enlistm en ts.” ) (em phasis added)
13 The follow ing account o f the im pact on the A m erican public o f the revolutions by Spanish colonists in
the W estern H em isphere d u n n g the first tw o decades o f the 19th century provides valuable insight into the
tensions betw een the collective individual wills o f the American people and the federal governm ent as a
sovereign entity, and the necessity for vigorous enforcem ent o f U nited States foreign policy o f neutrality
against those individuals w ho would v io late it.
The independence o f the Spanish republics w as hailed by the people of this country as the most
auspicious event o f the age. No governm ent in Europe except that of Spain had resisted the
freedom o f the Spanish provinces b y force. B ut all the nations o f Europe in alliance with Spain
m aintained h e r right to the governm ent o f the colonies. G reat B ritain had been invited by Spain,
in conjunction w ith the European alliance, to m ediate betw een her and the colonies, upon the
basis o f th eir continued submission to her authority, with certain am eliorations as to commerce
and the appointm ent o f officers. T h e United States, w hose co- operation was solicited by Great
B ritain, declined to en ter into any plan o f pacification, except upon the basis o f their indepen
dence. The recognition o f their independence w as deferred fo r several years in deference to the
authority o f the H oly Alliance. S p a m declared that such recognition would be regarded by her as
an act o f h ostility. T heir independence was recognized in 1822, after a contest o f tw elve years.
The sym pathy o f th e American p eople for the Spanish patriots w as sincere and universal, and
th eir ho stility to the government a n d institutions o f Spain was equally strong. The proxim ity of
the Spanish provinces to our ow n country, and their inability on account o f their want o f vesselsof-w ar, to cope w ith Spain upon th e sea, rendered it difficult to prevent our citizens from giving
them aid in their struggle for lib erty . It w as still m ore difficult to allay the suspicions o f the
European governm ents o f our com plication w ith the revolutionists.
H.R. R ep. No. 100, supra, at 3.
68
1 M essages and Papers o f the Presidents, supra, at 361 (emphasis added). In
reviewing the amendments proposed, and the proclamations issued, by Presi
dents Jefferson and Madison during the colonial rebellions against Spain, the
House Committee on Foreign Affairs in 1866 reported:
It is impossible to suppose that provisions so repressive upon
American commerce, so hostile to the cause of liberty in the
colonies, and so strongly in favor of a government whose prin
ciples were so repugnant to the people as those of Spain, were
voluntarily adopted. They had their origin in the interests of
European governments hostile to the cause of the colonies. But
it was not this consideration alone that led to their permanent
enactment. The established policy of the government was that of
peace with all nations. To maintain this policy it waived, both at
home and abroad, interests to which, under other circumstances,
it would have resolutely adhered. The declarations of Washing
ton upon this subject are too familiar to require repetition. They
were accepted by a ll his successors.
H.R. Rep. No. 100, supra, at 4 (emphasis added). See generally Fenwick,
supra, at 31—41.
This theme has been sounded again and again by Presidents throughout the
history of our Nation. President Van Buren, in 1838, admonished American
citizens against arming themselves in support of the Canadian revolt against
Great Britain, and warned that “any persons who shall compromit [sic] the
neutrality of this Government by interfering in an unlawful manner with the
affairs of the neighboring British Provinces will render themselves liable to
arrest and punishment under the laws of the United States, which will be rigidly
enforced.” 3 M essages and Papers o f the President, supra, at 481.
Likewise, Presidents Tyler and Fillmore issued proclamations in 1849 and
1851, respectively, warning against hostile expeditions into Cuba and Mexico;
in 1854 and again in 1858 Presidents Pierce and Buchanan warned against
individual involvement in support of belligerent factions in Nicaragua; in 1870
President Grant warned against American participation in the Cuban revolution
against Spain; and in 1912 President Taft issued a proclamation warning Americans
against assisting Mexican insurgents. See generally Fenwick, supra, at 41-48.
The drafters of the Neutrality Act did not define the phrase “at peace” as it is
used in the Act. Indeed, it does not appear that the issue was the subject of
debate. However, given the underlying goals of the statute, it is reasonable to
conclude that the phrase “at peace” describes the state of affairs in which there
is an absence of a congressionally declared war. In a letter to Gouvemeur
Morris, the United States Minister to France, in 1793, Jefferson wrote:
If one citizen has a right to go to war of his own authority, every
citizen has the same. If every citizen has that right, then the
nation (which is composed of all it’s [sic] citizens) has a right to
69
go to war, by the authority of it’s individual citizens. But this is
not true either on the general principles of society, or by our
Constitution, which g iv e s that p o w er to Congress alone, & not
to the citizens individually.
6 W ritings o f Thomas Jefferson, supra, at 371, 381 (emphasis added). Yet,
during President Jefferson’s administration, as well as those of Presidents
following him during the early years of the 19th century, Presidents repeatedly
authorized military expeditions into territories against which Congress had not
declared war, as well as the arming of vessels to be used against nations against
which Congress had not declared war, with no indication that those Presidents,
or the Congresses that were sitting at the time, understood such missions to
violate the Neutrality Act.
For example, in 1801, President Jefferson dispatched naval forces to Tripoli,
after the Pasha of Tripoli increased his demands for tribute to the Barbary
pirates and declared war upon the United States. The United States naval action
in the Mediterranean extended over a five-year period, during which Lieuten
ant Decatur destroyed the frigate “Philadelphia,” which had been captured and
converted by the Tripolitans. In 1806, after issuing a proclamation declaring
that information had been received of preparations for an expedition against the
dominion of Spain and warning all persons against taking any part in it,14
President Jefferson ordered Captain Zebulon Pike and his platoon to invade
Spanish Territory at the headwaters of the Rio Grande on a secret mission. In
1810, President Madison ordered the Governor of Louisiana to occupy dis
puted territory in West Florida, east of the Mississippi, with troops;15 in 1813
14 See Fenw ick, supra, at 33.
15 A ccording to A braham D. Sofaer’s account o f the expeditions ordered by President M adison into the
F loridas and the northern coast of South A m erica in War, Foreign Affairs and Constitutional Power: The
Origins 296, 300, 303 (1976):
M adison w rote Jefferson that the crisis in W est Florida presented “senous questions, as to the
authority o f the Executive, and th e adequacy o f the existing law s o f the U.S. for territorial
adm inistration.*’ He expressed the fear that acting before C ongress had convened would subject
an executive o rd er “to the charge o f being prem ature and disrespectful, if not o f being illegal.”
N o response from Jefferson has b een found; but, w hatever Jefferson’s view, M adison decided to
proceed unilaterally and vigorously . . . [without congressional approval].
A fter P resident M adison presented C ongress w ith the fa it accompli, in the ensuing debate, Sofaer w rites that
Senator C lay persuaded his colleagues w ith the following rem arks:
The p resident has not, therefore, vio lated the C onstitution, and usurped the w ar-m aking power,
but he w ould have violated that provision which requires him to see that the law s are faithfully
executed, if he had longer forborne to act . . . . H ad the President failed to exercise the
discretionary pow er placed in him , . . . he would have been crim inally inattentive to the dearest
interests o f this country.
Sofaer then concludes:
O ne can fairly state th at Madison acted w ith far m ore independence and vigor in W est Florida
than h is e arlier conception of p residential pow er w ould have allow ed. He plotted in secret, used
agents and troops, threatened force, and eventually proclaim ed and effectuated the occupation o f
an area ruled by Spain. He did these things w ithout calling back C ongress, and kept his
proclam ation secret until it was safely im plem ented. [However,] his actions . . . were largely
consistent with the view of presidential power advocated by Hamilton and most Federalists . . . .
Congress had . . . provided troops, and most early Federalists would have agreed that the
President had discretion to use the troops in executing any o f his constitutional responsibilities.
(E m phasis added.)
70
President Madison ordered United States Marines into Spanish Territory, and
in 1816-17, on two occasions, he ordered United States forces into Spanish
Florida, during the “Seminole Wars.” In 1817, President Monroe sent United
States forces to Amelia Island, in the Spanish Territory, to expel smugglers and
privateers.
Notwithstanding the many Presidential Proclamations against American
involvement in the colonial rebellions against Spain during the early 19th
century, there are documented no less than seven invasions by the United
States Armed Forces, ordered by Presidents Madison and Monroe, without a
declaration of war or other prior congressional authorization, into Spanish
Territory. In President Jackson’s administration there are seven such docu
mented expeditions into Haiti, the Falkland Islands, Argentina, Sumatra, and
Peru, all nations with which the United States was at peace. Likewise, in 1837
President Van Buren ordered the Marines to capture a Mexican brig of war, and
in 1839, to land in Sumatra in retaliation for attacks on American ships. In
addition, President Pierce, after warning American citizens against involving
themselves in civil infractions in Nicaragua, sent United States naval forces to
Grey town, Nicaragua in 1853 and again in 1854 to quell civil disturbances
there and to protect the lives of American citizens stationed there. Between
1840 and 1900 there were nearly one-hundred documented, and, undoubtedly,
many more undocumented, instances of invasions by American forces, at the
behest of the President, of nations with which the United States was at peace.
See generally Emerson, War Pow ers Legislation, 74 W. Va. L. Rev. 53 app.
(1971).
This legislative history, when considered together with the historical circum
stances surrounding the passage of the Act, provides overwhelming support for
the view that the Act was not intended to apply to military activities pursued, or
otherwise sponsored, by the Government.16 This conclusion is strengthened
even more by the fact that Jefferson was a member of the President’s Cabinet
and Madison was a member of the Congress during the period in which the
16 Although the question may be raised whether the drafters in fact distinguished betw een Presidentially
authorized and congressionaliy approved actions in excepting from the A ct’s prohibitions “governm entauthorized” acts, the m any historical exam ples noted in this mem orandum , as well as a recognition o f the
necessity o f ensuring the President’s ability to respond rapidly to changing world events, compel us to
conclude that, short o f acts constituting a declaration o f w ar, Presidential authorization is sufficient under the
Act. See also S ofaer, supra, at 359. Sofaer notes that many M em bers o f C ongress cam e to President M onroe’s
defense during congressional debate regarding his actions in the Floridas, arguing that the President was not
lim ited to fighting only wars formally declared war by C ongress, but could authorize m ilitary actions short o f
war. R epresentative A lexander Smyth o f V irginia rem arked on the floor of the House:
It by no m eans follow s, as some seem to suppose, that because the President cannot declare
war, that he can do nothing for the protection o f the nation, and the assertion o f its rights The
pow er to declare w ar is a power to announce regular war, or w ar in form, against another Power.
But it never was intended, by reserving this pow er to Congress, to take from the President the
pow er to do any act necessary to preserve the nation’s rights, and which does not put the nation
into a state o f war w ith another Power. If C ongress, in addition to the pow er o f d eclanng war,
assum e to them selves the power o f directing every movem ent o f the public force that m ay touch
a neutral; o r that may be made for preserving the national rights; or executing the law s and
treaties; they will assum e powers given to the President by the C onstitution.
33 Annals o f Congress 678 (1819).
71
Proclamation of 1793, which gave rise to the Neutrality Act, was issued and the
Neutrality Act was debated and passed. Both construed the Act to apply only to
unauthorized acts of private individuals and not to acts properly carried out
pursuant to Presidential authority, as evidenced by their numerous military
ventures, some of which are noted above, into nations with which the United
States was officially at peace. Such contemporaneous interpretations of laws
by “the founders of our Government and framers of our Constitution when
actively participating in public affairs” has been held by the Supreme Court to
be near conclusive proof of the proper construction to be accorded provisions,
particularly when such interpretations are long acquiesced in. See, e.g., J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 411-12 (1926). See also
U nited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322-29 (1936);
The P ocket Veto Cases, 279 U.S. 655, 688-90 (1929); M yers v. United States,
272 U.S. 52, 175 (1926); M artin v. H unter’s Lessee, 14 U.S. (1 Wheat.) 304,
351-52 (1816); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803).17
Moreover, given the Act’s purpose to enhance the President’s ability to
implement the foreign policy goals that have been developed by him, with
appropriate participation by Congress, it would indeed be anomalous to inter
pret the Act to prohibit Government officials, acting properly within the course
and scope of their authority, from carrying out the orders of the President, “the
sole organ of the nation in its external relations and its sole representative with
foreign nations” in pursuit of those goals. See United States v. Curtiss-Wright
E xport Corp., 299 U.S. at 319. Although the fact that the Act was not intended
to apply to government-sponsored activity was not made explicit in the Act’s
text, our view is supported by the general rule of statutory construction, which
holds that unless affirmative reasons indicate otherwise, “statutes which in
general terms divest pre-existing rights or privileges will not be applied to the
sovereign without express words to that effect.” U nited States v. United Mine
Workers, 330 U.S. 258, 272 (1947). See also Hancock v. Train, 426 U.S. 167
(1961). For these reasons, we believe that the purposes of the Act, as expressed
by President Washington, his Cabinet, and the Members of Congress, together
with the undeniable history of government-sponsored military expeditions into
countries with which the United States has been at peace, and subsequent
legislation, compels the conclusion that the Act was not intended to proscribe
such official activity.
II. Post-Enactment History: Applications of the Act
The first prosecutions for violating the various provisions of the Neutrality
Act were all brought against private individuals, for knowingly committing
acts of hostility, unauthorized by the Government, against nations with which
the United States was at peace. See, e.g., United States v. Peters, 3 U.S. (3
17 A lthough these cases refer to the construction o f constitutional provisions, the analytical principle
announced by the C ourt may also be used to gain insight into the proper construction of statutes.
72
Dali.) 121 (1795); The Betty Carthcart, 17 F. Cas. 651 (D.S.C. 1795) (No.
9742); The Nancy, 4 F. Cas. 171 (D.S.C. 1795) (No. 1898). The legal issue in
these early cases focused on what constituted the “arming” of a vessel, the
distinction between “commercial” and “hostile” intent, and the authority of the
United States Government to define the political bodies in whose service, and
against which, the prohibited acts had been committed, and not on whether the
Act prohibited the Government from engaging in such activity. See, e.g.,
Wiborg v. United States, 163 U.S. 632 (1896); United States v. Quincy, 31 U.S.
(6 Pet.) 445 (1832); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795); United
States v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309). See also 21 Op.
Att’y Gen. 267 (1895); 13 Op. Att’y Gen. 177 (1869); 3 Op. Att’y Gen. 739 (1841),
In none of these early cases or opinions was there any discussion of the
applicability of these provisions to expeditions led or authorized by govern
ment officials, yet, as noted above, there has been documented during this
period numerous instances of military ventures by United States forces into
countries with which the United States was “at peace,” and, no doubt, many
more instances of providing assistance to nations engaged in belligerent acts
against nations with whom the United States is “at peace.” See generally
Emerson, War Pow ers Legislation, supra. Although some commentators have
argued that for purposes of the Neutrality Act, a distinction should be made
between the use of regular United States Armed Forces, which would not be
covered, and the use of other government-sponsored “paramilitary” groups,
which would be covered, see Lobel, The Rise and Decline o f the Neutrality Act,
supra, no historical evidence has been cited in support of this distinction.
The fact that during the years immediately following the passage of the Act,
expeditions into the Central and South American territories were launched by
private parties, groups of individuals acting pursuant to Presidential authority,
and United States troops, and that only the individuals involved in the first
category of expeditions were prosecuted, supports the view that the Act was
intended to apply no more to “paramilitary” troops then to the regular “armed
forces” troops, when acting under orders of the President.
To be sure, courts construing the Act during the 19th century understood its
provisions to prohibit “individuals [from] being at war whilst their government
is at peace”:
The rule is founded on the im propriety and danger o f allowing
individuals to make w ar on their own authority, or, by mingling
themselves in the belligerent operations of other nations, to run
the hazard of counteracting the policy or embroiling the rela
tions of their own government___By these laws it is prescribed
to the citizens of the United States, what is understood to be
their duty as neutrals by the law of nations, and their duty also
which they owed to the interest and honor of their own country.
United States v. O ’Sullivan, 27 F. Cas. at 376 (emphasis added). See also
United States v. Three Friends, 166 U.S. 1, 52, 53 (1897) (“[N]o nation can
73
permit unauthorized acts of war within its territory in infraction of its sover
eignty . . . . [T]he act [was passed]. . . in order to provide a comprehensive code
in prevention of acts by individuals within our jurisdiction inconsistent with
our own authority.”) (emphasis added).
Moreover, courts in the nineteenth century clearly recognized the President’s
constitutional preeminence in the area of foreign policy, and the discretion
vested in him and his authorized agents by the Constitution regarding such
affairs. Although we are aware of no court decisions from the nineteenth
century ruling on challenges, brought under the Neutrality Act, to military
actions taken by the President or his agents,18 in 1860, the circuit court for the
Southern District of New York, ruled that it was entirely lawful for the
President to order the shelling of a town in Nicaragua in 1854 that had refused
to redress damages incurred by American officials during a riot there.19 In
rejecting a claim for damages against the naval commander who had carried
out the President’s orders, the court held:
As the executive head of the nation, the president is made the
only legitimate organ of the general government, to open and
carry on correspondence or negotiations with foreign nations, in
matters concerning the interests of the country or of its citizens.
It is to him, also, that the citizens abroad must look for protec
tion of person and of property, and for the faithful execution of
the laws existing and intended for their protection. For this
purpose, the whole executive power of the country is placed in
his hands, under the constitution, and the laws passed in pursuance
thereof; and different departments of government have been
organized, through which this power may be most conveniently
executed, whether by negotiation or by force a department of
state and a department of the navy.
*
*
*
I have said, that the interposition of the president abroad, for
the protection of the citizen, must necessarily rest in his discre
tion; and it is quite clear that, in all cases where a public act or
order rests in executive discretion, neither he nor his authorized
agent is personally civilly responsible for the consequences. As
was observed by Chief Justice Marshall, in M arbury v. M adi
son, 1 Cranch [5 U.S. 137], 165 [(1803)]: “By the constitution of
18 But see Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal, 1984), discussed below.
19 The facts, as alleged, were:
th at the com m unity at Greytown [N icaragua] had forcibly usurped the possession o f the place,
and erected an independent governm ent, not recognized by the U nited States, and had perpetrated
acts o f violence against the citizens o f the U nited States and their property, and had, on demand
fo r redress refused it, and that th e defendant, under public orders from the president and
secretary, as a com m ander in the nav y , and then in com m and o f the C yane, did cause the place to
be bom barded and set on fire, as he law fully might fo r the cause aforesaid.
Durand v. Hollins, 8 F. C as. I l l , 111 (1860).
74
the United States, the president is invested with certain impor
tant political powers, in the exercise of which he is to use his
own discretion, and is accountable only to his country in his
political character, and to his own conscience. To aid him in the
performance of these duties, he is authorized to appoint certain
officers, who act by his authority, and in conformity with his
orders. In such cases, their acts are his acts, and whatever
opinion may be entertained of the manner in which executive
discretion may be used, still there exists, and can exist, no power
to control that discretion.”
Durand, 8 F. Cas. at 112. This incident, involving the use of American military
power in Nicaragua, is one of seven documented instances of the use of
military force by the United States in Nicaragua between 1853 and 1912, none
of which was formally authorized by Congress. See Emerson, War Pow ers
Legislation, supra. We are not aware of any instance in which there were
demands or suggestions that the President’s authorizing of such activities be
prosecuted under the Neutrality Act.
Throughout the nineteenth and early twentieth centuries, Presidents sent
American forces on innumerable military expeditions without prior congres
sional approval. For example, in 1853, Commodore Perry, pursuant to orders
of President Pierce, led an expedition consisting of four men-of-war to Japan to
negotiate a commercial treaty; and in 1854 he returned to Japan with ten armed
ships to conclude the negotiations. In 1900, during the Boxer Rebellion,
President McKinley ordered 5,000 troops to China to join the international
military force protecting foreign legations; and in 1918, President Wilson
committed 8,000 American troops to the Allied effort in Russia to counter the
Bolshevik Revolution. See generally Emerson, War Powers Legislation, supra.
In none of these instances were allegations of violations of the Neutrality Act
raised by either Congress or the American public.
Prior to the court’s recent ruling in Dellum s v. Smith, 577 F. Supp. 1449
(N.D. Cal. 1984), discussed in Part III below, the only instance in the Act’s
history of nearly two centuries in which a court had considered the question of
its applicability — in particular, the applicability of § 5 (18 U.S.C. § 960) — to
expeditions “authorized” by the Government involved a claim by private
individuals, strenuously denied by the Government, of Government complicity
in their mission. See United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806)
(No. 16342). In that case, Smith defended against the charge that he had set out
on an expedition “against the dominions of Spain in South America,” in
violation of § 5, id. at 1233, by arguing that the expedition “was begun,
prepared, and set on foot with the knowledge and approbation of the President
of the United States, and . . . of the Secretary of State of the United States.” Id.
at 1196. Although Administration officials disavowed any knowledge of Smith’s
expedition, the court charged the jury to determine Smith’s guilt or innocence
without regard to the President’s alleged approval or disapproval of the ven
75
ture, because the President “cannot control the statute, nor dispense with its
execution, and still less can he authorize a person to do what the law forbids.”
Id. at 1230. The Court stated:
If, then, the president knew and approved of the military expedi
tion set forth in the indictment against a prince with whom we
are at peace, it would not justify the defendant in a court of law,
nor discharge him from the binding force of the act of congress;
because the president does not possess a dispensing power.
Does he possess the power of making war? That power is
exclusively vested in congress.
Id.
As Smith was on a private mission, completely unrelated to the conduct of
the official foreign policy of the United States, the court’s language is dicta.
Nevertheless, the Smith decision constitutes a single piece of data, in a volumi
nous body, concerning the Neutrality Act which appears to be inconsistent with
our construction of the Act and our reading of the Act’s legislative history. We
believe that to the extent the court’s language implies that the Act was intended
to criminalize military endeavors directed by the President which are consis
tent with the Government’s overall foreign policy agenda as developed by the
President with appropriate participation by Congress, this decision is incor
rectly decided. Moreover, its precedential value is completely undermined by
contrary logic, legislative history, statutory construction principles, and his
torical practice. As discussed at considerable length above, it seems clear that
the Act was intended to punish only unauthorized expeditions, undertaken by
individuals acting in a private capacity, which would contravene or undermine
the official foreign policy of the United States.20
The foregoing constitutes a survey of contemporaneous and other21 histori
cal constructions of the language of the Act’s provisions. Although this history,
20 T his conclusion is particularly reinforced in the Smith case by reference to the fact that the prosecution
w as b rought by P resident Jefferson, “w ith the concurrence o f Mr. M adison, secretary o f state,” for com m it
ting private acts, inconsistent with United States foreign policy, in violation o f the sovereignty o f the federal
governm ent. See United States v. O'Sullivan, 27 F. Cas. at 375 (discussing Smith). Clearly, as evidenced by
the foregoing history o f numerous m ilitary ventures launched by both Jefferson and M adison (after the latter
becam e P resident in 1809), the prosecution was brought precisely because Sm ith’s acts were unauthorized
R egarding P resident Jefferso n ’s having in stituted the Smith prosecution, the O ’Sullivan court concluded, “so
it seem s the policy and intent of this law has alw ays been understood by the executive under every
adm in istratio n .” Id. at 376.
21 In 1917, the A ct w as supplemented b y the addition o f several related neutrality provisions passed in an
A ct com m only referred to as the “Espionage A ct,” 40 Stat. 217.
O ne o f the neutrality provisions enacted as a part o f the Espionage Act is presently codified at 18 U.S.C.
§ 956, w hich prohibits “tw o o r more persons w ithin the ju risd ictio n o f the U nited States [froml conspir[ing]
to injure o r destroy specific property situ ated w ithin a foreign country and belonging to a foreign governm ent
w ith w hich the U nited States is at p e a c e .” O nly one prosecution appears to have been brought under this
provision. United States v. Elliott, 266 F. Supp. 318 (S.D .N .Y . 1967), and in that case, the defendant raised
selective prosecution and equal protection claim s. In dism issing those claim s, the court stated:
He has not offered evidence even touching upon an exam ple of any other person who conspired
to destroy property in any nation w ith which the U nited States w as clearly at peace and w ho was
Continued
76
with few exceptions, supports the view that the Act was not intended to
proscribe military expeditions undertaken by the Government, the strongest
support for this position may be in the more recent history of extensive covert
“paramilitary” activity, authorized by the President and carried out by his
agents, with varying degrees of disclosure to Congress, in nations against
which Congress has not declared war. We turn now to that history.
III. Contemporary History of the Act
No recent President has refused to commit United States regular armed
forces or “paramilitary” operatives, depending upon the need, to actual hostili
ties because of a lack of congressional declarations or approval when, in the
exercise of his “inherent” powers over the conduct of foreign affairs,22 and in
the fulfillment of his constitutional duty to “take Care that the Laws be
faithfully executed,” U.S. Const, art. II, § 3, and of his role as “Commander-inChief of the Army and Navy of the United States,” id. § 2, it is his judgment
that such action is necessary to preserve the national security of the United
States. Among the more well-known examples of such actions are those of
President Truman in Korea, President Eisenhower in Lebanon, President
Kennedy in Cuba and Southeast Asia, Presidents Johnson and Nixon in South
21 ( . . . continued)
not prosecuted. Instead, he has raised situations such as North Vietnam or the Bay o f Pigs where
government complicity would effectively bar any prosecution.
Id. at 324 (em phasis added).
The other set o f provisions enacted w ith the espionage laws authorized the President, “ [d]unng a w ar in
which the U nited States is a neutral nation” to enforce the United States* posture o f neutrality by requiring
“owner[s], m aster!s], or person[s] in com m and” o f any vessels within the jurisdiction o f U nited States ports
to “furnish p ro o f satisfactory to the President, or to the person duly authorized by him, that the vessel w ill not
be em ployed . . . to com m it hostilities upon the subjects . o f any foreign prince or state . . . with which the
U nited States is at peace . . . and that the said vessel will not be sold o r delivered to any belligerent nation,
. . . within the jurisdiction o f the United States, or, having left that jurisdiction, upon the high seas.” 40 Stat.
at 221-22; 18 U.S.C. § 963. See also 18 U.S.C. §§ 964-967. Section 964 provides in part that
[d]uring a w ar in which the United States is a neutral nation, it shall be unlawful to send out o f the
U nited States any vessel b u ilt,. . . as a vessel o f war . . . with any intent or under any agreem ent
or contract that such vessel will be delivered to a belligerent n a tio n ,. . . or w ith reasonable cause
to believe that the said vessel will be employed in the service o f any such belligerent nation after
its departure from the jurisdiction o f the United States.
Section 964 codifies the substantive rule o f international law forbidding the delivery of arm ed vessels to
belligerent pow ers by neutral nations that § 963 authorized the President to enforce. See H.R. Rep. No. 30,
65th C o n g , 1st Sess. 9 (1917).
In 1940, A ttorney General Jackson construed this provision to preclude the President from dispatching to
the B ntish G overnm ent, in exchange for certain services pursuant to an Executive A greem ent, “m osquito
boats” which were at the tim e under construction for the U nited States Navy, because they w ould have been
“built, arm ed, o r equipped w ith the intent, o r with reasonable cause to believe, that they would enter the
service of a belligerent after being sent out o f the jurisdiction o f the U nited States.” 39 Op. A tt’y Gen. 484,
496 (1940). A lthough som e com m entators have suggested that Attorney General Jackson’s opinion supports
the view that all o f the N eutrality Act provisions were intended to apply to G overnm ent activities, we believe
that § 964 by its term s is lim ited to circum stances involving a declared war, unlike the other neutrality laws,
and was proposed to C ongress by Attorney General G regory in 1917 for the purpose of providing “for the
observance o f obligations im peratively im posed by international law upon the U nited States.” H.R. Rep. No.
30, supra, at 9.
12 See United States v Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
77
east Asia and Chile, President Ford in Angola, and President Carter in Iran. See
gen erally Senate Select Comm, to Study Governmental Operations with re
spect to Intelligence Activities, Final Report on “Foreign And Military Intelli
gence,” S. Rep. No. 755, 95th Cong., 2d Sess. (Book I) (1976) (Church
Committee Report); Emerson, War Pow ers Legislation, supra; Monaghan,
P residen tial War-Making, 50 B.U. L. Rev. 19 (1970).23
Although all of these actions generated some controversy— in fact, one may
fairly say that virtually all of them generated heated debate and remain contro
versial today — no significant doubt was ever cast on the legality of the
President’s conduct under the Neutrality Act.
In addition to the numerous documented uses of troops by Presidents without
congressional authorization, the Eisenhower, Kennedy and Johnson adminis
trations alone conducted over 400 covert military operations in countries with
which the United States was “at peace,” including Laos, Angola and Cuba.
Church Committee Report, supra, at 46.24 In none of the many instances of
such action has there been raised a credible allegation or serious debate in
Congress regarding possible violations of the Neutrality Act.
Moreover, there is strong contemporary evidence that the Neutrality Act is
not regarded by Congress as applying to military deployments by the President
or covert activities of the Central Intelligence Agency or the Department of
Defense. This evidence takes the form of the recent enactment by Congress of
provisions to “regulate” the President’s use of the regular armed forces and of
covert operations conducted by the CIA and the Department of Defense. The
War Powers Resolution,25 the Hughes-Ryan Amendment to the 1974 Foreign
Assistance Act,26 the Intelligence Authorization Act,27 the “Boland Amend
23 L ess w ell-rem em bered examples include President E isenhow er's evacuation o f United States nationals
from Egypt d uring the Suez crisis in 1956; the 5,000 troops that President Eisenhow er sent to Beirut to
“ protect A m erican lives” and “assist” L ebanon in preserving its political independence during Lebanon's
civil “ strife” in 1958; and President Jo h n so n ’s “airlift” actions in the C ongo in 1964 during the civil rebellion
in that country as well as his deployment o f troops in the D om inican R epublic in 1965. See Em erson, War
Powers Legislation, supra.
24 “C overt action” w as defined by the Senate Select Com m ittee on Intelligence A ctivities as “clandestine
activity d esig n ed to influence foreign governm ents, events, organizations or persons in support of U.S.
foreign policy conducted in such a way th a t the involvem ent o f the U.S. G overnm ent is not apparent.” Church
C om m ittee R eport, supra, at 131.
25 In brief, the W ar P ow ers Resolution, 50 U.S.C. §§ 1541-1548, purports to require the President to report
to C ongress w ithin 48 hours o f introducing U.S. A rm ed Forces, inter alia, “ into hostilities or into situations
w here im m inent involvem ent in hostilities is clearly indicated by the circum stances,” and to term inate such
use w ithin 60 days, unless Congress has declared w ar o r enacted a specific authorization for such use.
26 T he H ughes-R yan Amendment, 22 U .S.C . § 2422, provides:
N o funds appropriated under the authority o f this o r any other Act may be expended by or on
b e h alf o f the C entral Intelligence A gency fo r operations in foreign countries, o ther than activities
intended solely fo r obtaining n ecessary intelligence, unless and until the President finds that each
such op eratio n is im portant to the national security o f the U nited States and reports, in a timely
fashion, a d escription and scope o f such operation to the appropriate com m ittees o f the Congress,
including the C om m ittee on Foreign R elations o f the U nited States Senate and the Com m ittee on
Foreign A ffairs o f the United S ta te s H ouse o f Representatives.
27 T he A ct, 50 U .S.C . § 413(a)(1), continued the H ughes-R yan A m endm ent’s executive reporting require
m ent, but lim ited the reporting to the S enate and H ouse Select C om m ittees on Intelligence. It also provided
that the D irector o f C entral Intelligence had to give prior, instead o f tim ely, notice o f “any significant
C ontinued
78
ment” to the Further Continuing Appropriation Act of 1983,28 and the similar
restrictions adopted by Congress in the Intelligence Authorization Act for
Fiscal Year 1984,29 all purport to impose various reporting requirements and
expenditure limits on the President regarding the conduct of military activities,
which necessarily embrace activities that would otherwise be prohibited by the
Neutrality Act if carried out by individuals acting without Government authori
zation.
These provisions constitute an explicit recognition by Congress of the
President’s authority to conduct such activities against countries with whom
the United States is “at peace” within the meaning of the Act. The Church
Committee, after extensive hearings and exhaustive study of the matter over a
period of fifteen months, concluded:
The argument that through the provision of funds to the CIA
Congress has effectively ratified the authority of the CIA to
conduct covert action rests on the assumption that. . . Congress
has known that the CIA was engaged in covert action and has
provided funds to the CIA with the knowledge and intent that
some of the funds would be used for covert action.
*
*
*
One of the reasons offered for the 1974 Amendment to the
Foreign Assistance Act was that it would ensure that Congress
would have sufficient information about covert action to deter
mine if such activities should continue.
* * *
[Although the actual state of congressional knowledge about
covert action prior to the 1970s is unclear[,] Congress . . . now
knows that the CIA conducts covert action. Congress also knows
that the Executive claims Congress has authorized the Agency
27 (. . . continued)
anticipated intelligence activity.” O nly under extraordinary circum stances is the President authorized not to
provide a full report to these com m ittees, and even then he m ust (a) report to the chairm an and ranking
m inority member o f each com m ittee and other leaders o f Congress, (b) provide notice in a timely fashion
subsequent to the covert operation taking place, and (c) provide a statem ent o f the reasons fo r not giving prior
notice. 50 U.S.C § 413(a), (b).
28 The Boland A m endm ent to the Act, Pub. L. No. 97-377, 96 Stat. 1830, 1865, provided:
N one o f the funds provided in this Act may be used by the Central Intelligence A gency or the
Department o f D efense to fum ish m ilitary equipm ent, military training or advice, or other
support for m ilitary activities, to any group o r individual, not part o f a country’s arm ed forces,
for the purpose o f overthrow ing the G overnm ent o f N icaragua or provoking a m ilitary exchange
betw een N icaragua and H onduras.
29 T he 1984 restriction provides:
D uring fiscal year 1984, not more than $24,000,000 o f the funds available to the Central
Intelligence A gency, the D epartm ent o f D efense, o r any other agency or entity o f the United
States involved in intelligence activities m ay be obligated o r expended for the purpose or which
w ould have the effect of supporting, directly or indirectly, m ilitary or param ilitary operations in
N icaragua by any nation, group, organization, m ovement, o r individual.
Pub. L. No. 98 -2 1 5 , 97 Stat. 1475.
79
to do so. Finally, Congress knows that the CIA receives its funds
through secret transfers of funds appropriated to the Department
of Defense and that some of the transferred funds are used to
finance cover the action. In the future the failure by Congress to
prohibit funds from being used for covert action by the CIA
would clearly constitute congressional ratification of the CIA’s
authority, eliminating any ambiguity.
Church Committee Report, supra, at 498, 499, 501 (footnotes omitted).
Moreover, these provisions were enacted with virtually no discussion of the
Neutrality Act, which suggests that Congress did not view the Act as being
relevant to Presidentially authorized expeditions, whether they be covert ac
tivities of the Central Intelligence Agency or the Department of Defense, or
overt activities of the United States Armed Forces. In addition, such legislation
constitutes a recognition by Congress of the historic practice of Chief Execu
tives, as well as of the changing nature of military operations and the increasing
complexity in foreign alliances, which require the President to be able to
respond immediately to world crises and threats to national security, short of
usurping Congress’ constitutional prerogative to declare war.30
Notwithstanding the overwhelming support for the view that the Act was not
intended to apply to Government officials acting pursuant to Presidential
orders, and particularly in view of the recent explicit congressional authoriza
tions of CIA activity in foreign countries noted above, the United States
District Court in Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984),31
recently ordered the Attorney General to conduct a preliminary investigation,
pursuant to Title VI of the Ethics in Government Act, 28 U.S.C. §§ 591-598, to
determine whether allegations that Government officials had violated the Neu
trality Act by their recent actions in Nicaragua warranted application for the
appointment of an independent counsel under the Ethics in Government Act.
Although not directly deciding that issue, the court noted that “the history of
the Neutrality Act and judicial precedent demonstrate the reasonableness of the
view that the Act applies to all persons, including the President.” 577 F. Supp.
at 1454 (emphasis added). The action was brought as a mandamus action by a
Member of Congress, in his capacity as a private citizen, and two other citizens,
alleging that they had sustained various injuries from the Government’s activi
ties concerning Nicaragua, to compel the Attorney General to conduct a pre
30 W hen asked about the applicability o f the N eutrality A ct to covert activities carried out during the
K ennedy A dm inistration, A ttorney General R obert K ennedy replied:
T here have been a num ber of inquiries from the press about our p resent neutrality laws and the
p o ssib ility o f th eir application in connection with the struggle for freedom in Cuba.
First, m ay I say that the neutrality law s are among the oldest law s in our statute books. M ost of
the provisions date from the first years o f our independence and, w ith only minor revisions, have
continued in force since the 18th century. Clearly they were not designed for the kind o f situation
which exists in the world today.
Statem ent o f A ttorney G eneral Kennedy to th e Press (Apr. 20, 1961) (cited in Lobel, The Rise and Decline of
the Neutrality Act, supra, 24 Harv. Int’l L. J. a t 44 n.243.)
31 See also Dellums v. Smith, 577 F. Supp. 1456 (N.D. C al. 1984) (denial o f stay); Dellums v. Smith, 573 F.
Supp. 1489 (N .D . Cal. 1983).
80
liminary investigation, pursuant to the Ethics in Government Act, into whether
the President and other Executive Branch officials had violated the Act. In
concluding that the Neutrality Act could reasonably be construed to proscribe
official Government activity, for purposes of invoking the Ethics in Govern
ment Act,32 the court relied primarily on United States v. Smith, the deficien
cies of which we have noted above.33 Although Dellums, unlike the Smith case,
cannot be dismissed as not involving truly “official” Government conduct, we
nevertheless believe that the case was erroneously decided. The United States
Court of Appeals for the Ninth Circuit has stayed the district court’s order
pending resolution of the issue on appeal.34
Conclusion
As we have demonstrated, the Neutrality Act was enacted primarily to
protect the territorial sovereignty and independence of the United States from
foreign entanglements during the early years of its history, as well as to
enhance its ability to conduct a unified and consistent foreign policy, unim
peded by the acts of individual citizens. That purpose has remained constant
through its several amendments and codifications over the last two centuries.
With the two possible exceptions noted in this memorandum of district court
decisions, the Act has been consistently construed by Presidents, Congresses,
and judges to apply to unauthorized acts of individuals. All prosecutions
brought under the Act have been brought against individuals on unauthorized
missions pursuing private “foreign policy” goals. Although the fact that the Act
was not intended to apply to Government officials acting within the course and
scope of their official duties was not made explicit in the text of the Act, we
believe that the historical circumstances surrounding its enactment, together
with the historical practice of Presidents from times contemporaneous with the
Act’s passage to the present day, compel the conclusion that neither § 960 of
the Act, nor any of its other provisions, impose criminal sanctions on the
activities carried on by the Central Intelligence Agency and its agents, under
the President’s direction, in Nicaragua.
T h eo d o r e B . O lson
Assistant Attorney General
Office o f Legal Counsel
32 The court stated'
The present question is thus lim ited to w hether the view is reasonable that the N eutrality Act
proscribes the activities alleged by plaintiffs. For reasons set forth below, the question m ust be
answ ered in the affirm ative.
577 F. Supp. at 1452.
33 The other evidence cited by the court in support o f its conclusion appeared to be lifted, w holesale, out o f
p la in tiffs b rief without any further consideration. Even given this, the court intim ated an am bivalent view of
the evidence, when it noted that “ [t]he contention that the N eutrality Act reaches executive officials is at least
as persuasive as d efen d an t's claim that it does not " 577 F Supp. at 1452.
34 NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the court o f appeals reversed the
d istnct c o u rt's decision in Dellums on the ground that the plaintiffs lacked standing to bring the action. See
Dellums v. Smith, 797 F.2d 817 (9th Cir. 1986)
81 |
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Write a legal research memo on the following topic. | Use of Polygraph Examinations in Investigating Disclosure of
Information About Pending Criminal Investigations
T h e A tto rn e y G e n e ra l m ay o rd e r Ju stic e D e p a rtm e n t em p lo y ees to subm it to p o ly g ra p h
tests to an sw er q u estio n s relatin g to p en d in g crim inal investigations, an d m ay d isc h a rg e
an em p lo y ee fo r refusing to take such a test.
E v en w h e re an em p lo y ee is en titled to
c o o p e ra te w ith an official inv estig atio n
ad eq u ate cau se, as lo n g as th e em p lo y ee
n eed fo r th e test an d th e use to w h ic h its
be d isc h a rg e d o n ly “ fo r cau se," failure to
by taking a p o ly g ra p h test m ay c o n stitu te
is g iven reasonable assu ran ces resp ec tin g th e
results m ay be put.
February 22, 1980
M EM 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
You have asked us to consider the following questions regarding the
use o f polygraphs in investigating unauthorized disclosures of inform a
tion about pending criminal investigations: (1) may a Justice D epart
ment employee be dismissed for refusing to submit to a polygraph
test; and (2) may the results o f a polygraph test be used against the
employee |n (a) administrative proceedings and (b) criminal proceed
ings? We conclude that the A ttorney G eneral may order D epartm ent
employees to submit to polygraph tests to answ er specific questions
relating to pending criminal investigations and that employees w ho
refuse to take polygraph tests may be discharged. If any em ployee is
threatened w ith dismissal for refusing to take a polygraph test, then any
evidence obtained through the test may not be used against the em
ployee in a subsequent criminal proceeding. Em ployees should be
w arned prior to taking the test that their refusal to participate may lead
to their dismissal, but that nothing they say can or will be used against
them in a criminal proceeding. It is doubtful that evidence obtained by
way o f polygraph would, in any event, be admissible in a federal
criminal proceeding, unless the employee stipulates to its admissibility.
I. Polygraphs and Federal Employment
T he use o f polygraphs for federal em ploym ent purposes has been the
subject o f controversy for a num ber o f years. T he discussion focuses on
tw o conflicting trends: the grow ing scientific acceptance o f the reliabil
ity o f polygraphy and the increasing concern that polygraph examina
421
tions violate privacy rights and the F ourth, Fifth, and Fourteenth
Amendments.
In 1965, the House Com m ittee on G overnm ent O perations held hear
ings and issued a report on the use o f polygraphs by the federal
governm ent. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). T he Com
mittee R eport noted that 19 federal agencies used polygraphs; the most
frequently reported purpose o f the use involved security matters. A
total o f just under 20,000 tests w ere administered in 1963. Eight agen
cies used polygraphs to investigate employee misconduct. (The D epart
ment o f Justice indicated its use was limited to security and criminal
matters.) T he Com mittee strongly criticized the use o f polygraphs; it
concluded that the accuracy o f such tests was unproven and that
operators w ere generally unqualified and undertrained. Id. at 1-2.
In 1968, the Civil Service Commission prom ulgated regulations
which prohibit use o f polygraphs in em ploym ent screening and person
nel investigations for members o f the com petitive service, except for
national security purposes. This regulation, w hich does not apply to the
excepted service, is currently in force. Federal Personnel Manual chap
ter 736, Appendix D .1
Senator E rvin introduced a num ber o f bills which would have
prohibited the use o f polygraphs in the hiring or firing o f federal
employees and employees o f industries affecting interstate commerce. S.
2156, 91st Cong., 2d Sess. (1971); S. 2836, 93d Cong., 1st Sess. (1973),
reprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th
Cong., 1st Sess. (1975). None o f these measures was enacted.
A dditional congressional hearings w ere held in 1974 before the
House G overnm ent O perations C om m ittee.2 A D eputy Assistant A tto r
ney G eneral for the Criminal Division testified that polygraphs had
proven useful in a small num ber o f investigations involving a “closed”
group o f persons— e.g., persons with access to stolen or embezzled
property. H ow ever, he noted that even in these circumstances, the
Criminal Division viewed the results “w ith caution and opposes their
introduction into evidence . . . .” Hearings at 414. A representative of
the Federal Bureau o f Investigation (FB I) testified that “the F B I’s
official position has always been that [it does] not consider polygraph
examinations sufficiently precise to perm it absolute judgm ent o f guilt or
non-guilt—lie o r truth—w ithout qualifications.” Id. at 418. He added,
how ever, that
w ith proper ethics by the polygraph examiner and tight
adm inistrative control by the user agency, there is no
question but that the polygraph can be a valuable investi
‘ T h e regulations require that agencies using polygraphs advise the individual o f his o r her privilege
against self-incrim ination and right to counsel. T h e individual must voluntarily consent to the exam ina
tion and a refusal to consent may not be included in his o r h er personnel file.
a The Use o f Polygraphs and Sim ilar Devices by Federal Agencies, Hearings Before the House Committee
on Government Operations, 93d C ong., 2d Sess. (1974) (" Hearings").
422
gative aid to supplement interrogation in selected criminal
and national security cases. Interrogation is a basic tool of
any investigative agency and the FBI considers the poly
graph technique a thorough and specialized interview pro
cedure in which a skillful interrogator is attem pting to
simply ascertain the truthful facts from a consenting indi
vidual regarding a m atter in which we have jurisdiction.
In some instances suspects will admit deception and
furnish confessions an d /o r signed statements. In most in
stances valuable new information or investigative direc
tion is developed as a result o f the examination and followup interrogation.
Id. at 419. T he use o f polygraphs was strongly criticized by the A m eri
can Civil Liberties Union on constitutional and scientific grounds. Id.
at 2-84.
A study prepared in 1974 by the staff o f the Subcommittee on
Constitutional Rights o f the Senate Judiciary Com mittee reached a
conclusion similar to the House Com mittee in 1965. It stated that
[cjompulsory submission to a polygraph test is an affront
to the integrity o f the human personality that is uncon
scionable in a society which values the retention o f indi
viduals’ privacy. . . . T he Congress should take legisla
tive steps to prevent Federal agencies as well as the
private sector from requiring, requesting, or persuading
any employee o r applicant for em ploym ent to take any
polygraph tests.
Staff o f the Subcomm. on Constitutional Rights o f the Senate Comm,
on the Judiciary, 93d Cong., 2d Sess., Privacy, Polygraphs, and Em ploy
ment, 17-18 (Comm. Print 1974). T he study also concluded, after re
viewing the literature on polygraphs, that “doubt must be cast upon the
objectivity, accuracy, and reliability o f the polygraph test.” Id. at 9.
Based on the above, it is clear that use o f polygraphs for federal
employment purposes remains controversial.3 While civil service regu
lations prohibit their use for the com petitive service, Congress has been
made aw are that no prohibition exists regarding the excepted service.
Several bills that would have prohibited such use have not been
enacted.
II. Attorney General’s Authority to Terminate Employment
Analysis o f the authority o f the A ttorney G eneral to dismiss an
employee for refusing to submit to a polygraph examination must begin
s States have taken an active role in limiting use o f polygraphs in the em ploym ent context. Eighteen
states have licensing procedures for polygraph examiners; IS states prohibit use o f polygraphs. See
C om m ent, Privacy: The Polygraph in Employment. 30 A rk. L. Rev. 35, 37-38 (1976).
423
w ith an understanding o f the statutory and regulatory protections af
forded different classes o f D epartm ent employees.
U nder the civil service laws, D epartm ent attorneys and employees of
the FBI are in the excepted service. 28 U.S.C. § 536 (FBI); 5 C.F.R.
§ 213.3102(d) (governm ent attorneys). T he Office o f Personnel Manage
ment (OPM ), by regulation, has exempted personnel in the excepted
service from the statutory provisions regarding removal o f civil serv
ants. See 5 C.F.R . § 752.401(c). H ow ever, persons in the excepted
service w ho are non-probationary “preference eligibles,”—primarily
veterans and the spouses and m others o f disabled and deceased veter
ans—are afforded the civil service law protections. 5 U.S.C.
§ 7511(a)(1)(B). See id. § 2108 (defining “preference eligible”). T he civil
service law protections are substantive and procedural. A preferenceeligible em ployee may be rem oved “only for such cause as will pro
mote the efficiency o f the service.” Prior to removal, an employee is
entitled to 30 days’ advance w ritten notice o f the reasons for the action,
a reasonable time to respond to the charges, the assistance of an attor
ney, a w ritten decision, and an appeal to the Merit System Protection
Board (MSPB). 5 U.S.C. § 7513; D O J O rder 1752.1.
D epartm ent employees w ho are in the excepted service and are not
preference-eligibles have no rights arising from a statute or OPM regu
lation to a statem ent o f reasons for discharge or to an appeal from an
adverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978).
H ow ever, the D epartm ent is bound by its ow n substantive standards
and procedures even though the em ployee may have no legitimate
expectation o f continued em ploym ent and could, under relevant stat
utes, be summarily discharged by the A ttorney G eneral at any time. See
Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584
F.2d at 184; M azaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir.
1977). D epartm ent O rder 1752.1 (1975), as supplem ented by a M arch
27, 1979 notice, establishes minimal procedures for D epartm ent attor
neys w ho are not preference-eligibles. C hapter 6 o f the order entitles
them only to “a letter o f term ination prior to the effective date o f the
term ination . . . [which provides] a brief statem ent o f the reasons for
the term ination.” 4
Substantively, D epartm ent attorneys are provided no protections by
D epartm ent regulations. And since they are not covered by the “for
cause” standard o f the civil service laws, attorneys apparently serve at
the pleasure o f the A ttorney General. T he A ttorney G eneral’s authority
to rem ove Assistant United States A ttorneys (A U SA ) is expressly rec
ognized by statute. See 28 U.S.C. § 542(b).
T his conclusion must be qualified because o f recent cases that have
held that agency handbooks and informal understandings may establish
4 FB I em ployees are excluded alto g eth er from D O J O rd e r 1752.1.
424
substantive protections for federal employees. In Ashton v. Cm letti, 613
F.2d 923 (D.C. Cir. 1979), the D.C. Circuit held that “ the FBI has
fostered rules and understandings which [entitle an FBI employee] to
believe that he would lose his jo b only for a job-related reason.” 613
F.2d at 928.5 T he court recognized that FBI employees are in the
excepted service and that “ [standing alone, the exception could suggest
to an employee that he held his jo b at the sufferance o f his em ployer.”
It went on to find, how ever, that the FBI Handbook, Manual o f
Instructions, and the plaintiffs letter o f appointm ent created an implied
promise that the employee would be dismissed “only for failing to
perform his duties satisfactorily and w ithout prejudice to the F B I’s
achievem ent o f its law-enforcem ent mission.” 613 F.2d at 930. In es
sence, the court held that FB I employees, even though placed in the
excepted service by statute, may be discharged only upon a finding o f
cause similar to that required for dismissal o f members o f the com peti
tive service.6 Once it is determ ined that an employee has a legitim ate
claim to continued em ploym ent—Le„ that he o r she may be not be fired
at any time—then procedural due process applies: the em ployee must
be afforded a hearing and other procedural safeguards.
We are unaw are o f any handbooks or guidelines upon w hich D ep art
ment attorneys could rely to establish a legitimate claim to continued
employment. W e cannot, how ever, rule out the possibility that an
attorney could point to a letter o f appointm ent or to informal under
standings which a court w ould deem sufficient to establish a property
interest.7
In sum, the A ttorney G eneral probably has the authority to dismiss a
non-veteran D epartm ent attorney for any reason, and the attorney is
entitled only to a statem ent o f reasons for the discharge. N on-veteran
FBI agents probably may be discharged only for job-related reasons,
even though they are in the excepted service; they are entitled to a due
process hearing. D epartm ent employees w ho are veterans may be dis
charged only for cause and are entitled to statutory, OPM and D O J
procedural rights.
5 T he case concerned the F B I's discharge o f an em ployee because o f his adm itted hom osexuality.
T h e court held that (he em ployee w as entitled to a due process hearing prior to term ination to
determ ine w h eth er his hom osexuality constituted a jo b -related basis fo r his dismissal.
6 See also Paige v. Harris, 584 F.2d 178 (7th Cir. 1978) (H U D H andbook provides rules and
understandings creating legitim ate claim to continued em ploym ent for em ployees in the excepted
service); Colm v. Vance, 567 F.2d 1125 (D .C . Cir. 1977) (rem anding for consideration o f w h eth er the
Foreign Service A ct requires prom otion to be based solely on perform ance and m erit, even though
plaintiff could dem onstrate no constitutional p ro p erty entitlem ent to prom otion).
7 F o r example, it is conceivable that a c o u rt could find that w hen an A U SA agrees to a 3-year
com m itm ent w ith a U.S. A tto rn ey 's Office, that that agreem ent constitutes a prom ise by the D e p art
ment not to discharge the a tto rn ey d u rin g that period w ithout good cause. A c o u rt m ight also hold
that the D epartm ent's regulation requiring a statem ent o f reasons for term ination im plicitly requires
the. D epartm ent to have a “g o o d ” reason.
425
III. What Constitutes “Cause”
As noted above, the civil service laws authorize removal o f covered
civil servants “only for such cause as will prom ote the efficiency o f the
service.” 5 U.S.C. §7513. T he D.C. Circuit has similarly held that an
FB I em ployee may be dismissed “only for failing to perform his duties
satisfactorily and w ithout prejudice to the F B I’s achievem ent o f its lawenforcem ent mission.” Ashton v. Civiletti, supra.6 T he question is
w hether failure to obey an order to submit to a polygraph examination
is sufficient cause for discharge under these standards. T he following
discussion assumes that at the time the em ployee is ordered to take the
test, the employee is assured both that he or she may be discharged for
refusing to take the test and that no inform ation obtained in the course
of, or as a result of, the examination may be used against him or her in
a subsequent criminal proceeding.9
A t the minimum, failure to obey a legitimate order of a superior
constitutes insubordination—an offense punishable by removal. See FBI
Manual o f Instructions, Part I, § 1-20-2 (refusal to cooperate during an
interview regarding w ork-related m atters permits discipline for insubor
dination); § 13, Schedule o f Offenses and Penalties for FB I Employees
(insubordination punishable by censure to removal). A refusal to submit
to a polygraph test also arguably impedes investigation o f governm ent
misconduct. It thus directly effects the efficiency o f the D epartm ent by
hindering removal o f offending employees and restoration o f public
confidence in the D epartm ent. T he Schedule o f Disciplinary Offenses
and Penalties for D O J Employees, included in D O J O rder 1752.1,
identifies the offense o f “refusal to cooperate in an official governm ent
8 It is quite clear that the underlying co n d u ct—disclosure o f facts o f a pending criminal investiga
tion—perm its rem oval o f the offending employees. T h e co nduct may violate various crim inal statutes
and plainly violates a num ber o f O PM and D O J standards o f conduct. See, e.g.. 5 C .F .R .
§§ 735.201a(c) (im peding governm ent efficiency); (e) (m aking a governm ent decision outside official
channels); (0 (affecting adversely the confidence o f the public in the integrity o f the governm ent);
73S.206 (misuse o f inform ation not made available to the general public); 735.209 (conduct prejudicial
to the governm ent); 28 C .F .R . §§ 45.735-2(c)(3) (im peding governm ent efficiency); (c)(6) (affecting
adversely the confidence o f the public in the integrity o f the governm ent); 45.735-10 (im proper use o f
official inform ation); 45.735-18 (1980) (conduct prejudicial to the governm ent).
It is possible that an em ployee charged w ith unauthorized disclosure may assert a First A m endm ent
defense: that the governm ent may not constitutionally prohibit him o r her from com m enting on
m atters o f public im portance. W hile the em ployee may have an interest in com m enting upon m atters
o f public interest, this interest must be balanced against the g overnm ent's interest in prom oting the
efficiency o f the public services it perform s th ro u g h its em ployees. See Pickering v. Board o f Education,
391 U.S. 563 (1968). T h e D .C . C ircuit has identified the relevant factors in the “balancing test" as: the
sensitivity and confidential nature o f the em ployee’s position and the governm ent's consequently
legitim ate need for secrecy; the subject m atter o f the speech; the truth o r falsity o f the speech; the
interference w ith jo b perform ance; the context o f the speech; the effect o f the speech on agency
m orale and w orking relationships w ith im m ediate superiors. Hanson v. Hoffman. 628 F.2d 42, 50 (D .C .
Cir. 1980). It w ould appear that the g o vernm ent’s interest in preventing disclosure is at its maximum in
regard to inform ation relating to pending crim inal investigations.
9 W ithout these assurances, an em ployee could not constitutionally be fired for refusing to take the
polygraph test. See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973); see also Sanitation Men v.
Sanitation Commissioner. 392 U.S. 280(1968).
426
inquiry” and lists the suggested discipline as “official reprimand to
removal.”
T he obligation o f public officials to answer questions related to the
perform ance o f their public duties is well-recognized. T he Supreme
C ourt has upheld the right of public em ployers to fire employees solely
for their refusal to sign affidavits or answer questions related to their
fitness to perform their public functions. See, e.g., Lefkowitz v. Turley,
414 U.S. 70, 84 (1973); Sanitation Men v. Commissioner, 392 U.S. at 285;
Beilan v. Board o f Education, 357 U.S. 399 (1958). These holdings are
based on the recognized public interest in the accountability of public
servants. This interest appears at its zenith when the integrity o f lawenforcement activities is at stake. As stated by Justice Harlan,
[I]t is surely plain that [a State] may . . . require its
employees to assist in the prevention and detection o f
unlawful activities by officers o f the state government.
T he urgency o f these requirem ents is the m ore obvious
. . . w here the conduct in question is that o f officials
directly entrusted with the adm inistration o f justice. The
im portance for our systems o f justice o f the integrity of
local police forces can scarcely be exaggerated.
Garrity v. N ew Jersey, 385 U.S. 493, 507-08 (1967) (Harlan, J.,
dissenting).10
Thus, if the use o f polygraphs is deemed a necessary part of an
investigation o f leaks, then a refusal to submit to such a test could
impede the investigation and consequently hinder the efficiency o f the
D epartm ent. D epartm ent standards o f conduct recognize the affirma
tive duty o f employees to cooperate w ith official investigations, and
refusals to cooperate are deemed serious enough offenses to w arrant
removal in appropriate cases. W e can see no meaningful difference
between compelling an employee to answer questions or sign an affida
vit and compelling an employee to submit to a polygraph test.11 While
the results o f the test may be open to question and debate, the refusal to
take the test may properly be characterized as conduct which does not
prom ote the efficiency o f the Departm ent. Accordingly, we believe
that an employee could be dismissed for refusing to take a polygraph
exam ination.12
10 A lthough the C o u rt held in Garrity that the incrim inating statem ents o f a public official obtained
under threat o f dismissal could not be used in a criminal proceeding, the m ajority did not disagree
w ith Justice H arlan's statem ent regarding the public interest that public officers provide information
about the conduct o f their activities. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968).
11 We reach this conclusion even though w e recognize that the use o f a polygraph is a g reater
intrusion into an individual's privacy to the extent it probes unrelated m atter, private thoughts, and
beliefs.
12 O ne district court has upheld the authority o f a city transit au th o rity to fire em ployees suspected
o f intoxication w ho refuse to submit to urinalysis o r blood tests. T he c ourt relied upon the Garrity line
o f cases for the proposition that public em ployees may be discharged for refusal to properly account
for the perform ance o f their duties. Division 241, Am algam ated Transit Union v. Suscy. 4fi5 F. Supp.
750 (N .D . III. 1975), a ffd , per curiam, 538 F.2d 1264 (7th Cir.), cert, denied. 429 U.S. 1029 (1976).
427
An arguable objection to this conclusion may be phrased as follows.
Polygraph tests have not achieved recognized acceptance among the
courts and the experts as accurate indicators o f truth-telling. F or exam
ple, the test may show deception w here a truthful subject is nervous,
tense, over-tired, or angry, or when an examiner asks misleading or
inadequate questions. See United States v. Alexander, 526 F.2d 161, 165
(8th Cir. 1975). Thus, w here an em ployee believes that the results of
the polygraph will not be accurate, refusal to take the examination
should not be grounds for removal.
We believe that if the investigator can establish a reasonable basis for
the use o f the polygraph in the course o f the investigation, then a
refusal by an em ployee to take the test would be impermissible, not
withstanding the subjective fear o f the employee. A reasonable basis
would be established by showing the need for use o f the technology
and the state o f the art. W e believe that adequate scientific evidence
exists w hich w ould support an investigator’s decision that polygraphy
could be helpful in the pursuit o f the investigation. See, e.g., United
States v. D e Betham, 470 F.2d 1367 (9th Cir. 1972) (per curiam ), cert,
denied, 412 U.S. 907 (1973) (although holding that district court did not
abuse discretion in excluding polygraph evidence, court noted that
evidence “vigorously su p p o rted ] the accuracy o f polygraphic evi
dence”); United States v. Oliver, 525 F.2d 731, 737 (8th Cir. 1975), cert,
denied, 424 U.S. 973 (1976) (upholding admission of polygraph evidence
w here parties stipulated admissibility; court could not conclude that
polygraph “is so unreliable as to be inadmissible in this particular
case”); Tarlow , Adm issibility o f Polygraph Evidence in 1975: An A id in
Determining Credibility In a Perjury-Plagued System, 26 Hastings L.J.
917 (1975).13 We recognize, how ever, that reliability of polygraphy
remains hotly contested, and courts o f appeal have perm itted introduc
tion o f polygraph evidence only when the parties have stipulated to its
admissibility. See United States v. Alexander, supra (summarizing cases
and denying trend o f adm itting polygraph evidence); Hearings, supra . 14
T he reasonableness o f the use o f a polygraph would be supported by
a record establishing the reason for its use, the expected accuracy of
the technology, the qualifications o f the examiner, and the reliance
upon other evidence to establish and corroborate the results o f the
investigation.15 Once the reasonable basis for the use o f polygraphy is
established, we do not believe than an employee can, with impunity,
13 O ne factor frequently ciled by courts for excluding polygraph evidence is the probability that the
ju ry will acco rd it undue w eight. O f course, this concfern is nbt present w hen adm inistrative proceed
ings are contem plated.
14 T h e D .C . C ircuit continues to adhere to its per se rule against admissibility as established by the
leading case o f Frye v. United States, 293 F. 1013 (D .C . Cir. 1923). See United States v. Skeens, 494
F.2d 1050 (D .C . Cir. 1974).
15 Presum ably, the quality o f the exam ination and the qualifications of the exam iner w ould be quite
high if the exam ination is co n d u cted by FB I polygraph experts.
428
refuse to take the examination any more than he or she could refuse to
submit to fingerprinting or blood-typing.
IV. Use of the Results of a Polygraph Test
As long as the employee is promised that any evidence obtained in
the course of the polygraph test will not be used in a subsequent
criminal proceeding, the Fifth Am endm ent does not bar its use in an
administrative proceeding.16 O f course, such a promise, and the Fifth
Amendment, prohibit use in any criminal proceeding. Garrity v. New
Jersey, supra.
V. Conclusion
We conclude that the A ttorney General may discharge an employee
for refusing to take a polygraph examination w here the examination is
necessary to an official investigation of unauthorized disclosures about
pending criminal investigations, provided that the employee has been
w arned that failure to submit to the test could lead to his or her
dismissal and that nothing obtained in the examination will be used
against the employee in a subsequent criminal proceeding. Even if a
court were to hold that D epartm ent attorneys may only be discharged
“ for cause,” we conclude that, generally, failure to cooperate with an
official investigation is adequate cause, although each situation must be
evaluated on a careful case-by-case basis.
L arry A. H am m ond
Acting Assistant Attorney General
Office o f L egal Counsel
16
Because o f the controversy surrounding the use o f polygraphs, it is possible than an em ployee
discharged solely on the basis o f polygraphic evidence w ould challenge the dismissal as arbitary and
irrational agency action. W e do not believe that, absent a judicially recognizable property or liberty
interest, an em ployee may challenge agency action as a violation o f due process unless the agency has
not followed its ow n regulations. See Paige v. Harris, 584 F.2d at 184; c f Bishop v. Wood, 426 U.S. 341
(1976). A t least one court, how ever, has held that a governm ent decision is subject to challenge as
arbitrary and capricious even w here the em ployee has no pro p erty right in continued em ploym ent.
Heaphy v. U.S. Treasury Dept., 354 F. Supp. 396 (S.D .N .Y . 1973) (T yler, J.), a f f d on opinion below. 489
F.2d 735 (2d Cir. 1974). If a court w ere to permit a challenge to a dismissal based solely on the results
o f a polygraph exam ination, the non-arbitrariness o f the action w ould depend upon such factors as the
quality o f the exam ination, the skill and training o f the exam iner, and the inherent credibility o f the
em ployee’s statements.
429 |
|
Write a legal research memo on the following topic. | Firearms Disabilities of Nonimmigrant Aliens
Under the Gun Control Act
The prohibition in 18 U.S.C. § 922(g)(5)(B) of shipping, transporting, possessing, or
receiving any firearm or ammunition that has a connection to interstate commerce applies only to nonimmigrant aliens who must have visas to be admitted to the United
States, not to all aliens with nonimmigrant status. The text of the statute forecloses the
interpretation advanced by the Bureau of Alcohol, Tobacco, Firearms and Explosives
in an interim final rule applying section 922(g)(5)(B) to all nonimmigrant aliens.
October 28, 2011
MEMORANDUM OPINION FOR THE CHIEF COUNSEL
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES
A provision of the federal Gun Control Act prohibits any “alien” who
has “been admitted to the United States under a nonimmigrant visa”
from shipping, transporting, possessing, or receiving “any firearm or
ammunition” that has a connection to interstate commerce. 18 U.S.C.
§ 922(g)(5)(B) (2006). In 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) issued an interim final rule interpreting
this prohibition to apply to any alien who has the status of “nonimmigrant alien,” regardless of whether the alien required a visa in order to
be admitted to the United States. See 27 C.F.R. § 478.32(a)(5)(ii) (2011).
In March 2011, in response to a request for informal advice regarding
ATF’s interpretation, we concluded that the text of the statute forecloses
that interpretation. We explained that the text is clear: the provision
applies only to nonimmigrant aliens who must have visas to be admitted,
not to all aliens with nonimmigrant status. In May 2011, you requested a
formal opinion from the Office on this matter.1 This memorandum memorializes and elaborates upon the informal advice we provided in March. In
the course of formalizing our advice, we received views from the Department of Homeland Security (“DHS”), 2 which also concluded that the
See Memorandum for the Office of Legal Counsel from Stephen R. Rubenstein, Chief
Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (May 11, 2011) (“ATF
Memorandum”).
2 See Letter for Cristina M. Rodríguez, Deputy Assistant Attorney General, Office of
Legal Counsel, from Seth Grossman, Chief of Staff, Office of the General Counsel,
Department of Homeland Security (July 20, 2011) (“DHS Letter”). We also received
1
171
35 Op. O.L.C. 171 (2011)
interpretation reflected in ATF’s interim final rule conflicts with the plain
text of the statute.
I.
Congress enacted the Gun Control Act of 1968, Pub. L. No. 90-618, 82
Stat. 1213 (codified at 18 U.S.C. §§ 921–931), to “establish[] a detailed
federal scheme” to govern “the distribution of firearms,” Printz v. United
States, 521 U.S. 898, 902 (1997). Congress also prescribed criminal and
civil penalties for knowing violations of the statute’s provisions. See 18
U.S.C. § 924(a)(2) (2006) (“Whoever knowingly violates subsection . . .
(d) [or] (g) . . . of section 922 shall be fined as provided in this title,
imprisoned not more than 10 years, or both.”). The concerns animating
the legislation included the need to address “the widespread traffic in
firearms” and the “general availability” of firearms to persons “whose
possession thereof was contrary to the public interest.” United States v.
One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (internal quotation marks omitted); see also Barrett v. United States, 423 U.S. 212, 220
(1976) (“The history of the 1968 Act reflects a . . . concern with keeping
firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.”).
As part of the Act’s scheme, Congress laid out various so-called “prohibitors” to identify the categories of people barred from possessing,
shipping, transporting, or receiving firearms. See 18 U.S.C. § 922(h)
(Supp. IV 1968). These prohibitors are now codified in 18 U.S.C.
§ 922(g) (2006). In 1998, Congress added the prohibitor here at issue to
the statute: section 922(g)(5)(B) bars “aliens” 3 who have “been admitted
views from the Federal Bureau of Investigations (“FBI”). See E-mail for Cristina M.
Rodríguez, Deputy Assistant Attorney General, Office of Legal Counsel, from Scarlett
Everly, National Instant Criminal Background Check System Bureau of Investigation,
Federal Bureau of Investigation (June 13, 2011) (noting that when a Federal Firearms
Licensee provides the FBI with information that a prospective purchaser has indicated he
or she is a non-U.S. citizen, the FBI searches DHS records to determine if the potential
purchaser is an unlawful or nonimmigrant alien and processes firearm background checks
in line with ATF’s interpretation of 18 U.S.C. § 922(g)(5)(B)).
3 The original Gun Control Act did not contain a prohibitor applicable to aliens. Congress first adopted that prohibition in title VII of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. app. § 1202(a) (Supp. IV 1968), barring possession by
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Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act
to the United States under a nonimmigrant visa” from possessing, shipping, transporting, or receiving firearms. Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105277, 112 Stat. 2681 (codified at 18 U.S.C. § 922(g)(5)(B)). 4
In 2002, ATF adopted an interim final rule implementing section
922(g)(5)(B). See Implementation of Public Law 105-277, Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999,
Relating to Firearms Disabilities for Nonimmigrant Aliens, and Requirement for Import Permit for Nonimmigrant Aliens Bringing Firearms and
Ammunition Into the United States (2001R-332P), 67 Fed. Reg. 5422
(Feb. 5, 2002) (temporary rule, Treasury decision). 5 ATF interpreted the
prohibitor to include all aliens with the status of nonimmigrant alien, not
just those nonimmigrants who required a visa to be admitted to the United
States. In explaining this interpretation, ATF acknowledged that section
922(g)(5)(B) applied by its terms to “aliens admitted to the United States
under a nonimmigrant visa,” but also determined that such a visa “simply
facilitates travel and expedites inspection and admission to the United
States,” and “does not itself provide nonimmigrant status.” Id. at 5422.
Based on this observation, as well as its view that drawing distinctions
among different types of nonimmigrant aliens was neither rational nor
supported by the legislative history, ATF concluded that Congress intended the prohibitor to cover all persons with nonimmigrant alien status, see
id., and issued its interim final rule. See 27 C.F.R. § 478.32(a)(5)(ii); see
id. § 478.11 (defining “nonimmigrant alien”). ATF has since understood
“‘alien[s]’” who are “‘illegally or unlawfully in the United States,’” United States v. Bass,
404 U.S. 336, 337 n.1 (1971). In 1986, Congress repealed title VII and added a firearms
disability for aliens who are “illegally or unlawfully in the United States” to 18 U.S.C.
§ 922. See Firearm Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449, 457
(1986).
4 Section 922(y)(2) lists various exceptions to the prohibition in section 922(g)(5)(B),
and section 922(y)(3) sets out a waiver procedure for aliens subject to the requirements of
section 922(g)(5).
5 ATF issued the interim rule before Congress transferred ATF from the Department
of the Treasury to the Department of Justice through the Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135. See 6 U.S.C. § 531(c) (2006); 28 U.S.C.
§ 599A(c)(1) (2006). Congress originally delegated rulemaking authority to implement
the Gun Control Act to the Secretary of the Treasury but, due to the transfer, such rulemaking authority now resides in the Attorney General. See 18 U.S.C. § 926(a) (2006).
173
35 Op. O.L.C. 171 (2011)
section 922(g)(5)(B) to apply to all aliens with nonimmigrant status,
including nonimmigrant aliens admitted to the United States without a
visa, pursuant either to the Visa Waiver Program, see 8 U.S.C. § 1187
(2006), or to regulations otherwise exempting them from visa requirements. 6
II.
You have asked whether ATF’s interim rule permissibly construes
section 922(g)(5)(B). Our analysis of the provision “begin[s], as always, with the text of the statute.” Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (internal quotation marks omitted). In
our view, the text of the statute is clear and forecloses ATF’s interpretation. Section 922(g)(5)(B) makes it unlawful for aliens who have been
“admitted to the United States under a nonimmigrant visa (as that term
is defined in section 101(a)(26) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(26))” to ship, transport, possess, or receive any firearms or ammunition. 18 U.S.C. § 922(g)(5)(B). Section 101(a)(26) of the
Immigration and Nationality Act (“INA”), in turn, defines a “nonimmigrant visa” as “a visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in this chapter.” 8 U.S.C.
§ 1101(a)(26) (2006). The text of section 922(g)(5)(B), read in accord
with section 101(a)(26) of the INA, therefore makes it a crime for an alien
who has been “issued” a “visa . . . as an eligible nonimmigrant by a competent officer” to ship, transport, possess, or receive any firearm or ammunition. 7
6 By statute, the Attorney General and the Secretary of State are authorized to establish
a Visa Waiver Program under which a nonimmigrant alien may seek a waiver of the visa
requirement if, among other things, he or she seeks entry “for a period not exceeding 90
days”; is “a national of, and presents a passport issued by, a country which . . . extends
. . . for immigration admissions, reciprocal privileges to citizens and nationals of the
United States”; and “has been determined not to represent a threat to the welfare, health,
safety, or security of the United States.” 8 U.S.C. § 1187(a)(1), (2), (6) (2006). In addition, the visa requirement has been waived by regulation for certain categories of foreign
nationals, including nationals from particular countries, such as Canada and Mexico,
seeking admission to the United States for particular purposes. See 22 C.F.R. § 41.2(a),
(g) (2011).
7 Section 922(d)(5) similarly makes it unlawful to sell or dispose of a firearm or ammunition to “an alien” who “has been admitted to the United States under a nonimmigrant
174
Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act
Nothing in this statutory text indicates that the prohibition applies to
persons simply by virtue of their status as nonimmigrants. The statute
instead requires that the covered nonimmigrant possess a visa. ATF’s
interim rule thus reads a key limiting phrase—“admitted . . . under a
nonimmigrant visa”—out of the statute, in contravention of bedrock
principles of statutory interpretation. See, e.g., Fid. Fed. Sav. & Loan
Ass’n v. De La Cuesta, 458 U.S. 141, 163 (1982) (declining to construe a
statute “so as to render [certain] provisions nugatory, thereby offending
the well-settled rule that all parts of a statute, if possible, are to be given
effect”) (internal quotation marks omitted); see also DHS Letter at 5–8
(noting that ATF’s interpretation finds support in neither ordinary linguistic practices nor case law).
ATF suggests that the text of section 922(g)(5)(B) is “inaccurate and
ambiguous” because nonimmigrant aliens are not actually “‘admitted
under’” a visa. ATF Memorandum at 2. Instead, a visa merely “expedites
admission to the United States by showing that the State Department
found the person to be admissible.” Id. According to ATF, it then “is up to
the immigration officer at the port of entry to determine if the individual
is in fact admissible and, if so, under what terms and conditions and in
what category.” Id.
Though DHS indicates that ATF accurately describes the admissions
process, see DHS Letter at 7, that description does not support ATF’s
reading of section 922(g)(5)(B). As a matter of ordinary usage, the process to which ATF refers could be described as admission “under a
nonimmigrant visa” because the nonimmigrant must present the visa when
seeking admission. As DHS emphasizes, see DHS Letter at 7–8, courts
have employed language similar to that contained in the statutory provision when describing different categories of aliens, underscoring that
“admitted . . . under a nonimmigrant visa” can be used in a non-technical
sense to refer to the particular subclass of nonimmigrant aliens admitted
with a visa. See, e.g., Phal v. Mukasey, 524 F.3d 85, 87 (1st Cir. 2008)
(noting an alien “entered the United States on a nonimmigrant visa”);
visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(26)).” 18 U.S.C. § 922(d)(5) (2006). Because ATF has requested our
view on the meaning of section 922(g)(5)(B) only, our opinion is limited to that subsection, but our analysis would likely apply to section 922(d)(5), provided no relevant
differences between that provision and section 922(g)(5)(B) exist.
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35 Op. O.L.C. 171 (2011)
Choe v. INS, 11 F.3d 925, 943 (9th Cir. 1993) (“Before 1960, the Attorney General had three options when faced with an adjustment application
from an alien who entered under a nonimmigrant visa[.]”). Moreover,
“[i]mmigration law draws a distinction between aliens in possession of a
nonimmigrant visa and those who have been admitted in a nonimmigrant
classification.” DHS Letter at 5. The statutory reference to nonimmigrants
“admitted . . . under a nonimmigrant visa” therefore has a clear meaning
here: it indicates that Congress intended the firearms disabilities in section
922(g)(5)(B) to apply only to a subset of nonimmigrants—namely those
who possess a “nonimmigrant visa”—whatever that visa’s function. 8
ATF also justifies its interpretation of the statutory text on the ground
that applying the prohibitor to only a particular subset of nonimmigrants
would produce “irrational” results, because “[t]here is no logical reason
nonimmigrants with nonimmigrant visas should have a firearms disability,
if nonimmigrants without visas do not have the disability.” ATF Memorandum at 4. Although an established canon of statutory construction
might permit departure from the literal meaning of statutory text where
such a reading would produce “positively absurd” results, United States v.
X-Citement Video, Inc., 513 U.S. 64, 69 (1994), the literal meaning of
section 922(g)(5)(B) is far from absurd. Indeed, the Supreme Court recently has emphasized that “it is not this Court’s task to decide whether
the statutory scheme established by Congress is unusual or even bizarre.”
PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2582 (2011) (internal quotation
marks omitted).
Although the text of the statute does not include an express rationale
for the distinction drawn between nonimmigrants with visas and those
without, it is not difficult to discern a rational basis for the distinction.
DHS has told us, for example, that applying the prohibitor to nonimmigrant aliens in a limited fashion, “while not ideal . . . would not be irraDHS also observes that Congress would have been fully aware of the existence of
categories of nonimmigrants who did not require visas to be admitted to the United States
when it enacted section 922(g)(5)(B). The Visa Waiver Program had been in effect for
twelve years at the time Congress debated section 922(g)(5)(B), and Canadian and
Mexican nationals in possession of border crossing cards had long been permitted to enter
the United States without a nonimmigrant visa. See DHS Letter at 7; see also Miles v.
Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of
existing law when it passes legislation.”).
8
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Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act
tional,” as it is possible that Congress considered those aliens eligible for
admission to the United States without a nonimmigrant visa to be a “lesser
security risk” than aliens admitted with visas. DHS Letter at 8–9. After
all, Congress has tied the decision whether to waive visa requirements to
judgments about a waiver’s effects on public safety, and Congress here
could have concluded that nonimmigrant aliens who do not require visas
do not present the public safety risks that warrant prohibiting their acquisition of firearms. See id. at 8. 9
Other factors may also explain why Congress decided to treat nonimmigrant aliens eligible for visa waivers differently from nonimmigrant
aliens admitted under visas. For example, nonimmigrants admitted under
the Visa Waiver Program may well spend less time in the country than
other nonimmigrants, see 8 U.S.C. § 1187(a)(1) (2006) (imposing 90-day
limit on aliens admitted under Visa Waiver Program), perhaps making
them less likely to purchase firearms. Congress also could have thought
that imposing criminal firearms prohibitions on nonimmigrant aliens
admitted under the program would frustrate the objectives of the program,
which include reducing barriers to and burdens upon travel. See Department of State, Visa Waiver Program (VWP), http://travel.state.gov/visa/
temp/without/without_1990.html (last visited Oct. 21, 2011) (“The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus
consular resources in other areas.”).
Congress (or some members thereof) ultimately could have had all,
some, or none of these considerations in mind. Whatever Congress’s
motivation, these rationales demonstrate that it would have been rational
for Congress to draw a statutory line between nonimmigrants with visas
9 DHS cites 8 U.S.C. § 1187(c)(2)(C), which provides that a country will not be eligible for the Visa Waiver Program unless the Secretary of Homeland Security “evaluates
the effect that the country’s designation would have on the law enforcement and security
interests of the United States.” See also id. § 1187(c)(2)(F) (Supp. IV 2010) (requiring
participating countries to share information regarding safety risks); Department of State,
Visa Waiver Program (VWP), http://travel.state.gov/visa/temp/without/without_1990.
html (last visited Oct. 21, 2011) (“To be admitted to the Visa Waiver Program, a country
must meet various security and other requirements, such as enhanced law enforcement
and security-related data sharing with the United States and timely reporting of both blank
and issued lost and stolen passports. VWP members are also required to maintain high
counterterrorism, law enforcement, border control, and document security standards.”).
177
35 Op. O.L.C. 171 (2011)
and those without, such that the plain meaning of the text is not absurd.
ATF may be correct that the firearms disabilities in section 922(g)(5)(B)
should be applied to all nonimmigrant aliens “as a matter of sound public
policy” or administrative convenience. ATF Memorandum at 4. But any
debate over whether the current statute is deficient as a policy matter
ultimately “belongs in the halls of Congress.” Powerex Corp. v. Reliant
Energy Servs., 551 U.S. 224, 237 (2007).
ATF next turns to legislative history to support its position. ATF first
points to two floor statements made by members of Congress during the
debate over section 922(g)(5)(B): a statement by Senator Richard Durbin
that a restriction on gun possession should apply to persons who “‘come
into this country as our guest, not as a citizen of the United States,’” and a
statement by Senator Larry Craig supporting restrictions on gun possession by persons “‘who are guests in our country, legally or illegally.’”
ATF Memorandum at 2 (quoting 144 Cong. Rec. 16,493–94 (1998)).
From these statements, ATF concludes that Congress intended the gun
control prohibition to apply to all nonimmigrant aliens, regardless of visa
status.
Because the text of the statute is clear, any resort to legislative history
in this context is unnecessary. See, e.g., Conn. Nat’l Bank v. Germain,
503 U.S. 249, 254 (1992) (“When the words of a statute are unambiguous,
then, this first canon is also the last: judicial inquiry is complete.” (internal quotation marks omitted)); Ratzlaf v. United States, 510 U.S. 135,
147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”). What is more, floor statements are generally of
limited interpretive assistance as they “reflect at best the understanding of
individual Congressmen.” Zuber v. Allen, 396 U.S. 168, 186 (1969).
Indeed, we think it unlikely that even unambiguous floor statements by a
few members of Congress could ever overcome the plain meaning of a
statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 457 (2002)
(“Floor statements from two Senators cannot amend the clear and unambiguous language of a statute.”).
In any event, neither of the floor statements speaks directly to the interpretive issue addressed here. Neither uses the term “nonimmigrants.”
Each statement refers instead to “guests” or a person who enters the
country “not as a citizen” of the United States. The plain meaning of these
references, particularly the reference to non-citizens, encompasses all
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Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act
immigrants, including lawful permanent residents—immigrants who
neither ATF nor the legislative record suggests are covered by section
922(g)(5)(B). Thus, two Senators’ use of the references “guest[]” and
person who enters “not as a citizen” during a floor debate provides little,
if any, insight into the meaning of the statutory phrase “nonimmigrants
. . . admitted under a visa.” Cf. Aaron v. SEC, 446 U.S. 680, 697 (1980)
(“it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute
does not mean what it so plainly seems to say”). 10
ATF also highlights a floor statement from the debate over a laterenacted statutory provision—an explosives prohibition contained in the
Homeland Security Act of 2002. See ATF Memorandum at 4. During that
legislative debate, a section-by-section analysis was introduced into the
record explaining that the prohibition would apply to “aliens other than
lawful permanent resident aliens” and that the provision “brings the explosives law in line with most categories of prohibited people in the Gun
Control Act.” 148 Cong. Rec. 22,985 (2002) (noting also that “[t]he language relating to non-immigrant aliens differs slightly from that in the Gun
Control Act, as technical changes have been made to improve the clarity of
the provisions”). ATF’s argument appears to be that (i) because a sectional
analysis accompanying the explosives statute stated that the statute would
bring the law into line with the Gun Control Act; (ii) because the explosives provision clearly applied to all aliens other than lawful permanent
residents, including all nonimmigrant aliens; and (iii) because the only
difference in the language of the definitions of the two statutes was “technical,” Congress must have intended the Gun Control Act to apply to all
nonimmigrant aliens. See ATF Memorandum at 4.
10 Although it is unnecessary to our statutory analysis, we note that elements of the
legislative history reinforce the plain meaning of the text. The legislative record suggests
that the prohibition in section 922(g)(5)(B) was added in response to a shooting by “a
resident of the Nation of Lebanon” who had come “to the United States on a nonimmigrant visa, such as a tourist visa.” 144 Cong. Rec. 16,493 (1998). Furthermore, the
principal sponsor of the bill, Senator Durbin, used the term “nonimmigrant visa” six times
in the course of a short floor statement discussing the need for the prohibition. See id.
This legislative history suggests that Congress drafted section 922(g)(5)(B) to apply to
nonimmigrants admitted under a visa for the simple reason that it was that category of
nonimmigrant aliens Congress had in mind in enacting the bill.
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35 Op. O.L.C. 171 (2011)
This argument rests not on the legislative history of the Gun Control
Act, but on the history of a subsequently enacted statute. Like broad
statements from individual members of Congress, such evidence provides
only limited support for a statutory reading that is inconsistent with the
text. The history of later-enacted statutes generally does not provide
reliable evidence of the intent of the Congress that enacted an earlier
provision. See Mackey v. Lanier Collection Agency & Serv., Inc., 486
U.S. 825, 840 (1988) (“The views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one.”) (internal
quotation marks omitted). For these reasons, we do not believe the legislative history of the explosives statute sheds light on the meaning of
section 922(g)(5)(B).
III.
You also have asked us what actions ATF would be legally required to
take with respect to past or pending criminal cases in the event that section 922(g)(5)(B) does not apply to all nonimmigrant aliens. See ATF
Memorandum at 5. The necessary implication of our conclusion here is
that section 922(g)(5)(B) does not authorize future or pending investigations and prosecutions predicated on the view that the statute applies to all
nonimmigrant aliens, regardless of visa status. Although we are not aware
of any legal obligations ATF or the Department might have to seek the
vacatur of any past criminal convictions, we note that the Criminal Division possesses substantial expertise on the relevant legal rules and Department practices in such circumstances.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
180 |
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Write a legal research memo on the following topic. | Severance Agreement Between a Prospective Federal
Appointee and His Law Firm
S ev eran ce a rra n g em en ts b etw een a p ro sp e c tiv e a p p o in te e to federal office an d his law
firm d o n o t result in an unlaw ful su p p lem en tatio n o f his federal sa lary in v iolation o f 18
U .S.C . § 209, n o tw ith sta n d in g th e fact th a t th ey d e v ia te in ce rta in resp ec ts from the
term s o f th e law firm ’s p a rtn ersh ip ag reem en t.
May 7, 1980
MEMORANDUM OPINION FOR
TH E DEPUTY COUNSEL TO TH E PR ESID EN T
This is in response to your request of our review of the withdrawal
agreement entered into by Mr. A, a nominee to federal office, and the
law firm of which he is a partner, Firm X. More particularly, you ask
whether the agreement is consistent with the federal conflict of interest
laws, including 18 U.S.C. §209. That statute in general prevents an
officer or employee of the Executive Branch from receiving, or anyone
from paying him, any salary or supplementation of salary for his serv
ices to the government.
Article VIII of the Firm X partnership agreement, provides for
retirement, with a cash benefit payable in 60 monthly installments, for a
partner who leaves the firm under certain conditions. Mr. A is eligible
for retirement, which under the agreement would terminate his interest
in the partnership. A technique for less than complete severance from
the firm is provided by Article X III-2 of the agreement. It authorizes a
temporary withdrawal of a partner for a period of no longer than
IS months, subject to such terms and conditions as a majority of the
other partners may specify. A temporary withdrawal does not termi
nate a partner’s interest and he remains a member of the firm. You will
recall that Mr. A informed us at our meeting with him that his firm was
agreeable to his choice of departure under either Article V III or Arti
cle XIII-2 and would approve the same financial arrangements under
either option. Mr. A chose retirement under Article VIII and the
withdrawal agreement was drawn accordingly.
The withdrawal agreement will come into force on the day of
Mr. A’s confirmation by the Senate. It provides for variations from the
Firm X partnership agreement in connection with his capital account
and the payment of his retirement benefits. Under Article VIII-3(a) and
605
VII-2(a) and (d) of the latter document, the capital account would be
paid within 90 days after separation and the monthly retirement pay
ments would commence at the end of the month following his retire
ment. However, the withdrawal agreement provides for the firm to
defer liquidation of the capital account until Mr. A requests it and to
defer initiation of the retirement installments for 24 months after his
separation from Firm X, unless he is readmitted to membership before
then or if the 24-month period is extended by mutual consent.
It is appropriate to consider first the element of intent on the part of
Firm X and Mr. A. If the firm and he went beyond the provisions of
Articles VIII and VII-2(a) and (d) with a view to providing something
of value to him as a supplement to his federal salary, then § 209(a)
would be a bar to his filling that office and our discussion would end at
this point. However, there is nothing in the circumstances here to
suggest that the firm was motivated by anything but a desire to accom
modate Mr. A in recognition of his years of membership in it, or that
he had in mind obtaining from the firm a subsidy of his employment by
the government. We have no difficulty in ruling out both possibilities.
See 41 Op. A tt’y Gen. 217, 221 (1955).
Remaining for consideration in relation to § 209(a) is the question
whether the withdrawal agreement is per se inconsistent with Mr. A ’s
taking and remaining in office. Had that agreement followed the terms
of the partnership compact, there would be no doubt that any benefits
that might flow from it to Mr. A would fall within the exemption from
§ 209(a) granted by § 209(b) with respect to a “bona fide . . . retire
ment . . . plan maintained by a former employer.” However, the de
scribed variations raise the question whether the withdrawal agreement
itself bestows on Mr. A a form of “contribution to or supplementation
of salary, as compensation for his services as an officer” of the federal
government that is not waived by § 209(b).
The deferral of the payout of Mr. A ’s capital account will provide no
significant financial benefit to him that we are aware of. On the other
hand, he has stated that he requested the temporary deferment of the
retirement payments in order to reduce the amount of income tax
liability they would otherwise generate. This Office has generally
viewed severance arrangements that minimize a recipient’s tax liability
as not cutting across the prohibition o f § 209(a). Nevertheless, for the
reasons set forth below, we do not find it necessary to pass on the
agreed variations from Firm X’s retirement program in that context.
It appears that if Mr. A and his firm had determined that he should
undertake his projected government service while remaining a member
of the firm under Article X III-2 of its governing instrument, in addition
to forgoing his share of profits during his absence, he would not
receive the return of his capital or any retirement payments. Thus, he
would be in the same position as the withdrawal agreement calls for but
606
would have avoided the question under consideration here. As a practi
cal matter, however, temporary withdrawal under Article XIII-2 was
and is not open to him as a means of avoiding the possible impact of
§ 209(a). That is so because, as you informed him at our meeting, White
House policy prevents a partner of a law firm from serving the govern
ment under a presidential appointment to a full-time post unless he
withdraws from the firm. That condition would not be met by the mere
temporary suspension of Mr. A under Article XIII-2.
It would be anomalous to conclude on the one hand that § 209(a)
stands in the way of the financial arrangement worked out be
tween Mr. A and his firm because it deviates to some extent from
certain provisions of the partnership agreement, and to conclude on the
other hand that the same financial arrangement under other provisions
of the partnership agreement would comport with § 209(a). Because the
White House policy that has intervened to prevent resort to the latter
provisions is not based on any prohibition of § 209(a), we do not
believe that any purpose of the statute would be furthered by reading it
to require this formalistic stalemate and the consequent loss of Mr. A’s
services to the government. In short, we are of the opinion that imple
mentation of the executed withdrawal agreement, just like implementa
tion of a similar agreement drawn under Article XIII-2, would not
contravene § 209(a).
The withdrawal agreement need not be examined in the light of any
of § 209’s companion conflict of interest statutes except 18 U.S.C. § 208,
which prohibits a federal employee from participating in a matter for
the government in which, to his knowledge, “he, his . . . partner . . .
or any person or organization with whom he is negotiating or has any
arrangement concerning prospective employment, has a financial inter
est. . . .” The term “financial interest” does not extend to the credi
tor’s claim against his firm that Mr. A will have when the withdrawal
agreement comes into force. Nevertheless, in order to avoid adverse
appearances, Mr. A should recuse himself from any matter which may
come before him as an official of the government in which Firm X
appears as counsel or otherwise has a financial interest.
L eo n U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
607 |
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Write a legal research memo on the following topic. | Presidential Power to Use the Armed Forces Abroad Without
Statutory Authorization
T h e P re sid e n t’s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r
eign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted
g en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f
w a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n
tial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e
d iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t
p o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use.
T h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r
ity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes
su ch actions, an d reg u lates th e P re sid e n t’s use o f his c o n stitu tio n a l p o w e rs in this
reg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c
tion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin
60 d ay s o r w h e n e v e r C o n g ress so d irects.
T h e term "U n ite d S tates A rm e d F o rc e s ” in th e W a r P o w e rs R e so lu tio n d o es n o t include
m ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e
A g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this
o p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ]
T h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary
o r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a
bility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir
sim ply actin g in self-defense.
T h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti
tu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions.
T h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f
o u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted
to th e P resid en t is a prima facie v io latio n o f A rtic le I, § 7 o f th e C o n stitu tio n .
February 12, 1980
MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L
This responds to your request for our review of certain questions
regarding the effect of the War Powers Resolution on the President’s
power to use military force without special congressional authorization
and related issues. We have considered the President’s existing power
to employ the armed forces in any of three distinct kinds of operations:
(1) deployment abroad at some risk of engagement—for example, the
current presence of the fleet in the Persian G ulf region; (2) a military
expedition to rescue the hostages or to retaliate against Iran if the
hostages are harmed; (3) an attempt to repel an assault that
185
threatens our vital interests in that region. We believe that the President
has constitutional authority to order all of the foregoing operations.
We also conclude that the War Powers Resolution, 50 U.S.C.
§§ 1541-1548, has neither the purpose nor the effect of modifying the
President’s power in this regard. The Resolution does, however, impose
procedural requirements of consultation and reporting on certain presi
dential actions, which we summarize. The Resolution also provides for
the termination of the use of the armed forces in hostilities within 60
days or sooner if directed by a concurrent resolution of Congress. We
believe that Congress may terminate presidentially initiated hostilities
through the enactment of legislation, but that it cannot do so by means
of a legislative veto device such as a concurrent resolution.
I. The President’s Constitutional Authority to Employ the Armed Forces
The centrally relevant constitutional provisions are Article II, § 2,
which declares that “the President shall be Commander in Chief of the
Army and Navy of the United States,” and Article I, § 8, which grants
Congress the power “To declare W ar.” Early in our constitutional
history, it perhaps could have been successfully argued that the Fram
ers intended to confine the President to directing the military forces in
wars declared by Congress.1 Even then, however, it was clear that the
Framers contemplated that the President might use force to repel
sudden invasions or rebellions without first seeking congressional ap
proval. 2
In addition to the Commander-in-Chief Clause, the President’s broad
foreign policy powers support deployment of the armed forces abroad.3
The President also derives authority from his duty to “take Care that
the Laws be faithfully executed,” 4 for both treaties and customary
international law are part of our law and Presidents have repeatedly
asserted authority to enforce our international obligations 5 even when
Congress has not enacted implementing legislation.
1H am ilton, in T h e Federalist No. 69, disparaged the P resident’s pow er as that o f "first G eneral and
A dm iral’' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and
regulate armies.
2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther
presidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies,
w ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th
centu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of
an attack on an ally.
3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936).
4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce
constitutional as well as statu to ry provisions).
5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our
constitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self
executing regarding the internal processes o f the signatory pow ers. Similarly, custom ary international
law, w hich includes au th o rity for reasonable reprisals in response to another c o u n try ’s breach of
international obligation, probably does not confer au th o rity on the President beyond the w arrant of
necessity.
186
We believe that the substantive constitutional limits on the exercise of
these inherent powers by the President are, at any particular time, a
function of historical practice and the political relationship between the
President and Congress. Our history is replete with instances of presi
dential uses of military force abroad in the absence of prior congres
sional approval. This pattern of presidential initiative and congressional
acquiescence may be said to reflect the implicit advantage held by the
executive over the legislature under our constitutional scheme in situa
tions calling for immediate action. Thus, constitutional practice over
two centuries, supported by the nature of the functions exercised and
by the few legal benchmarks that exist, evidences the existence of broad
constitutional pow er.6
The power to deploy troops abroad without the initiation of hostil
ities is the most clearly established exercise of the President’s general
power as a matter of historical practice. Examples of such actions in
the past include the use of the Navy to “open up” Japan, and President
Johnson’s introduction of the armed forces into the Dominican Repub
lic in 1965 to forestall revolution.
Operations of rescue and retaliation have also been ordered by the
President without congressional authorization even when they involved
hostilities. Presidents have repeatedly employed troops abroad in de
fense of American lives and property. A famous early example is
President Jefferson’s use of the Navy to suppress the Barbary pirates.
Other instances abound, including protection of American citizens in
China during the Boxer Rebellion in 1900, and the use of troops in 1916
to pursue Pancho Villa across the Mexican border. Recent examples
include the Danang sealift during the collapse of Vietnam’s defenses
(1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu
ation of Saigon (1975); the M ayaguez incident (1975); evacuation of
civilians during the civil war in Lebanon (1976); and the dispatch of
forces to aid American victims in Guyana (1978).
This history reveals that purposes of protecting American lives and
property and retaliating against those causing injury to them are often
intertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186)
(C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment
of a Nicaraguan town which was ordered because the local authorities
refused to pay reparations for an attack by a mob on the United States
Consul. Policies of deterrence seem to have eroded any clear distinc
tion between cases of rescue and retaliation.
Thus, there is much historical support for the power of the President
to deploy troops without initiating hostilities and to direct rescue and
retaliation operations even where hostilities are a certainty. There is
6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential
practices never expressly authorized by Congress but arguably ratified by its silence. See United States
v. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition).
187
precedent as well for the commitment of United States armed forces,
without prior congressional approval or declaration of war, to aid an
ally in repelling an armed invasion, in President Truman’s response to
the North Korean invasion of South K orea.7 But clearly such a re
sponse cannot be sustained over time without the acquiescence, indeed
the approval, of Congress, for it is Congress that must appropriate the
money to fight a war or a police action. While Presidents have exer
cised their authority to introduce troops into Korea and Vietnam 8
without prior congressional authorization, those troops remained only
with the approval of Congress.
II. Judicial Review of the President’s Exercise of Constitutional Power
In the only major case dealing with the role of the courts with
regard to this general subject, the Supreme Court upheld presidential
power to act in an emergency without prior congressional authority. In
the Prize Cases, 67 U.S. 635 (1863), the Court upheld President
Lincoln’s blockade of Southern ports following the attack on Fort
Sumter. The Court thought that particular uses of inherent executive
power to repel invasion or rebellion were “political questions” not
subject to judicial review: “This Court must be governed by the deci
sions and acts of the political department of the Government to which
this power was entrusted.” (Id. at 670). The Court’s unwillingness to
review the need for presidential action in a particular instance in the
Prize Cases or since has left the field to the President and Congress;
much has depended on presidential restraint in responding to provoca
tion, and on congressional willingness to support his initiatives by
raising and funding armies.
More recently, the courts have applied the rationale of the Prize
Cases to avoid judicial review of the constitutionality of the President’s
actions with regard to the Vietnam conflict.9 Although the Supreme
Court did not hear argument in the case, we believe some significance
may be attached to the Court’s summary affirmance of a three-judge
court’s decision that the constitutionality of the government’s involve
ment in that conflict was a political question and thus unsuitable for
judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972),
a ffd , 411 U.S. 911 (1973).
1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a “ h o t” w ar could be found in the
U .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial
forces occu rred w ith o u t congressional approval.
8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was
know n to and supported by C ongress.
9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur
v. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970).
188
III. The President’s Statutory Powers
Congress has restricted the President’s ability to rely on statutory
authority for the use of armed force abroad by its provision in the War
Powers Resolution that authority to introduce the armed forces into
hostilities or into situations “wherein involvement in hostilities is clearly
indicated by the circumstances” is not to be inferred from any statutory
provision not specifically authorizing the use of troops and referring to
the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may
not rely on statutory authority for military actions clearly involving
hostilities unless the statute expressly authorizes such actions.
Nevertheless, it may be possible for the President to draw authority
for some actions not involving the use of the armed forces in actual or
imminent hostilities 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 gov
ernment, it shall be the duty of the President forthwith to
demand of that government the reasons of such imprison
ment; and if it appears to be wrongful and in violation of
the rights of American citizenship, the President 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 amounting 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 communi
cated 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.
189
IV. The War Powers Resolution
The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a
statement of purpose and policy that seems designed to limit presiden
tial use of armed forces in hostilities to situations involving a declara
tion of war, specific statutory authorization, or an attack on the United
States, its possessions, or its armed forces. This policy statement, how
ever, is not to be viewed as limiting presidential action in any substan
tive manner. That much is clear from the conference report, which
states that subsequent portions of the Resolution are not dependent on
the policy statement,10 and from its construction by the President since
its enactment.
The important provisions of the Resolution concern consultation and
reporting requirements and termination of the involvement of the
armed forces in hostilities. The Resolution requires that the President
consult with Congress “in every possible instance” before introducing
the armed forces into hostilities, and regularly thereafter. 50 U.S.C.
§ 1542.
The reporting requirements apply not only when hostilities are taking
place or are imminent, but also when armed forces are sent to a foreign
country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report
must be filed within 48 hours from the time that they are introduced
into the area triggering the requirement, and not from the time that the
decision to dispatch them is m ade.11 The report must include:
(A) The circumstances necessitating the introduction of
United States Armed Forces;
(B) the constitutional and legislative authority under
which such introduction took place; and
(C) the estimated scope and duration of the hostilities or
involvement.
50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have
been brief and to the point. The reference to legal authority has been
one sentence, referring to the President’s constitutional power as
Commander-in-Chief and Chief Executive.12
i0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution
is not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r
Legislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses
could not agree on the P resident’s responsibilities under A rticle II, C ongress fell back on purely
procedural controls.
11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over
the War Power. 71 Am. J. In l’l L. 605, 615 (1977).
12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom
Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int'l
Security and Scientific Affairs o f the House Comm, on In t'l Relations, 94th C ong., 1st Sess. 75 (M aya
guez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant
Documents. Correspondence, Reports, Subcom m . on In t’l Security and Scientific A ffairs, H ouse Comm,
on In t’l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print
1976).
190
The Resolution requires the President to terminate any use of the
armed forces in hostilities after 60 days unless Congress has authorized
his action.13 It also requires termination whenever Congress so directs
by concurrent resolution.14
As enacted, the ambiguous language of the Resolution raises several
issues of practical importance regarding the scope of its coverage as
well as questions of constitutional magnitude. We shall discuss first
several issues related to the scope of its coverage and then discuss
several constitutional issues it raises.
A threshold question is whether the Resolution’s use of the term
“United States Armed Forces” was intended to reach deployment or
use by the President of personnel other than members of the Army, Air
Force, Marine Corps, Navy, or Coast Guard functioning under the
control of the Secretary of Defense and the Joint Chiefs of Staff. For
example, does it extend to military personnel detailed to and under the
control of the Central Intelligence Agency (CIA), CIA agents them
selves, or other individuals contracting to perform services for the CIA
or the Department of Defense? We believe that none of these personnel
are covered by the Resolution.*
The provision most closely on point is § 1547(c), which defines the
term “introduction of United States Armed Forces” to include “the
assignment of members of such armed forces to command, coordinate,
participate in the movement of, or accompany the regular or irregular
military forces of any foreign country” in actual or imminent hostilities.
This provision appears to be intended to identify activities subject to
the Resolution, and not the identity of persons constituting “members
of such armed forces.” It could be argued that anyone officially a
member of the armed forces of this country, although on temporary
detail to a civilian agency, is within this provision and therefore cov
ered by the Resolution. The legislative history of the Resolution, how
ever, persuades us to take a contrary view. In the Senate, where
§ 1547(c) originated, Senator Eagleton introduced the following
amendment:
Any person employed by, under contract to, or under the
direction of any department or agency of the United
States Government who is either (a) actively engaged in
hostilities in any foreign country; or (b) advising any
regular or irregular military forces engaged in hostilities
in any foreign country shall be deemed to be a member of
13 50 U.S.C. § 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or
is unable to meet, o r if the President certifies th at m ore time is needed to extract the forces.
M50 U .S .C § 1544(c).
• N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary
personnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion
dated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed.
191
the Armed Forces of the United States for the purposes
of this Act.
He explained that it was intended to cover CIA paramilitary oper
ations involving persons who might be military officers under contract
to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that
without this amendment the Resolution as drafted would not cover the
activities of such personnel, and argued that it should, citing CIA
activities in Laos as leading to America’s Indo-China involvement.
Senators Muskie and Javits opposed the amendment, principally for
reasons of committee jurisdiction. They argued that if the Resolution
were extended to cover the CIA, its chances to escape presidential veto
might be jeopardized, and that the matter should be considered pursu
ant to proposed legislation to govern the CIA. Senator Javits also
argued that the amendment was overbroad, since it would include
foreign nationals contracting with the CIA. He argued that CIA activi
ties should not be within the Resolution, because the CIA lacks the
appreciable armed force that can commit the Nation to war.
Senator Fulbright came to Senator Eagleton’s defense, arguing that the
amendment, applying to the CIA and D O D civilians alike, would avoid
circumvention of the Resolution. Id. at 25,083-84. No one suggested
that the Resolution would apply to anyone other than military person
nel under Department of Defense control unless the amendment passed.
The amendment was defeated.15
In the House of Representatives, Congressman Badillo asked Con
gressman Zablocki, the manager of the bill, whether he would support
in the conference committee a Senate provision that would include the
CIA within the bill when it carried out military functions. Congressman
Zablocki replied that he would support the Eagleton amendment if it
passed the Senate. 119 Cong. Rec. 24,697 (1973).
Another provision o f the Resolution that had its source in the House
is consistent with the view that the Resolution was not intended to
apply to CIA paramilitary activities. The reporting requirements of
§ 1543(a)(2) apply when the armed forces are introduced “into the
territory, air space or waters of a foreign nation, while equipped for
combat . . . .” It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess.
8 (1973), that this provision was using the term “armed forces” to mean
significant bodies of military personnel:
A report would be required any time combat military
forces were sent to another nation to alter or preserve the
existing political status quo or to make the U.S. presence
felt. Thus, for example, the dispatch o f Marines to Thai
15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that
the bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen
Products Co. v. United States, 288 U.S. 294, 306 (1933).
192
land in 1962 and the quarantine of Cuba in the same year
would have required Presidential reports.
A companion provision reinforces the view that the Resolution applies
only to significant bodies of military personnel. The House report goes
on to discuss § 1543(a)(3), which requires a report when the number of
armed forces equipped for combat is substantially enlarged in a foreign
nation. For examples of substantial increases in combat troops, the
report gives the dispatch of 25% more troops to an existing station, or
President Kennedy’s increase in U.S. military advisers in Vietnam from
700 to 16,000 in 1962.
The second threshold question raised by the War Powers Resolution
regards the meaning of the word “hostilities” as used in § 1543(a)(1). In
the 1975 hearings on executive compliance with the Resolution, Chair
man Zablocki of the Subcommittee on International Security and Scien
tific Affairs drew the Legal Adviser’s attention to a discussion of
“hostilities” in the House report on the Resolution:
The word hostilities was substituted for the phrase
arm ed conflict during the subcommittee drafting process
because it was considered to be somewhat broader in
scope. In addition to a situation in which fighting actually
has begun, hostilities also encompasses a state of confron
tation in which no shots have been fired but where there
is a clear and present danger of armed conflict. “Im m inent
hostilities" denotes a situation in which there is a clear
potential either for such a state of confrontation or for
actual armed conflict.
H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added).
Chairman Zablocki then requested the views of the Departments of
State and Defense regarding the Executive’s interpretation of the term
“hostilities” in view of the language quoted above. Those Departments
responded in a letter to the Chairman dated June 5, 1975, reprinted in
War Powers: A Test o f Compliance at 38-40. After first noting that
“hostilities” is “definable in a meaningful way only in the context of an
actual set of facts,” the letter went on to state that, as applied by the
Executive, the term included:
a situation in which units of the U.S. armed forces are
actively engaged in exchanges of fire with opposing units
of hostile forces, and “imminent hostilities” was consid
ered to mean a situation in which there is a serious risk
from hostile fire to the safety of United States forces. In
our view, neither term necessarily encompasses irregular
or infrequent violence which may occur in a particular
area.
Id. at 39.
193
We agree that the term “hostilities” should not be read necessarily to
include sporadic military or paramilitary attacks on our armed forces
stationed abroad. Such situations do not generally involve the full
military engagements with which the Resolution is primarily con
cerned. For the same reason, we also believe that as a general matter
the presence of our armed forces in a foreign country whose govern
ment comes under attack by “guerrilla” operations would not trigger
the reporting provisions of the War Powers Resolution unless our
armed forces were assigned to “command, coordinate, participate in the
movement of, or accompany” the forces of the host government in
operations against such guerrilla operations.16 50 U.S.C. § 1547(c).
Furthermore, if our armed forces otherwise lawfully stationed in a
foreign country were fired upon and defended themselves, we doubt
that such engagement in hostilities would be covered by the consulta
tion and reporting provisions of the War Powers Resolution. The
structure and thrust of those provisions is the “introduction” of our
armed forces into such a situation and not the fact that those forces
may be engaged in hostilities. It seems fair to read “introduction” to
require an active decision to place forces in a hostile situation rather
than their simply acting in self-defense.17
A final issue of statutory construction involves interpretation of the
requirement for consultation with “Congress.” 18 As a practical matter,
consultation with more than a select group of congressional leaders has
never been attempted. The Legal Adviser of the State Department has
argued for this Administration, correctly in our view, that there are
practical limits to the consultation requirement; he has said that mean
ingful consultations with “an appropriate group of congressional repre
sentatives should be possible.” 19 During the M ayaguez incident about
ten House and eleven Senate Members were contacted concerning the
measures to be taken by the President.20
In requiring consultation in “every possible instance,” Congress
meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess.
6 (1973). The House report continued:
The use of the word “every” reflects the committee’s
belief that such consultation prior to the commitment of
armed forces should be inclusive. In other words, it
,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces'* in § 1547(c)
supports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes
o f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as
subject to the W ar Pow ers Resolution.
17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed
forces are “engaged in hostilities." S. 440, 93d Cong., 1st Sess. § 4 , 119 C ong. Rec. 25,119 (1973).
18T his replaced an earlier version w hich m erely required consultation w ith the leadership and
appropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R.
Rep. No. 287, 93d Cong., 1st Sess. 6 (1973).
19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations
C om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92.
20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78.
194
should apply to extraordinary and emergency circum
stances—even when it is not possible to get formal con
gressional approval in the form of a declaration of war or
other specific authorization.
At the same time, through use of the word “possible” it
recognizes that a situation may be so dire, e.g., hostile
missile attack underway, and require such instantaneous
action that no prior consultation will be possible.
The State Department Legal Adviser, again speaking for this Adminis
tration, has pointed out the problem that exists in emergencies, noting
that “[B]y their very nature some emergencies may preclude opportu
nity for legislative debate prior to involvement of the Armed Forces in
hostile or potentially hostile situations.” He recognized, however, that
consultation may be had “in the great majority of cases.” 21
There may be constitutional considerations involved in the consulta
tion requirement. When President Nixon vetoed the Resolution, he did
not suggest that either the reporting or consultation requirements were
unconstitutional. Department of State Bulletin, November 26, 1973, at
662-64. No Administration has taken the position that these require
ments are unconstitutional on their face. Nevertheless, there may be
applications which raise constitutional questions. This view was stated
succinctly by State Department Legal Adviser Leigh:
Section 3 of the War Powers Resolution has, in my
view, been drafted so as not to hamper the President’s
exercise of his constitutional authority. Thus, Section 3
leaves it to the President to determine precisely how
consultation is to be carried out. In so doing the President
may, I am sure, take into account the effect various possi
ble modes of consultation may have upon the risk of a
breach in security. Whether he could on security grounds
alone dispense entirely with “consultation” when exercis
ing an independent constitutional power, presents a ques
tion of constitutional and legislative interpretation to
which there is no easy answer. In my personal view, the
resolution contemplates at least some consultation in
every case irrespective of security considerations unless
the President determines that such consultation is incon
sistent with his constitutional obligation. In the latter
event the President’s decision could not as a practical
matter be challenged but he would have to be prepared to
accept the political consequences of such action, which
might be heavy.
21 Statem ent o f Legal A dviser Hansell, id.
195
War Powers: A Test o f Compliance at 100. Other constitutional issues
raised by the Resolution concern the provisions terminating the use of
our armed forces either through the passage of time (60 days) or the
passage of a concurrent resolution.
We believe that Congress may, as a general constitutional matter,
place a 60-day limit on the use of our armed forces as required by the
provisions of § 1544(b) of the Resolution. The Resolution gives the
President the flexibility to extend that deadline for up to 30 days in
cases of “unavoidable military necessity.” This flexibility is, we believe,
sufficient under any scenarios we can hypothesize to preserve his con
stitutional function as Commander-in-Chief. The practical effect of the
60-day limit is to shift the burden to the President to convince the
Congress of the continuing need for the use of our armed forces
abroad. We cannot say that placing that burden on the President un
constitutionally intrudes upon his executive powers.
Finally, Congress may regulate the President’s exercise of his inher
ent powers by imposing limits by statute. We do not believe that
Congress may, on a case-by-case basis, require the removal of our
armed forces by passage of a concurrent resolution which is not submit
ted to the President for his approval or disapproval pursuant to Article
I, § 7 of the Constitution.
Jo
hn
M.
H
arm on
Assistant Attorney General
Office o f Legal Counsel
196
A PPEND IX
War Powers Resolution: Detailing of
Military Personnel to the CIA
October 26, 1983
MEM ORANDUM O PIN IO N FOR
TH E DEPUTY ATTORNEY G E N ER A L
This responds to your inquiry whether a Central Intelligence Agency
(CIA) operation utilizing military equipment and military personnel
detailed to the CIA would require compliance with the War Powers
Resolution. In responding to this inquiry, this Office has found it
necessary to re-examine and revise a broad conclusion expressed by this
Office in its February 12, 1980 memorandum, the “Harmon Memoran
dum,” 1 that “military personnel detailed to and under the control of the
CIA . . .” would not be covered by the W ar Powers Resolution were
they to be deployed into hostilities or a situation otherwise triggering
that Resolution.
The heart of the argument in the Harmon Memorandum is the
essentially negative inference drawn from the Senate’s rejection of the
so-called “Eagleton amendment,” 2 which is reprinted on page 8 of that
memorandum. The Eagleton amendment would have supplemented
§ 8(c) o f the War Powers Resolution regarding the definition of the
term “introduction of United States Armed Forces.” As enacted, § 8(c)
now provides:
For purposes of this chapter, the term “introduction of
United States Armed Forces” includes the assignment of
members of such armed forces to command, coordinate,
1M em orandum for the A ttorney G eneral entitled “ Presidential P ow er to Use the A rm ed Forces
A broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice
o f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the
holding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation
including a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a
specific factual situation. Particularly, the H arm on M em orandum 's com m ents concerning a C IA
operation involving detailed m ilitary personnel w as a part o f a general discussion and was not in
response to a precise fact-specific question.
2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere
adopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119
C ong. R ec. 25,079 (1973).
197
participate in the movement of, or accompany the regular
or irregular military forces of any foreign country or
government when such military forces are engaged, or
there exists an imminent threat that such forces will
become engaged, in hostilities.
50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sen
tence:
Any person employed by, under contract to, or under the
direction of any department or agency of the United
States Government who is either (a) actively engaged in
hostilities in any foreign country; or (b) advising any
regular or irregular military forces engaged in hostilities
in any foreign country shall be deemed to be a member of
the Armed Forces of the United States for the purposes
of this Act.
119 Cong. Rec. 25,079 (1973).
We observe at the outset that the Eagleton amendment on its face
does not suggest that it deals with a situation in which uniformed
personnel would be detailed to the CIA; indeed, what it would have
done on its face was to provide that all government employees under
the direction of any department or agency either engaged in hostilities
in any foreign country or advising any regular or irregular military
forces engaged in hostilities would be deemed to be a member of the
armed forces for purposes of the War Powers Resolution. In other
words, military or paramilitary activities by the CIA would have trig
gered the War Powers Resolution irrespective of whether the activities
were performed by military personnel, civilian employees, or persons
under contract to or under the control of the CIA.
The sentences in the Harmon memorandum that follow the quotation
of the Eagleton amendment read as follows:
He [Senator Eagleton] explained that it [his amendment]
was intended to cover CIA paramilitary operations in
volving persons who might be military officers under
contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He
recognized that without this amendment the Resolution as
drafted would not cover the activities of such personnel,
and argued that it should, citing CIA activities in Laos as
leading to America’s Indo-China involvement.
We have carefully reviewed not only the remarks of Senator
Eagleton contained in the cited pages of the Congressional Record, but
also the full Senate debate on the Eagleton amendment. We have been
unable to find a single remark made by Senator Eagleton or any other
Senator that reasonably could be read to support the assertion con
198
tained in the sentences quoted above from the Harmon Memorandum.
In fact, Senator Eagleton and the other Senators who spoke at length
for or against the Eagleton amendment manifested an understanding
that the debate revolved around the CIA ’s potential use of civilian
personnel to conduct combat operations rather than situations in which
the conduct of the same operations by military forces might occur.
Senator Eagleton and his principal ally in the floor debate, Senator
Fulbright, repeatedly expressed the view that failing to include activi
ties which the CIA might conduct with civilian personnel was a major
“loophole” which would allow Presidents to evade the War Powers
Resolution. The whole point of the Eagleton amendment, which
emerges with considerable clarity once the legislative history is exam
ined closely, is that Senator Eagleton intended that civilian forces were
to be treated the same as military forces for purposes of application of
the War Powers Resolution:
My amendment would circumscribe the President’s use of
American civilian combatants in the same manner uni
formed Armed Forces are circumscribed by S. 440 as
presently drafted. It would, in other words, prevent a
President from engaging American civilians, either directly
or as advisers, in a hostile situation without the express
consent of Congress.
119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton
spoke at considerable length about his concern that wars or lengthy and
costly military engagements could be caused by CIA covert civilian
operations. The discussion did not relate to covering, by this amend
ment, the detailing of military personnel to the CIA.
Furthermore, the record implies, albeit less strongly on this point,
that CIA activities which actually used military personnel would be
covered by the War Powers Resolution irrespective of the Eagleton
amendment.
The closest that Senator Eagleton himself comes to saying something
similar to what was attributed to him by the Harmon Memorandum is
in a paragraph that reads as follows:
So military activities will be carried on by civilian em
ployees of the Pentagon, because under the War Powers
bill nothing prevents the Pentagon from hiring or con
tracting with civilian employees, ex-m ilitary people per
haps, but people that are called civilians.
Id. at 25,083 (emphasis added).
Senator Eagleton’s statements do not support the argument that the
Eagleton amendment was an attempt to expand the War Powers Reso
lution to embrace CIA activities using military personnel. When exam
199
ined in their full context, it was concern over any American involve
ment in a military context which the Eagleton amendment was intended
to address. He also said:
unless we treat all Americans in military situations alike,
whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms—what payroll you are
on is really secondary; whether you get it from the Penta
gon or whether you become a member of the Armed
Forces, the end result is the same: Americans are exposed
to the risk of war. And as they are exposed to the risk of
war, the country, then makes a commitment to war.
Id. at 25,080 (1973).
In this same debate, Senator Javits, speaking in opposition to the
Eagleton amendment, stated his understanding of the applicability of
the War Powers Resolution to paramilitary activities conducted by the
CIA as follows:
Another important consideration is that there [is] outside
the Armed Forces . . . no agency of the United States
which has any appreciable armed forces power, not even
the CIA. They [the CIA] might have some clandestine
agents with rifles and pistols engaging in dirty tricks, but
there is no capability of appreciable military action that
would amount to war. Even in the Laotian war, the
regular U.S. Armed Forces had to be called in to give air
support. The minute com bat air support is required you have
the A rm ed Forces, an d the [W ar Powers Resolution ] becomes
operative.
Id. at 25,082 (emphasis added).
This debate over the Eagleton amendment stands rather clearly for
the proposition that CIA civilian operations (at least most of them)
were not embraced by the War Powers Resolution as ultimately passed
by the Congress unadorned with the Eagleton amendment. We do not
believe the negative inference to be drawn from the defeat of the
Eagleton amendment can be stretched further than to confirm that CIA
civilian operations are not embraced by the W ar Powers Resolution.
In summary, we believe the legislative history relied on in the
Harmon Memorandum supports the proposition that Congress assumed
that the C IA ’s use of civilian or ex-military personnel would not trigger
the War Powers Resolution. We do not believe that that legislative
history may be relied upon for the conclusion that the involvement of
200
military personnel, if temporarily detailed to the CIA and under civilian
control, would remain outside the War Powers Resolution.
T
heodore
B.
O
lson
Assistant Attorney General
Office o f L egal Counsel |
|
Write a legal research memo on the following topic. | Presidential Power to Use the Armed Forces Abroad Without
Statutory Authorization
T h e P re sid e n t’s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r
eign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted
g en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f
w a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n
tial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e
d iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t
p o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use.
T h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r
ity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes
su ch actions, an d reg u lates th e P re sid e n t’s use o f his c o n stitu tio n a l p o w e rs in this
reg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c
tion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin
60 d ay s o r w h e n e v e r C o n g ress so d irects.
T h e term "U n ite d S tates A rm e d F o rc e s ” in th e W a r P o w e rs R e so lu tio n d o es n o t include
m ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e
A g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this
o p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ]
T h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary
o r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a
bility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir
sim ply actin g in self-defense.
T h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti
tu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions.
T h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f
o u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted
to th e P resid en t is a prima facie v io latio n o f A rtic le I, § 7 o f th e C o n stitu tio n .
February 12, 1980
MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L
This responds to your request for our review of certain questions
regarding the effect of the War Powers Resolution on the President’s
power to use military force without special congressional authorization
and related issues. We have considered the President’s existing power
to employ the armed forces in any of three distinct kinds of operations:
(1) deployment abroad at some risk of engagement—for example, the
current presence of the fleet in the Persian G ulf region; (2) a military
expedition to rescue the hostages or to retaliate against Iran if the
hostages are harmed; (3) an attempt to repel an assault that
185
threatens our vital interests in that region. We believe that the President
has constitutional authority to order all of the foregoing operations.
We also conclude that the War Powers Resolution, 50 U.S.C.
§§ 1541-1548, has neither the purpose nor the effect of modifying the
President’s power in this regard. The Resolution does, however, impose
procedural requirements of consultation and reporting on certain presi
dential actions, which we summarize. The Resolution also provides for
the termination of the use of the armed forces in hostilities within 60
days or sooner if directed by a concurrent resolution of Congress. We
believe that Congress may terminate presidentially initiated hostilities
through the enactment of legislation, but that it cannot do so by means
of a legislative veto device such as a concurrent resolution.
I. The President’s Constitutional Authority to Employ the Armed Forces
The centrally relevant constitutional provisions are Article II, § 2,
which declares that “the President shall be Commander in Chief of the
Army and Navy of the United States,” and Article I, § 8, which grants
Congress the power “To declare W ar.” Early in our constitutional
history, it perhaps could have been successfully argued that the Fram
ers intended to confine the President to directing the military forces in
wars declared by Congress.1 Even then, however, it was clear that the
Framers contemplated that the President might use force to repel
sudden invasions or rebellions without first seeking congressional ap
proval. 2
In addition to the Commander-in-Chief Clause, the President’s broad
foreign policy powers support deployment of the armed forces abroad.3
The President also derives authority from his duty to “take Care that
the Laws be faithfully executed,” 4 for both treaties and customary
international law are part of our law and Presidents have repeatedly
asserted authority to enforce our international obligations 5 even when
Congress has not enacted implementing legislation.
1H am ilton, in T h e Federalist No. 69, disparaged the P resident’s pow er as that o f "first G eneral and
A dm iral’' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and
regulate armies.
2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther
presidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies,
w ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th
centu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of
an attack on an ally.
3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936).
4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce
constitutional as well as statu to ry provisions).
5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our
constitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self
executing regarding the internal processes o f the signatory pow ers. Similarly, custom ary international
law, w hich includes au th o rity for reasonable reprisals in response to another c o u n try ’s breach of
international obligation, probably does not confer au th o rity on the President beyond the w arrant of
necessity.
186
We believe that the substantive constitutional limits on the exercise of
these inherent powers by the President are, at any particular time, a
function of historical practice and the political relationship between the
President and Congress. Our history is replete with instances of presi
dential uses of military force abroad in the absence of prior congres
sional approval. This pattern of presidential initiative and congressional
acquiescence may be said to reflect the implicit advantage held by the
executive over the legislature under our constitutional scheme in situa
tions calling for immediate action. Thus, constitutional practice over
two centuries, supported by the nature of the functions exercised and
by the few legal benchmarks that exist, evidences the existence of broad
constitutional pow er.6
The power to deploy troops abroad without the initiation of hostil
ities is the most clearly established exercise of the President’s general
power as a matter of historical practice. Examples of such actions in
the past include the use of the Navy to “open up” Japan, and President
Johnson’s introduction of the armed forces into the Dominican Repub
lic in 1965 to forestall revolution.
Operations of rescue and retaliation have also been ordered by the
President without congressional authorization even when they involved
hostilities. Presidents have repeatedly employed troops abroad in de
fense of American lives and property. A famous early example is
President Jefferson’s use of the Navy to suppress the Barbary pirates.
Other instances abound, including protection of American citizens in
China during the Boxer Rebellion in 1900, and the use of troops in 1916
to pursue Pancho Villa across the Mexican border. Recent examples
include the Danang sealift during the collapse of Vietnam’s defenses
(1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu
ation of Saigon (1975); the M ayaguez incident (1975); evacuation of
civilians during the civil war in Lebanon (1976); and the dispatch of
forces to aid American victims in Guyana (1978).
This history reveals that purposes of protecting American lives and
property and retaliating against those causing injury to them are often
intertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186)
(C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment
of a Nicaraguan town which was ordered because the local authorities
refused to pay reparations for an attack by a mob on the United States
Consul. Policies of deterrence seem to have eroded any clear distinc
tion between cases of rescue and retaliation.
Thus, there is much historical support for the power of the President
to deploy troops without initiating hostilities and to direct rescue and
retaliation operations even where hostilities are a certainty. There is
6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential
practices never expressly authorized by Congress but arguably ratified by its silence. See United States
v. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition).
187
precedent as well for the commitment of United States armed forces,
without prior congressional approval or declaration of war, to aid an
ally in repelling an armed invasion, in President Truman’s response to
the North Korean invasion of South K orea.7 But clearly such a re
sponse cannot be sustained over time without the acquiescence, indeed
the approval, of Congress, for it is Congress that must appropriate the
money to fight a war or a police action. While Presidents have exer
cised their authority to introduce troops into Korea and Vietnam 8
without prior congressional authorization, those troops remained only
with the approval of Congress.
II. Judicial Review of the President’s Exercise of Constitutional Power
In the only major case dealing with the role of the courts with
regard to this general subject, the Supreme Court upheld presidential
power to act in an emergency without prior congressional authority. In
the Prize Cases, 67 U.S. 635 (1863), the Court upheld President
Lincoln’s blockade of Southern ports following the attack on Fort
Sumter. The Court thought that particular uses of inherent executive
power to repel invasion or rebellion were “political questions” not
subject to judicial review: “This Court must be governed by the deci
sions and acts of the political department of the Government to which
this power was entrusted.” (Id. at 670). The Court’s unwillingness to
review the need for presidential action in a particular instance in the
Prize Cases or since has left the field to the President and Congress;
much has depended on presidential restraint in responding to provoca
tion, and on congressional willingness to support his initiatives by
raising and funding armies.
More recently, the courts have applied the rationale of the Prize
Cases to avoid judicial review of the constitutionality of the President’s
actions with regard to the Vietnam conflict.9 Although the Supreme
Court did not hear argument in the case, we believe some significance
may be attached to the Court’s summary affirmance of a three-judge
court’s decision that the constitutionality of the government’s involve
ment in that conflict was a political question and thus unsuitable for
judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972),
a ffd , 411 U.S. 911 (1973).
1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a “ h o t” w ar could be found in the
U .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial
forces occu rred w ith o u t congressional approval.
8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was
know n to and supported by C ongress.
9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur
v. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970).
188
III. The President’s Statutory Powers
Congress has restricted the President’s ability to rely on statutory
authority for the use of armed force abroad by its provision in the War
Powers Resolution that authority to introduce the armed forces into
hostilities or into situations “wherein involvement in hostilities is clearly
indicated by the circumstances” is not to be inferred from any statutory
provision not specifically authorizing the use of troops and referring to
the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may
not rely on statutory authority for military actions clearly involving
hostilities unless the statute expressly authorizes such actions.
Nevertheless, it may be possible for the President to draw authority
for some actions not involving the use of the armed forces in actual or
imminent hostilities 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 gov
ernment, it shall be the duty of the President forthwith to
demand of that government the reasons of such imprison
ment; and if it appears to be wrongful and in violation of
the rights of American citizenship, the President 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 amounting 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 communi
cated 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.
189
IV. The War Powers Resolution
The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a
statement of purpose and policy that seems designed to limit presiden
tial use of armed forces in hostilities to situations involving a declara
tion of war, specific statutory authorization, or an attack on the United
States, its possessions, or its armed forces. This policy statement, how
ever, is not to be viewed as limiting presidential action in any substan
tive manner. That much is clear from the conference report, which
states that subsequent portions of the Resolution are not dependent on
the policy statement,10 and from its construction by the President since
its enactment.
The important provisions of the Resolution concern consultation and
reporting requirements and termination of the involvement of the
armed forces in hostilities. The Resolution requires that the President
consult with Congress “in every possible instance” before introducing
the armed forces into hostilities, and regularly thereafter. 50 U.S.C.
§ 1542.
The reporting requirements apply not only when hostilities are taking
place or are imminent, but also when armed forces are sent to a foreign
country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report
must be filed within 48 hours from the time that they are introduced
into the area triggering the requirement, and not from the time that the
decision to dispatch them is m ade.11 The report must include:
(A) The circumstances necessitating the introduction of
United States Armed Forces;
(B) the constitutional and legislative authority under
which such introduction took place; and
(C) the estimated scope and duration of the hostilities or
involvement.
50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have
been brief and to the point. The reference to legal authority has been
one sentence, referring to the President’s constitutional power as
Commander-in-Chief and Chief Executive.12
i0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution
is not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r
Legislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses
could not agree on the P resident’s responsibilities under A rticle II, C ongress fell back on purely
procedural controls.
11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over
the War Power. 71 Am. J. In l’l L. 605, 615 (1977).
12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom
Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int'l
Security and Scientific Affairs o f the House Comm, on In t'l Relations, 94th C ong., 1st Sess. 75 (M aya
guez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant
Documents. Correspondence, Reports, Subcom m . on In t’l Security and Scientific A ffairs, H ouse Comm,
on In t’l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print
1976).
190
The Resolution requires the President to terminate any use of the
armed forces in hostilities after 60 days unless Congress has authorized
his action.13 It also requires termination whenever Congress so directs
by concurrent resolution.14
As enacted, the ambiguous language of the Resolution raises several
issues of practical importance regarding the scope of its coverage as
well as questions of constitutional magnitude. We shall discuss first
several issues related to the scope of its coverage and then discuss
several constitutional issues it raises.
A threshold question is whether the Resolution’s use of the term
“United States Armed Forces” was intended to reach deployment or
use by the President of personnel other than members of the Army, Air
Force, Marine Corps, Navy, or Coast Guard functioning under the
control of the Secretary of Defense and the Joint Chiefs of Staff. For
example, does it extend to military personnel detailed to and under the
control of the Central Intelligence Agency (CIA), CIA agents them
selves, or other individuals contracting to perform services for the CIA
or the Department of Defense? We believe that none of these personnel
are covered by the Resolution.*
The provision most closely on point is § 1547(c), which defines the
term “introduction of United States Armed Forces” to include “the
assignment of members of such armed forces to command, coordinate,
participate in the movement of, or accompany the regular or irregular
military forces of any foreign country” in actual or imminent hostilities.
This provision appears to be intended to identify activities subject to
the Resolution, and not the identity of persons constituting “members
of such armed forces.” It could be argued that anyone officially a
member of the armed forces of this country, although on temporary
detail to a civilian agency, is within this provision and therefore cov
ered by the Resolution. The legislative history of the Resolution, how
ever, persuades us to take a contrary view. In the Senate, where
§ 1547(c) originated, Senator Eagleton introduced the following
amendment:
Any person employed by, under contract to, or under the
direction of any department or agency of the United
States Government who is either (a) actively engaged in
hostilities in any foreign country; or (b) advising any
regular or irregular military forces engaged in hostilities
in any foreign country shall be deemed to be a member of
13 50 U.S.C. § 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or
is unable to meet, o r if the President certifies th at m ore time is needed to extract the forces.
M50 U .S .C § 1544(c).
• N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary
personnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion
dated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed.
191
the Armed Forces of the United States for the purposes
of this Act.
He explained that it was intended to cover CIA paramilitary oper
ations involving persons who might be military officers under contract
to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that
without this amendment the Resolution as drafted would not cover the
activities of such personnel, and argued that it should, citing CIA
activities in Laos as leading to America’s Indo-China involvement.
Senators Muskie and Javits opposed the amendment, principally for
reasons of committee jurisdiction. They argued that if the Resolution
were extended to cover the CIA, its chances to escape presidential veto
might be jeopardized, and that the matter should be considered pursu
ant to proposed legislation to govern the CIA. Senator Javits also
argued that the amendment was overbroad, since it would include
foreign nationals contracting with the CIA. He argued that CIA activi
ties should not be within the Resolution, because the CIA lacks the
appreciable armed force that can commit the Nation to war.
Senator Fulbright came to Senator Eagleton’s defense, arguing that the
amendment, applying to the CIA and D O D civilians alike, would avoid
circumvention of the Resolution. Id. at 25,083-84. No one suggested
that the Resolution would apply to anyone other than military person
nel under Department of Defense control unless the amendment passed.
The amendment was defeated.15
In the House of Representatives, Congressman Badillo asked Con
gressman Zablocki, the manager of the bill, whether he would support
in the conference committee a Senate provision that would include the
CIA within the bill when it carried out military functions. Congressman
Zablocki replied that he would support the Eagleton amendment if it
passed the Senate. 119 Cong. Rec. 24,697 (1973).
Another provision o f the Resolution that had its source in the House
is consistent with the view that the Resolution was not intended to
apply to CIA paramilitary activities. The reporting requirements of
§ 1543(a)(2) apply when the armed forces are introduced “into the
territory, air space or waters of a foreign nation, while equipped for
combat . . . .” It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess.
8 (1973), that this provision was using the term “armed forces” to mean
significant bodies of military personnel:
A report would be required any time combat military
forces were sent to another nation to alter or preserve the
existing political status quo or to make the U.S. presence
felt. Thus, for example, the dispatch o f Marines to Thai
15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that
the bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen
Products Co. v. United States, 288 U.S. 294, 306 (1933).
192
land in 1962 and the quarantine of Cuba in the same year
would have required Presidential reports.
A companion provision reinforces the view that the Resolution applies
only to significant bodies of military personnel. The House report goes
on to discuss § 1543(a)(3), which requires a report when the number of
armed forces equipped for combat is substantially enlarged in a foreign
nation. For examples of substantial increases in combat troops, the
report gives the dispatch of 25% more troops to an existing station, or
President Kennedy’s increase in U.S. military advisers in Vietnam from
700 to 16,000 in 1962.
The second threshold question raised by the War Powers Resolution
regards the meaning of the word “hostilities” as used in § 1543(a)(1). In
the 1975 hearings on executive compliance with the Resolution, Chair
man Zablocki of the Subcommittee on International Security and Scien
tific Affairs drew the Legal Adviser’s attention to a discussion of
“hostilities” in the House report on the Resolution:
The word hostilities was substituted for the phrase
arm ed conflict during the subcommittee drafting process
because it was considered to be somewhat broader in
scope. In addition to a situation in which fighting actually
has begun, hostilities also encompasses a state of confron
tation in which no shots have been fired but where there
is a clear and present danger of armed conflict. “Im m inent
hostilities" denotes a situation in which there is a clear
potential either for such a state of confrontation or for
actual armed conflict.
H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added).
Chairman Zablocki then requested the views of the Departments of
State and Defense regarding the Executive’s interpretation of the term
“hostilities” in view of the language quoted above. Those Departments
responded in a letter to the Chairman dated June 5, 1975, reprinted in
War Powers: A Test o f Compliance at 38-40. After first noting that
“hostilities” is “definable in a meaningful way only in the context of an
actual set of facts,” the letter went on to state that, as applied by the
Executive, the term included:
a situation in which units of the U.S. armed forces are
actively engaged in exchanges of fire with opposing units
of hostile forces, and “imminent hostilities” was consid
ered to mean a situation in which there is a serious risk
from hostile fire to the safety of United States forces. In
our view, neither term necessarily encompasses irregular
or infrequent violence which may occur in a particular
area.
Id. at 39.
193
We agree that the term “hostilities” should not be read necessarily to
include sporadic military or paramilitary attacks on our armed forces
stationed abroad. Such situations do not generally involve the full
military engagements with which the Resolution is primarily con
cerned. For the same reason, we also believe that as a general matter
the presence of our armed forces in a foreign country whose govern
ment comes under attack by “guerrilla” operations would not trigger
the reporting provisions of the War Powers Resolution unless our
armed forces were assigned to “command, coordinate, participate in the
movement of, or accompany” the forces of the host government in
operations against such guerrilla operations.16 50 U.S.C. § 1547(c).
Furthermore, if our armed forces otherwise lawfully stationed in a
foreign country were fired upon and defended themselves, we doubt
that such engagement in hostilities would be covered by the consulta
tion and reporting provisions of the War Powers Resolution. The
structure and thrust of those provisions is the “introduction” of our
armed forces into such a situation and not the fact that those forces
may be engaged in hostilities. It seems fair to read “introduction” to
require an active decision to place forces in a hostile situation rather
than their simply acting in self-defense.17
A final issue of statutory construction involves interpretation of the
requirement for consultation with “Congress.” 18 As a practical matter,
consultation with more than a select group of congressional leaders has
never been attempted. The Legal Adviser of the State Department has
argued for this Administration, correctly in our view, that there are
practical limits to the consultation requirement; he has said that mean
ingful consultations with “an appropriate group of congressional repre
sentatives should be possible.” 19 During the M ayaguez incident about
ten House and eleven Senate Members were contacted concerning the
measures to be taken by the President.20
In requiring consultation in “every possible instance,” Congress
meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess.
6 (1973). The House report continued:
The use of the word “every” reflects the committee’s
belief that such consultation prior to the commitment of
armed forces should be inclusive. In other words, it
,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces'* in § 1547(c)
supports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes
o f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as
subject to the W ar Pow ers Resolution.
17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed
forces are “engaged in hostilities." S. 440, 93d Cong., 1st Sess. § 4 , 119 C ong. Rec. 25,119 (1973).
18T his replaced an earlier version w hich m erely required consultation w ith the leadership and
appropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R.
Rep. No. 287, 93d Cong., 1st Sess. 6 (1973).
19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations
C om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92.
20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78.
194
should apply to extraordinary and emergency circum
stances—even when it is not possible to get formal con
gressional approval in the form of a declaration of war or
other specific authorization.
At the same time, through use of the word “possible” it
recognizes that a situation may be so dire, e.g., hostile
missile attack underway, and require such instantaneous
action that no prior consultation will be possible.
The State Department Legal Adviser, again speaking for this Adminis
tration, has pointed out the problem that exists in emergencies, noting
that “[B]y their very nature some emergencies may preclude opportu
nity for legislative debate prior to involvement of the Armed Forces in
hostile or potentially hostile situations.” He recognized, however, that
consultation may be had “in the great majority of cases.” 21
There may be constitutional considerations involved in the consulta
tion requirement. When President Nixon vetoed the Resolution, he did
not suggest that either the reporting or consultation requirements were
unconstitutional. Department of State Bulletin, November 26, 1973, at
662-64. No Administration has taken the position that these require
ments are unconstitutional on their face. Nevertheless, there may be
applications which raise constitutional questions. This view was stated
succinctly by State Department Legal Adviser Leigh:
Section 3 of the War Powers Resolution has, in my
view, been drafted so as not to hamper the President’s
exercise of his constitutional authority. Thus, Section 3
leaves it to the President to determine precisely how
consultation is to be carried out. In so doing the President
may, I am sure, take into account the effect various possi
ble modes of consultation may have upon the risk of a
breach in security. Whether he could on security grounds
alone dispense entirely with “consultation” when exercis
ing an independent constitutional power, presents a ques
tion of constitutional and legislative interpretation to
which there is no easy answer. In my personal view, the
resolution contemplates at least some consultation in
every case irrespective of security considerations unless
the President determines that such consultation is incon
sistent with his constitutional obligation. In the latter
event the President’s decision could not as a practical
matter be challenged but he would have to be prepared to
accept the political consequences of such action, which
might be heavy.
21 Statem ent o f Legal A dviser Hansell, id.
195
War Powers: A Test o f Compliance at 100. Other constitutional issues
raised by the Resolution concern the provisions terminating the use of
our armed forces either through the passage of time (60 days) or the
passage of a concurrent resolution.
We believe that Congress may, as a general constitutional matter,
place a 60-day limit on the use of our armed forces as required by the
provisions of § 1544(b) of the Resolution. The Resolution gives the
President the flexibility to extend that deadline for up to 30 days in
cases of “unavoidable military necessity.” This flexibility is, we believe,
sufficient under any scenarios we can hypothesize to preserve his con
stitutional function as Commander-in-Chief. The practical effect of the
60-day limit is to shift the burden to the President to convince the
Congress of the continuing need for the use of our armed forces
abroad. We cannot say that placing that burden on the President un
constitutionally intrudes upon his executive powers.
Finally, Congress may regulate the President’s exercise of his inher
ent powers by imposing limits by statute. We do not believe that
Congress may, on a case-by-case basis, require the removal of our
armed forces by passage of a concurrent resolution which is not submit
ted to the President for his approval or disapproval pursuant to Article
I, § 7 of the Constitution.
Jo
hn
M.
H
arm on
Assistant Attorney General
Office o f Legal Counsel
196
A PPEND IX
War Powers Resolution: Detailing of
Military Personnel to the CIA
October 26, 1983
MEM ORANDUM O PIN IO N FOR
TH E DEPUTY ATTORNEY G E N ER A L
This responds to your inquiry whether a Central Intelligence Agency
(CIA) operation utilizing military equipment and military personnel
detailed to the CIA would require compliance with the War Powers
Resolution. In responding to this inquiry, this Office has found it
necessary to re-examine and revise a broad conclusion expressed by this
Office in its February 12, 1980 memorandum, the “Harmon Memoran
dum,” 1 that “military personnel detailed to and under the control of the
CIA . . .” would not be covered by the W ar Powers Resolution were
they to be deployed into hostilities or a situation otherwise triggering
that Resolution.
The heart of the argument in the Harmon Memorandum is the
essentially negative inference drawn from the Senate’s rejection of the
so-called “Eagleton amendment,” 2 which is reprinted on page 8 of that
memorandum. The Eagleton amendment would have supplemented
§ 8(c) o f the War Powers Resolution regarding the definition of the
term “introduction of United States Armed Forces.” As enacted, § 8(c)
now provides:
For purposes of this chapter, the term “introduction of
United States Armed Forces” includes the assignment of
members of such armed forces to command, coordinate,
1M em orandum for the A ttorney G eneral entitled “ Presidential P ow er to Use the A rm ed Forces
A broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice
o f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the
holding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation
including a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a
specific factual situation. Particularly, the H arm on M em orandum 's com m ents concerning a C IA
operation involving detailed m ilitary personnel w as a part o f a general discussion and was not in
response to a precise fact-specific question.
2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere
adopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119
C ong. R ec. 25,079 (1973).
197
participate in the movement of, or accompany the regular
or irregular military forces of any foreign country or
government when such military forces are engaged, or
there exists an imminent threat that such forces will
become engaged, in hostilities.
50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sen
tence:
Any person employed by, under contract to, or under the
direction of any department or agency of the United
States Government who is either (a) actively engaged in
hostilities in any foreign country; or (b) advising any
regular or irregular military forces engaged in hostilities
in any foreign country shall be deemed to be a member of
the Armed Forces of the United States for the purposes
of this Act.
119 Cong. Rec. 25,079 (1973).
We observe at the outset that the Eagleton amendment on its face
does not suggest that it deals with a situation in which uniformed
personnel would be detailed to the CIA; indeed, what it would have
done on its face was to provide that all government employees under
the direction of any department or agency either engaged in hostilities
in any foreign country or advising any regular or irregular military
forces engaged in hostilities would be deemed to be a member of the
armed forces for purposes of the War Powers Resolution. In other
words, military or paramilitary activities by the CIA would have trig
gered the War Powers Resolution irrespective of whether the activities
were performed by military personnel, civilian employees, or persons
under contract to or under the control of the CIA.
The sentences in the Harmon memorandum that follow the quotation
of the Eagleton amendment read as follows:
He [Senator Eagleton] explained that it [his amendment]
was intended to cover CIA paramilitary operations in
volving persons who might be military officers under
contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He
recognized that without this amendment the Resolution as
drafted would not cover the activities of such personnel,
and argued that it should, citing CIA activities in Laos as
leading to America’s Indo-China involvement.
We have carefully reviewed not only the remarks of Senator
Eagleton contained in the cited pages of the Congressional Record, but
also the full Senate debate on the Eagleton amendment. We have been
unable to find a single remark made by Senator Eagleton or any other
Senator that reasonably could be read to support the assertion con
198
tained in the sentences quoted above from the Harmon Memorandum.
In fact, Senator Eagleton and the other Senators who spoke at length
for or against the Eagleton amendment manifested an understanding
that the debate revolved around the CIA ’s potential use of civilian
personnel to conduct combat operations rather than situations in which
the conduct of the same operations by military forces might occur.
Senator Eagleton and his principal ally in the floor debate, Senator
Fulbright, repeatedly expressed the view that failing to include activi
ties which the CIA might conduct with civilian personnel was a major
“loophole” which would allow Presidents to evade the War Powers
Resolution. The whole point of the Eagleton amendment, which
emerges with considerable clarity once the legislative history is exam
ined closely, is that Senator Eagleton intended that civilian forces were
to be treated the same as military forces for purposes of application of
the War Powers Resolution:
My amendment would circumscribe the President’s use of
American civilian combatants in the same manner uni
formed Armed Forces are circumscribed by S. 440 as
presently drafted. It would, in other words, prevent a
President from engaging American civilians, either directly
or as advisers, in a hostile situation without the express
consent of Congress.
119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton
spoke at considerable length about his concern that wars or lengthy and
costly military engagements could be caused by CIA covert civilian
operations. The discussion did not relate to covering, by this amend
ment, the detailing of military personnel to the CIA.
Furthermore, the record implies, albeit less strongly on this point,
that CIA activities which actually used military personnel would be
covered by the War Powers Resolution irrespective of the Eagleton
amendment.
The closest that Senator Eagleton himself comes to saying something
similar to what was attributed to him by the Harmon Memorandum is
in a paragraph that reads as follows:
So military activities will be carried on by civilian em
ployees of the Pentagon, because under the War Powers
bill nothing prevents the Pentagon from hiring or con
tracting with civilian employees, ex-m ilitary people per
haps, but people that are called civilians.
Id. at 25,083 (emphasis added).
Senator Eagleton’s statements do not support the argument that the
Eagleton amendment was an attempt to expand the War Powers Reso
lution to embrace CIA activities using military personnel. When exam
199
ined in their full context, it was concern over any American involve
ment in a military context which the Eagleton amendment was intended
to address. He also said:
unless we treat all Americans in military situations alike,
whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms—what payroll you are
on is really secondary; whether you get it from the Penta
gon or whether you become a member of the Armed
Forces, the end result is the same: Americans are exposed
to the risk of war. And as they are exposed to the risk of
war, the country, then makes a commitment to war.
Id. at 25,080 (1973).
In this same debate, Senator Javits, speaking in opposition to the
Eagleton amendment, stated his understanding of the applicability of
the War Powers Resolution to paramilitary activities conducted by the
CIA as follows:
Another important consideration is that there [is] outside
the Armed Forces . . . no agency of the United States
which has any appreciable armed forces power, not even
the CIA. They [the CIA] might have some clandestine
agents with rifles and pistols engaging in dirty tricks, but
there is no capability of appreciable military action that
would amount to war. Even in the Laotian war, the
regular U.S. Armed Forces had to be called in to give air
support. The minute com bat air support is required you have
the A rm ed Forces, an d the [W ar Powers Resolution ] becomes
operative.
Id. at 25,082 (emphasis added).
This debate over the Eagleton amendment stands rather clearly for
the proposition that CIA civilian operations (at least most of them)
were not embraced by the War Powers Resolution as ultimately passed
by the Congress unadorned with the Eagleton amendment. We do not
believe the negative inference to be drawn from the defeat of the
Eagleton amendment can be stretched further than to confirm that CIA
civilian operations are not embraced by the W ar Powers Resolution.
In summary, we believe the legislative history relied on in the
Harmon Memorandum supports the proposition that Congress assumed
that the C IA ’s use of civilian or ex-military personnel would not trigger
the War Powers Resolution. We do not believe that that legislative
history may be relied upon for the conclusion that the involvement of
200
military personnel, if temporarily detailed to the CIA and under civilian
control, would remain outside the War Powers Resolution.
T
heodore
B.
O
lson
Assistant Attorney General
Office o f L egal Counsel |
|
Write a legal research memo on the following topic. | Presidential Power to Use the Armed Forces Abroad Without
Statutory Authorization
T h e P re sid e n t’s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r
eign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted
g en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f
w a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n
tial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e
d iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t
p o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use.
T h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r
ity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes
su ch actions, an d reg u lates th e P re sid e n t’s use o f his c o n stitu tio n a l p o w e rs in this
reg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c
tion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin
60 d ay s o r w h e n e v e r C o n g ress so d irects.
T h e term "U n ite d S tates A rm e d F o rc e s ” in th e W a r P o w e rs R e so lu tio n d o es n o t include
m ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e
A g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this
o p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ]
T h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary
o r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a
bility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir
sim ply actin g in self-defense.
T h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti
tu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions.
T h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f
o u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted
to th e P resid en t is a prima facie v io latio n o f A rtic le I, § 7 o f th e C o n stitu tio n .
February 12, 1980
MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L
This responds to your request for our review of certain questions
regarding the effect of the War Powers Resolution on the President’s
power to use military force without special congressional authorization
and related issues. We have considered the President’s existing power
to employ the armed forces in any of three distinct kinds of operations:
(1) deployment abroad at some risk of engagement—for example, the
current presence of the fleet in the Persian G ulf region; (2) a military
expedition to rescue the hostages or to retaliate against Iran if the
hostages are harmed; (3) an attempt to repel an assault that
185
threatens our vital interests in that region. We believe that the President
has constitutional authority to order all of the foregoing operations.
We also conclude that the War Powers Resolution, 50 U.S.C.
§§ 1541-1548, has neither the purpose nor the effect of modifying the
President’s power in this regard. The Resolution does, however, impose
procedural requirements of consultation and reporting on certain presi
dential actions, which we summarize. The Resolution also provides for
the termination of the use of the armed forces in hostilities within 60
days or sooner if directed by a concurrent resolution of Congress. We
believe that Congress may terminate presidentially initiated hostilities
through the enactment of legislation, but that it cannot do so by means
of a legislative veto device such as a concurrent resolution.
I. The President’s Constitutional Authority to Employ the Armed Forces
The centrally relevant constitutional provisions are Article II, § 2,
which declares that “the President shall be Commander in Chief of the
Army and Navy of the United States,” and Article I, § 8, which grants
Congress the power “To declare W ar.” Early in our constitutional
history, it perhaps could have been successfully argued that the Fram
ers intended to confine the President to directing the military forces in
wars declared by Congress.1 Even then, however, it was clear that the
Framers contemplated that the President might use force to repel
sudden invasions or rebellions without first seeking congressional ap
proval. 2
In addition to the Commander-in-Chief Clause, the President’s broad
foreign policy powers support deployment of the armed forces abroad.3
The President also derives authority from his duty to “take Care that
the Laws be faithfully executed,” 4 for both treaties and customary
international law are part of our law and Presidents have repeatedly
asserted authority to enforce our international obligations 5 even when
Congress has not enacted implementing legislation.
1H am ilton, in T h e Federalist No. 69, disparaged the P resident’s pow er as that o f "first G eneral and
A dm iral’' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and
regulate armies.
2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther
presidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies,
w ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th
centu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of
an attack on an ally.
3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936).
4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce
constitutional as well as statu to ry provisions).
5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our
constitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self
executing regarding the internal processes o f the signatory pow ers. Similarly, custom ary international
law, w hich includes au th o rity for reasonable reprisals in response to another c o u n try ’s breach of
international obligation, probably does not confer au th o rity on the President beyond the w arrant of
necessity.
186
We believe that the substantive constitutional limits on the exercise of
these inherent powers by the President are, at any particular time, a
function of historical practice and the political relationship between the
President and Congress. Our history is replete with instances of presi
dential uses of military force abroad in the absence of prior congres
sional approval. This pattern of presidential initiative and congressional
acquiescence may be said to reflect the implicit advantage held by the
executive over the legislature under our constitutional scheme in situa
tions calling for immediate action. Thus, constitutional practice over
two centuries, supported by the nature of the functions exercised and
by the few legal benchmarks that exist, evidences the existence of broad
constitutional pow er.6
The power to deploy troops abroad without the initiation of hostil
ities is the most clearly established exercise of the President’s general
power as a matter of historical practice. Examples of such actions in
the past include the use of the Navy to “open up” Japan, and President
Johnson’s introduction of the armed forces into the Dominican Repub
lic in 1965 to forestall revolution.
Operations of rescue and retaliation have also been ordered by the
President without congressional authorization even when they involved
hostilities. Presidents have repeatedly employed troops abroad in de
fense of American lives and property. A famous early example is
President Jefferson’s use of the Navy to suppress the Barbary pirates.
Other instances abound, including protection of American citizens in
China during the Boxer Rebellion in 1900, and the use of troops in 1916
to pursue Pancho Villa across the Mexican border. Recent examples
include the Danang sealift during the collapse of Vietnam’s defenses
(1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu
ation of Saigon (1975); the M ayaguez incident (1975); evacuation of
civilians during the civil war in Lebanon (1976); and the dispatch of
forces to aid American victims in Guyana (1978).
This history reveals that purposes of protecting American lives and
property and retaliating against those causing injury to them are often
intertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186)
(C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment
of a Nicaraguan town which was ordered because the local authorities
refused to pay reparations for an attack by a mob on the United States
Consul. Policies of deterrence seem to have eroded any clear distinc
tion between cases of rescue and retaliation.
Thus, there is much historical support for the power of the President
to deploy troops without initiating hostilities and to direct rescue and
retaliation operations even where hostilities are a certainty. There is
6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential
practices never expressly authorized by Congress but arguably ratified by its silence. See United States
v. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition).
187
precedent as well for the commitment of United States armed forces,
without prior congressional approval or declaration of war, to aid an
ally in repelling an armed invasion, in President Truman’s response to
the North Korean invasion of South K orea.7 But clearly such a re
sponse cannot be sustained over time without the acquiescence, indeed
the approval, of Congress, for it is Congress that must appropriate the
money to fight a war or a police action. While Presidents have exer
cised their authority to introduce troops into Korea and Vietnam 8
without prior congressional authorization, those troops remained only
with the approval of Congress.
II. Judicial Review of the President’s Exercise of Constitutional Power
In the only major case dealing with the role of the courts with
regard to this general subject, the Supreme Court upheld presidential
power to act in an emergency without prior congressional authority. In
the Prize Cases, 67 U.S. 635 (1863), the Court upheld President
Lincoln’s blockade of Southern ports following the attack on Fort
Sumter. The Court thought that particular uses of inherent executive
power to repel invasion or rebellion were “political questions” not
subject to judicial review: “This Court must be governed by the deci
sions and acts of the political department of the Government to which
this power was entrusted.” (Id. at 670). The Court’s unwillingness to
review the need for presidential action in a particular instance in the
Prize Cases or since has left the field to the President and Congress;
much has depended on presidential restraint in responding to provoca
tion, and on congressional willingness to support his initiatives by
raising and funding armies.
More recently, the courts have applied the rationale of the Prize
Cases to avoid judicial review of the constitutionality of the President’s
actions with regard to the Vietnam conflict.9 Although the Supreme
Court did not hear argument in the case, we believe some significance
may be attached to the Court’s summary affirmance of a three-judge
court’s decision that the constitutionality of the government’s involve
ment in that conflict was a political question and thus unsuitable for
judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972),
a ffd , 411 U.S. 911 (1973).
1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a “ h o t” w ar could be found in the
U .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial
forces occu rred w ith o u t congressional approval.
8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was
know n to and supported by C ongress.
9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur
v. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970).
188
III. The President’s Statutory Powers
Congress has restricted the President’s ability to rely on statutory
authority for the use of armed force abroad by its provision in the War
Powers Resolution that authority to introduce the armed forces into
hostilities or into situations “wherein involvement in hostilities is clearly
indicated by the circumstances” is not to be inferred from any statutory
provision not specifically authorizing the use of troops and referring to
the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may
not rely on statutory authority for military actions clearly involving
hostilities unless the statute expressly authorizes such actions.
Nevertheless, it may be possible for the President to draw authority
for some actions not involving the use of the armed forces in actual or
imminent hostilities 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 gov
ernment, it shall be the duty of the President forthwith to
demand of that government the reasons of such imprison
ment; and if it appears to be wrongful and in violation of
the rights of American citizenship, the President 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 amounting 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 communi
cated 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.
189
IV. The War Powers Resolution
The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a
statement of purpose and policy that seems designed to limit presiden
tial use of armed forces in hostilities to situations involving a declara
tion of war, specific statutory authorization, or an attack on the United
States, its possessions, or its armed forces. This policy statement, how
ever, is not to be viewed as limiting presidential action in any substan
tive manner. That much is clear from the conference report, which
states that subsequent portions of the Resolution are not dependent on
the policy statement,10 and from its construction by the President since
its enactment.
The important provisions of the Resolution concern consultation and
reporting requirements and termination of the involvement of the
armed forces in hostilities. The Resolution requires that the President
consult with Congress “in every possible instance” before introducing
the armed forces into hostilities, and regularly thereafter. 50 U.S.C.
§ 1542.
The reporting requirements apply not only when hostilities are taking
place or are imminent, but also when armed forces are sent to a foreign
country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report
must be filed within 48 hours from the time that they are introduced
into the area triggering the requirement, and not from the time that the
decision to dispatch them is m ade.11 The report must include:
(A) The circumstances necessitating the introduction of
United States Armed Forces;
(B) the constitutional and legislative authority under
which such introduction took place; and
(C) the estimated scope and duration of the hostilities or
involvement.
50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have
been brief and to the point. The reference to legal authority has been
one sentence, referring to the President’s constitutional power as
Commander-in-Chief and Chief Executive.12
i0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution
is not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r
Legislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses
could not agree on the P resident’s responsibilities under A rticle II, C ongress fell back on purely
procedural controls.
11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over
the War Power. 71 Am. J. In l’l L. 605, 615 (1977).
12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom
Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int'l
Security and Scientific Affairs o f the House Comm, on In t'l Relations, 94th C ong., 1st Sess. 75 (M aya
guez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant
Documents. Correspondence, Reports, Subcom m . on In t’l Security and Scientific A ffairs, H ouse Comm,
on In t’l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print
1976).
190
The Resolution requires the President to terminate any use of the
armed forces in hostilities after 60 days unless Congress has authorized
his action.13 It also requires termination whenever Congress so directs
by concurrent resolution.14
As enacted, the ambiguous language of the Resolution raises several
issues of practical importance regarding the scope of its coverage as
well as questions of constitutional magnitude. We shall discuss first
several issues related to the scope of its coverage and then discuss
several constitutional issues it raises.
A threshold question is whether the Resolution’s use of the term
“United States Armed Forces” was intended to reach deployment or
use by the President of personnel other than members of the Army, Air
Force, Marine Corps, Navy, or Coast Guard functioning under the
control of the Secretary of Defense and the Joint Chiefs of Staff. For
example, does it extend to military personnel detailed to and under the
control of the Central Intelligence Agency (CIA), CIA agents them
selves, or other individuals contracting to perform services for the CIA
or the Department of Defense? We believe that none of these personnel
are covered by the Resolution.*
The provision most closely on point is § 1547(c), which defines the
term “introduction of United States Armed Forces” to include “the
assignment of members of such armed forces to command, coordinate,
participate in the movement of, or accompany the regular or irregular
military forces of any foreign country” in actual or imminent hostilities.
This provision appears to be intended to identify activities subject to
the Resolution, and not the identity of persons constituting “members
of such armed forces.” It could be argued that anyone officially a
member of the armed forces of this country, although on temporary
detail to a civilian agency, is within this provision and therefore cov
ered by the Resolution. The legislative history of the Resolution, how
ever, persuades us to take a contrary view. In the Senate, where
§ 1547(c) originated, Senator Eagleton introduced the following
amendment:
Any person employed by, under contract to, or under the
direction of any department or agency of the United
States Government who is either (a) actively engaged in
hostilities in any foreign country; or (b) advising any
regular or irregular military forces engaged in hostilities
in any foreign country shall be deemed to be a member of
13 50 U.S.C. § 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or
is unable to meet, o r if the President certifies th at m ore time is needed to extract the forces.
M50 U .S .C § 1544(c).
• N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary
personnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion
dated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed.
191
the Armed Forces of the United States for the purposes
of this Act.
He explained that it was intended to cover CIA paramilitary oper
ations involving persons who might be military officers under contract
to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that
without this amendment the Resolution as drafted would not cover the
activities of such personnel, and argued that it should, citing CIA
activities in Laos as leading to America’s Indo-China involvement.
Senators Muskie and Javits opposed the amendment, principally for
reasons of committee jurisdiction. They argued that if the Resolution
were extended to cover the CIA, its chances to escape presidential veto
might be jeopardized, and that the matter should be considered pursu
ant to proposed legislation to govern the CIA. Senator Javits also
argued that the amendment was overbroad, since it would include
foreign nationals contracting with the CIA. He argued that CIA activi
ties should not be within the Resolution, because the CIA lacks the
appreciable armed force that can commit the Nation to war.
Senator Fulbright came to Senator Eagleton’s defense, arguing that the
amendment, applying to the CIA and D O D civilians alike, would avoid
circumvention of the Resolution. Id. at 25,083-84. No one suggested
that the Resolution would apply to anyone other than military person
nel under Department of Defense control unless the amendment passed.
The amendment was defeated.15
In the House of Representatives, Congressman Badillo asked Con
gressman Zablocki, the manager of the bill, whether he would support
in the conference committee a Senate provision that would include the
CIA within the bill when it carried out military functions. Congressman
Zablocki replied that he would support the Eagleton amendment if it
passed the Senate. 119 Cong. Rec. 24,697 (1973).
Another provision o f the Resolution that had its source in the House
is consistent with the view that the Resolution was not intended to
apply to CIA paramilitary activities. The reporting requirements of
§ 1543(a)(2) apply when the armed forces are introduced “into the
territory, air space or waters of a foreign nation, while equipped for
combat . . . .” It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess.
8 (1973), that this provision was using the term “armed forces” to mean
significant bodies of military personnel:
A report would be required any time combat military
forces were sent to another nation to alter or preserve the
existing political status quo or to make the U.S. presence
felt. Thus, for example, the dispatch o f Marines to Thai
15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that
the bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen
Products Co. v. United States, 288 U.S. 294, 306 (1933).
192
land in 1962 and the quarantine of Cuba in the same year
would have required Presidential reports.
A companion provision reinforces the view that the Resolution applies
only to significant bodies of military personnel. The House report goes
on to discuss § 1543(a)(3), which requires a report when the number of
armed forces equipped for combat is substantially enlarged in a foreign
nation. For examples of substantial increases in combat troops, the
report gives the dispatch of 25% more troops to an existing station, or
President Kennedy’s increase in U.S. military advisers in Vietnam from
700 to 16,000 in 1962.
The second threshold question raised by the War Powers Resolution
regards the meaning of the word “hostilities” as used in § 1543(a)(1). In
the 1975 hearings on executive compliance with the Resolution, Chair
man Zablocki of the Subcommittee on International Security and Scien
tific Affairs drew the Legal Adviser’s attention to a discussion of
“hostilities” in the House report on the Resolution:
The word hostilities was substituted for the phrase
arm ed conflict during the subcommittee drafting process
because it was considered to be somewhat broader in
scope. In addition to a situation in which fighting actually
has begun, hostilities also encompasses a state of confron
tation in which no shots have been fired but where there
is a clear and present danger of armed conflict. “Im m inent
hostilities" denotes a situation in which there is a clear
potential either for such a state of confrontation or for
actual armed conflict.
H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added).
Chairman Zablocki then requested the views of the Departments of
State and Defense regarding the Executive’s interpretation of the term
“hostilities” in view of the language quoted above. Those Departments
responded in a letter to the Chairman dated June 5, 1975, reprinted in
War Powers: A Test o f Compliance at 38-40. After first noting that
“hostilities” is “definable in a meaningful way only in the context of an
actual set of facts,” the letter went on to state that, as applied by the
Executive, the term included:
a situation in which units of the U.S. armed forces are
actively engaged in exchanges of fire with opposing units
of hostile forces, and “imminent hostilities” was consid
ered to mean a situation in which there is a serious risk
from hostile fire to the safety of United States forces. In
our view, neither term necessarily encompasses irregular
or infrequent violence which may occur in a particular
area.
Id. at 39.
193
We agree that the term “hostilities” should not be read necessarily to
include sporadic military or paramilitary attacks on our armed forces
stationed abroad. Such situations do not generally involve the full
military engagements with which the Resolution is primarily con
cerned. For the same reason, we also believe that as a general matter
the presence of our armed forces in a foreign country whose govern
ment comes under attack by “guerrilla” operations would not trigger
the reporting provisions of the War Powers Resolution unless our
armed forces were assigned to “command, coordinate, participate in the
movement of, or accompany” the forces of the host government in
operations against such guerrilla operations.16 50 U.S.C. § 1547(c).
Furthermore, if our armed forces otherwise lawfully stationed in a
foreign country were fired upon and defended themselves, we doubt
that such engagement in hostilities would be covered by the consulta
tion and reporting provisions of the War Powers Resolution. The
structure and thrust of those provisions is the “introduction” of our
armed forces into such a situation and not the fact that those forces
may be engaged in hostilities. It seems fair to read “introduction” to
require an active decision to place forces in a hostile situation rather
than their simply acting in self-defense.17
A final issue of statutory construction involves interpretation of the
requirement for consultation with “Congress.” 18 As a practical matter,
consultation with more than a select group of congressional leaders has
never been attempted. The Legal Adviser of the State Department has
argued for this Administration, correctly in our view, that there are
practical limits to the consultation requirement; he has said that mean
ingful consultations with “an appropriate group of congressional repre
sentatives should be possible.” 19 During the M ayaguez incident about
ten House and eleven Senate Members were contacted concerning the
measures to be taken by the President.20
In requiring consultation in “every possible instance,” Congress
meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess.
6 (1973). The House report continued:
The use of the word “every” reflects the committee’s
belief that such consultation prior to the commitment of
armed forces should be inclusive. In other words, it
,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces'* in § 1547(c)
supports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes
o f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as
subject to the W ar Pow ers Resolution.
17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed
forces are “engaged in hostilities." S. 440, 93d Cong., 1st Sess. § 4 , 119 C ong. Rec. 25,119 (1973).
18T his replaced an earlier version w hich m erely required consultation w ith the leadership and
appropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R.
Rep. No. 287, 93d Cong., 1st Sess. 6 (1973).
19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations
C om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92.
20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78.
194
should apply to extraordinary and emergency circum
stances—even when it is not possible to get formal con
gressional approval in the form of a declaration of war or
other specific authorization.
At the same time, through use of the word “possible” it
recognizes that a situation may be so dire, e.g., hostile
missile attack underway, and require such instantaneous
action that no prior consultation will be possible.
The State Department Legal Adviser, again speaking for this Adminis
tration, has pointed out the problem that exists in emergencies, noting
that “[B]y their very nature some emergencies may preclude opportu
nity for legislative debate prior to involvement of the Armed Forces in
hostile or potentially hostile situations.” He recognized, however, that
consultation may be had “in the great majority of cases.” 21
There may be constitutional considerations involved in the consulta
tion requirement. When President Nixon vetoed the Resolution, he did
not suggest that either the reporting or consultation requirements were
unconstitutional. Department of State Bulletin, November 26, 1973, at
662-64. No Administration has taken the position that these require
ments are unconstitutional on their face. Nevertheless, there may be
applications which raise constitutional questions. This view was stated
succinctly by State Department Legal Adviser Leigh:
Section 3 of the War Powers Resolution has, in my
view, been drafted so as not to hamper the President’s
exercise of his constitutional authority. Thus, Section 3
leaves it to the President to determine precisely how
consultation is to be carried out. In so doing the President
may, I am sure, take into account the effect various possi
ble modes of consultation may have upon the risk of a
breach in security. Whether he could on security grounds
alone dispense entirely with “consultation” when exercis
ing an independent constitutional power, presents a ques
tion of constitutional and legislative interpretation to
which there is no easy answer. In my personal view, the
resolution contemplates at least some consultation in
every case irrespective of security considerations unless
the President determines that such consultation is incon
sistent with his constitutional obligation. In the latter
event the President’s decision could not as a practical
matter be challenged but he would have to be prepared to
accept the political consequences of such action, which
might be heavy.
21 Statem ent o f Legal A dviser Hansell, id.
195
War Powers: A Test o f Compliance at 100. Other constitutional issues
raised by the Resolution concern the provisions terminating the use of
our armed forces either through the passage of time (60 days) or the
passage of a concurrent resolution.
We believe that Congress may, as a general constitutional matter,
place a 60-day limit on the use of our armed forces as required by the
provisions of § 1544(b) of the Resolution. The Resolution gives the
President the flexibility to extend that deadline for up to 30 days in
cases of “unavoidable military necessity.” This flexibility is, we believe,
sufficient under any scenarios we can hypothesize to preserve his con
stitutional function as Commander-in-Chief. The practical effect of the
60-day limit is to shift the burden to the President to convince the
Congress of the continuing need for the use of our armed forces
abroad. We cannot say that placing that burden on the President un
constitutionally intrudes upon his executive powers.
Finally, Congress may regulate the President’s exercise of his inher
ent powers by imposing limits by statute. We do not believe that
Congress may, on a case-by-case basis, require the removal of our
armed forces by passage of a concurrent resolution which is not submit
ted to the President for his approval or disapproval pursuant to Article
I, § 7 of the Constitution.
Jo
hn
M.
H
arm on
Assistant Attorney General
Office o f Legal Counsel
196
A PPEND IX
War Powers Resolution: Detailing of
Military Personnel to the CIA
October 26, 1983
MEM ORANDUM O PIN IO N FOR
TH E DEPUTY ATTORNEY G E N ER A L
This responds to your inquiry whether a Central Intelligence Agency
(CIA) operation utilizing military equipment and military personnel
detailed to the CIA would require compliance with the War Powers
Resolution. In responding to this inquiry, this Office has found it
necessary to re-examine and revise a broad conclusion expressed by this
Office in its February 12, 1980 memorandum, the “Harmon Memoran
dum,” 1 that “military personnel detailed to and under the control of the
CIA . . .” would not be covered by the W ar Powers Resolution were
they to be deployed into hostilities or a situation otherwise triggering
that Resolution.
The heart of the argument in the Harmon Memorandum is the
essentially negative inference drawn from the Senate’s rejection of the
so-called “Eagleton amendment,” 2 which is reprinted on page 8 of that
memorandum. The Eagleton amendment would have supplemented
§ 8(c) o f the War Powers Resolution regarding the definition of the
term “introduction of United States Armed Forces.” As enacted, § 8(c)
now provides:
For purposes of this chapter, the term “introduction of
United States Armed Forces” includes the assignment of
members of such armed forces to command, coordinate,
1M em orandum for the A ttorney G eneral entitled “ Presidential P ow er to Use the A rm ed Forces
A broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice
o f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the
holding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation
including a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a
specific factual situation. Particularly, the H arm on M em orandum 's com m ents concerning a C IA
operation involving detailed m ilitary personnel w as a part o f a general discussion and was not in
response to a precise fact-specific question.
2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere
adopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119
C ong. R ec. 25,079 (1973).
197
participate in the movement of, or accompany the regular
or irregular military forces of any foreign country or
government when such military forces are engaged, or
there exists an imminent threat that such forces will
become engaged, in hostilities.
50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sen
tence:
Any person employed by, under contract to, or under the
direction of any department or agency of the United
States Government who is either (a) actively engaged in
hostilities in any foreign country; or (b) advising any
regular or irregular military forces engaged in hostilities
in any foreign country shall be deemed to be a member of
the Armed Forces of the United States for the purposes
of this Act.
119 Cong. Rec. 25,079 (1973).
We observe at the outset that the Eagleton amendment on its face
does not suggest that it deals with a situation in which uniformed
personnel would be detailed to the CIA; indeed, what it would have
done on its face was to provide that all government employees under
the direction of any department or agency either engaged in hostilities
in any foreign country or advising any regular or irregular military
forces engaged in hostilities would be deemed to be a member of the
armed forces for purposes of the War Powers Resolution. In other
words, military or paramilitary activities by the CIA would have trig
gered the War Powers Resolution irrespective of whether the activities
were performed by military personnel, civilian employees, or persons
under contract to or under the control of the CIA.
The sentences in the Harmon memorandum that follow the quotation
of the Eagleton amendment read as follows:
He [Senator Eagleton] explained that it [his amendment]
was intended to cover CIA paramilitary operations in
volving persons who might be military officers under
contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He
recognized that without this amendment the Resolution as
drafted would not cover the activities of such personnel,
and argued that it should, citing CIA activities in Laos as
leading to America’s Indo-China involvement.
We have carefully reviewed not only the remarks of Senator
Eagleton contained in the cited pages of the Congressional Record, but
also the full Senate debate on the Eagleton amendment. We have been
unable to find a single remark made by Senator Eagleton or any other
Senator that reasonably could be read to support the assertion con
198
tained in the sentences quoted above from the Harmon Memorandum.
In fact, Senator Eagleton and the other Senators who spoke at length
for or against the Eagleton amendment manifested an understanding
that the debate revolved around the CIA ’s potential use of civilian
personnel to conduct combat operations rather than situations in which
the conduct of the same operations by military forces might occur.
Senator Eagleton and his principal ally in the floor debate, Senator
Fulbright, repeatedly expressed the view that failing to include activi
ties which the CIA might conduct with civilian personnel was a major
“loophole” which would allow Presidents to evade the War Powers
Resolution. The whole point of the Eagleton amendment, which
emerges with considerable clarity once the legislative history is exam
ined closely, is that Senator Eagleton intended that civilian forces were
to be treated the same as military forces for purposes of application of
the War Powers Resolution:
My amendment would circumscribe the President’s use of
American civilian combatants in the same manner uni
formed Armed Forces are circumscribed by S. 440 as
presently drafted. It would, in other words, prevent a
President from engaging American civilians, either directly
or as advisers, in a hostile situation without the express
consent of Congress.
119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton
spoke at considerable length about his concern that wars or lengthy and
costly military engagements could be caused by CIA covert civilian
operations. The discussion did not relate to covering, by this amend
ment, the detailing of military personnel to the CIA.
Furthermore, the record implies, albeit less strongly on this point,
that CIA activities which actually used military personnel would be
covered by the War Powers Resolution irrespective of the Eagleton
amendment.
The closest that Senator Eagleton himself comes to saying something
similar to what was attributed to him by the Harmon Memorandum is
in a paragraph that reads as follows:
So military activities will be carried on by civilian em
ployees of the Pentagon, because under the War Powers
bill nothing prevents the Pentagon from hiring or con
tracting with civilian employees, ex-m ilitary people per
haps, but people that are called civilians.
Id. at 25,083 (emphasis added).
Senator Eagleton’s statements do not support the argument that the
Eagleton amendment was an attempt to expand the War Powers Reso
lution to embrace CIA activities using military personnel. When exam
199
ined in their full context, it was concern over any American involve
ment in a military context which the Eagleton amendment was intended
to address. He also said:
unless we treat all Americans in military situations alike,
whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms—what payroll you are
on is really secondary; whether you get it from the Penta
gon or whether you become a member of the Armed
Forces, the end result is the same: Americans are exposed
to the risk of war. And as they are exposed to the risk of
war, the country, then makes a commitment to war.
Id. at 25,080 (1973).
In this same debate, Senator Javits, speaking in opposition to the
Eagleton amendment, stated his understanding of the applicability of
the War Powers Resolution to paramilitary activities conducted by the
CIA as follows:
Another important consideration is that there [is] outside
the Armed Forces . . . no agency of the United States
which has any appreciable armed forces power, not even
the CIA. They [the CIA] might have some clandestine
agents with rifles and pistols engaging in dirty tricks, but
there is no capability of appreciable military action that
would amount to war. Even in the Laotian war, the
regular U.S. Armed Forces had to be called in to give air
support. The minute com bat air support is required you have
the A rm ed Forces, an d the [W ar Powers Resolution ] becomes
operative.
Id. at 25,082 (emphasis added).
This debate over the Eagleton amendment stands rather clearly for
the proposition that CIA civilian operations (at least most of them)
were not embraced by the War Powers Resolution as ultimately passed
by the Congress unadorned with the Eagleton amendment. We do not
believe the negative inference to be drawn from the defeat of the
Eagleton amendment can be stretched further than to confirm that CIA
civilian operations are not embraced by the W ar Powers Resolution.
In summary, we believe the legislative history relied on in the
Harmon Memorandum supports the proposition that Congress assumed
that the C IA ’s use of civilian or ex-military personnel would not trigger
the War Powers Resolution. We do not believe that that legislative
history may be relied upon for the conclusion that the involvement of
200
military personnel, if temporarily detailed to the CIA and under civilian
control, would remain outside the War Powers Resolution.
T
heodore
B.
O
lson
Assistant Attorney General
Office o f L egal Counsel |
|
Write a legal research memo on the following topic. | Application of Privacy Act Congressional-Disclosure
Exception to Disclosures to Ranking Minority Members
The congressional-disclosure exception to the disclosure prohibition of the Privacy Act generally does
not apply to disclosures to committee ranking minority members.
December 5, 2001
LETTER OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF THE TREASURY
This letter responds to your request of November 13, 2001, for the opinion of
this Office concerning whether information protected by the Privacy Act of 1974
(“Privacy Act” or “Act”), 5 U.S.C. § 552a (2000), may be disclosed to the ranking
minority member of the Senate Finance Committee, pursuant to the Act’s congressional-disclosure exception, id. § 552a(b)(9). We understand that the ranking
minority member, not the Finance Committee, requested this information.
The Privacy Act prohibits the disclosure of information subject to the protections of the Act without the consent of the individual to whom the information
relates, unless one of the enumerated exceptions of the Act applies. Id. § 552a(b).
One of those exceptions authorizes disclosure “to either House of Congress, or, to
the extent of matter within its jurisdiction, any committee or subcommittee
thereof, any joint committee of Congress or subcommittee of any such joint
committee.” Id. § 552a(b)(9).
We conclude that the Privacy Act prohibits the disclosure of the Privacy Actprotected information to the ranking minority member. Except where the Senate or
House exercises its investigative and oversight authority directly, as is the case
with a resolution of inquiry adopted by the Senate or House, each House of
Congress exercises its investigative and oversight authority 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. As a general matter, 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. We understand that the
ranking minority member has not received such an authorization from the Finance
Committee.
Thus, the essential analysis underlying our conclusion is that although the
congressional-disclosure exception to the Privacy Act disclosure prohibition is
available for disclosures to either House of Congress or to a committee of
Congress, ranking minority members generally do not act on behalf of congressional committees. Accordingly, absent the unusual circumstance of a specific
delegation to a ranking minority member from the Senate or House or a committee, a disclosure of Privacy Act information solely to a ranking minority member
289
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Opinions of the Office of Legal Counsel in Volume 25
is not a disclosure to the committee, and the congressional-disclosure exception is
therefore unavailable. Of course, disclosure of the information to the ranking
minority member would be authorized by the exception if the committee itself or
its chairman authorizes the disclosure.
You also asked whether our conclusion would be any different if the information is delivered to the ranking minority member through the clerk of the
committee rather than directly to the member. Our conclusion does not change in
that circumstance because all that is different is the method of delivery. The
disclosure still cannot be viewed as being made to the committee unless the
disclosure has been authorized by the committee or its chairman.
Our conclusion that the Privacy Act’s congressional-disclosure exception does
not generally apply to disclosures to ranking minority members follows the
longstanding Executive Branch practice on this question. Moreover, we note that
the Congressional Research Service takes the same view as we do concerning the
lack of authority of ranking minority members, as a general matter, to act on
behalf of congressional committees:
The role of members of the minority party in the investigatory oversight process is governed by the rules of each House and its committees. . . . [N]o House or committee rules authorize ranking minority
members or individual members on their own to institute official
committee investigations, hold hearings or to issue subpoenas. Individual members may seek the voluntary cooperation of agency officials or private persons. But no judicial precedent has recognized a
right in an individual member, other than the chair of a committee, to
exercise the authority of a committee in the context of oversight
without the permission of a majority of the committee or its chair.
Morton Rosenberg, Cong. Research Serv., Rpt. 95-464A, Investigative Oversight:
An Introduction to the Law, Practice and Procedure of Congressional Inquiry 56
(Apr. 7, 1995) (footnote omitted).
JAY S. BYBEE
Assistant Attorney General
Office of Legal Counsel
290
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|
Write a legal research memo on the following topic. | Diverting Oil Imports to United States Allies
The International Em ergency Econom ic Powers Act would authorize the President, in
order to deal with an Iranian cutoff of oil to United States allies, to require American
oil companies and foreign entities they control to ship oil they acquire abroad to
certain specified nations and in certain specified quantities. W hile there must be a
"foreign interest” in the oil for the President to invoke lE E P A ’s powers, foreign
interest unassociated with the nation that is creating the em ergency would be sufficient.
Section 232(b) of the T rade Expansion Act would allow the President to impose a quota
on oil imports for national security reasons, including reasons relating to foreign policy
considerations; however, it would not give him power to direct the diversion o f oil
imports to other countries.
January 12, 1981
MEMORANDUM OPINION FOR
THE ASSOCIATE ATTORNEY GENERAL
Iran may end or reduce exports of its oil to some of our allies who
are heavily dependent on Iranian oil. You have asked us whether the
President has authority to divert to those allies shipments of foreign oil
that would otherwise be imported into the United States. We believe
the President has this authority over at least some such shipments.
There are several possible sources of authority; the International Emer
gency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 (Supp. I
1977), seems the clearest and most appropriate.
I. The International Emergency Economic Powers Act
We believe that the IEEPA empowers the President, in dealing with
a declared national emergency, to require American oil companies and
entities they control to sell any oil they acquire or can acquire
abroad—except perhaps oil the company itself already owns, free of all
foreign rights—and to sell it only to nations specified by the President
and in quantities the President specifies. If the President enters such an
order to deal with the Iranian hostage crisis, or the emergency declared
in connection with the Soviet invasion of Afghanistan, he need not
declare another national emergency. If the need to divert oil shipments
arises from a separate emergency, that emergency should be declared. 1
'W e w ould alert you lo Congress* injunction that “emergencies are by their nature rare and brief,
and are not to be equated w ith normal, ongoing problems. A national em ergency should be declared
C o n tin u e d
295
Section 203(a)(1)(B) of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), author
izes the President, in dealing with a national emergency, to:
investigate, regulate, direct and compel, nullify, void, pre
vent or prohibit, any acquisition, holding, withholding,
use, transfer, withdrawal, transportation, importation or
exportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions in
volving, any property in which any foreign country or a
national thereof has any interest;
by any person, or with respect to any property, subject to the
jurisdiction of the United States.
On its face this provision appears to give the President power to
require American companies, and foreign entities they control,2 to
ship oil they acquire abroad to certain other nations and in certain
quantities.
The principal difficulty with the President’s using this power is that it
is unclear whether all oil acquired abroad by American companies is
“property in which [a] foreign country or a national thereof has any
interest.” Some oil is owned by a foreign nation or foreign national but
can be acquired by an American company; this is plainly property in
which there is a foreign interest, at least until after the time it is
acquired. Since “any” interest will suffice, we believe that oil in which
a foreign nation or national has a contract right—for example, a right
to refuse to allow the oil to be shipped unless a certain royalty is paid—
is also subject to the President’s power.
Because the United States is not now importing oil from Iran, the
foreign interest will not be that of Iran, and will probably not be that of
an Iranian national; it may be argued that § 203(a)(1)(B) does not reach
property in which the only foreign interest is unassociated with the
nation that is the cause of the emergency. We do not believe this
argument is correct, however. Section 203(a)(1)(B) refers to “any for
eign country or a national thereof” (emphasis added), and the legisla
tive history of the IEEPA suggests that the principal reason for the
foreign interest limitation was to prevent the President from regulating
“domestic” transactions, see, e.g., H.R. Rep. No. 459, 95th Cong., 1st
and em ergency authorities em ployed only w ith respect to a specific set o f circum stances which
constitute a real em ergency, and for no other purpose. T he em ergency should be term inated in a
timely m anner w hen the factual state o f em ergency is over and not continued in effect for use in other
circum stances. A state o f national em ergency should not be a norm al state o f affairs.” H.R. Rep. No.
459, 95th Cong., 1st Sess. 10 (1977).
2 A m erican corporations are clearly subject to the jurisdiction o f the United States. See Restate
ment (Second) of Foreign Relations Law o f the United States, §§27, 30 (1965). Foreign entities they
control may also be, although they may be subject to the com peting jurisdiction of the foreign
country. In addition, § 203(a)(1)(B) perm its the President to “ regulate, [or] direct and com pel, . . .
[the] exercising [of] any right, pow er, or privilege w ith respect to . . . any [foreign] property.” We
believe this authorizes the President to require an A m erican com pany to exercise its control over
foreign entities in the w ay the President directs, at least w hen the direction furthers the purposes of
other regulations imposed under the IE E P A .
296
Sess. 11 (1977), not to limit the foreign nations whose interests might be
affected. Moreover, Congress probably expected the IEEPA to be used
for emergencies—international monetary disorders, for example—that
do not originate in any single country. Similarly, a diversion of oil
imports might be an effort to coordinate our international trade in a
way that serves the economic and political objectives the President is
pursuing in dealing with a declared emergency. If it were, we believe
that it would be the sort of action Congress expected the President to
take under the IEEPA.
Some oil located abroad may be entirely owned by an American
corporation and not subject to any foreign nation’s or national’s prop
erty or contract rights.3 It is much more difficult to conclude that there
is a foreign interest in this oil. It seems unlikely, although perhaps
arguable, that a nation’s ability to tax a quantity of oil, seize it or
prevent its shipment by asserting eminent domain, and otherwise exert
jurisdiction over it, constitute an “interest” in the oil. Some courts have
suggested that a foreign nation has an “interest”—within the meaning
of § 5(b) of the Trading with the Enemy Act, the predecessor of the
IEEPA—in any item it exports. Those courts reasoned that by selling
its products abroad a nation helps “to sustain its internal economy and
provide it with foreign exchange.” See United States v. Broverman, 180
F. Supp. 631, 636 (S.D.N.Y. 1959); Heaton v. United States, 353 F.2d
288, 291-92 (9th Cir. 1965). But we have substantial doubt that this is a
sufficiently direct interest to permit regulation under § 203(a)(1)(B) of
the IEEPA, at least if the object of the regulation is not to disrupt a
nation’s internal economy or deprive it of foreign exchange.4
3 W e express no opinion on the extent to w hich American corporations' acquisitions o f oil from
foreign nations may be regulated retroactively under the IEE PA .
4W e have these doubts for several reasons. First, the language of § 203(a)(1)(B) suggests that the
term “interest” should not be interpreted in a way that has no connection to its usual legal meaning.
Section 203(a)(1)(B) refers to property in w hich a “foreign country or a national thereof has any
interest” (emphasis added); this may suggest that the drafters intended to reach only those kinds of
interests of foreign nations which could also be held by individuals. M oreover, in describing the
President’s powers, § 203(a)(1)(B) uses highly inclusive language—“investigate, regulate, direct and
compel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer [etc.]” —
that was evidently intended to cover a wide variety of possible actions. Section 203(a)(1)(B) does not
use com parably inclusive language in describing the range o f foreign interests covered. This may
suggest that the drafters o f the IEE PA did not intend the term '‘interest” to be extraordinarily
inclusive. In ordinary legal usage, a nation would not have an “ interest” in a piece of property unless
it owned it or had an indirect, partial, contingent, or future interest in it, or a contract right to it; one
would not ordinarily say that a nation had an “interest” in all the property located w ithin its borders.
Second, Congress clearly intended that the President not use the IE E P A to regulate “w holly
dom estic” transactions. See, e.g., H.R. Rep. No. 459, 95th C ong., 1st Sess. 11 (1977). W e recognize that
§ 203(a)(1)(B), enacted as part of the IE E P A in 1977, contains the same language as § 5(b) of the
Trading with the Enem y A ct; the cases cited in the text interpreted this language. C ongress presum
ably knew o f these cases when it enacted § 203(a)(1)(B) in this form. But if w e w ere to adopt the
broadest possible interpretation of these cases—that a nation has an “interest” in property, within the
meaning of § 203(a)(1)(B), w henever transactions in that property can have an im portant effect on its
econom y —we would, allow the President to regulate w holly domestic transactions, in violation of
C ongress’ clear intentions; foreign countries' econom ies may be substantially affected by w holly
dom estic American transactions. We see no other principled interpretation o f the term “foreign . . .
interest” in § 203(a)(1)(B) that would allow the President to regulate transactions in oil that is located
C o n tin u e d
297
The President may be able to reach transactions in American-owned
oil located abroad under a different provision of the IEEPA,
§ 203(a)(l)(A)(i), 50 U.S.C. § 1702(a)(l)(A)(i). That provision authorizes
the President, in dealing with a national emergency, to “investigate,
regulate, or prohibit . . . any transactions in foreign exchange . . . by
any person, or with respect to any property, subject to the jurisdiction
of the United States.” An American company which owned oil located
abroad would presumably have to deal in foreign exchange in order to
sell the oil; the foreign exchange transactions associated with such sales
might be regulated in a way that compelled the company to comply
with the President’s directions. While this provision of the IEEPA on
its face seems to permit such regulation, some substantial objections can
be raised. Arguably, Congress envisioned that the § 203(a)(l)(A)(i) au
thority to regulate transactions in foreign exchange would be invoked
only where the President’s concern was with the use of foreign ex
change in the transaction. Congress probably did not intend the Presi
dent to take advantage of the fact that foreign exchange was involved
solely as a means of reaching transactions that he otherwise could not
regulate. In other words, in enacting § 203(a)(1)(B) Congress may have
intended to limit the President’s power over transactions in property to
property in which there was a foreign interest; if so, Congress would
not have intended the President to use his authority over transactions in
foreign exchange to circumvent that limitation. For these reasons, we
have substantial doubt about the President’s authority under the IEEPA
to regulate transactions in oil that is located abroad but entirely owned
by American companies. To the extent that the reasons for regulating
such transactions are related to the fact that the transactions involve
foreign exchange, the argument that § 203(a)(l)(A)(i) grants the Presi
dent authority to regulate them is enhanced. On the facts as known to
us, however, it is difficult to discern such a relationship.
Finally, it can be argued that while § 203(a)(1)(B) authorizes the
President to “direct and compel . . . [the] acquisition” of oil in which
there is a foreign interest, the foreign interest disappears as soon as an
American company acquires the oil, and the President loses his power
to direct the oil to a destination or otherwise to control its sale. For
several reasons, we believe this argument is incorrect. As far as the text
of the Act is concerned, the President has the power to “regulate” the
acquisition of the oil; this suggests that he may order that it not be
acquired unless it will be shipped to the destination he has designated.
In addition, the President may “regulate [or] direct and compel . . .
any . . . use, transfer, . . . transportation . . . dealing in . . . or trans
actions involving” property in which there is a foreign interest. By
within a foreign nation but w holly ow ned by an A m erican corporation, at least when the purpose of
the regulation is not to disrupt the foreign nation’s econom y. See a/so Permian Basin Area Rate Cases,
390 U.S. 747, 777, 780 (1968).
298
requiring oil to be shipped from one foreign country to another, the
President appears to be simply regulating or directing a transfer, trans
portation, or dealing in the oil. Moreover, the President may “regulate,
direct and compel, nullify, void, prevent or prohibit, any . . . dealing
in, or exercising any right, power, or privilege with respect to” oil in
which there is a foreign interest. We believe the President may, under
this authority, order American companies to obligate any oil they can
obtain from a foreign nation or national to other countries. These are
riot merely strained textual arguments designed to give the President
control over essentially domestic transactions. The fact that the oil
involved has a foreign origin may be significant, not adventitious. For
example, the President may determine that precisely because the United
States is a leading consumer of oil from other nations, it must make a
special effort to aid its allies.
II. Section 232(b) of the Trade Expansion Act
Section 232(b) of the Trade Expansion Act, 19 U.S.C. § 1862(b),
appears to permit the President to respond to an Iranian oil cutoff by
imposing a quota on oil imports into the United States. The effect of
such a quota would depend on market conditions, but it would prob
ably free additional supplies for our allies to purchase. The legal objec
tions to this approach can be answered; the practical problems may be
more serious.
Section 232(b) authorizes the President to “take such action, and for
such time, as he deems necessary to adjust the imports of [an] article
and its derivatives so that such imports will not threaten to impair the
national security.” The President can make such an adjustment if the
Secretary of Commerce—formerly the Secretary of the Treasury, see
Reorganization Plan No. 3 of 1979, § 5(a)(1)(B), 93 Stat. 1381—con
ducts an investigation and finds that an article “is being imported into
the United States in such quantities or under such circumstances as to
threaten to impair the national security.” In March 1979, the Secretary
of the Treasury completed such an investigation and concluded that
imports of crude oil and oil products into the United States threatened
to impair the national security.5 See 44 Fed. Reg. 18,818 (1979). It is
5 While this finding did not, of course, anticipate the Iranian oil cutoff w ith w hich w e are now
concerned, it did emphasize the risks of depending on oil from countries w ith w hich the United States
m ight have “political disagreement[s]" and the unreliability o f oil supplies from those nations. It even
mentioned the Iranian revolutionary regim e’s reductions in oil shipments as an example. See 44 Fed.
Reg. 18,818, 18,820 (1979). M oreover, in 1975 the A ttorney G eneral issued an opinion that a finding
made in 1959 continued to authorize im port adjustm ents by the President. He said that no new finding
was necessary in 1975, even though there had been a "drastic change from the factual situation w hich
provided the basis of the 1959 finding," and even though, shortly before he issued his opinion, the
authority to make such a finding had been transferred from the D irector o f the Office o f Em ergency
Planning to the Secretary of the Treasury, see Pub. L. No. 93-618, § 127(d), 88 Stat. 1993 (1975). 43
Op. A tt’y Gen. No. 3 at p. 2 (1975). T he A ttorney G eneral reasoned that the President’s § 232(b)
pow er to take “such action . . . as he deems necessary’’ to adjust im ports is authority to take not just
C o n iin u e d
299
clear that the President’s power to “adjust” imports includes the power
to impose an import quota. See Federal Energy Administration v.
Algonquin SNG, Inc., 426 U.S. 548, 561, 571 (1975).
We understand, however, that the President wishes to divert oil
primarily to deal with the foreign policy consequences of an Iranian
cutoff. It might be argued that it is inconsistent with Congress’ inten
tions to use § 232(b) to deal with the foreign policy implications of
imports. The language of the statute and its legislative history suggest
that Congress expected § 232(b) to be used primarily to protect domes
tic industries or, more generally, to deal with the domestic conse
quences of imports. See, e.g., § 232(c), 19 U.S.C. § 1862(c). It may be,
however, that an Iranian oil cutoff would threaten instability in Ameri
can domestic markets as well as in world markets, and that a reasonable
method of preventing this instability would be to limit imports; in this
way the cutoff might be justified as a measure to aid the domestic
economy. We do not know whether the facts support this view. More
fundamentally, however, while Congress clearly focused on the domes
tic effects of imports, it did not explicitly limit the President to consid
ering only domestic effects. Instead, it used the term “national secu
rity,” which ordinarily comprises matters of foreign policy. Congress
did not attempt affirmatively to exclude this aspect of the normal
meaning of “national security.” Since Congress used the term “national
security,” we believe that the President has the authority to consider all
the aspects of national security—including foreign policy—when he
adjusts imports under § 232(b).
The practical problems may be more difficult to solve. Section 232(b)
allows the President to “adjust . . . imports.” It is difficult to construe
this as authority to order the holders of oil to do a particular thing with
the oil they cannot import. Consequently, § 232(b) does not give the
President direct control over the oil diverted from the United States; it
is subject to the vagaries of the market. This may be an inefficient, or
even ineffective, way of supplying the needs of our allies.
a single measure but continuing course of action, “a continuing process of m onitoring and modifying
the im port restrictions, as their limitations becom e apparent and their effects changed.” Id. Courts
enforced restrictions w hich the President imposed as late as 1968, even though the restrictions w ere
based on the 1959 findings; the courts did not seem to doubt that those findings adequately supported
the President’s action. See, e.g., G ulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C. Cir. 1970).
T he A ttorney G eneral’s opinion did not com m ent on the transfer of the function. It seems
reasonable to conclude, how ever, that if the findings can survive the passage o f 16 years and a ‘‘drastic
change" in circum stances, they can also survive a transfer of functions within an administration.
Indeed, earlier this year the President imposed a G asoline Conservation Fee, see Pres. Proc. No. 4744,
45 Fed. Reg. 22,864 (1980), rescinded by Pres. Proc. No. 4766, 45 Fed. Reg. 41,899 (1980), partly on
the authority of § 232(b) and the M arch, 1979, findings o f the Secretary o f the Treasury. F or these
reasons, w e believe that the M arch, 1979, findings will support an im port quota imposed by the
President to deal w ith an Iranian oil cutoff. O f course, if circum stances and the applicable regulations,
see § 232(d), 19 U.S.C. § 1862(d), perm it, it may be m ore prudent to have the Secretary o f Com m erce
make a new investigation and enter the finding appropriate to an im port quota designed to respond to
an Iranian oil cutoff.
300
III. The International Energy Program
The Agreement on an International Energy Program, 27 U.S.T. 1685,
Nov. 18, 1974, T.I.A.S. No. 8278, is designed to share the effects of oil
shortages among the nations participating in the agreement. The United
States and the allies who would be most affected by an Iranian oil
cutoff are participants. Certain of the participants’ obligations take
effect if the total imports of all the participating nations fall more than
7 percent from the previous year, or if any one nation’s available oil
supplies fall more than 7 percent. Specifically, each participant is then
obligated to reduce its demand for oil by 7 percent from the previous
year and share its savings among the other participants. Under § 251(a)
of the Energy Policy and Conservation Act, the President has the
power to issue regulations “requiring] that persons engaged in produc
ing, transporting, refining, distributing, or storing petroleum products,
take such action as he determines to be necessary for implementation of
the obligations of the United States under . . . the international energy
program insofar as such obligations relate to the international allocation
of petroleum products.” 42 U.S.C. § 6271(a). We are advised that such
regulations already exist. See 10 C.F.R. § 218.1-218.43.
We understand, however, that the United States has already reduced
its consumption of oil by more than 7 percent from last year. If this is
true, then even if other nations’ oil supplies fell sharply, the United
States would apparently have no further obligations under the Pro
gram, and § 251(a) would not grant the President authority to order
redistributions of. oil.6 For this reason, the International Energy Pro
gram seems an unlikely source of authority for dealing with an Iranian
oil cutoff.
J o h n M. H a r m o n
Assistant Attorney General
Office of Legal Counsel
6 A rticle 22 of the Agreem ent provides that:
T he G overning Board may at any time decide by unanimity to activate any appropri
ate em ergency measures not provided for in this A greem ent, if the situation so
requires.
T he G overning Board is com posed of members from each participating country. A rticle 50, § 1.
M easures adopted by the Board in this way may impose on the United States additional “obligations'*
w ithin the meaning of § 251(a) o f the Energy Policy and C onservation A ct, although it might be
argued that since the United States can veto such a measure, it cannot be said to impose an obligation.
301 |
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Write a legal research memo on the following topic. | Diverting Oil Imports to United States Allies
The International Em ergency Econom ic Powers Act would authorize the President, in
order to deal with an Iranian cutoff of oil to United States allies, to require American
oil companies and foreign entities they control to ship oil they acquire abroad to
certain specified nations and in certain specified quantities. W hile there must be a
"foreign interest” in the oil for the President to invoke lE E P A ’s powers, foreign
interest unassociated with the nation that is creating the em ergency would be sufficient.
Section 232(b) of the T rade Expansion Act would allow the President to impose a quota
on oil imports for national security reasons, including reasons relating to foreign policy
considerations; however, it would not give him power to direct the diversion o f oil
imports to other countries.
January 12, 1981
MEMORANDUM OPINION FOR
THE ASSOCIATE ATTORNEY GENERAL
Iran may end or reduce exports of its oil to some of our allies who
are heavily dependent on Iranian oil. You have asked us whether the
President has authority to divert to those allies shipments of foreign oil
that would otherwise be imported into the United States. We believe
the President has this authority over at least some such shipments.
There are several possible sources of authority; the International Emer
gency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 (Supp. I
1977), seems the clearest and most appropriate.
I. The International Emergency Economic Powers Act
We believe that the IEEPA empowers the President, in dealing with
a declared national emergency, to require American oil companies and
entities they control to sell any oil they acquire or can acquire
abroad—except perhaps oil the company itself already owns, free of all
foreign rights—and to sell it only to nations specified by the President
and in quantities the President specifies. If the President enters such an
order to deal with the Iranian hostage crisis, or the emergency declared
in connection with the Soviet invasion of Afghanistan, he need not
declare another national emergency. If the need to divert oil shipments
arises from a separate emergency, that emergency should be declared. 1
'W e w ould alert you lo Congress* injunction that “emergencies are by their nature rare and brief,
and are not to be equated w ith normal, ongoing problems. A national em ergency should be declared
C o n tin u e d
295
Section 203(a)(1)(B) of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), author
izes the President, in dealing with a national emergency, to:
investigate, regulate, direct and compel, nullify, void, pre
vent or prohibit, any acquisition, holding, withholding,
use, transfer, withdrawal, transportation, importation or
exportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions in
volving, any property in which any foreign country or a
national thereof has any interest;
by any person, or with respect to any property, subject to the
jurisdiction of the United States.
On its face this provision appears to give the President power to
require American companies, and foreign entities they control,2 to
ship oil they acquire abroad to certain other nations and in certain
quantities.
The principal difficulty with the President’s using this power is that it
is unclear whether all oil acquired abroad by American companies is
“property in which [a] foreign country or a national thereof has any
interest.” Some oil is owned by a foreign nation or foreign national but
can be acquired by an American company; this is plainly property in
which there is a foreign interest, at least until after the time it is
acquired. Since “any” interest will suffice, we believe that oil in which
a foreign nation or national has a contract right—for example, a right
to refuse to allow the oil to be shipped unless a certain royalty is paid—
is also subject to the President’s power.
Because the United States is not now importing oil from Iran, the
foreign interest will not be that of Iran, and will probably not be that of
an Iranian national; it may be argued that § 203(a)(1)(B) does not reach
property in which the only foreign interest is unassociated with the
nation that is the cause of the emergency. We do not believe this
argument is correct, however. Section 203(a)(1)(B) refers to “any for
eign country or a national thereof” (emphasis added), and the legisla
tive history of the IEEPA suggests that the principal reason for the
foreign interest limitation was to prevent the President from regulating
“domestic” transactions, see, e.g., H.R. Rep. No. 459, 95th Cong., 1st
and em ergency authorities em ployed only w ith respect to a specific set o f circum stances which
constitute a real em ergency, and for no other purpose. T he em ergency should be term inated in a
timely m anner w hen the factual state o f em ergency is over and not continued in effect for use in other
circum stances. A state o f national em ergency should not be a norm al state o f affairs.” H.R. Rep. No.
459, 95th Cong., 1st Sess. 10 (1977).
2 A m erican corporations are clearly subject to the jurisdiction o f the United States. See Restate
ment (Second) of Foreign Relations Law o f the United States, §§27, 30 (1965). Foreign entities they
control may also be, although they may be subject to the com peting jurisdiction of the foreign
country. In addition, § 203(a)(1)(B) perm its the President to “ regulate, [or] direct and com pel, . . .
[the] exercising [of] any right, pow er, or privilege w ith respect to . . . any [foreign] property.” We
believe this authorizes the President to require an A m erican com pany to exercise its control over
foreign entities in the w ay the President directs, at least w hen the direction furthers the purposes of
other regulations imposed under the IE E P A .
296
Sess. 11 (1977), not to limit the foreign nations whose interests might be
affected. Moreover, Congress probably expected the IEEPA to be used
for emergencies—international monetary disorders, for example—that
do not originate in any single country. Similarly, a diversion of oil
imports might be an effort to coordinate our international trade in a
way that serves the economic and political objectives the President is
pursuing in dealing with a declared emergency. If it were, we believe
that it would be the sort of action Congress expected the President to
take under the IEEPA.
Some oil located abroad may be entirely owned by an American
corporation and not subject to any foreign nation’s or national’s prop
erty or contract rights.3 It is much more difficult to conclude that there
is a foreign interest in this oil. It seems unlikely, although perhaps
arguable, that a nation’s ability to tax a quantity of oil, seize it or
prevent its shipment by asserting eminent domain, and otherwise exert
jurisdiction over it, constitute an “interest” in the oil. Some courts have
suggested that a foreign nation has an “interest”—within the meaning
of § 5(b) of the Trading with the Enemy Act, the predecessor of the
IEEPA—in any item it exports. Those courts reasoned that by selling
its products abroad a nation helps “to sustain its internal economy and
provide it with foreign exchange.” See United States v. Broverman, 180
F. Supp. 631, 636 (S.D.N.Y. 1959); Heaton v. United States, 353 F.2d
288, 291-92 (9th Cir. 1965). But we have substantial doubt that this is a
sufficiently direct interest to permit regulation under § 203(a)(1)(B) of
the IEEPA, at least if the object of the regulation is not to disrupt a
nation’s internal economy or deprive it of foreign exchange.4
3 W e express no opinion on the extent to w hich American corporations' acquisitions o f oil from
foreign nations may be regulated retroactively under the IEE PA .
4W e have these doubts for several reasons. First, the language of § 203(a)(1)(B) suggests that the
term “interest” should not be interpreted in a way that has no connection to its usual legal meaning.
Section 203(a)(1)(B) refers to property in w hich a “foreign country or a national thereof has any
interest” (emphasis added); this may suggest that the drafters intended to reach only those kinds of
interests of foreign nations which could also be held by individuals. M oreover, in describing the
President’s powers, § 203(a)(1)(B) uses highly inclusive language—“investigate, regulate, direct and
compel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer [etc.]” —
that was evidently intended to cover a wide variety of possible actions. Section 203(a)(1)(B) does not
use com parably inclusive language in describing the range o f foreign interests covered. This may
suggest that the drafters o f the IEE PA did not intend the term '‘interest” to be extraordinarily
inclusive. In ordinary legal usage, a nation would not have an “ interest” in a piece of property unless
it owned it or had an indirect, partial, contingent, or future interest in it, or a contract right to it; one
would not ordinarily say that a nation had an “interest” in all the property located w ithin its borders.
Second, Congress clearly intended that the President not use the IE E P A to regulate “w holly
dom estic” transactions. See, e.g., H.R. Rep. No. 459, 95th C ong., 1st Sess. 11 (1977). W e recognize that
§ 203(a)(1)(B), enacted as part of the IE E P A in 1977, contains the same language as § 5(b) of the
Trading with the Enem y A ct; the cases cited in the text interpreted this language. C ongress presum
ably knew o f these cases when it enacted § 203(a)(1)(B) in this form. But if w e w ere to adopt the
broadest possible interpretation of these cases—that a nation has an “interest” in property, within the
meaning of § 203(a)(1)(B), w henever transactions in that property can have an im portant effect on its
econom y —we would, allow the President to regulate w holly domestic transactions, in violation of
C ongress’ clear intentions; foreign countries' econom ies may be substantially affected by w holly
dom estic American transactions. We see no other principled interpretation o f the term “foreign . . .
interest” in § 203(a)(1)(B) that would allow the President to regulate transactions in oil that is located
C o n tin u e d
297
The President may be able to reach transactions in American-owned
oil located abroad under a different provision of the IEEPA,
§ 203(a)(l)(A)(i), 50 U.S.C. § 1702(a)(l)(A)(i). That provision authorizes
the President, in dealing with a national emergency, to “investigate,
regulate, or prohibit . . . any transactions in foreign exchange . . . by
any person, or with respect to any property, subject to the jurisdiction
of the United States.” An American company which owned oil located
abroad would presumably have to deal in foreign exchange in order to
sell the oil; the foreign exchange transactions associated with such sales
might be regulated in a way that compelled the company to comply
with the President’s directions. While this provision of the IEEPA on
its face seems to permit such regulation, some substantial objections can
be raised. Arguably, Congress envisioned that the § 203(a)(l)(A)(i) au
thority to regulate transactions in foreign exchange would be invoked
only where the President’s concern was with the use of foreign ex
change in the transaction. Congress probably did not intend the Presi
dent to take advantage of the fact that foreign exchange was involved
solely as a means of reaching transactions that he otherwise could not
regulate. In other words, in enacting § 203(a)(1)(B) Congress may have
intended to limit the President’s power over transactions in property to
property in which there was a foreign interest; if so, Congress would
not have intended the President to use his authority over transactions in
foreign exchange to circumvent that limitation. For these reasons, we
have substantial doubt about the President’s authority under the IEEPA
to regulate transactions in oil that is located abroad but entirely owned
by American companies. To the extent that the reasons for regulating
such transactions are related to the fact that the transactions involve
foreign exchange, the argument that § 203(a)(l)(A)(i) grants the Presi
dent authority to regulate them is enhanced. On the facts as known to
us, however, it is difficult to discern such a relationship.
Finally, it can be argued that while § 203(a)(1)(B) authorizes the
President to “direct and compel . . . [the] acquisition” of oil in which
there is a foreign interest, the foreign interest disappears as soon as an
American company acquires the oil, and the President loses his power
to direct the oil to a destination or otherwise to control its sale. For
several reasons, we believe this argument is incorrect. As far as the text
of the Act is concerned, the President has the power to “regulate” the
acquisition of the oil; this suggests that he may order that it not be
acquired unless it will be shipped to the destination he has designated.
In addition, the President may “regulate [or] direct and compel . . .
any . . . use, transfer, . . . transportation . . . dealing in . . . or trans
actions involving” property in which there is a foreign interest. By
within a foreign nation but w holly ow ned by an A m erican corporation, at least when the purpose of
the regulation is not to disrupt the foreign nation’s econom y. See a/so Permian Basin Area Rate Cases,
390 U.S. 747, 777, 780 (1968).
298
requiring oil to be shipped from one foreign country to another, the
President appears to be simply regulating or directing a transfer, trans
portation, or dealing in the oil. Moreover, the President may “regulate,
direct and compel, nullify, void, prevent or prohibit, any . . . dealing
in, or exercising any right, power, or privilege with respect to” oil in
which there is a foreign interest. We believe the President may, under
this authority, order American companies to obligate any oil they can
obtain from a foreign nation or national to other countries. These are
riot merely strained textual arguments designed to give the President
control over essentially domestic transactions. The fact that the oil
involved has a foreign origin may be significant, not adventitious. For
example, the President may determine that precisely because the United
States is a leading consumer of oil from other nations, it must make a
special effort to aid its allies.
II. Section 232(b) of the Trade Expansion Act
Section 232(b) of the Trade Expansion Act, 19 U.S.C. § 1862(b),
appears to permit the President to respond to an Iranian oil cutoff by
imposing a quota on oil imports into the United States. The effect of
such a quota would depend on market conditions, but it would prob
ably free additional supplies for our allies to purchase. The legal objec
tions to this approach can be answered; the practical problems may be
more serious.
Section 232(b) authorizes the President to “take such action, and for
such time, as he deems necessary to adjust the imports of [an] article
and its derivatives so that such imports will not threaten to impair the
national security.” The President can make such an adjustment if the
Secretary of Commerce—formerly the Secretary of the Treasury, see
Reorganization Plan No. 3 of 1979, § 5(a)(1)(B), 93 Stat. 1381—con
ducts an investigation and finds that an article “is being imported into
the United States in such quantities or under such circumstances as to
threaten to impair the national security.” In March 1979, the Secretary
of the Treasury completed such an investigation and concluded that
imports of crude oil and oil products into the United States threatened
to impair the national security.5 See 44 Fed. Reg. 18,818 (1979). It is
5 While this finding did not, of course, anticipate the Iranian oil cutoff w ith w hich w e are now
concerned, it did emphasize the risks of depending on oil from countries w ith w hich the United States
m ight have “political disagreement[s]" and the unreliability o f oil supplies from those nations. It even
mentioned the Iranian revolutionary regim e’s reductions in oil shipments as an example. See 44 Fed.
Reg. 18,818, 18,820 (1979). M oreover, in 1975 the A ttorney G eneral issued an opinion that a finding
made in 1959 continued to authorize im port adjustm ents by the President. He said that no new finding
was necessary in 1975, even though there had been a "drastic change from the factual situation w hich
provided the basis of the 1959 finding," and even though, shortly before he issued his opinion, the
authority to make such a finding had been transferred from the D irector o f the Office o f Em ergency
Planning to the Secretary of the Treasury, see Pub. L. No. 93-618, § 127(d), 88 Stat. 1993 (1975). 43
Op. A tt’y Gen. No. 3 at p. 2 (1975). T he A ttorney G eneral reasoned that the President’s § 232(b)
pow er to take “such action . . . as he deems necessary’’ to adjust im ports is authority to take not just
C o n iin u e d
299
clear that the President’s power to “adjust” imports includes the power
to impose an import quota. See Federal Energy Administration v.
Algonquin SNG, Inc., 426 U.S. 548, 561, 571 (1975).
We understand, however, that the President wishes to divert oil
primarily to deal with the foreign policy consequences of an Iranian
cutoff. It might be argued that it is inconsistent with Congress’ inten
tions to use § 232(b) to deal with the foreign policy implications of
imports. The language of the statute and its legislative history suggest
that Congress expected § 232(b) to be used primarily to protect domes
tic industries or, more generally, to deal with the domestic conse
quences of imports. See, e.g., § 232(c), 19 U.S.C. § 1862(c). It may be,
however, that an Iranian oil cutoff would threaten instability in Ameri
can domestic markets as well as in world markets, and that a reasonable
method of preventing this instability would be to limit imports; in this
way the cutoff might be justified as a measure to aid the domestic
economy. We do not know whether the facts support this view. More
fundamentally, however, while Congress clearly focused on the domes
tic effects of imports, it did not explicitly limit the President to consid
ering only domestic effects. Instead, it used the term “national secu
rity,” which ordinarily comprises matters of foreign policy. Congress
did not attempt affirmatively to exclude this aspect of the normal
meaning of “national security.” Since Congress used the term “national
security,” we believe that the President has the authority to consider all
the aspects of national security—including foreign policy—when he
adjusts imports under § 232(b).
The practical problems may be more difficult to solve. Section 232(b)
allows the President to “adjust . . . imports.” It is difficult to construe
this as authority to order the holders of oil to do a particular thing with
the oil they cannot import. Consequently, § 232(b) does not give the
President direct control over the oil diverted from the United States; it
is subject to the vagaries of the market. This may be an inefficient, or
even ineffective, way of supplying the needs of our allies.
a single measure but continuing course of action, “a continuing process of m onitoring and modifying
the im port restrictions, as their limitations becom e apparent and their effects changed.” Id. Courts
enforced restrictions w hich the President imposed as late as 1968, even though the restrictions w ere
based on the 1959 findings; the courts did not seem to doubt that those findings adequately supported
the President’s action. See, e.g., G ulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C. Cir. 1970).
T he A ttorney G eneral’s opinion did not com m ent on the transfer of the function. It seems
reasonable to conclude, how ever, that if the findings can survive the passage o f 16 years and a ‘‘drastic
change" in circum stances, they can also survive a transfer of functions within an administration.
Indeed, earlier this year the President imposed a G asoline Conservation Fee, see Pres. Proc. No. 4744,
45 Fed. Reg. 22,864 (1980), rescinded by Pres. Proc. No. 4766, 45 Fed. Reg. 41,899 (1980), partly on
the authority of § 232(b) and the M arch, 1979, findings o f the Secretary o f the Treasury. F or these
reasons, w e believe that the M arch, 1979, findings will support an im port quota imposed by the
President to deal w ith an Iranian oil cutoff. O f course, if circum stances and the applicable regulations,
see § 232(d), 19 U.S.C. § 1862(d), perm it, it may be m ore prudent to have the Secretary o f Com m erce
make a new investigation and enter the finding appropriate to an im port quota designed to respond to
an Iranian oil cutoff.
300
III. The International Energy Program
The Agreement on an International Energy Program, 27 U.S.T. 1685,
Nov. 18, 1974, T.I.A.S. No. 8278, is designed to share the effects of oil
shortages among the nations participating in the agreement. The United
States and the allies who would be most affected by an Iranian oil
cutoff are participants. Certain of the participants’ obligations take
effect if the total imports of all the participating nations fall more than
7 percent from the previous year, or if any one nation’s available oil
supplies fall more than 7 percent. Specifically, each participant is then
obligated to reduce its demand for oil by 7 percent from the previous
year and share its savings among the other participants. Under § 251(a)
of the Energy Policy and Conservation Act, the President has the
power to issue regulations “requiring] that persons engaged in produc
ing, transporting, refining, distributing, or storing petroleum products,
take such action as he determines to be necessary for implementation of
the obligations of the United States under . . . the international energy
program insofar as such obligations relate to the international allocation
of petroleum products.” 42 U.S.C. § 6271(a). We are advised that such
regulations already exist. See 10 C.F.R. § 218.1-218.43.
We understand, however, that the United States has already reduced
its consumption of oil by more than 7 percent from last year. If this is
true, then even if other nations’ oil supplies fell sharply, the United
States would apparently have no further obligations under the Pro
gram, and § 251(a) would not grant the President authority to order
redistributions of. oil.6 For this reason, the International Energy Pro
gram seems an unlikely source of authority for dealing with an Iranian
oil cutoff.
J o h n M. H a r m o n
Assistant Attorney General
Office of Legal Counsel
6 A rticle 22 of the Agreem ent provides that:
T he G overning Board may at any time decide by unanimity to activate any appropri
ate em ergency measures not provided for in this A greem ent, if the situation so
requires.
T he G overning Board is com posed of members from each participating country. A rticle 50, § 1.
M easures adopted by the Board in this way may impose on the United States additional “obligations'*
w ithin the meaning of § 251(a) o f the Energy Policy and C onservation A ct, although it might be
argued that since the United States can veto such a measure, it cannot be said to impose an obligation.
301 |
|
Write a legal research memo on the following topic. | Authority of the Special Counsel, Merit Systems Protection
Board, Over Anonymous Allegations of Wrongdoing
Anonymous complaints do not trigger the statutory scheme by which the Office of the
Special Counsel (OSC), Merit Systems Protection Board, investigates allegations of
wrongdoing within an agency; however, such complaints may be forwarded to the
head o f the affected agency by the OSC in its discretion, to be dealt w ith by the
agency.
July 1, 1981
M EM ORANDUM OPIN IO N FO R T H E SPECIA L COUNSEL,
M ER IT SYSTEMS PR O TEC TIO N BOARD
This responds to your inquiry whether the Office of the Special
Counsel (OSC), Merit Systems Protection Board, has the statutory
authority to forward anonymous allegations of wrongdoing to the
heads of the affected agencies,1 pursuant to 5 U.S.C. § 1206(b)(2).2 For
‘This question arose because of our earlier opinion that OSC may only forward complaints
received from federal employees. Memorandum Opinion for the General Counsel, Nuclear Regulatory
Commission, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel,
March 13, 1981. [ N o t e : The March 13, 1981, Memorandum Opinion appears in this volume at p .77
supra Ed.]
2 Section 1206(bXl) and (2) of Title 5, United States Code, states:
(1) In any case involving—
(A) any disclosure of information by an employee or applicant for employment
which the employee or applicant reasonably believes evidences—
(i) a violation of any law, rule, or regulation; or
(ii) mismanagement, a gross waste of funds, an abuse o f authonty, o r a substantial
and specific danger to public health or safety,
if the disclosure ts not specifically prohibited by law and if the information is not
specifically required by Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs, or
(B) a disclosure by an employee or applicant for employment to the Special
Counsel o f the Merit Systems Protection Board, or to the Inspector General o f an
agency or another employee designated by the head of the agency to receive such
disclosures o f information which the employee or applicant reasonably believes
evidences—
(1) a violation of any law, rule or regulation; or
(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety;
the identity of the employee or applicant may not be disclosed without the consent
o f the employee or applicant during any investigation under subsection (a) of this
section or under paragraph (3) of this subsection, unless the Special Counsel deter
mines that the disclosure of the identity of the employee or applicant is necessary in
order to carry out the functions of the Special Counsel.
(2) W henever the Special Counsel receives information o f the type described in
paragraph (1) of this subsection, the Special Counsel shall promptly transmit such
information to the appropriate agency head.
215
reasons stated hereafter, w e do not believe that the statute was intended
to cover such material and we therefore conclude that the material may
not be forw arded as (b)(2) material. Such material may be forwarded to
afTected agencies, however, without the provision of (b)(2) being trig
gered.
Forw arding information pursuant to (b)(2) triggers an elaborate statu
tory scheme. OSC may require an agency to conduct an investigation
and submit a detailed written report within 60 days. 5 U.S.C.
§ 1206(b)(3)(A), (4), 5 C.F.R. § 1252.2 (1980). This report must be
submitted to Congress, the President and the Special Counsel, 5 U.S.C.
§ 1206(b)(5)(A), and possibly the Office of Management and Budget.
Even if OSC does not require an investigation, the head of the agency
must make a written report within 60 days regarding action taken. Id.,
§ 1206(b)(7), 5 C.F.R. § 1252.3 (1980). Failure to file reports may be
reported to Congress and the President. 5 U.S.C. § 1206(b)(5)(A). This
scheme was designed to encourage federal workers to “blow the whis
tle” if they suspect the existence of wrongdoing in their agency. See
124 Cong. Rec. 27,548, 27,569-72, 34,100, 25,727-28 (1978). It was
meant both to protect them from reprisals by setting up stringent
safeguards to protect their identity, see 5 U.S.C. § 1206(b)(8), 5 C.F.R.
§ 1250.3(c) and App. I (1980), and to assure them that their complaints
would be looked into seriously by requiring mandatory reports from
the agencies. Permitting individuals who are unwilling to give their
names, even with these statutory protections, to trigger these provisions
would not only consume the finite resources of OSC and the agencies
but would also turn the law into w hat its sponsors explicitly said it was
not—“ an open invitation to any disgruntled Federal employee . . . to
make false allegations o f wrongdoings by a Federal agency.” 124 Cong.
Rec. 27,572 (1978) (remarks of Sen. Dole).
W e believe that the statute requires the identification o f the com
plainant in order to effect several purposes. First, identification ensures
that the complainant is “ an employee or applicant for employment” as
required by the statute. 5 U.S.C. § 1206(b)(1)(A), (B). See also 5 U.S.C.
§ 1206(b)(3)(B). Second, it allows the Special Counsel to solicit addi
tional information, if necessary, from the complainant when determin
ing w hether there is a “substantial likelihood” that the information
discloses a violation o f the law and thus to eliminate the drain of
investigating fraudulent or frivolous claims. Third, it permits the Spe
cial Counsel to comply with the mandate of the statute that he “sh a ir
inform the complainant of the agency’s report on its investigation or
action. 5 U.S.C. § 1206(b)(5)(A), (7) (emphasis added).
This is not to say that OSC must ignore anonymous complaints.
Nothing in the statute forbids OSC from forwarding such complaints to
an agency—the statute only precludes them being sent as official (b)(2)
216
material.3 Therefore, while anonymous information should not be for
warded pursuant to 5 U.S.C. § 1206(b)(2), and reports on it should not
be required pursuant to 5 U.S.C. § 1206(b)(3) and (7), the information
may be forwarded at OSC’s discretion—and dealt with at the agency’s
discretion—in order to identify possible problems.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
3 In addition, OSC is empowered to investigate possible prohibited personnel practices, even in the
absence of an allegation, 5 U.S.C. § 1206(a)(3), and several other classes of improper conduct, 5 U S.C.
§ 1206(e), 5 C F.R § 1251 1(b), (c), regardless of the source. |
|
Write a legal research memo on the following topic. | History of Refusals by Executive Branch Officials to
Provide Information Demanded by Congress
[The follow ing two m em oranda, prepared by the Office of Legal Counsel at the request of the
Attorney G eneral, describe instances since the founding of the Republic in w hich officials in the
Executive Branch have refused to disclose inform ation o r produce docum ents requested by
Congress. T he first m em orandum , dated D ecem ber 14, 1982, sets forth exam ples of situations in
which a President has personally directed that inform ation be w ithheld, relying on the doctrine of
executive privilege. T he second m em orandum , dated January 27, 1983, docum ents incidents
w here the Attorney G eneral or som e other executive official refused to provide inform ation or
d o cu m en ts to C o n g ress in situations involving law en fo rc em en t, security, o r p ersonnel
investigations. . . .]
PART I— Presidential Invocations of Executive Privilege
Vis-a-Vis Congress
December 14, 1982
MEMORANDUM FOR THE ATTORNEY GENERAL
This memorandum briefly describes those incidents in which a President
personally directed the withholding of information from Congress.1Included are
incidents in which a President found it necessary to withhold specific documents
or information, as well as general directives of a President concerning the
withholding of information from Congress.
No effort has been made to catalogue the numerous instances in which
information was withheld from Congress by executive officers other than the
President; nor does this survey discuss the countless examples of full disclosure
by the Executive. The objective of the memorandum is neither to show how
frequently the Executive Branch has refused congressional requests for informa
tion, nor to demonstrate how often an accommodation between the branches has
been achieved. Rather, the memorandum seeks to show that presidentially
1 Although an attempt has been made to be as thorough as possible, no claim is made that the following list is
comprehensive. In this regard, we note Deputy Assistant Attorney General Mary Lawton’s statement in a
memorandum to Rep. William S. Moorhead, dated Apr 25, 1973.
In response to your request . . I regret that it is not physically possible to furnish you with a
comprehensive list o f presidential refusals of information to Congress. To give you all of the
instances of such refusals since the beginning of the Republic would require an amount of historical
research which the Office of Legal Counsel lacks the resources for handling. In addition, there is a
categorization problem of distinguishing the relatively few instances of exercise of Executive
Privilege per se [i.e . a refusal to disclose by the President personally] from the many instances of
agreed accommodations . . for nonappearance of witnesses, nondisclosure or partial disclosure.
751
mandated refusals to disclose information to Congress—though infrequent— are
by no means unprecedented acts of this or any other Administration.
1. Washington Administration
St. C lair Incident
On March 27, 1792, the House of Representatives established a congressional
committee to investigate the failure of General St. Clair’s military expedition
against the Indians. The House authorized the committee “ to call for such
persons, papers, and records, as may be necessary to assist their inquiries.” 2
The committee subsequently asked the President for those papers pertaining to
the St. Clair campaign. Since this was the first occasion in which Congress had
established a committee to investigate the performance of the Executive and had
authorized it to request documents from the President, and wishing “ that so far as
it should become a precedent, it should be rightly conducted,” 3 President
Washington held a meeting with his Cabinet, attended by Jefferson, Hamilton,
Randolph and Knox. Jefferson described the conclusions reached by the Nation’s
first Cabinet:
We had all considered, and were of one mind, first, that the House
was an inquest, and therefore might institute inquiries. Second,
that it might call for papers generally. Third, that the Executive
ought to communicate such papers as the public good would
perm it, and ought to refuse those, the disclosure c f which would
injure the public: consequently were to exercise a discretion.
Fourth, that neither the committees nor House had a right to call
on the Head of a Department, who and whose papers were under
the President alone; but that the committee should instruct their
chairman to move the House to address the President.141
Although the Cabinet “agreed in this case, that there was not a paper which
might not be properly produced,” 5 the President apparently felt it advisable
nevertheless to negotiate with Congress a non-confrontational resolution of the
problem. Jefferson thereupon agreed to speak individually to members of the
House committee in orderto “bring them by persuasion into the right channel.” 6
Jefferson’s conciliation efforts were successful, for on April 4, 1792, the House
resolved,
that the President of the United States be requested to cause the
proper officers to lay before this House such papers of a public
2 3 Annals of Cong. 493 (1792)
3 1 The Writings of Thomas Jefferson 303 (Lipscomb ed , 1905).
4 Id. at 3 03-04 (emphasis added)
5 Id. at 305.
6 Id. See generally Younger, “Congressional Investigations and Executive Secrecy. A Study in the Separation c f
P o w e r s 20 U Pitt L Rev. 755 , 757 (1959).
752
nature, in the Executive Department, as may be necessary to the
investigation of the causes of the failure of the late expedition
under Major General St. Clair.171
Correspondence Involving United States Minister to France
In 1794, the Senate requested by resolution correspondence between the
United States Minister to France and the Republic of France, and between the
Minister and the State Department.8 President Washington submitted certain of
the correspondence requested, but withheld “ those particulars which, in my
judgment, for public considerations, ought not to be communicated.” 9
The Jay Treaty
On March 24, 1796, the House of Representatives requested by resolution that
the President disclose to the House his instructions to the United States Minister
who negotiated the Jay Treaty with Great Britain, along with correspondence and
documents relative to that Treaty. Implementation of the Treaty apparently
required an appropriation which the House was called upon to vote.10 President
Washington denied the House’s right to demand and receive any of the papers
requested. Though the President had provided “ all the papers affecting the
negotiation with Great Britain” to the Senate in the course of its deliberations on
the Treaty, Washington determined that the House had no legitimate claim to
those papers:
The nature of foreign negotiations requires caution; and their
success must often depend on secrecy; and even, when brought to
a conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or con
templated would be extremely impolitic: for this might have
pernicious influence on future negotiations; or produce immediate
inconveniences, perhaps danger and mischief, in relation to other
Powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making Treaties in the President
with the advice and consent of the Senate; the principle on which
the body was formed confining it to a small number of members.
Toadmit, then, aright in the House of Representatives to demand,
and to have, as a matter of course, all the papers respecting a
negotiation with a foreign Power, would be to establish a dan
gerous precedent.
7 3 Annals of Cong. 536 (1792) (emphasis added).
8 Senate Journal, 3d Cong , 1st Sess. 42 (1794).
9 1 J Richardson, Messages and F^pers of the Presidents 152 (1896)
10 See W. Binkley, President and Congress 53 -4 (3d rev. 1947).
753
Subsequently, the House debated Washington’s refusal for a full month, but
took no action." It is highly instructive, however, that during the debate Rep.
James Madison, although disagreeing with President Washington’s message in
some respects, acknowledged on the House floor,
that the Executive had a right, under a due responsibility, also, to
withhold information, when of a nature that did not permit a
disclosure of it at the time. And if the refusal of the President had
been founded simply upon a representation, that the state of the
business within his department, and the contents of the papers
asked for, required it, although he might have regretted the
refusal, he should have been little disposed to criticize it.1121
2. Adams Administration
D iplom atic M aterial Concerning United States Representatives to France
In 1798 the House of Representatives by resolution requested from the Presi
dent documents containing instructions to, and dispatches from, representatives
of the United States to France.13 On April 3, 1798, President Adams transmitted
some of that material to both Houses, but omitted “ some names and a few
expessions descriptive of the persons” involved.14
3. Jefferson Administration
The Burr Conspiracy
In January 1807, the House of Representatives by resolution requested that the
President
lay before this House any information in possession of the Ex
ecutive, except such as he may deem the public welfare to require
not to be disclosed, touching any illegal combination of private
individuals against the peace and safety of the Union, or any
military expedition planned by such individuals against the ter
ritories of any Power in amity with the United States; together
11 5 Annals o f Cong. 760 (1796); see id. at 426-783. The House did pass two resolutions, one declaring that the
House had authonty to consider the expediency of carrying a treaty into effect, the second that the House need not
state the purpose for which it required information from the Executive. See id. at 771, 782-83.
12 Id. at 773.
13 House Journal, 5th C ong., 2d Sess. 249 (1798).
14 1 Richardson, supra, at 265.
754
with the measures which the Executive has pursued and proposes
to take for suppressing or defeating the same.1'51
President Jefferson replied by detailing the activities of Aaron Burr, but declined
to mention the names of other alleged participants. Jefferson declared:
The mass of what I have received in the course of these transac
tions is voluminous, but little has been given under the sanction of
an oath so as to constitute formal and legal evidence. It is chiefly
in the form of letters, often containing such a mixture of rumors,
conjectures, and suspicions as renders it difficult to sift out the
real facts and unadvisable to hazard more than general outlines,
strengthened by concurrent information or the particular cred
ibility of the relator. In this state of the evidence, delivered
sometimes, too, under the restriction of private confidence, nei
ther safety nor justice will permit the exposing names, except that
of the principal actor, whose guilt is placed beyond question.1'61
4. Monroe Administration
Stewart Incident
In 1825, the House of Representatives requested by resolution that the Presi
dent provide the Congress with documents concerning charges against certain
naval officers, so far as he deemed such disclosure compatible with the public
interest.17 President Monroe refused to submit the documents, stating:
In consequence of several charges which have been alleged
against Commodore Stewart, touching his conduct while com
15 16 Annals of Cong. 336 (1806) (emphasis added). Professor Raoul Berger has argued that the exception clause
in the House resolution refutes any argument that Jefferson's subsequent withholding of documents was based on an
executive privilege R. BeTger, Executive Privilege: A Constitutional Myth 179-81 (1974) (descnbing Jefferson’s
explanation for withholding information as “ gratuitous” ). See also Cox, Executive Privilege, 122 U f t L. Rev.
1383, 1397-98 (1974) (arguing that those historical examples of executive withholding which are preceded by a
congressional authorization to withhold do not qualify as examples o f executive pnvilege) One could just as well
read the exception clause, however, as an early illustration of congressional recognition of the executive privilege.
See § 1, C , supra, note 19 infra.
Moreover, it is highly unlikely Jefferson actually relied upon the exception clause as the basis for withholding
information from the House, given the conclusions he reached while serving in President Washington’s Cabinet, see
§ 1, A, supra, and given the views he expressed in a letter to the United States District Attorney for Virginia, who
was then in charge of the Burr prosecution*
Reserving the necessary right o f the President of the U.S. to decide, independently c f all other
authority, what papers, coming to him as President, the public interests perm it to be communicated,
& to whom, I assure you of my readiness under that restriction, voluntanly to furnish . . whatever
the purposes of justice may require.
9 The W ntings of Thomas Jefferson 55 (P. Ford ed 1898) Professor Berger also fails to note other occasions on
which President Jefferson let it be known that he regarded himself free to withhold certain “ confidential”
information “ given for my information in the discharge of my executive functions, and which my duties & the
public interest forbid me to make public.” Id . at 63-64 (certificate to the court in Burr prosecution).
16 1 Richardson, supra, at 412
17 House Journal, 18th Cong , 2d Sess. 102-03 (1825).
755
manding the squadron of the United States [at] sea, it has been
deemed proper to suspend him from duty and to subject him to
trial on those charges. It appearing also that some of those charges
have been communicated to the Department by Mr. Prevost,
political agent at this time of the United States at Peru . . . and that
charges have likewise been made against him by citizens of the
United States engaged in commerce in that quarter, it has been
thought equally just and proper that he should attend here, as well
to furnish the evidence in his possession applicable to the charges
exhibited against Commodore Stewart as to answer such as have
been exhibited against himself.
In this stage the publication of those documents might tend to
excite prejudices which might operate to the injury of both. It is
important that the public servants in every station should perform
their duty with fidelity, according to the injunctions of the law and
the orders of the Executive in fulfillment thereof. It is peculiarly
so that this should be done by the commanders of our squadrons,
especially on distant seas, and by political agents who represent
the United States with foreign powers. . . . It is due to their rights
and to the character of the Government that they be not censured
without just cause, which cannot be ascertained until, on a view of
the charges, they are heard in their defense, and after a thorough
and impartial investigation of their conduct. Under these circum
stances it is thought that a communication at this time of those
documents would not comport with the public interest nor with
what is due to the parties concerned."81
5. Jackson Administration19
C orrespondence Between United States and the Republic c f Buenos Aires
On December 28, 1832, President Jackson refused to provide the House of
Representatives with the copies o f correspondence between the United States and
the Republic of Buenos Aires and instructions given to the United States charge
d ’affairs there, that it had requested. President Jackson replied that since negotia
18 2 Richardson, supra, at 278.
19 Former Columbia Law Professor and current Federal District Judge Abraham D. Sofaer has noted:
Available historical sources reveal that, although much information was provided voluntarily, all
Presidents from Washington to Jackson withheld large quantities of material, especially diplomatic
correspondence, from their voluntary transmittals. Congress frequently requested the information
thus withheld, and Presidents usually complied. Rar more often than not, requests for information on
sensitive issues contained qualifications authonzing the President to withhold material the disclosure
of which might prejudice the nation. Qualifications o f information requests dealing with such
important issues as the Burr conspiracy exemplify a tradition of legislative deference and trust,
surely worth considerable weight in the debate about the discretion inherently possessed by the
President.
Sofaer, Book Review, 88 Harv. L Rev 281, 289(1974) (reviewing R. Berger, Executive Privilege: A Constitutional
Myth)
756
tions with the Republic had only been suspended and not broken off, it would
“ not be consistent with the public interest to communicate the correspondence
and instructions requested by the House so long as the negotiation shall be
pending.” 20
Negotiations with Great Britain Over the Northeastern Boundary
In response to the Senate’s request for information regarding negotiations
carried on with Great Britain over the Northeastern Boundary, and particularly
with respect to the Maine settlement, President Jackson informed the Senate on
March 2, 1833, that negotiations with Great Britain were in progress and that in
the meantime it was “ not deemed compatible with the public interest” to
communicate the conditional arrangements made with the State of Maine.21 The
House of Representatives also requested information concerning the settlement
of the Northeastern Boundary, and on January 6,1835, President Jackson advised
the House that it would be “ incompatible with the public interest” to communi
cate such information.22 However, the President did furnish this information to
the Senate at the next session, stating that “ as the negotiation was undertaken
under the special advice of the Senate, I deem it improper to withhold the
information which the body has requested, submitting to them to decide whether
it will be expedient to publish the correspondence before the negotiation has been
closed.” 23
Bank o f the United States Document
On December 12, 1833, President Jackson responded to a resolution of the
Senate requesting him to provide “ ‘a copy of the paper which has been published,
and which purports to have been read by him to the heads of the Executive
Departments . . . relating to the removal of the deposits of the public money from
the Bank of the United States and its offices.’” President Jackson declined to
provide the document on the ground that the Legislature had no constitutional
authority to “ require of me an account of any communication, either verbally or
in writing, made to the heads of Departments acting as a Cabinet council . . .
[nor] might I be required to detail to the Senate the free and private conversations
I have held with those officers on any subject relating to their duties and my
own.” 24
Correspondence with France
On February 6, 1835, President Jackson furnished extracts from the dispatches
between the United States and the government of France that the House of
20 2 Richardson, supra, at 608-09
21 Id. at 637.
22 3 Richardson, supra, at 127
23 Id. at 229-30.
24 Id. at 36.
757
Representatives had requested, declining to send the full documents on the
ground that it was not at that time in the public interest to do so.25
Removal c f the Surveyor General
On February 10, 1835, President Jackson sent a message to the Senate
declining to comply with its resolution which requested the production of copies
of charges made to the President against Gideon Fitz, the Surveyor General,
which resulted in Mr. Fitz’s removal from office. The resolution based the
Senate’s need for the documents on: 1) the need to nominate Mr. Fitz’s successor,
and 2) a pending Senate investigation into fraud in the sale of lands.
The President refused to furnish the documents on the ground that they related
to subjects which belonged exclusively to the functions of the Executive. In
addition, the President said that disclosure of the documents would subject the
motives of the President in removing Mr. Fitz to the review of the Senate when not
sitting as judges in an impeachment proceeding, and that the Executive’s acquies
cence in the Fitz case might be used by Congress as a precedent for similar and
repeated requests. The President said:
This is another of those calls for information made upon me by
the Senate which have, in my judgment, either related to the
subjects exclusively belonging to the executive department or
otherwise encroached on the constitutional powers of the Ex
ecutive. Without conceding the right of the Senate to make either
of these requests, I have yet, for the various reasons heretofore
assigned in my several replies, deemed it expedient to comply
with several of them. It is now, however, my solemn conviction
that I ought no longer, from any motive nor in any degree, to yield
to these unconstitutional demands. Their continued repetition
imposes on m e, as the representative and trustee of the American
people, the painful but imperious duty of resisting to the utmost
any further encroachment on the rights of the Executive.
. . . . Such a result, if acquiesced in, would ultimately subject
the independent constitutional action of the Executive in a matter
of great national concernment to the domination and control of the
Senate. . . .
I therefore decline a compliance with so much of the resolution
of the Senate as requests “ copies of the charges, if any,” in
relation to Mr. Fitz, and in doing so must be distinctly understood
as neither affirming nor denying that any such charges were
made. . . .|261
25 Id. at 129
26 Id. at 132-34.
758
6. lyier Administration
Correspondence Regarding Negotiations with Great Britain Over the
Northeastern Boundary
In response to the House of Representatives’ request for all correspondence not
previously communicated regarding the United States’ negotiation with Great
Britain over the Northeastern Boundary, President Tyler withheld the documents
and sent a February 26, 1842, message to Congress saying that “ in my judgment
no communication could be made by me at this time on the subject of its
resolution without detriment or danger to the public interests.” 27
Information Regarding Executive Appointments
On March 23, 1842, President Tyler refused to comply with a House resolution
requesting that the President and the heads of departments communicate the
names of such Members of the 26th and 27th Congresses who had applied for
office, what office, and whether such application had been made in person, in
writing, or through friends. President Tyler refused to disclose such information
on the ground that it was by nature confidential, the disclosure of which could
serve no “ useful object connected with a sound and constitutional administration
of the Government in any of its branches,” and further, that
compliance with the resolution which has been transmitted to me
would be a surrender of duties and powers which the Constitution
has conferred exclusively on the Executive, and therefore such
compliance can not be made by me nor by the heads of Depart
ments by my direction. The appointing power, so far as it is
bestowed on the President by the Constitution, is conferred with
out reserve or qualification. The reason for the appointment and
the responsibility of the appointment rest with him alone. I can
not perceive anywhere in the Constitution of the United States any
right conferred on the House of Representatives to hear the
reasons which an applicant may urge for an appointment to office
under the executive department, or any duty resting upon the
House of Representatives by which it may become responsible for
any such appointment.1281
Treaty to Suppress Slave Trade
In response to the House of Representatives’ request to furnish, “ ‘so far as
may be compatible with the public interest,’” a copy of the quintuple treaty
between the five powers of Europe for the suppression of the African slave trade
27 4 Richardson, supra, at 101.
28 i'd. at 105-06.
759
and certain correspondence with respect to it, President Tyler replied on June 20,
1842, that he had not received an authentic copy of the treaty and that “ [i]n regard
to the other papers requested, although it is my hope and expectation that it will
be proper and convenient at an early day to lay them before C ongress,. . . yet in
my opinion a communication o f them to the House of Representatives at this time
would not be compatible with the public interest.” 29
Information Regarding Steps Taken to Obtain Recognition c f American
Claim s by Mexican Government
The Senate had requested the President to provide information, “ so far as he
might deem it compatible with the public interest,” concerning what measures, if
any, had been taken to obtain recognition by the Mexican government of certain
claims of American citizens. President Tyler replied on August 23, 1842, that
“ [i]n the present state of the correspondence and of the relations between the two
Governments on these important subjects it is not deemed consistent with the
public interest to communicate the information requested. The business engages
earnest attention, and will be made the subject of a full communication to
Congress at the earliest practicable period.” 30
N egotiations Regarding Northwestern Boundary
In response to the Senate’s request for information concerning the United
States’ negotiations with Great Britain for settlement of the Northwest Boundary,
President Tyler replied on December 23, 1842, that measures had been taken to
settle the dispute and that “under these circumstances I do not deem it consistent
with the public interest to make any communication on the subject.” 31
H itchcock Investigation
On January 31, 1843, President Tyler invoked executive privilege against a
request by the House of Representatives to the Secretary of War to produce
investigative reports submitted to the Secretary by Lieutenant Colonel Hitchcock
concerning his investigations into frauds perpetrated against the Cherokee Indi
ans. The Secretary of War consulted with the President and under the latter’s
direction informed the House that negotiations were then pending with the
Indians for settlement of their claims, and that in the opinion of the President and
the Department, publication of the report at that time would be inconsistent with
the public interest. The Secretary of War further stated that the reports sought by
the House contained information which was obtained by Colonel Hitchcock
through ex p a r t e questioning of persons whose statements were not made under
oath, and which implicated persons who had no opportunity to contradict the
29Id at 158
30Id. at 178-79.
31 Id at 210-11
760
allegations or provide any explanation. The Secretary of War expressed the
opinion that to publicize such statements at that time would be unjust to the
persons mentioned , and would defeat the object of the inquiry. He also stated that
the Department had not yet been given a sufficient opportunity to pursue the
investigation, to call the affected parties for explanations, or to make any other
determinations regarding the matter. The President stated:
The injunction of the Constitution that the President ‘shall take
care that the laws be faithfully executed,’ necessarily confers an
authority, commensurate with the obligation imposed to inquire
into the manner in which all public agents perform the duties
assigned to them by law. To be effective these inquiries must often
be confidential. They may result in the collection of truth or of
falsehood, or they may be incomplete and may require further
prosecution. To maintain that the President can exercise no discre
tion as to the time in which the matters thus collected shall be
promulgated . . . would deprive him at once of the means of
performing one of the most salutary duties of his office. . . . To
require from the Executive the transfer of this discretion to a
coordinate branch of the Government is equivalent to the denial of
its possession by him and would render him dependent upon that
branch in the performance of a duty purely executive.1321
In response to the House’s claim that it had a right to demand from the
Executive and heads of departments any information in the possession of the
Executive which pertained to subjects under the House’s deliberations, President
Tyler stated that the House could not exercise a right to call upon the Executive for
information, even though it related to a subject of the deliberations of the House,
if, by so doing, it would interfere with the discretion of the Executive.33
Instructions to N avy Officers
In response to the House of Representatives’ request for copies of instructions
given to British and American commanding officers who were charged, pursuant
to a treaty with Great Britain, with suppressing the slave trade off the coast of
Africa, President Tyler sent a May 18, 1844, message to the House declining to
provide the information on the ground that to do so would be incompatible with
the public interest.34
Foreign Correspondence Regarding the Ownership and Occupation of
Oregon Territory
In June 1844, President Tyler sent a message to the Senate explaining his
refusal to comply with its request for documents relating to the ownership and
32 Id. at 222.
33 Id at 222-23.
34 Id. at 320.
761
occupation of the Oregon Territory. “ [I]n the present state of the subject-matter, ”
the President wrote, “ it is deemed inexpedient to communicate the information
requested. . . .” 35
7. Polk Administration
Foreign Relations Expenditures c f Prior Administration
In 1846, President Polk refused to provide the House of Representatives with
confidential memoranda regarding certain expenses incurred for the conduct of
foreign relations during the Tyler Administration. In refusing to comply with a
House resolution requesting documentation of these expenses, President Polk
stated that where a past President had placed a seal of confidentiality upon an
expenditure, and the matter was terminated before he entered office,
[a]n important question arises, whether a subsequent Presi
dent, either voluntarily o r at the request of one branch of Con
gress, can without a violation of the spirit of the law revise the acts
of his predecessor and expose to public view that which he had
determined should not be “ made public.” If not a matter of strict
duty, it would certainly be a safe general rule that this should not
be done. Indeed, it may well happen, and probably would hap
pen, that the President for the time being would not be in posses
sion of the information upon which his predecessor acted, and
could not, therefore, have the means of judging whether he had
exercised his discretion wisely or not.1361
Polk concluded that the President making an expenditure, deemed by him
confidential, may, if he chooses, keep all the information and evidence upon
which he acts in his own possession. If, for the information of his successors, he
leaves some evidence upon which he acts in the confidential files of one of the
executive departm ents, such evidence does not thereby become publicly
available.
M ilitary and D iplom atic Instructions with Respect to Mexico
On January 12, 1848, President Polk sent a message to the House transmitting
reports of the Secretaries of State, War, and the Navy in response to a con
gressional resolution seeking copies of all instructions given to American mili
tary and diplomatic officers relating to the return of President General Lopez de
Santa Anna to Mexico. President Polk stated that he was transmitting the
documents,
» Id. at 327.
»/</. at 433.
762
which contain all the information in the possession of the Ex
ecutive which it is deemed compatible with the public interests to
communicate. . . .
The customary and usual reservation contained in calls of either
House of Congress upon the Executive for information relating to
our intercourse with foreign nations has been omitted in the
resolution before me. The call of the House is unconditional. It is
that the information requested be communicated, and thereby be
made public, whether in the opinion of the Executive (who is
charged by the Constitution with the duty of conducting negotia
tions with foreign powers) such information, when disclosed,
would be prejudicial to the public interest or not. It has been a
subject of serious deliberation with me whether I could, consist
ently with my constitutional duty and my sense of the public
interests involved and to be affected by it, violate an important
principle, always heretofore held sacred by my predecessors, as I
should do by a compliance with the request of the House. Presi
dent Washington, in a message to the House of Representatives of
the 30th of March, 1796, declined to comply with a request
contained in a resolution of that body, to lay before them “ a copy
of the instructions to the minister of the United States who
negotiated the treaty with the King of Great Britain, together with
the correspondence and other documents relative to that treaty,
excepting such of the said papers as any existing negotiation may
render improper to be disclosed.”
. . . Indeed, the objections to complying with the request of
the House contained in the resolution before me are much strong
er than those which existed in the case of the resolution in 1796.
This resolution calls for the “ instructions and orders” to the
minister of the United States to Mexico which relate to negotia
tions which have not been terminated, and which may be re
sumed. The information called for respects negotiations which
the United States offered to open with Mexico immediately pre
ceding the commencement of the existing war. The instructions
given to the minister of the United States relate to the differences
between the two countries out of which the war grew and the terms
of adjustment which we were prepared to offer to Mexico in our
anxiety to prevent the war. These differences still remain unset
tled, and to comply with the call of the House would be to make
public through that channel, and to communicate to Mexico, now
a public enemy engaged in war, information which could not fail
to produce serious embarrassment in any future negotiation be
tween the two countries. I have heretofore communicated to
Congress all the correspondence of the minister of the United
States to Mexico which in the existing state of our relations with
763
that Republic can, in my judgment, be at this time communicated
without serious injury to the public interest.
Entertaining this conviction, and with a sincere desire to fur
nish any information which may be in possession of the executive
department, and which either House of Congress may at any time
request, 1 regard it to be my constitutional right and my solemn
duty under the circumstances of this case to decline a compliance
with the request of the House contained in their resolution.1371
D iplom atic Instructions Relating to United States-M exico Treaty
On July 29, 1848, President Polk refused to comply with a request by the
House of Representatives for copies of instructions provided to commissioners
who negotiated the treaty with Mexico on the ground that “ it would be ‘inconsist
ent with the public interests’ to give publicity to these instructions at the present
time.” He added that, “ as a general rule applicable to all our important negotia
tions with foreign powers, it could not fail to be prejudicial to the public interest
to publish the instructions of our ministers until some time had elapsed after the
conclusion of such negotiations.” 38
President Polk did transmit these documents to the House on February 8,
1849, at which time he reaffirmed the general rule enunciated on July 29, but
stated that, notwithstanding that, “ as [the documents] have been again called for
by the House, and called for in connection with other documents, to the correct
understanding of which they are indispensable, 1 have deemed it my duty to
transmit them.” 39
8. Fillmore Administration
D iplom atic Instructions
Upon receipt of a request from the Senate to furnish, if not inconsistent with
the public interest, information concerning the seizure of the American steam
ship Prometheus by a British war vessel and the measures taken to vindicate “ the
honor of the country,” President Fillmore, on December 15, 1851, transmitted
excerpts from a communication giving the facts of the case, but without the
instructions given to the United States Minister in London. He declared that
“ [sufficient time has not elapsed for the return of any answer to this dispatch
from him, and in my judgment it would at the present moment be inconsistent
with the public interest to communicate those instructions. A communication,
however, of all the correspondence will be made to the Senate at the earliest
moment at which a proper regard to the public interest will permit.”40
37 Id at 565. 566, 567.
38 Id. at 602.
39 Id. at 679.
40 5 Richardson, supra, at 139-40.
764
Documents Involving American Claims Against the Mexican Government
In response to a Senate request for papers and proofs on file with the Executive
Branch regarding the claim of Samuel A. Belden & Co. against the Mexican
government, on May 29, 1852, President Fillmore forwarded all documents save
those of a diplomatic nature, and stated that because the claim was still being
negotiated it was therefore “ not deemed expedient . . . to make public the
documents which have been reserved.”41
Sandwich Islands
On August 14, 1852, President Fillmore refused to provide information to the
Senate regarding a proposition made by the King of the Sandwich Islands to
transfer the islands to the United States, as not comporting with the public
interest.42
9. Buchanan Administration
Law Enforcement Files
On January 11,1859, President Buchanan responded to a request by the Senate
for information relating to the landing of a slave ship on the coast of Georgia. The
President transmitted a report from the Attorney General which stated that an
offense had been committed and that measures were being taken to enforce the
law. However, he concurred with the opinion of the Attorney General that “ it
would be incompatible with the public interest at this time to communicate the
correspondence with the officers of the Government at Savannah or the instruc
tions which they have received.”43
10. Lincoln Administration
Fort McHenry Arrests
On July 27, 1861, President Lincoln refused to provide to the House of
Representatives documents revealing the grounds, reasons, and evidence upon
which Baltimore police commissioners were arrested at Fort McHenry for the
reason that disclosure at that time would be incompatible with the public
interest.44
Arrest c f Brigadier General Stone
On May 1, 1862, President Lincoln refused to comply with a request by the
Senate for more particular information regarding the evidence leading to the
4 ,/</. at 151.
42 Id at 159.
43 Id. at 534.
44 6 Richardson, supra, at 33.
765
arrest of Brigadier General Stone on the ground that the determination to arrest
and imprison him was made upon the evidence and in the interest of public safety,
and that disclosure of more particular information was incompatible with the
public interest.45
N egotiations with N ew Granada
The House of Representatives had requested the Secretary of State to commu
nicate to it, “ if not in his judgment incompatible with the public interest,”
information concerning American relations with New Granada, and what nego
tiations, if any, had been had with General Herran of that country. President
Lincoln, on January 14, 1863, replied to the resolution giving a resume of
developments in New Granada. However, with respect to official communica
tions with General Herran, he stated that “ [n]o definitive measure or proceeding
has resulted from these communications, and a communication of them at present
would not, in my judgment, be compatible with the public interest.”46
11. Johnson Administration
M ilitary Correspondence
On January 26, 1866, President Johnson refused to disclose to the Senate
certain communications from military officers regarding violations of neutrality
on the Rio Grande on the ground that such disclosure would not be consistent
with the public interest.47
Confinement c f Jefferson Davis
On February 9 ,1 8 6 6 , President Johnson refused, on advice from the Secretary
of War and the Attorney General, to comply with a request by the House of
Representatives for a report by the Judge Advocate General concerning the
confinement of Jefferson Davis, and others, on the ground that disclosure would
not be in the public interest.48
N ew Orleans Investigations
On May 2, 1866, President Johnson refused to provide the House of Repre
sentatives with a copy of a report that it had requested concerning General
Smith’s and James T. Brady’s New Orleans investigations, citing the public
interest in nondisclosure.49
45 Id.
*M .
47 Id.
48 Id.
49 Id.
at
at
at
at
at
74.
147. 149.
376-77.
378.
385.
766
12. Grant Administration
Performance c f Executive Functions
In April 1876, President Grant was requested by the House of Representatives
to provide information which would show whether any executive acts or duties
had been performed away from Washington, the lawfully established seat of
government . (This was an attempt to embarrass the President for having spent the
hot summer at Long Beach.) On May 4, 1876, the President refused on the
ground that the Constitution did not give the House of Representatives authority
to inquire of the President where he performed his executive functions, and that,
moreover, the House’s lawful demands on the Executive were limited to informa
tion necessary for the proper discharge of its powers of legislation or
impeachment.50
13. Cleveland Administration
Dismissal of D istrict Attorney
In response to a resolution by the Senate requesting the Attorney General to
provide certain documents concerning the administration of the United States
Attorney’s Office (then District Attorney) for the Middle District of Alabama,
and the President’s dismissal of the incumbent district attorney, President
Cleveland sent a message on March 1, 1886, to the Senate stating that he was
withholding the requested documents because they contained information ad
dressed to him and to the Attorney General by private citizens concerning the
former district attorney, and that the documents related to an act (the suspension
and removal of an Executive Branch official) which was exclusively a discretion
ary executive function.51
“Rebecca ” Schooner Incident
On February 26, 1887, President Cleveland refused to provide the Senate with
information that it requested regarding the seizure and sale of the American
schooner Rebecca at Tampico, and the resignation of the Minister of the United
States to Mexico, on the ground that publication of the requested correspondence
would be inconsistent with the public interest.52
14. Harrison Administration
International Conference on the Use c f Silver
In response to the Senate’s request for information regarding the steps taken
toward holding an international conference on the use of silver, President Har
50 7 Richardson, supra, at 361-66
51 8 Richardson, supra, at 375.
52 Id. at 538
767
rison stated on April 26, 1892, that “ in my opinion it would not be compatible
with the public interest to lay before the Senate at this time the information
requested, but that at the earliest moment after definite information can properly
be given all the facts and any correspondence that may take place will be
submitted to Congress.” 53
15. Cleveland Administration
Cuba M atters
In response to a request by the House of Representatives for copies of all
correspondence relating to affairs in Cuba since February 1895, President
Cleveland transmitted on February 11, 1896, a communication from the Secre
tary of State and such portions of the correspondence requested as he deemed it
not inconsistent with the public interest to communicate.54
Correspondence with Spain
On May 23, 1896, President Cleveland transmitted to the Senate a requested
copy of the protocol with Spain, but withheld copies of certain correspondence
with Spain on the ground that it would be incompatible with the public good to
furnish such correspondence.55
16. McKinley Administration
War D epartm ent Investigations
In response to a request made by the Senate to the Secretary of War for a report
on the War Department’s investigation into receipts and expenditures of Cuban
funds, President McKinley informed the Senate on January 3, 1901, that it was
not deemed compatible with the public interest to transmit the document at that
tim e.56
17. Theodore Roosevelt Administration
United States Steel Proceedings
On January 4, 1909, the Senate passed a resolution directing the Attorney
General to inform the Senate whether certain legal proceedings had been in
stituted against the United States Steel Corporation, and if not, the reasons for its
non-action. A request was also made for the opinions of the Attorney General
regarding this matter, if any had been written. President Roosevelt replied to the
Senate on January 6, 1909, stating that he had been orally advised by the Attorney
33 9 Richardson, supra, at 238-39.
54 Id. at 666.
53 Id. at 669.
56 9 Richardson, supra, at 6458 (Bur of N at’i Literature ed. 1911).
768
General that there were insufficient grounds for instituting legal action against
U.S. Steel, and that he had
instructed the Attorney General not to respond to that portion of
the resolution which calls for a statement of his reasons for
nonaction. I have done so because I do not conceive it to be within
the authority of the Senate to give directions of this character to
the head of an executive department, or to demand from him
reasons for his action. Heads of the executive departments are
subject to the Constitution, and to the laws passed by the Con
gress in pursuance of the Constitution, and to the directions of the
President of the United States, but to no other direction
whatever.1571
When the Senate was unable to get the documents from the Attorney General,
it subpoenaed the Commissioner of Corporations to produce all papers and
documents regarding U.S. Steel in his possession. The Commissioner reporteid
the request to the President, who sought an opinion from Attorney General
Bonaparte regarding the Commission’s statutory obligation to withhold such
information except upon instruction by the President. The Attorney General
advised the Commissioner that the discretion to make public the requested
documents was vested in the President and that, accordingly, he should turn over
all documents within the scope of the subpoena to the President.58 The Commis
sioner did so, and President Roosevelt then informed the Judiciary Committee
that he had the papers and that the only way the Senate could get them was
through his impeachment. President Roosevelt also explained that some of the
facts were given to the government under a pledge of secrecy and that the
government had an obligation to keep its word.59
18. Coolidge Administration
Bureau c f Internal Revenue Oversight
On April 11, 1924, President Coolidge responded to a request by the Senate
for a list of all companies in which the Secretary of the Treasury “ was interested”
(for the purpose of investigating their tax returns) as a part of a general oversight
investigation of the Bureau of Internal Revenue. President Coolidge refused to
provide the information on the ground that it was confidential information the
disclosure of which would be detrimental to public service, calling the Senate’s
investigation an “ unwarranted intrusion,” bom of a desire other than to secure
information for legitimate legislative purposes.60
” 43
58 27
59 E
60 65
Cong Rec. 528 (1909).
Op Att’y Gen. 150 (1909).
Corwin, The President— Office and Powers 429 (1957).
Cong. Rec 6087 (1924)
769
19. Hoover Administration
London Treaty Letters
On July 11, 1930, President Hoover responded to a request addressed to the
Secretary of State from the Senate Foreign Relations Committee for certain
confidential telegrams and letters leading up to the London Naval Conference and
the London Treaty. The Committee members had been permitted to see the
documents with the understanding that the information contained therein would
be kept confidential. The Committee asserted its right to have full and free access
to all records touching on the negotiation of the Treaty, basing its right on the
constitutional prerogative of the Senate in the treaty-making process. In his
message to the Senate, President Hoover pointed out that there were a great many
informal statements and reports which were given to the government in con
fidence. The Executive was under a duty, in order to maintain amicable relations
with other nations, not to publicize every negotiating position and statement
which preceded final agreement on the Treaty. He stated that the Executive must
not be guilty of a breach of trust, nor violate the invariable practice of nations. “ In
view of this, I believe that to further comply with the above resolution would be
incompatible with the public interest.” 61
20. Franklin D. Roosevelt Administration
FBI Records
On April 30, 1941, at the direction of President Roosevelt, Attorney General
Jackson wrote the Chairman of the House Committee on Naval Affairs, stating
his refusal to provide the Committee with certain FBI records. Attorney General
Jackson declared that “ all investigative reports are confidential documents of the
executive department of the Government, to aid in the duty laid upon the
President by the Constitution to ‘take care that the laws be faithfully executed,’
and that congressional or public access to them would not be in the public
interest.” 62
R adio Intelligence Material
Pursuant to a January 19, 1943, resolution, a House Select Committee to
Investigate the Federal Communications Commission (FCC) subpoenaed the
Director of the Bureau of the Budget on July 9, 1943, to appear before the Select
Committee and produce Bureau files and correspondence dealing with requests
by the War and Navy Departments to the President for an executive order
transferring the functions of the FCC ’s Radio Intelligence Division to the military
establishments. The Director refused, citing Attorney General Jackson’s letter of
61 S. D oc No. 216, 71st C ong , Special Sess 2 (1930).
62 40 Op. A tt’y G en 45, 46 (1941)
770
April 30, 1941, and a presidential instruction that the Bureau’s files were to be
kept confidential, because disclosure would not com port with the public
interest.63
In addition, the Acting Secretary of War was requested to appear before the
Select Committee to produce documents bearing on the War and Navy Depart
ments’ requests to the President and to bring several Army officers to testify. The
Acting Secretary refused to provide the documents on the President’s direction,
on the ground that doing so would be incompatible with the public interest, and,
pursuant to his own judgment, refused to permit the Army officers to appear.64
FBI Records
In 1944, the same Select Committee subpoenaed the Director of the Federal
Bureau of Investigation to testify concerning fingerprint records and activities at
Pearl Harbor, and also to identify a certain document which he was alleged to
have received in the course of his duties. The Director refused to give testimony
or to exhibit a copy of the President’s directive requiring him, in the interest of
national security, to refrain from testifying or disclosing the contents of the
Bureau’s files.65 Attorney General Biddle wrote a letter to the Select Committee,
dated January 22, 1944, informing the Committee that communications between
the President and the heads of departments were privileged and not subject to
inquiry by congressional committees.66
21. TVuman Administration
Condon Incident
In March 1948, the House Committee on Un-American Activities issued a
subpoena to the Secretary of Commerce directing him to appear before the
Committee and to bring with him a letter from the Director of the FBI concerning
the loyalty of Dr. Condon, Director of the National Bureau of Standards, together
with all records, files, and transcripts of the loyalty board relating to Dr. Condon.
On March 13, 1948, President Truman issued a directive providing for the
confidentiality of all loyalty files and requiring that all requests for such files from
sources outside the Executive Branch be referred to the Office of the President,
for such response as the President may determine. 13 Fed. Reg. 1359 (1948). At a
press conference held on April 22, 1948, President Truman indicated that he
would not comply with the request to turn the papers over to the Committee.67
Steelman Incident
On March 6, 1948, during an investigation into a strike among employees of
Government Services, Inc., a subcommittee of the Hcuse Committee on Educa
63 Study and Investigation c f the Federal Communications Commission Hearings on H Res. 21 Before the House
Select Comm, to Investigate the Federal Communications Commission, 78th C ong., 1st Sess 37 (1943).
64 Id at 67-68
65 Id. at 2304-05.
66 Id at 2337-39
67 The Public lepers of the Presidents, Harry S Truman, 1948, at 228
771
tion and Labor issued a subpoena to presidential assistant John R. Steelman.68
Mr. Steelman returned the subpoena to the chairman of the subcommittee on the
ground that “ the President directed me, in view of my duties as his assistant, not
to appear before your subcommittee.” 69 The minority report to H.R. Rep. No.
1595 commented on Mr. Steelman’s failure to comply with the subpoena as
follows:
the purpose of the subpoena on Mr. Steelman was to obtain from
him the contents of any oral or written communications which had
been made to him by the President with reference to the strike
prevailing in the restaurants maintained by Government Services,
Inc. I cannot believe that any congressional committee is entitled
to make that kind of investigation into the private conferences of
the President with one of his principal aides. I cannot conceive
that the views of a Senator or Congressman on a pending bill may
be extracted by a court or by a congressional committee by
subpoenaing the Senator’s of [sic] Congressman’s administrative
assistant or any other assistant, secretary, or confidential em
ployee. Likewise, I regard it as a direct invasion of the Executive’s
prerogative to invade the work and time of his assistant in this
manner. Dr. Steelman I think acted with the utmost propriety in
referring the matter to the President. The Chief Executive very
naturally and properly directed Dr. Steelman not to appear before
the subcommittee.1701
State D epartm ent Employee Loyalty Investigation
On March 28, 1950, a subcommittee of the Senate Foreign Relations Commit
tee investigating allegations of disloyalty among State Department employees
served subpoenas on the Secretary of State, the Attorney General, and the
Chairman of the Civil Service Commission, demanding the production of all files
bearing on the loyalty of certain State Department employees. After reference of
the subpoena to the President pursuant to the directive of March 13, 1948, the
President on April 3, 1950, directed the officials not to comply with the sub
poena.71 Thereafter it appeared that the subpoenaed documents had been made
available to the preceding Congress prior to the issuance of the March 13, 1948,
directive. President Truman thereupon agreed to make the files available to the
subcommittee on the theory that this would not constitute a precedent for
subsequent exceptions from the March 13, 1948, directive.72
68 Investigation c f G SI Strike: Hearings o n H. Res 111 Before a Special Subcomm. c f the House Comm, on
Education and Labor, 80th Cong , 2d Sess. 347-53 (1948).
69 H R Rep. No. 1595, 80th Cong., 2d Sess. 3 (1948); see id Pt. 2, at 8.
70 Id. Pt. 1, at 12
71 The Public F^pers of the Presidents, H arry S Truman, 1950, at 240.
72 S. Rep. No. 2108, 81st Cong., 2d Sess. 9 (1950)
772
General Bradley Incident
During the investigation into the circumstances surrounding the dismissal of
General Douglas MacArthur held by the Senate Committees on Armed Services
and Foreign Relations in 1951, General Bradley refused to testify about a
conversation with President Truman in which he had acted as the President’s
confidential adviser. The Chairman of the Committee, Senator Russell, recog
nized Bradley’s claim of privilege. When that ruling was challenged, the Com
mittee upheld it by a vote of 18 to 8 .73 At a press conference held on May 17,
1951, President Truman indicated that he had previously taken the position that
his conversation with General Bradley was privileged and that he was “ happy”
with the Committee’s action.74
Refusal to Comply with an Excessively Burdensome Demand fo r Information
During an investigation into the administration of the Department of Justice by
a special subcommittee of the House Judiciary Committee, the chairman of the
subcommittee requested a number of departments and agencies to furnish the
following information:
A list of all cases referred to the Department of Justice or U.S.
Attorneys for either criminal or civil action by any governmental
department or agency within the last six years, in which:
a. Action was declined by the Department of Justice, including
in each such case the reason or reasons assigned by said Depart
ment for such refusal to act.
b. Said cases were returned by the Department of Justice to the
governmental Department or agency concerned for further infor
mation or investigation. In such cases, a statement of all subse
quent action taken by the Department of Justice should be
included.
c. Said cases have been referred to the Department of Justice
and have been pending in the Department for a period of more
than one year and are not included in b. above.1751
President Truman instructed the heads of all agencies and departments not to
comply with that request for the following reasons set forth in his letter, dated
March 7, 1952, to the chairman of the subcommittee:
[T]his request of yours is so broad and sweeping in scope that it
would seriously interfere with the conduct of the Government’s
business if the departments and agencies should undertake to
73 Military Situation in the Far East' Hearings Before the Senate Comm, on Armed Services and the Senate
Comm, on Foreign Relations, 82d Cong., 1st Sess. 763, 832-72 (1951).
74 The Public Ffcpers of the Presidents. Harry S Truman, 1951, at 289.
73 The Public lep ers of the Presidents, Harry S Truman, 1952-53, at 199.
773
comply with it. I am advised that it would require the examination
of hundreds of thousands of files, that it would take hundreds of
employees away from their regular duties for an extensive period
of time, and that it would cost the Government millions of dollars.
All this would be done, not for the purpose of investigating
specific complaints, not for the purpose of evaluating credible
evidence of wrongdoing, but on the basis of a dragnet approach to
examining the administration of the laws.
1 do not believe such a procedure to be compatible with those
provisions of the Constitution which vest the executive power in
the President and impose upon him the duty to see that the laws
are faithfully executed.1761
Confidentiality c f Administration c f Loyalty Security Program
In the spring of 1952 members of a Senate Appropriations subcommittee
sought detailed information on the administration of the Loyalty Security Pro
gram. In response to a request for guidance by the Department of State, President
Truman on April 3, 1952, issued detailed instructions which provided for the
confidentiality of the Loyalty Security Program. These instructions provided,
inter alia:
There is no objection to making available the names of all
members of an agency loyalty board, but it is entirely improper to
divulge how individual board members voted in particular cases
or to divulge the members who sat on particular cases. If this type
of information were divulged freely, the danger of intimidation
would be great, and the objectivity, fairness and impartiality of
board members would be seriously prejudiced.1771
22. Eisenhower Administration
Executive Branch Deliberative Discussions
During the Army-McCarthy Hearings, the counselor of the Army was ques
tioned about discussions which had taken place during a conference of high-level
government officials.
On May 17, 1954, President Eisenhower directed the Secretary of Defense to
instruct the employees of his Department not to testify on those issues. The
President’s letter stated:
Because it is essential to efficient and effective administration
that employees of the Executive Branch be in a position to be
completely candid in advising with each other on official matters,
n id .
77 Id. at 235-36.
774
and because it is not in the public interest that any of their
conversations or communications, or any documents or reproduc
tions, 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 Govern
ment Operations regarding the inquiry now before it they are not
to testify to any such conversations or communications, or to
produce any such documents or reproductions. This principle
must be maintained regardless of who would be benefited by such
disclosures.1781
This letter was interpreted as requiring every officer and employee of the
government to claim privilege on his own in any situation covered by that letter.
Hence there were a considerable number of invocations of executive privilege
during the Eisenhower Administration which were not referred to, or specifically
authorized by, the President.
Conversation with Presidential Assistant Sherman Adams
During hearings in July 1955 on the Dixon-Yates Contract before the Subcom
mittee on Antitrust and Monopoly of the Senate Judiciary Committee, Securities
and Exchange Commission Chairman Armstrong was questioned on various
issues. During most of his testimony, questions of privilege were disposed of
without reference to the White House. When questioned about a telephone
conversation with Presidential Assistant Sherman Adams, he sought the advice
of the Special Counsel to the President who, upon advice of the Attorney
General, directed that Mr. Armstrong could testify as to existence of the con
versation, but not as to matters discussed during the conversation.79
Killian and G aither Panel Reports
In connection with an investigation into satellite and missile programs in
January 1958, then-Senator Lyndon Johnson asked for the release of the so-called
Killian and Gaither Panel reports. President Eisenhower denied the request in
part on the ground that the reports had been prepared with the understanding that
the advice contained in them would be kept confidential. The President added
that “ these reports are documents of the National Security Council. Never have
the documents of this Council been furnished to the Congress.” 80
Confidentiality o f ICA Country Reports
Between 1957 and 1959 the International Cooperation Administration (ICA),
the predecessor to the Agency for International Development (AID), repeatedly
78 The Public lepers of the Presidents, Dwight D Eisenhower, 1954, at 483-84
79 Power Policy. Dixon-Yates Contract' Hearings on S Res 61 Before the Subcomm. on Antitrust and Monopoly
c f the Senate Comm on the Judiciary. 84th Cong., 1st Sess. 751 (1955).
80The Public Ffcpers of the Presidents, Dwight D. Eisenhower, 1958, at 117-18.
775
denied to Congress and to the Comptroller General access to its country evalua
tion reports on the ground that they contained confidential opinions and tentative
recommendations on matters involving foreign policy. These refusals were made
without express presidential authorization.
When this issue came up at President Eisenhower’s news conference of July 1,
1959, the President approved these withholdings largely on the ground that the
release of the reports would jeopardize the ability of the United States to obtain
confidential information.81
The Mutual Security legislation of 1959—1961 provided in effect that the ICA
could withhold information from Congress or the Comptroller General only upon
a presidential certification that he had forbidden the document be furnished and
stated the reason for so doing. President Eisenhower made the following
certifications:
November 12, 1959, relating to an evaluation report on Vietnam;82
December 22, 1959, relating to evaluation reports on Iran and Thailand;83
December 2, 1960, relating to evaluation reports on several South American
countries. These reports apparently were made available to the Comptroller
General during the following Administration.84
23. Kennedy Administration
Confidentiality c f Names cf Specific Government Employees
During an investigation into military cold war education and speech review
policies conducted by the Senate Committee on Armed Services, Senator Thur
mond requested the names of individual government employees of the Depart
ment of Defense and the Department of State who made or recommended
changes in specific speeches.
On February 8, 1962, President Kennedy directed the Secretary of Defense
and all personnel under the jurisdiction of his Department not to give any
testimony or produce any documents which would disclose such information.
The letter stated:
[I]t would not be possible for you to maintain an orderly Depart
ment and receive the candid advice and loyal respect of your
subordinates if they, instead of you and your senior associates, are
to be individually answerable to the Congress, as well as to you,
for their internal acts and advice.
S(C
Jfc
H*
*
I do not intend to permit subordinate officials of our career
81 Id .. 1959, at 488, 489.
82 Id. at 776.
83 Id. at 874
84 Id , 1960-61, at 881
776
services to bear the brunt of congressional inquiry into policies
which are the responsibilities of their superiors.1851
Chairman Stennis upheld the claim of privilege. The ruling was upheld by the
Subcommittee.86 On February 9, 1962, President Kennedy sent a similar letter to
the Secretary of State.87
Confidentiality c f National Security Council Papers
Later, during the same investigation into military cold war education and
speech review policies, Senator Thurmond demanded certain National Security
Council papers. In a letter to Chairman Stennis dated June 23, 1962, President
Kennedy refused to release those papers on the ground that “ the unbroken
precedent of the National Security Council is that its working papers and policy
documents cannot be furnished to the Congress.” 88
24. Johnson Administration
Exemption c f Presidential Assistants from Appearance Before Congressional
Committees
In 1968, during hearings on the nomination of Justice Fortas to be Chief
Justice of the United States, Treasury Under Secretary Barr, Associate Special
Counsel to the President DeVier Pierson, and Secretary of Defense Clark
Clifford were invited to appear before the Senate Committee on the Judiciary to
testify on the question whether Justice Fortas had participated in high-level White
House meetings dealing with the development of legislation authorizing the
Secret Service to protect presidential candidates.
By letters dated September 16, 1968, Mr. Barr and Mr. DeVier Pierson both
declined the invitation. Mr. Barr’s letter contained the following pertinent
language:
In the development of this legislation, I participated in meetings
with representatives of the White House and discussed the matter
directly with the President.
Based on long-standing precedents, it would be improper for
me under these circumstances to give testimony before a Con
gressional committee concerning such meetings and discussions.
Therefore, I must, with great respect, decline your invitation to
appear and testify.
Mr. DeVier Pierson stated:
85 Military Cold War Education and Speech Review Policies • Hearings Before the Special Preparedness
Subcomm c f the Senate Comm on Armed Services, 87th Cong , 2d Sess. 508-509 (1962).
86 Id. at 513-14.
87 Id at 725.
88 Id. at 2951-57. 3160-61.
Ill
As Associate Special Counsel to the President since March of
1967, I have been one of the “ immediate staff assistants”
provided to the President by law. (3 U .S.C . 105, 106.) It has been
firmly established, as a matter of principle and precedents, that
members of the President’s immediate staff shall not appear
before a Congressional committee to testify with respect to the
performance of their duties on behalf of the President. This
limitation, which has been recognized by the Congress as well as
the Executive, is fundamental to our system of government. I
must, therefore, respectfully decline the invitation to testify in
these hearings.
The Secretary of Defense also asked to be excused ifrom a personal appearance
before the Committee, stating that “ because of the complexities of the current
world situation, my time is fully occupied in meeting my obligations and
responsibilities as Secretary of Defense.”89
25. Nixon Administration
FBI Investigative Files
On November 21, 1970, the Attorney General, with the specific approval of
the President, refused to release certain investigative files of the Federal Bureau
of Investigation to Rep. L. H. Fountain, Chairman of the Intergovernmental
Relations Subcommittee of the House Government Operations Committee. The
reports discussed certain scientists nominated by the President to serve on
advisory boards of the Department of Health, Education and Welfare.90
M ilitary A ssistance Plan
On August 30, 1971, President Nixon declined to make available to the Senate
Foreign Relations Committee the Five-Year Plan for the Military Assistance
Program.91 In a memorandum to the Secretaries of State and Defense, the
President stated:
The Senate Foreign Relations Committee has requested “ direct
access to the Executive Branch’s basic planning data on Military
Assistance” for future years and the several internal staff papers
containing such data. The basic planning data and the various
89 Nom inations c f A be Fortas and Homer Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th
C ong.. 2d Sess. 1347, 1348, 1363 (1968).
90 Memorandum for Honorable William S. Moortiead, Chairman, Subcommittee on Foreign Operations and
G overnment Information of the House Committee on Government Operations, from Deputy Assistant Attorney
Genera] Mary Lawton (Apr. 25, 1973) (Lawton Memorandum); U.S. Government Information Policies and
fYactices— The Pentagon Papers, Part 2, H ouse Comm, on Government Operations, 92d C ong., IstSess 362-63
(1971).
91 Executive Privilege. The Withholding c f Information B y the Executive: Hearing Before the Subcomm. on
Separation c f Powers c f the Senate Comm, on the Judiciary, 92d Cong., 1st Sess. 45-46 (1971).
778
internal staff papers requested by the Senate Foreign Relations
Committee do not, insofar as they deal with future years, reflect
any approved program of this Administration. . . .
I am concerned, as have been my predecessors, that unless
privacy of preliminary exchange of views between personnel of
the Executive Branch can be maintained, the full frank and
healthy expression of opinion which is essential for the successful
administration of Government would be muted.
I have determined, therefore, that it would not be in the public
interest to provide to the Congress the basic planning data on
military assistance as requested by the Chairman. . . ,1921
AID Information Concerning Foreign Assistance to Cambodia
On March 15, 1972, the President directed the Secretary of State to withhold
from the Foreign Operations and Government Information Subcommittee of the
House Government Operations Committee the Agency for International De
velopment (AID) country field submissions for Cambodian foreign assistance for
fiscal year 1973.”
USIA Memoranda
On the same date the President instructed the Director of the United States
Information Agency (USIA) to decline to provide to the Senate Foreign Relations
Committee all USIA country program memoranda.94
Watergate
President Nixon, asserting executive privilege during 1973 and 1974, refused
to provide to the Senate Select Committee on Presidential Campaign Activities
(Watergate Committee) and to the House Judiciary Committee various tape
recordings of conversations involving the President, and other materials relating
to the involvement of 25 named individuals in criminal activities connected with
the 1972 presidential election.95
26. Carter Administration
Department of Energy Gas Conservation Fee Documents
In April 1980 the Subcommittee on Environment, Energy and Natural Re
sources of the House Committee on Government Operations subpoenaed docu
n Id at 46.
93 118 Cong. Rec 8694 (1972); Lawton Memorandum, supra.
94 Id.
93 See J. Hamilton, The Power to Probe 23-26, 65 (1976); Cox, Executive Privilege, 122 U. Pa. L Rev 1383,
1420 (1974) Although the tape recordings were eventually turned over to the House Judiciary Committee, the
President's refusal to make those same tapes available to the Senate Watergate Committee was unanimously affirmed
by the U.S. Court of Appeals for the District of Columbia Circuit Senate Select Committee v. Nixon, 498 F.2d 725
(1974) (en banc) President Nixon’s refusal to disclose Watergate-related tapes and documents in response to a
subpoena in a criminal case is beyond the scope of this memorandum See generally United States v Nixon, 418
U.S. 683 (1974)
779
ments reflecting intra-Executive Branch deliberations concerning the President’s
decision to impose a conservation fee on imports of crude oil and gasoline.96 For
several weeks representatives of the Executive Branch negotiated with the
Subcommittee about releasing the documents. On April 25, 1980, Secretary of
Energy Duncan informed the Subcommittee that “ the President has instructed
me to pursue all reasonable grounds of accommodation. If there are no further
reasonable avenues of negotiation, the President has instructed me to assert a
privilege with respect to these documents.” 97 Ultimately, some but not all of the
documents were given to the Subcommittee, which tacitly withdrew its request
for documents that reflected deliberations directly involving the Executive Office
of the President.98
27. Reagan Administration
Secretary Watt’s Implementation c f the M ineral Lands Leasing Act
On October 2, 1981, the Oversight and Investigations Subcommittee of the
House Committee on Energy and Commerce served a subpoena on Secretary of
the Interior James Watt for all documents relative to his determination of Canadi
an reciprocity under the Mineral Lands Leasing Act, 30 U.S.C. § 181. Among
the material covered by the subpoena were a number of Cabinet-level predeci
sional deliberative documents, while other documents contained classified,
diplomatic information. On October 13, 1981, President Reagan directed Secre
tary Watt not to release 31 particular documents whose disclosure would be
inconsistent with the confidential relationship among Cabinet officers and the
President, and which would violate the constitutional doctrine of separation of
powers. While protecting the confidentiality of these documents, Secretary Watt
made repeated efforts to accommodate the Subcommittee’s needs through certain
limited document disclosures, testimony, and correspondence.
On February 8 ,1982, a contempt resolution against Secretary Watt was passed
by the Subcommittee; on February 25 the full Committee supported this con
clusion by a vote of 23 to 19. By this time, however, Secretary Watt had reached a
decision finding Canada to be a “ reciprocal” national under the Mineral Lands
Leasing Act. Immediately thereafter he informed all members of the Subcommit
tee that since the deliberative process had concluded, he was “ hopeful” that
additional documents might be released.
On March 16, 1982, Fred F. Fielding, Counsel to the President, together with
members of the Subcommittee, reached an agreement pursuant to which all of the
disputed documents were made available for one day at Congress under the
96 Proclamation No 4744, 16 Weekly Comp. Pres. Doc. 592 (1980).
97 M emorandum for the Attorney General, from Assistant Attorney General John Harmon, 6 (Jan. 13, 1981).
98 Id. at 8.
780
custody of a representative from the Office of Counsel to the President. Minimal
notetaking, but no photocopying, was permitted; the documents were available
for examination by Members Only.99
T h e o d o r e B . O lso n
Assistant Attorney General
Office c f Legal Counsel
99 See generally H.R. Rep. No. 8 9 8 ,97th Cong., 2d Sess. 73-84(1982); Contempt c f Congress. Hearings Before
the Subcomm. on Oversight and Investigations c f the House Comm on Energy and Commerce. 97th C ong., 2d
Sess. (1982)
781 |
|
Write a legal research memo on the following topic. | Application of Federal Advisory Committee Act to
Editorial Board of Department of Justice Journal
A n o u ts id e a d v iso ry o r e d ito ria l b o a rd fo r a n e w D e p a rtm e n t o f J u stic e p u b lic a tio n w o u ld b e
s u b je c t to th e F e d e ra l A d v is o ry C o m m itte e A c t i f it d e lib e ra te d a s a b o d y in o r d e r to f o r m u
la te re c o m m e n d a tio n s, b u t w o u ld n o t b e su b je c t to FA C A if e a c h in d iv id u a l m e m b e r re v ie w e d
s u b m iss io n s to th e jo u r n a l an d g a v e h is o r h e r o w n o p in io n a b o u t p u b lic a tio n .
M arch
M em o ran d u m
27, 1990
f o r th e E x e c u tiv e A s s is ta n t
TO TH E A TTO R N EY G EN E R A L
You have asked whether an outside advisory or editorial board for a new
publication of the Department would be subject to the Federal Advisory
Committee Act (“FACA”), 5 U.S.C. app. §§ 1-15. We believe that the board
would be subject to FACA if it deliberated as a body in order to formulate
recommendations, but would not be subject to FACA if each individual mem
ber reviewed submissions to the journal and gave his own opinion about
publication.1
I.
The definition of “advisory committee” under FACA covers, among other
things, “any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup thereof
. . . which is . . . established or utilized by one or more agencies, in the
interest of obtaining advice or recommendations for . . . one or more agen
cies or officers of the Federal Government.” 5 U.S.C. app. § 3(2). An
advisory board—a committee that collectively reviews drafts of articles, makes
recommendations about publication, and suggests editorial policy— would
1 We assum e th at the ed ito rial or ad visory board w ould not p erform operational functions w ith re sp ec t
to th e pub licatio n . I f the b o a rd actually m a d e the final d ecisio n s ab o u t w hat to p u blish o r h ow to ru n the
jo u rn a l, ad d itio n al legal q u estio n s w ould be raised. See, e.g., 41 C.F.R. § 101-6.1004(g); 5 U .S .C . app.
§ 9(b); Public Citizen v. Commission on the Bicentennial o f the U.S. Constitution, 622 F. Supp. 753
(D .D .C . 1985).
53
t
probably come within FACA. It would be “established” by the Department,
“in the interest of obtaining advice or recommendations” for the Department.
5 U.S.C. app. § 3(2). As the legislative history of FACA shows, the term
“established” is to be interpreted in its “most liberal sense, so that when an
officer brings together a group by formal or informal means, by contract or
other arrangement, and whether or not Federal money is expended, to obtain
advice and information, such group is covered by the provisions” of the Act.
S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). In view of this broad
meaning, the advisory or editorial board would come within FACA if it de
liberated as a body.2
Furthermore, FACA would apply even though the advisory board, as we
understand, could include some members who are full-time government of
ficers or employees. Under the statute, the definition of “advisory committee”
excludes “any committee which is composed wholly of full-time officers or
employees o f the Federal Government.” 5 U.S.C. app. § 3(2)(iii). By impli
cation, a committee that is not “wholly” composed of government employees
or officers comes within the statute. See Center fo r Auto Safety v. Tiemann,
414 F. Supp. 215, 225 n.10 (D.D.C. 1976) (committee of state and federal
employees is covered by FACA), remanded on other grounds sub nom. Cen
ter f o r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978); S. Rep. No. 1098
at 8 (FACA motivated by abuses involving committees “whose membership
in whole or in part” comes from outside the government).
Although some courts have put limiting constructions on the meaning of
“advisory committee,” we do not believe that such a limiting construction
could be justified here, if the editorial or advisory board deliberated as a
body in order to make its recommendations. The definition of “advisory
committee.” if read as broadly as the language permits, is expansive. See,
e.g., N ader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975), vacated as
m oot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). The language could extend to
instances where application o f FACA—with its requirements of balanced mem
bership, open meetings, and public availability of docum ents— would
unconstitutionally intrude on the exercise o f the President’s authority. Courts
have construed the statute to avoid such outcomes. See Public Citizen v.
U nited States D e p ’t o f Justice, 491 U.S. 440 (1989) (FACA does not apply
to American Bar Association’s committee on judicial selection); N ader v.
Baroody, 396 F. Supp. at 1234-35 (FACA does not apply to casual, day-today meetings by which the President gathers information and views); see
2O n o c c a sio n , in d eterm in in g w h eth er a group is an “ ad v iso ry com m ittee,” O L C has relied upon lim it
in g d ra ft g u id e lin e s fo r F A C A that w ere published in the F ed eral R egister, 28 Fed. R eg. 2306 (1973), but
n o t a d o p te d , 39 F ed . R eg. 12,389 (1 9 7 4 ). These g u id elin es, O L C has stated, are an early a d m inistrative
in te rp re ta tio n o f FA C A an d thus e n title d to som e w eight. See M em orandum fo r Irving P. M argulies,
D e p u ty G e n e ra l C o u n se l, D epartm ent o f C om m erce, from T heodore B. O lson, A ssistant A tto rn e y G e n
e ra l, O ffic e o f L e g a l C o u n se l, Re: P resident’s Private Sector Survey on Cost Control at 6-7 (D ec. 15,
1982). E v e n u n d e r th ese guidelines, a g ro u p that has “all o r m ost” o f five "c h arac te ristic s” w ould p ro b
ab ly a p p ly to the p ro p o se d board (fix ed m em bership, estab lish m en t by federal official, d efined purpose
o f p ro v id in g a d v ic e on particular s u b jec ts, and reg u lar o r p e riodic m eetings), and the last ch aracteristic
m ig h t a lso a p p ly (an organizational stru c tu re , such as a g ro u p o f o fficers, and a staff).
54
also National Anti-Hunger Coalition v. Executive Comm, o f the P residen t’s
Private Sector Survey on C ost Control, 557 F. Supp. 524, 530 (D.D.C.)
(FACA, if read broadly, could violate separation of powers), a jf'd and re
manded, 711 F.2d 1071 (D.C. Cir.), amended, 566 F. Supp. 1515 (D.D.C.
1983). However, no constitutional issues would be raised by applying FACA
to the contemplated editorial or advisory board. The business of such a
board would not touch on any “constitutionally specified task committed to
the Executive,” Public Citizen v. United States D e p ’t o f Justice, 491 U.S. at
460, nor would regulating the board’s activities under FACA interfere with
the President’s discharge of his duties.
II.
We believe that the Act would not reach an advisory board if the Depart
ment sought only the views of individuals rather than the views of the board
as a whole. FACA applies by its terms to “advisory committees.” “Advi
sory committee” is a term that connotes a body that deliberates together to
provide advice. Therefore, as a matter of statutory construction, we believe
that FACA does not apply to a group which simply acts as a forum to collect
individual views rather than to bring a collective judgment to bear.
GSA regulations confirm the commonsense notion of what differentiates
a “committee” from a collection of individuals.3 The regulations state that
FACA does not cover:
Any meeting initiated by a Federal official(s) with more than
one individual for the purpose of obtaining the advice of indi
vidual attendees and not for the purpose of utilizing the group
to obtain consensus advice or recommendations. However,
agencies should be aware that such a group would be covered
by the Act when an agency accepts the group’s deliberations
as a source of consensus advice or recommendations . . . .
41 C.F.R. § 101-6.1004(i). Although this provision is not entirely clear, it
appears to mean that FACA does not cover a collection of individuals who
do not perform a collegial and deliberative function and whose views are
considered individually rather than as part of a “sense of the committee.”
5 In Public Citizen v. United States Dep't o f Justice, the C ourt held that the G SA re g u la tio n s w ere
e n titled to “d im in ish ed d e fe re n ce " b ecau se they w ere not issued until ten years after FA C A w as passed
and because FA C A , w h ile em p o w erin g G SA to issue “ adm inistrative g uidelines and m anagem ent c o n
tro ls,” 5 U .S.C . app. § 7 (c), did not ex p ressly authorize G SA to fill in the defin itio n s o f th e statutory
term s. 491 U .S. at 463 n.12. But see 491 U.S. at 477-81 (K ennedy, J., concurring in the ju d g m e n t).
N evertheless, the C o u rt d id not view the regulations as w holly w ithout w eight.
55
The clearest example of such a collection of individuals would be a group
o f experts, each of whom reviews submissions in his own area of expertise.
Nevertheless, even if each member of the editorial board reviews every ar
ticle and sends his comments to the Department, the arrangement would still
appear to fall outside FACA, because a collective judgment would not be
sought. Indeed, since the regulation permits a meeting at which individual
views are offered, it would, a fortiori, permit the solicitation of individual
views o f board members who are not at a meeting. The board members
would merely be acting in the same way as individual contractors who offer
consulting services to the government. Cf. H.R. Rep. No. 1017, 92d Cong.,
2d Sess. 4 (1972) (“The term advisory committee does not include any con
tractor or consultant hired by an officer or agency of the government, since
such contractor would not be a ‘committee, board, commission, council . . .,
or sim ilar group . . . .” ’) (alteration in original). We caution, however, that
this regulation has not been directly tested in the courts.
W hile the regulation also permits a group to meet without having to
comply with FACA, as long as only individual views are offered, such an
arrangement would be open to legal challenge. As a practical matter, the dy
namics of such a gathering are likely to lead to members exchanging, analyzing,
and debating the views presented, and it would be difficult to argue, in that
event, that the members were offering only discrete, individual opinions.
If the editorial or advisory board is set up as a vehicle for the presenta
tion o f individual views, it m ay be prudent to leave the board without any
formal structure, such as officers or staff. One opinion in a case under
FACA could be read to suggest that such “indicia of formality” may be
relevant to whether the principle recognized in the GSA regulation would
apply. See N atural Resources Defense Council, Inc. v. Herrington, 637 F.
Supp. 116, 120 (D.D.C. 1986).
W ILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
56 |
|
Write a legal research memo on the following topic. | Application of Federal Advisory Committee Act to
Editorial Board of Department of Justice Journal
A n o u ts id e a d v iso ry o r e d ito ria l b o a rd fo r a n e w D e p a rtm e n t o f J u stic e p u b lic a tio n w o u ld b e
s u b je c t to th e F e d e ra l A d v is o ry C o m m itte e A c t i f it d e lib e ra te d a s a b o d y in o r d e r to f o r m u
la te re c o m m e n d a tio n s, b u t w o u ld n o t b e su b je c t to FA C A if e a c h in d iv id u a l m e m b e r re v ie w e d
s u b m iss io n s to th e jo u r n a l an d g a v e h is o r h e r o w n o p in io n a b o u t p u b lic a tio n .
M arch
M em o ran d u m
27, 1990
f o r th e E x e c u tiv e A s s is ta n t
TO TH E A TTO R N EY G EN E R A L
You have asked whether an outside advisory or editorial board for a new
publication of the Department would be subject to the Federal Advisory
Committee Act (“FACA”), 5 U.S.C. app. §§ 1-15. We believe that the board
would be subject to FACA if it deliberated as a body in order to formulate
recommendations, but would not be subject to FACA if each individual mem
ber reviewed submissions to the journal and gave his own opinion about
publication.1
I.
The definition of “advisory committee” under FACA covers, among other
things, “any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup thereof
. . . which is . . . established or utilized by one or more agencies, in the
interest of obtaining advice or recommendations for . . . one or more agen
cies or officers of the Federal Government.” 5 U.S.C. app. § 3(2). An
advisory board—a committee that collectively reviews drafts of articles, makes
recommendations about publication, and suggests editorial policy— would
1 We assum e th at the ed ito rial or ad visory board w ould not p erform operational functions w ith re sp ec t
to th e pub licatio n . I f the b o a rd actually m a d e the final d ecisio n s ab o u t w hat to p u blish o r h ow to ru n the
jo u rn a l, ad d itio n al legal q u estio n s w ould be raised. See, e.g., 41 C.F.R. § 101-6.1004(g); 5 U .S .C . app.
§ 9(b); Public Citizen v. Commission on the Bicentennial o f the U.S. Constitution, 622 F. Supp. 753
(D .D .C . 1985).
53
t
probably come within FACA. It would be “established” by the Department,
“in the interest of obtaining advice or recommendations” for the Department.
5 U.S.C. app. § 3(2). As the legislative history of FACA shows, the term
“established” is to be interpreted in its “most liberal sense, so that when an
officer brings together a group by formal or informal means, by contract or
other arrangement, and whether or not Federal money is expended, to obtain
advice and information, such group is covered by the provisions” of the Act.
S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). In view of this broad
meaning, the advisory or editorial board would come within FACA if it de
liberated as a body.2
Furthermore, FACA would apply even though the advisory board, as we
understand, could include some members who are full-time government of
ficers or employees. Under the statute, the definition of “advisory committee”
excludes “any committee which is composed wholly of full-time officers or
employees o f the Federal Government.” 5 U.S.C. app. § 3(2)(iii). By impli
cation, a committee that is not “wholly” composed of government employees
or officers comes within the statute. See Center fo r Auto Safety v. Tiemann,
414 F. Supp. 215, 225 n.10 (D.D.C. 1976) (committee of state and federal
employees is covered by FACA), remanded on other grounds sub nom. Cen
ter f o r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978); S. Rep. No. 1098
at 8 (FACA motivated by abuses involving committees “whose membership
in whole or in part” comes from outside the government).
Although some courts have put limiting constructions on the meaning of
“advisory committee,” we do not believe that such a limiting construction
could be justified here, if the editorial or advisory board deliberated as a
body in order to make its recommendations. The definition of “advisory
committee.” if read as broadly as the language permits, is expansive. See,
e.g., N ader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975), vacated as
m oot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). The language could extend to
instances where application o f FACA—with its requirements of balanced mem
bership, open meetings, and public availability of docum ents— would
unconstitutionally intrude on the exercise o f the President’s authority. Courts
have construed the statute to avoid such outcomes. See Public Citizen v.
U nited States D e p ’t o f Justice, 491 U.S. 440 (1989) (FACA does not apply
to American Bar Association’s committee on judicial selection); N ader v.
Baroody, 396 F. Supp. at 1234-35 (FACA does not apply to casual, day-today meetings by which the President gathers information and views); see
2O n o c c a sio n , in d eterm in in g w h eth er a group is an “ ad v iso ry com m ittee,” O L C has relied upon lim it
in g d ra ft g u id e lin e s fo r F A C A that w ere published in the F ed eral R egister, 28 Fed. R eg. 2306 (1973), but
n o t a d o p te d , 39 F ed . R eg. 12,389 (1 9 7 4 ). These g u id elin es, O L C has stated, are an early a d m inistrative
in te rp re ta tio n o f FA C A an d thus e n title d to som e w eight. See M em orandum fo r Irving P. M argulies,
D e p u ty G e n e ra l C o u n se l, D epartm ent o f C om m erce, from T heodore B. O lson, A ssistant A tto rn e y G e n
e ra l, O ffic e o f L e g a l C o u n se l, Re: P resident’s Private Sector Survey on Cost Control at 6-7 (D ec. 15,
1982). E v e n u n d e r th ese guidelines, a g ro u p that has “all o r m ost” o f five "c h arac te ristic s” w ould p ro b
ab ly a p p ly to the p ro p o se d board (fix ed m em bership, estab lish m en t by federal official, d efined purpose
o f p ro v id in g a d v ic e on particular s u b jec ts, and reg u lar o r p e riodic m eetings), and the last ch aracteristic
m ig h t a lso a p p ly (an organizational stru c tu re , such as a g ro u p o f o fficers, and a staff).
54
also National Anti-Hunger Coalition v. Executive Comm, o f the P residen t’s
Private Sector Survey on C ost Control, 557 F. Supp. 524, 530 (D.D.C.)
(FACA, if read broadly, could violate separation of powers), a jf'd and re
manded, 711 F.2d 1071 (D.C. Cir.), amended, 566 F. Supp. 1515 (D.D.C.
1983). However, no constitutional issues would be raised by applying FACA
to the contemplated editorial or advisory board. The business of such a
board would not touch on any “constitutionally specified task committed to
the Executive,” Public Citizen v. United States D e p ’t o f Justice, 491 U.S. at
460, nor would regulating the board’s activities under FACA interfere with
the President’s discharge of his duties.
II.
We believe that the Act would not reach an advisory board if the Depart
ment sought only the views of individuals rather than the views of the board
as a whole. FACA applies by its terms to “advisory committees.” “Advi
sory committee” is a term that connotes a body that deliberates together to
provide advice. Therefore, as a matter of statutory construction, we believe
that FACA does not apply to a group which simply acts as a forum to collect
individual views rather than to bring a collective judgment to bear.
GSA regulations confirm the commonsense notion of what differentiates
a “committee” from a collection of individuals.3 The regulations state that
FACA does not cover:
Any meeting initiated by a Federal official(s) with more than
one individual for the purpose of obtaining the advice of indi
vidual attendees and not for the purpose of utilizing the group
to obtain consensus advice or recommendations. However,
agencies should be aware that such a group would be covered
by the Act when an agency accepts the group’s deliberations
as a source of consensus advice or recommendations . . . .
41 C.F.R. § 101-6.1004(i). Although this provision is not entirely clear, it
appears to mean that FACA does not cover a collection of individuals who
do not perform a collegial and deliberative function and whose views are
considered individually rather than as part of a “sense of the committee.”
5 In Public Citizen v. United States Dep't o f Justice, the C ourt held that the G SA re g u la tio n s w ere
e n titled to “d im in ish ed d e fe re n ce " b ecau se they w ere not issued until ten years after FA C A w as passed
and because FA C A , w h ile em p o w erin g G SA to issue “ adm inistrative g uidelines and m anagem ent c o n
tro ls,” 5 U .S.C . app. § 7 (c), did not ex p ressly authorize G SA to fill in the defin itio n s o f th e statutory
term s. 491 U .S. at 463 n.12. But see 491 U.S. at 477-81 (K ennedy, J., concurring in the ju d g m e n t).
N evertheless, the C o u rt d id not view the regulations as w holly w ithout w eight.
55
The clearest example of such a collection of individuals would be a group
o f experts, each of whom reviews submissions in his own area of expertise.
Nevertheless, even if each member of the editorial board reviews every ar
ticle and sends his comments to the Department, the arrangement would still
appear to fall outside FACA, because a collective judgment would not be
sought. Indeed, since the regulation permits a meeting at which individual
views are offered, it would, a fortiori, permit the solicitation of individual
views o f board members who are not at a meeting. The board members
would merely be acting in the same way as individual contractors who offer
consulting services to the government. Cf. H.R. Rep. No. 1017, 92d Cong.,
2d Sess. 4 (1972) (“The term advisory committee does not include any con
tractor or consultant hired by an officer or agency of the government, since
such contractor would not be a ‘committee, board, commission, council . . .,
or sim ilar group . . . .” ’) (alteration in original). We caution, however, that
this regulation has not been directly tested in the courts.
W hile the regulation also permits a group to meet without having to
comply with FACA, as long as only individual views are offered, such an
arrangement would be open to legal challenge. As a practical matter, the dy
namics of such a gathering are likely to lead to members exchanging, analyzing,
and debating the views presented, and it would be difficult to argue, in that
event, that the members were offering only discrete, individual opinions.
If the editorial or advisory board is set up as a vehicle for the presenta
tion o f individual views, it m ay be prudent to leave the board without any
formal structure, such as officers or staff. One opinion in a case under
FACA could be read to suggest that such “indicia of formality” may be
relevant to whether the principle recognized in the GSA regulation would
apply. See N atural Resources Defense Council, Inc. v. Herrington, 637 F.
Supp. 116, 120 (D.D.C. 1986).
W ILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
56 |
|
Write a legal research memo on the following topic. | Deportation Proceedings of Joseph Patrick Thomas Doherty
T he A ttorney G eneral reversed the decision o f the Board o f Im m igration A ppeals that there was insuf
ficient evidence that the deportation o f the respondent to the Republic o f Ireland w ould be preju d i
cial to the interests of the United States, and rem anded the case to the BIA for further proceedings.
June 9,1988
In re: Joseph Patrick Thomas Doherty (A26-185-231)
In D
e p o r t a t io n
P r o c e e d in g s
Under 8 U.S.C. § 1253(a), an alien is to be deported to a country designated
by the alien if that country is willing to accept him “unless the Attorney General,
in his discretion, concludes that deportation to such country would be prejudicial
to the interests of the United States.” In this case, the Board of Immigration Ap
peals (“BIA”) ruled that there was insufficient evidence that the deportation of
respondent to the Republic of Ireland (“Ireland”) was prejudicial to the interests
of the United States and accordingly rejected the request of the Immigration and
Naturalization Service (“INS”) that respondent be deported to the United King
dom of Great Britain and Northern Ireland (“the United Kingdom”). Pursuant to
8 C.F.R. § 3.1 (h)( 1)(iii), I granted the INS’s request to review the decision of the
BIA. For the reasons set forth below, I disapprove the BIA ’s decision and con
clude that it would be prejudicial to the interests of the United States for respon
dent to be deported to Ireland and that he should be deported instead to the United
Kingdom.
I.
Respondent is a citizen of both Ireland and the United Kingdom. He was con
victed in the United Kingdom in 1981 of murder, attempted murder, and pos
session of firearms and ammunition with intent to endanger life or cause serious
injury to property. These charges arose out of an incident in which respondent
and other members of the Provisional Irish Republic Army (“PIRA”) ambushed
a British army convoy. One of the soldiers was killed during the attack. Prior to
his sentencing, respondent escaped from prison and fled to Ireland and then to
the United States, which he entered illegally in 1982.
Respondent was arrested by the INS in 1983. The United States, acting on be
half of the United Kingdom, instituted proceedings to extradite him to that coun
1
try. The district court, however, held that his actions involving the ambush of the
British army patrol and escape from prison fell within the political offenses ex
ception to the extradition treaty between the United States and England, and thus
denied the request for extradition. In Re Doherty, 599 F. Supp. 270 (S.D.N.Y.
1984).
Respondent’s deportation proceeding had been stayed during the pendency of
the extradition litigation. When it resumed, respondent conceded his deportabil
ity at a hearing before the immigration judge on the basis of having entered with
out valid immigration documents, 8 U.S.C. §§ 1251(a)(1), 1182(a)(19), (20), and
designated Ireland as the country to which he wished to be deported.1 INS ob
jected to Ireland as the country of deportation on the ground that deportation there
would be prejudicial to the interests of the United States, and contended that he
should instead be deported to the United Kingdom. In support of this contention
it supplied the immigration judge with newspaper articles and speeches on the
general issue of terrorism. Although INS was given a continuance of one week
to produce further evidence to support its contention, it failed to submit any ad
ditional evidence.
On the basis of this record, the immigration judge held that respondent should
be deported to the country he had designated, Ireland, as INS had failed to pro
duce any evidence that deportation to Ireland would be prejudicial to the inter
ests of the United States. INS appealed this decision to the BIA, arguing that re
spondent’s deportation to Ireland would be prejudicial to the interests of the
United States. On March 11, 1987, the BIA affirmed the decision of the immi
gration judge, stating:
[W]e are unwilling to find that deportation to the Republic of Ire
land would be prejudicial to the interests of the United States in
the absence of clear evidence to support that conclusion. The Ser
vice was granted a continuance to allow it to secure evidence of
such interest, but it has produced none.
BIA Decision o f March 11, 1987 at 5 (“March Decision”).
When it issued this opinion, the BIA was unaware that on March 4 INS had
filed a Motion to Supplement the Record or to Remand for Further Proceedings
Before the Immigration Judge (“Motion”).2 The Motion contained an affidavit
from Associate Attorney General Trott, signed on February 19,1987, stating that
in his judgment the deportation o f respondent to Ireland would be prejudicial to
the interests of the United States.
1 INS had added several other grounds fo r deportation, 8 U.S.C. § 1182(a)(9), (10), (27), (28)(F)(ii). These
charges deal with criminal conduct, either actual or potential. INS requested that it be allowed to prove these addi
tional charges. The immigration judge declined, holding that since respondent had conceded deportability, there
was no point in proving that he was deportable on additional grounds. This holding was affirmed by the BIA BIA
D ecision o f M arch 11, 1987 at 3.
2 INS had filed the M otion with the BIA on March 5, but it was apparently lost or misfiled due to administra
tive error. BIA Decision o f M ay 22, 1987 at 3.
2
After the BIA had issued its March Decision, the INS successfully moved the
BIA to reopen the appeal for consideration of its Motion. The BIA declined, how
ever, to remand the case to the immigration judge, holding that the affidavit did
not constitute previously unavailable evidence as required by BIA’s regulations,
8 C.F.R. §§ 3.2, 3.8. BIA Decision of May 22, 1987 at 3-5. In addition, the BIA
stated that “the affidavit does not purport to be based upon evidence that re
spondent’s deportation to the Republic of Ireland will be prejudicial to the United
States’ interests. Rather, it appears to be based only upon the . . . logical infer
ence” that our allies would view respondent’s deportation to Ireland as shielding
a terrorist from punishment. Id. at 5.3
II.
Respondent was notified that the Attorney General would consider only
whether respondent’s deportation to Ireland would be prejudicial to the interests
of the United States and whether, instead, he should be deported to the United
Kingdom. Nonetheless, in his memorandum, respondent raises the issue of the
Attorney General’s authority to review the BIA’s decision. Respondent appears
to contend that the Attorney General lacks the power to overturn the BIA’s de
cision, particularly if he were to do so after having considered Mr. Trott’s affi
davit. Given that respondent has raised the issue, it is appropriate, before turning
to the merits, to address the scope of the Attorney General’s decisionmaking au
thority in this case.
Section 1253(a), like most other provisions of the immigration law, vests the
power to make determinations in the Attorney General personally.4 That power
includes the power to receive evidence, make findings of fact, and decide issues
of law. The Attorney General has delegated his decisionmaking authority, in the
first instance, to the BIA and the immigration judges.5 They exercise “such dis
cretion and authority conferred upon the Attorney General by [law] as is appro
priate and necessary for the disposition” of the case. 8 C.F.R. §§3. l(d)( 1), 236.1.
3 Counsel for respondent was notified that the Attorney General would be reviewing the decision of the BIA,
and would determine whether the deportation of respondent to Ireland would be prejudicial to the interests o f the
United States and whether, instead, he should be deported to the United Kingdom. Counsel for respondent was
given the opportunity to submit a memorandum addressing the question under review Counsel for respondent was
also informed that the Attorney General would be considering Mr. Trott’s affidavit in the course o f his review of
the BIA’s decision, and thus that respondent might wish to respond to the facts and reasoning contained in that af
fidavit. Counsel for respondent filed a memorandum, as well as a shorter supplemental letter in response to a sub
sequent letter from INS setting out its views on the case. In my review, I have considered these filings made by
counsel for respondent and INS, the record o f the proceedings below, Mr. Trott’s affidavit, the decision in the ex
tradition proceedings cited in Mr. T rott’s affidavit, and a letter from Michael M. Armacost, Undersecretary for Po
litical Affairs at the Department o f State, setting forth the Department o f State’s views regarding the interests of
the United States in this case.
4 See generally 8 U S.C § 1103.
5 The BIA is entirely a creation of the Attorney General. See Greene v INS, 313 F.2d 148 (9th Cir.), cert, d e
nied, 374 U S. 828 (1963). Immigration judges receive some o f their powers and duties directly from Congress, 8
U.S C § 1252(b), and some by delegation from the Attorney General. See Lopez-Telles v INS, 564 F.2d 1302 (9th
Cir 1977).
3
Thus, to the extent that the immigration judges or the BIA have authority to make
determinations under section 1253(a), including the authority to receive evidence
and make findings of fact, it is because they are exercising, by delegation, the
Attorney General’s authority.
Although he has delegated his decisionmaking authority in the first instance
to the immigration judges and the BIA, the Attorney General has retained the au
thority to review the decisions of the BIA pursuant to 8 C.F.R. § 3.1(h), and thus
has retained final decisionmaking authority. Id. § 3.1(d)(2). The regulations set
ting out his review authority do not expressly or by implication circumscribe the
Attorney General’s statutory decisionmaking authority. Thus, when the Attorney
General reviews a case pursuant to 8 C.F.R. § 3.1(h), he retains full authority to
receive additional evidence and to make de novo factual determinations.6
Accordingly, there can be no doubt that the Attorney General has authority to
consider evidence such as Mr. T rott’s affidavit even though that evidence was
not considered by the BIA or the immigration judge. Nor can there be any doubt
that the Attorney General has authority to reach a decision different from that of
the BIA. In any event, in this case respondent was notified that the Attorney Gen
eral would consider Mr. Trott’s affidavit and was given an opportunity to respond
on the merits to the facts and reasoning contained in it, an opportunity which re
spondent has exercised.7
III.
Respondent’s actions and his criminal convictions were established by the dis
trict court in the extradition proceeding. In Re Doherty, 599 F. Supp. 270
(S.D.N.Y. 1984). Respondent did not contest the factual findings of the court; in
deed, he testified at length as to the events giving rise to his criminal conviction.
Id. at 272. Respondent’s testimony and his criminal convictions as established in
the extradition proceeding are summarized in the opinion of the district court:
6 M oreover, despite the contention of respondent, the regulations governing the BIA are not applicable to the
A ttorney General. Thus, even after having rendered a decision, if the Attorney General was presented with a mo
tion to reconsider, or a m otion to remand as th e BIA was, he would not be governed by 8 C.F.R. §§ 3.2 and 3.8 in
deciding that motion.
7 On April 21,1988, respondent filed a m otion requesting that the Attorney General, and any individual to whom
he m ight delegate decisionmaking authority, be rescued from an adjudicative role in these proceedings. Respon
dent does not allege any personal bias as the basis for this motion. Rather, in essence the motion is based on the al*
legation that the history o f the extradition litigation and these deportation proceedings demonstrates that the Jus
tice Department is persecuting respondent by advancing improper legal theories and denying him procedural nghts.
This does not appear to be, in fact, a "recusal” motion; rather, the motion appears to me to be a repetition of legal
arguments that respondent has made in these proceedings and elsewhere.
In any event, respondent’s allegation is without foundation. The Justice Department has in no way perse
cuted respondent by advancing improper legal theories or denying him procedural rights. In this connection, I would
note that, in an interim review o f these proceedings, the United States Court o f Appeals for the Second Circuit has
already rejected a number o f the claims that respondent makes in this motion In particular, it held that it was “abun
dantly clear'’ that the INS had a reasonable basis for appealing the adverse decision o f the immigration judge, and
it also rejected the argument that the determination o f the district court that respondent was not extraditable in some
way precluded his deportation Doherty v. M eese, 808 F.2d 9 3 8 ,942,944 (2d Cir. 1986). Accordingly, respondent's
motion is denied.
4
Respondent Doherty was a member of the provisional Irish Re
publican Army (“PIRA”). On May 2,1980, at the direction of the
IRA, Doherty and three others embarked upon an operation “to
engage and attack” a convoy of British soldiers.
Doherty testified that he and his group took over a house at 371
Antrim Road in Belfast, and awaited a British Army convoy. Some
three or four hours later, a car stopped in front of 371 Antrim Road
and five men carrying machine guns emerged. These men, mem
bers of the Special Air Service of the British Army (“SAS”), and
Doherty’s group fired shots at each other.
In the exchange of gunfire Captain Herbert Richard Westmacott, a British army captain, was shot and killed. Doherty was ar
rested, charged with the murder, among other offenses, and held
in the Crumlin Road prison pending trial. On June 10,1981, after
the trial was completed but before any decision by the Court, Do
herty escaped from the prison along with seven others. He was
convicted in absentia on June 12, 1981 of murder, attempted mur
der, illegal possession of firearms and ammunition, and belong
ing to the Irish Republican Army, a proscribed organization.
599 F. Supp. at 272 (citations to transcript omitted).8
The facts established in the extradition proceedings show that respondent killed
a member of the British army. While the victim was a soldier rather than a civil
ian, the use of violence against a democratic society is unjustified irrespective of
the identity of the victim. It is unjustified for the fundamental reason that in a de
mocratic society the political system is available for peaceful redress of griev
ances. Given the availability of peaceful alternatives, there is no legitimate rea
son to resort to violence against any person whether or not that person has an
official status within the State.9
The availability of such alternatives cannot be questioned here. While in some
cases the question whether a society is democratic would be a difficult one, it is
clear that the United Kingdom (of which Northern Ireland is a part) is a democ
ratic society. Its citizens have fundamental political rights and are fully able to
pursue their political goals through the electoral process.
8 Mr. T ro tfs affidavit states that respondent has committed certain additional crimes. Respondent states that he
has not committed such crimes. I do not consider it necessary to resolve this factual dispute The record o f the ex
tradition proceeding establishes the fact that respondent has committed serious crimes. I base my decision on the
facts established in the extradition proceedings, and do not consider it relevant whether or not respondent has com
mitted additional crimes.
9 This, o f course, is not to say that the United States may not also condemn acts of violence in a non-democratic state. In particular, it is the policy o f the United States to condemn acts of violence directed against non-com
batants even by those who are otherwise legitimately seeking to oppose a non-democratic government.
5
It is the policy of the United States that those who commit acts of violence
against a democratic state should receive prompt and lawful punishment. The
factual premise of Mr. Trott’s affidavit is that this policy would be prejudiced if
respondent were deported to Ireland because, while he could be prosecuted there
for any crimes he committed in connection with his escape from prison, he could
not be prosecuted there or extradited to the United Kingdom for murder or the
other offenses he committed in connection with the ambush of the British army
patrol. Trott affidavit at 4—5,1111 9, 11. This factual premise is challenged by re
spondent, who asserts that he would be subject to extradition from Ireland to the
United Kingdom, apparently after having served any sentence Ireland would im
pose with respect to his escape from prison in the United Kingdom. Brief of Respondent-Appellee Joseph Patrick Thomas Doherty To The Attorney General at
24-25 (Jan. 8, 1988).
Respondent apparently bases his statement that he would be subject to extra
dition from Ireland to the United Kingdom on the Extradition Act recently pro
mulgated in Ireland.10 Assuming for purposes of this decision that Irish law sup
ports respondent’s contention, it would nonetheless be prejudicial to the interests
of the United States for respondent to be deported to Ireland rather than the United
Kingdom for two independent reasons. First, respondent has committed serious
crimes in the United Kingdom and has received a prison sentence in the United
Kingdom. As indicated above, it is the policy of the United States that those who
commit acts of violence against a democratic state should receive swift and law
ful punishment, and it is thus in the interests of the United States that respondent
serve his sentence in the United Kingdom. Deporting respondent to Ireland would
require the United Kingdom to invoke Irish law to secure respondent’s return to
the United Kingdom. It is in our interest that he be sent directly to the United
Kingdom instead.
Second, Michael H. Armacost, the Undersecretary for Political Affairs at the
Department of State, has communicated to me the views of the Department of State
that a decision to deport respondent to Ireland rather than the United Kingdom
would be injurious to our relations with the United Kingdom. Mr. Armacost states:
We note in particular that the United Kingdom is the only State
which has requested Doherty’s extradition from the U.S., and that
the denial of that request by our courts met with great disap
pointment. Additionally, Her M ajesty’s Government has repeat
edly and vigorously expressed its desire that the United States ef
fect Doherty’s deportation to the United Kingdom; to our
knowledge, no other State has made a competing request. There
fore, in our view, the government and people of the United King
10
I note that the affidavit o f counsel attached to the Motion o f Respondent to Reopen or Reconsider (Dec. 3,
1987), which, as discussed in the next section o f this opinion, was referred to me by the BIA, states that the Extra
dition (European Convention on the Suppression o f Terrorism) Act went into effect in Ireland on December 1,1987,
and that it changed the Irish law governing deportation such that respondent would now be subject to extradition
from Ireland to the United Kingdom. Affidavit o f Mary Boresz Pike (Dec. 3, 1987) at UU 25-27
6
dom would not welcome a decision by the Attorney General to
deport Doherty elsewhere.
Moreover, the United Kingdom is the United States’ closest
partner in our counter-terrorism efforts. Failure to return Doherty
to the United Kingdom could undermine HMG[‘s] confidence in
the ability of the United States to cooperate in counter-terrorism
efforts of special bilateral concern.
Finally, given the strength of British views on this issue, we be
lieve that an Executive Branch determination not to deport Do
herty to the U.K. might well prejudice broader aspects of our bi
lateral relationship beyond cooperation in counter-terrorism
activities.
I certainly agree with the State Department that a decision to deport respondent
to Ireland rather than the United Kingdom would be injurious to our relations
with the United Kingdom.11
For the foregoing reasons, I conclude that deportation of respondent to Ireland
would be prejudicial to the interests of the United States and that he should be
deported instead to the United Kingdom. Accordingly, I disapprove the decision
of the BIA affirming the order of the immigration judge that respondent be de
ported to Ireland rather than the United Kingdom.12
11 Respondent points to the fact that he was held unextraditable under the United States-United Kingdom Ex
tradition Treaty B nef o f Respondent-Appellee at 3-4. Deportation proceedings such as these, however, are inde
pendent from, and governed by a different standard than, extradition proceedings. Doherty v. Meese, 808 F.2d 938,
944 (2d Cir. 1986). Application o f the extradition treaty involves an interpretation of the reciprocal legal obliga
tions created by that treaty; the application o f 8 U.S.C. § 1253(a) involves a determination of the interests o f the
United States — potentially a much broader inquiry Thus, the fact that respondent's actions were held to fall within
the political offenses exception to the then applicable extradition treaty between the United States and the United
Kingdom does not preclude a finding that it would be prejudicial to the interests of the United States for respon
dent to be deported to Ireland.
Respondent also asserts that he has a substantive right to be deported to the country he designates, and that
denial o f that right would violate his constitutional right to due process and equal protection Brief of RespondentAppellee at 18-23. This latter claim is based on his assertion that he is the first alien whose country of designation
has been rejected Respondent is, of course, correct that 8 U S.C. § 1253(a) authorizes an alien to designate a coun
try o f deportation, but he fails to acknowledge that the statutory authorization is subject to the authority of the At
torney General to reject the designated country. Nor has he been singled out unconstitutionally. In the analogous
area of decisions whether or not to exercise prosecutorial discretion, a decision to prosecute is only unconstitutional
if it is based on a characteristic such as race or religion Oyler v. Boles, 368 U.S. 448,456 (1962); Wayte v. United
States, 470 U.S. 598,608 (1985). Respondent does not assert that he has been singled out based on such a charac
teristic, nor would there be any grounds for him to do so.
12 My decision on the merits is based on the evidence and reasoning set forth in Part III of this opimon. I ex
press no opinion regarding the BIA ’s decision, pursuant to 8 C.F.R. §§ 3.2 and 3.8, to deny INS’s Motion to Sup
plement the Record or to Remand for Further Proceedings Before the Immigration Judge I do, however, disap
prove o f the B IA ’s statement that Mr. Trott’s affidavit consisted solely o f “logical inferences” and thus was not
“evidence.” BIA Decision o f May 12, 1987 at 5. The judgment under 8 U.S.C. § 1253(a) whether an alien’s des
ignation o f a country o f deportation would be prejudicial to the interest o f the United States “must be based on an
analysis o f the impact o f a particular deportation on United States' interests viewed as a whole by a politically re
sponsible official ” Doherty v M eese, 808 F.2d at 943. Such an analysis is likely to take the form of an affidavit
such as Mr. Trott’s. Indeed, it is difficult to see what other kind of evidence could be offered. Certainly, the INS
7
IV.
On December 3, 1987, respondent filed a motion with the BIA requesting an
order reopening the deportation proceedings, and remanding the case to the im
migration judge for a hearing on respondent’s claims for asylum, withholding of
deportation, and for redesignation of country of deportation. It appears that re
spondent’s arguments are twofold: first, that the enactment of the Extradition Act
in Ireland has changed the facts upon which he based his earlier concession of
deportability and his waiver of other legal claims; and second, that because the
prolongation of the administrative proceedings prevented him from being de
ported to Ireland prior to the entry into force of this law, he should be allowed
now to revoke his earlier concession and waiver.
On February 2, 1988, the BIA issued a per curiam opinion referring respon
dent’s motion to the Attorney General. BIA decision of February 2,1988 at 2. In
its decision, the BIA stated it was taking this action because it was unclear whether
it had authority to consider the motion while an appeal was pending before the
Attorney General. Accordingly, the decision referred the motion to the Attorney
General “for such action as he deems appropriate.” Id.
I have concluded that it is appropriate to remand this motion to the BIA for its
decision. I express no opinion as to how the BIA should decide the motion, or as to
how the immigration judge or the BIA should make any subsequent determina
tions in the event that all or part o f that motion were to be granted. In light of the
length of time that the respondent’s deportation proceedings have already con
sumed, however, I do recommend that the BIA give priority on its docket to this
motion to the extent that, in the B IA ’s judgment, this can be done consistent with
any applicable procedural rules and the reasonable requirements of the parties.
V.
For the foregoing reasons, the decision of the BIA is disapproved, and the case
is remanded to the BIA for proceedings consistent with this opinion.
E d w i n M e e s e III
Attorney General
12 ( . . . continued)
should not be required, for instance, to offer the affidavits o f foreign government officials stating what the official
position o f their governments would be regarding a particular deportation, and stating whether they will lessen their
cooperation with the United States as a result o f the deportation proceeding.
Finally, I approve o f the decision of the BIA that the immigration judge, in the circumstances o f this case,
did not abuse his discretion in refusing to let the INS prove additional charges. This refusal in no way impaired the
IN S’s ability to establish that it would be prejudicial to the interests o f the United States for respondent to be de
ported to Ireland. As the BIA stated: “Deportability and designation o f the country for deportation are separate and
distinct issues.” M arch Decision at 5. Once deportability is established on any ground, as it was here, the INS can
proceed to establish its objections to the country of designation under 8 U.S.C. § 1253(a). O f course even m cir
cumstances similar to those here, the INS m ust be given the opportunity to prove when necessary additional facts
that are relevant to its objection to a country o f designation, but that need not be done by proving additional grounds
of deportability.
8
O PIN IO N S
OF THE
OFFICE OF LEGAL COUNSEL |
|
Write a legal research memo on the following topic. | Rights-of-Way Across National Forests
T h e A ct o f June 4, 1897, does not grant a right o f access to ow ners o f land surrounded
by national forests, other than actual settlers, and the Secretary o f A griculture has
discretionary authority to deny such access unless a right otherw ise exists.
T h e com m on law doctrine o f easem ent by necessity does not apply to land ow ned by the
federal governm ent, but a right o f access may be implied from the term s of a federal
land grant in some circum stances. N o statutes currently modify any such implied right
found to exist.
Absent a prior existing access right, the Secretary o f A griculture may deny “adequate
access” to land within a national forest w ilderness area, but must offer a land exchange
as indemnity.
June 23, 1980
T
he
Secretary
of
A
g r ic u l t u r e
This replies to your letter of September 18,
1979, requesting my opinion on several questions concerning access
rights of private owners of land located within the boundaries of the
national forests. Your letter poses the following questions:
(1) Whether the Organic Act of June 4, 1897,1 grants to private
landowners,2 other than actual settlers, a right of ingress to and egress
from their properties located within the exterior boundaries of the
national forests, or whether you may deny such access;
(2) W hether private landowners with property located within the
exterior boundaries of the national forests have a right-of-way across
national forest lands by implied easement or easement by necessity
enforceable against the federal government; and, if so, whether this
right-of-way is limited to those instances in which the United States by
its conveyance created a situation in which nonfederal lands are sur
rounded by public lands;
(3) Whether, if a right-of-way exists across national forests, it has
been modified by:
M y D e a r M r. S e c r e ta r y :
(a) The Organic Act of June 4, 1897, 16 U.S.C. § 478;
(b) The Wilderness Act, § 5(a), 16 U.S.C. § 1134(a);
(c) The Act of October 13, 1964, 16 U.S.C. §§ 532-538;
1A c t o f J u n e 4. 1897, c h . 2. § 1. 30 S tat. 36 (c o d ifie d at 16 U .S .C . § 478).
- A s used in th is o p in io n , th e te rm “ p riv a te la n d o w n e rs " re fe rs to all n o n fe d e ra l la n d o w n e rs unless
o th e r w is e in d icated .
30
(d) The Montana Wilderness Study Act of 1977, § 3, 16 U.S.C.
§ 1132 note; or
(e) Any other statute; and
(4)
Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a), au
thorizes you to deny access and offer as indemnity an exchange of
national forest land for private land, or whether the private landowner
may insist on a right of access.
I conclude, first, that the Organic Act of June 4, 1897, does not grant
a right of access to owners of land surrounded by national forests, other
than actual settlers, and that you have discretionary authority to deny
such access, provided that a right of access does not otherwise exist. Of
course, access cannot be denied arbitrarily.
Second, in my opinion, the common law doctrine of easement by
necessity does not apply to land owned by the federal government. A
right of access may be implied from the terms of a federal land grant
only if Congress intended to grant the right. This intent may be show
from the circumstances surrounding the grant, including the purpose
for which it was made.
Third, none of the statutes you have asked us to consider, nor any
others that we have found, would modify such a right in any case in
which it is found to exist.
Fourth, I conclude that, absent a prior existing access right, you may
deny “adequate access” under the Wilderness Act, but you must offer a
land exchange as indemnity.
I.
Your first question is whether Congress has given private inholders 3
a statutory right of ingress and egress with respect to their property,
including a right to build roads. Congress clearly has the power to
grant such statutory rights.4 The question is whether it has done so.
Your department concludes that the Organic Act of June 4, 1897,
grants a right of access, including a right to build roads, to all owners
3 A n “ in h o ld e r" is a la n d o w n e r w h o se p ro p e rty is c o m p le te ly s u rro u n d e d b y p r o p e r ty o w n e d b y
th e U n ited S tates. A g ain , as used in th is o p in io n th e te rm “ p riv a te inholder*’ re fe rs to all n o n fe d e ra l
in h o ld ers.
4 T h e p o w e r to c o n tro l p u b lic lan d s is g ra n te d to C o n g re s s by th e C o n stitu tio n :
T h e C o n g re s s shall h a v e P o w e r to D isp o se o f an d m ake all n ee d fu l R u les an d
R e g u la tio n s re s p e c tin g th e T e r r ito r y o r o th e r p ro p e rty b e lo n g in g to th e U n ite d
S ta l e s .. . .
U .S. C o n st.. A rt. IV , § 3, cl. 2. T h is c o m p re h e n s iv e co n g re s s io n a l a u th o rity o v e r p u b lic lan d s in c lu d e s
th e p o w e r to p re s c rib e th e tim es, c o n d itio n s , an d m o d e o f tra n sfe r (U n ite d S ta tes v. G ratiot. 39 U .S . (14
P et.) 526, 537-38 (1840)); to d e c la re th e e ffec t o f title e m a n a tin g fro m th e U n ite d S ta te s ( B a g n ell v.
Broderick, 38 U .S. (13 P e t.) 436, 4 5 0 (1839)); a n d to p re v e n t u n la w fu l o c c u p a tio n o f p u b lic p r o p e r ly
(C a m fie ld v. U nited Stoles. 167 U .S. 518, 525 (1897)). In K leppe v. N e w M exico. 426 U .S. 529, 539
(1976), th e C o u rt sta te d : “ (W jh ile th e fu rth e st re a c h e s o f p o w e r g ra n te d b y th e P r o p e r ty C la u se h a v e
n o t yet been d efin ite ly re so lv e d , w e h a v e re p e a te d ly o b s e rv e d th a t th e p o w e r o v e r p u b lic la n d s th u s
e n tru ste d to C o n g re s s is w ith o u t lim ita tio n ."
31
of land surrounded by national forest reserves. Section 478, the codifi
cation of § 1 of the Act, provides:
Nothing in sections 473 to 478, 479 to 482 and 551 of this
title shall be construed as prohibiting the egress or ingress
of actual settlers residing within the boundaries of na
tional forests, or from crossing the same to and from their
property or homes; and such wagon roads and other im
provements may be constructed thereon as may be neces
sary to reach their homes and to utilize their property
under such rules and regulations as may be prescribed by
the Secretary of Agriculture. Nor shall anything in such
sections prohibit any person from entering upon such na
tional forests for all proper and lawful purposes, including
that of prospecting, locating, and developing the mineral
resources thereof. Such persons must comply with the
rules and regulations covering such national forests.
In 1962, Attorney General Kennedy was asked by the Secretary of
Agriculture for his opinion on the meaning of this statute. See 42 Op.
A tt’y Gen. 127 (1962). Prior to 1962, your department interpreted the
first sentence of § 478 as granting a right of access to all owners of land
surrounded by a national forest. It reasoned that the term “ingress and
egress” included the construction of wagon roads, and that the term
“actual settlers” included any person or corporation owning property
within the boundaries of national forests. As a result, private landown
ers, including lumber corporations, were considered to have a statutory
right to build logging roads. Id. at 130. Attorney General Kennedy
opined that the term “actual settlers” includes original settlers who
reside on the land, and excludes corporations and other business enti
ties.5 He further concluded that the Secretary of Agriculture has discre
tionary authority to impose a reciprocity requirement on requests by
inholders, other than actual settlers, to use existing roads or to build
new roads within national forests. Id. at 142-45.
You have advised us that, notwithstanding the 1962 opinion, your
department has continued to maintain that § 478 creates a right of
access for all private inholders. This interpretation, you have informed
us, has been based upon the second sentence of § 478, which was not
directly addressed in the 1962 opinion. My review of the reasoning set
forth in that earlier opinion, as well as my analysis of § 478 and its
legislative history, convinces me that no such access right exists.
The 1962 opinion analyzed § 478 by dividing it into the following
three categories: (1) ingress and egress of actual settlers; (2) construc
5
B etw e en th e e x tre m e s o f th e o rig in a l s e ttle r a n d c o r p o ra tio n s o r b usiness e n titie s a re in te rm e d ia ry
ty p e s o f p ro p e rty o w n e rs su c h as h e irs o r assigns o f an a c tu a l s e ttle r. T h e 1962 o p in io n d id n o t
c o n s id e r w h e th e r th o se in te rm e d ia ry p ro p e r ty o w n e rs a re “ a c tu a l s e ttle rs ” w ith in th e m e an in g o f th e
A c t. 42 O p . A tt’y G en . 127, 138 (1962).
32
tion of wagon roads and other improvements by actual settlers; and (3)
entry upon the national forest for all proper and lawful purposes by any
person. Id. at 127, 138-39. We are concerned here only with the third
category because you inquire as to the rights of landowners other than
actual settlers. In this category, “entry upon” may be subdivided into
entry by mere ingress and egress, in particular the use of existing roads,
and entry requiring construction of roads. Section 478 provides that
any entry upon the forest reserve by any person is subject to the rules
and regulations covering such national forests. The question now pre
sented, therefore, is whether the Secretary’s regulations may, in appro
priate cases, include denial of the requested entry.
To determine correctly the scope of rights protected by the 1897
Act, it is necessary to study carefully the language of the Act itself, and
its legislative history. As the legislative history is fully summarized in
the 1962 opinion, I note only the aspects particularly relevant here. At
the outset, it is helpful to review the sequence of events which led to
the passage of the Act. During the 1800’s the public entered freely
upon federal land, and Congress, although it did not provide specific
legal authority for most uses of the public domain, made no serious
attempt to halt such uses. See generally G. Robinson, The Forest Serv
ice 2-5 (1978); Clawson & Held, The Federal Lands 46 (1957). This
tacit approval constituted an open invitation to the public to avail itself
of the federal land without specific authorization. Most people assumed
that the United States was a temporary titleholder and that the land
would eventually pass into private ownership. See R. Robbins, Our
Landed Heritage: The Public Domain, 1776-1970, 5-6 (1976). The
public land laws of the era, including preemption laws,6 homestead
laws,7 and mining laws,8 presumed unimpeded access to the public
domain.
This policy of unimpeded access was recognized by the Supreme
Court in Buford v. Houtz, 133 U.S. 320, 326 (1890), a case in which the
Court considered the complaints of owners of alternate odd-numbered
sections of land that sheepowners were damaging their land by driving
6T h e A c t o f M ay 29, 1830, 4 S tal. 4 2 0 -2 1 , first g ra n te d p re e m p tio n rig h ts to settlers. U n d e r its
term s, an y p erso n w h o h ad se ttle d on th e p u b lic d o m a in an d h ad c u ltiv a te d a tra c t o f land w as
a u th o riz e d to p u rc h a s e an y n u m b e r o f a c re s up to a m axim um o f 160 a c re s u p o n p ay in g to th e U n ite d
S ta te s a m inim um p ric e fo r Che land.
7
T h e first h o m e stead a c t w as passed in 1862. A c t o f M ay 20, 1862, 12 S ta t. 3 9 2 -9 3 . It p ro v id e d th a t
c e rta in p erso n s c o u ld e n te r u n a p p ro p ria te d p u b lic lan d s an d , u p o n satisfy in g c e rta in c o n d itio n s, o b ta in
a G o v e rn m e n t p a te n t th e re fo r.
8T h e M in in g L a w o f 1866 (A c t o f J u ly 26, 1866, c h . 262, 14 S tat. 251) o p e n e d m in eral d e p o sits o n
p u b lic lands to e x p lo ra tio n , claim , and o c c u p a tio n . T h e o n ly sp ecific re fe re n c e to rig h ts-o f-w ay
ap p e a re d in § 8, w h ic h g ra n te d a rig h t-o f-w a y fo r th e c o n s tru c tio n o f h ig h w a y s o v e r p u b lic lan d s n ot
re se rv e d fo r public uses. T h e M in eral L o c a tio n L a w o f 1872 (A c t o f M ay 10, 1872, c h . 752, 17 S tat.
9 1 -9 6 ) d id not m e n tio n ac cess ac ro ss th e p u b lic d o m a in . F ro m th e o u tse t, h o w e v e r, fed era l m in in g
la w s h av e b een c o n s tru e d as an in v itatio n to e n te r, d is c o v e r, an d lo c a te claim s u p o n p u b lic lands n ot
w ith d ra w n o r reserv ed . See, e.g.. Union O il Co. v. S m ith , 249 U.S. 337, 3 4 6 -4 7 (1919); U n ite d S ta te s v.
Carlile. 67 l.D . 417, 421 (1960). See generally J. L o n e rg a n , A ccess to In te rm in g led M in e ra l Deposits,
M in in g C la im s a n d Private L a n d s Across S u rro u n d in g Public D om ain a n d N a tio n a l Forest L a n d s. 8 L an d
& W a te r L. R ev. 124 (1973).
33
sheep across it to reach the even-numbered sections of the public
domain. The Court denied plaintiffs’ request for an injunction with the
following explanation:
We are of opinion that there is an implied license, grow
ing out of the custom of nearly a hundred years, that the
public lands of the United States . . . shall be free to the
people who seek to use them where they are left open
and unenclosed, and no act of government forbids this
use. . ..
The whole system of the control of the public lands of
the United States as it had been conducted by the G ov
ernment, under acts of Congress, shows a liberality in
regard to their use which has been uniform and
remarkable.
133 U.S. at 326-27. The Court refused to allow the complainants, under
the pretense of owning a small portion of a tract of land, to obtain
control over the entire tract and thereby deny defendants their privi
lege to use the public domain. 133 U.S. at 322. See also, Broder v. Water
Co., 101 U.S. 274, 276 (1879) (Court noted conduct of government
encouraging development of mines and construction of canals and
ditches on public domain); Forbes v. Gracey, 94 U.S. 762 (1876) (Court
noted tacit consent to enter upon the public lands for the purposes of
mining); Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874) (Court noted
“silent acquiescence” to the general occupation of the public lands for
mining).
In the late 19th century, efforts expanded to protect the Nation’s
natural resources from the results of what were perceived as overly
generous land-use policies. See Robbins, supra, at 301-24. In 1891, the
Congress passed a law authorizing the President to reserve forest lands
from the public domain. Act of March 3, 1891, ch. 561, §24, 26 Stat.
1103. One provision of this Act, § 24, later known as the Forest Re
serve Act of 1891, was added as an amendment by the conference
committee.9 The amended bill was considered in the closing days of the
Congress on an oral presentation of its terms, no printed version being
available. It was approved with little debate.10 The status of these forest
9 S e c tio n 24 p ro v id e d :
[T ]h e P re sid e n t o f th e U n ite d S ta te s m a y , fro m tim e to tim e, set a p a rt an d re se rv e , in
a n y S ta te o r T e r rito r y h a v in g p u b lic land b e a rin g forests, a n y part- o f th e p u b lic lands
w h o lly o r in p a rt c o v e re d w ith tim b e r o r u n d e rg ro w th , w h e th e r o f c o m m e rc ia l valu e
o r n o t, as p u b lic re s e rv a tio n s , an d th e P resid en t shall, by p u b lic p ro c la m a tio n , d e c la re
th e esta b lish m e n t o f su ch re s e rv a tio n s an d th e lim its th e reo f.
l0S o m e S e n a to rs ex p ressed c o n c e rn ab o u t not k n o w in g e x a c tly w h a t w as in .t h e r e p o rt, b u t th e
m a jo rity felt th a t in th e c lo sin g d a y s o f th e session “ th e re has g o t to be s o m e th in g ta k en fo r g ra n te d o r
else th e p u b lic b usiness c a n n o t g o fo rw a rd as it should.*’ 22 C o n g . R ec. 3 5 4 6 -4 7 (1891). T h e b rie f
H o u se d e b a te a p p e a rs at 22 C o n g . R ec. 3 6 1 3 -1 6 (1891).
34
reserves was not defined, nor were guidelines provided for the manage
ment of the reserves.
On February 22, 1897, President Cleveland, pursuant to the 1891
Act, issued proclamations placing approximately 20 million acres of
public land in forest reserves. Presidential Proclamations Nos. 19-31,
Feb. 22, 1897, 29 Stat. 893-912. Within the boundaries of the reserves
were villages, patented mining claims, homestead claims of actual set
tlers and other developments. See 30 Cong. Rec. 901-02 (1897). Each of
the proclamations contained the following admonition: “Warning is
hereby expressly given to all persons not to enter or make settlement
upon the tract of land reserved by this proclamation.” See, e.g., 29 Stat.
894 (1897). The proclamations also prohibited the general use of timber
on the reserves, and jeopardized other theretofore legitimate activities
of persons living within or near the reserves.
Congressmen from states affected by the proclamations expressed
outrage at what they considered the President’s hasty and ill-advised
action. 30 Cong. Rec. 902 (1897). This reaction culminated in the
passage of an amendment to the Sundry Civil Expense Appropriation
Act, 30 Stat. 36 (1897). This amendment was designed to solve the
“difficulties surrounding these forest reservations” (id. at 900) and to
provide for “administering the forest so reserved” (id. at 909).11 Senator
Carter of Montana explained that the amendment was offered “not for
the purpose of benefitting any particular individual or class of individ
uals, but for the purpose of permitting existing communities in the
United States to enjoy the privileges which have ordinarily been ac
corded to the pioneer settlers on the frontier everywhere.” Id. at 902.
Other Senators also criticized the provision prohibiting entry or settle
ment upon the reserves. Id. at 910-11. Senator Allison of Iowa stated:
“[I]f segregations are made I think every interest existing at the time,
however remote it may be, should be protected.” Id. at 911 (emphasis
added). The House debate on the amendment indicates that the con
gressmen also were concerned about preserving existing uses of the
forest reserves. Id. at 1007-13 (remarks of Representatives Castle,
Knowles, Lacy, and DeVries).12
The bill was referred to a conference committee, which reported the
bill without changes in or comments upon the access section. Id. at
1242-43. During the Senate debate on the conference report, some of
the same western Senators on whose behalf the amendment was intro
duced sought to change the clause “actual settlers residing within the
boundaries of national forests” to “bona fide settlers or owners within a
reservation.” Id. at 1278-81. Senator White explained that the provision
“ T h e a m e n d m e n t te m p o ra rily re s to re d th e w ith d ra w n lands to th e p u b lic d o m a in b y su sp e n d in g
th e o p e ra tio n o f th e p re sid e n tia l p ro c la m a tio n s fo r a p p ro x im a te ly o n e year. 30 C o n g . R ec. 8 9 9 -9 0 0
(1897). I t also clarifie d th e P re s id e n t’s a u th o rity to re v o k e , m odify, o r su sp e n d s u c h p ro c la m a tio n s.
,2 F o r a c o m p le te d iscu ssio n o f th is le g islativ e h isto ry , see 42 O p . A lt’y G en . 127, 135-38 (1962).
35
as drafted did not adequately protect all persons who had acquired title
in fee from the government. Id. at 1278. The amendment was defeated.
Id. at 1285. Opponents of the amendment emphasized that there was no
intent to deprive any person of access to his property, and that “what
ever rights have been acquired as respects the public lands under the
public land laws are reserved and preserved.” Id. at 1283. It was noted
that entry upon the forests was subject to the rules and regulations of
the Secretary of Interior (who then had this administrative authority)
and that such rules would not likely prevent access to a person’s home.
Id. at 1280 (remarks of Senator Berry). Notwithstanding the concession
that the bill was “imperfect,” the conference report was agreed to. It
was pointed out that further amendment would cause substantial delay
and that any evils could be corrected by subsequent legislation. Id. at
1282—83. The House adopted the conference report without debate on
this provision. Id. at 1397-401.
This legislative history demonstrates that the effect of the second
sentence of § 478 is to protect whatever rights and licenses with regard
to the public domain existed prior to the reservation. We interpret the
provision as a congressional declaration that the establishment of forest
reserves would not alter the long-standing policy of allowing
unimpeded access to the public land or interfere with the rights of
persons then using the land, not as an affirmative grant of a broad right
of entry to all persons. The express language of the statute provides
that nothing in the act shall be construed to prohibit certain activities.
The language grants no rights not already in existence. See Robbins,
supra, at 323; John Ise, The United States Forest Policy 140 (1920).
The protection of “lawful” and “proper” entry upon the reserves
cannot be construed to limit congressional authority to regulate such
entry. No vested right to use the public domain for a particular purpose
arises from the government’s mere acquiescence in such use. In Light v.
United States, 220 U.S. 523 (1911), the Court wrote:
[WJithout passing a statute, or taking any affirmative
action on the subject, the United States suffered its public
domain to be used for such purposes. There thus grew up
a sort of implied license that these lands, thus left open,
might be used so long as the Government did not cancel
its tacit consent. Buford v. Houtz, 133 U.S. 326. Its failure
to object, however, did not confer any vested right on the
complainant, nor did it deprive the United States of the
power of recalling any implied license under which the
land had been used for private purposes.
Id. at 535. See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77
(1872); Frisbie v. Whitney, 76 U.S. (9 Wall.) 187, 194 (1869).
Section 478 clearly subjects entry upon the national forests to reason
able regulation by the Secretary. Prior to the enactment of the Federal
36
Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C.
§§ 1701-1782, and its repeal of § 2 of the Act of June 4, 1897, 16 U.S.C.
§ 551, insofar as the latter section applied to the issuance of rights-ofway through public lands, the Secretary was required to read § 478 and
§551 together. United States v. Grimaud, 220 U.S. 506, 515 (1911).
Section 551 provides that the Secretary shall “make such rules and
regulations and establish such service as will insure the objects of such
reservations, namely, to regulate their occupancy and use and to pre
serve the forests thereon from destruction . . .
This section was held
to confer upon the Secretary a “broad scope of regulation” intended to
“be effective.” See 42 Op. A tt’y Gen. 127, 140, citing Chicago Mil. & St.
P. Ry. v. United States, 218 F. 288, 298 (9th Cir. 1914), affd, 244 U.S.
358 (1917); Shannon v. United States, 160 F. 870, 873 (9th Cir. 1908). In
Grimaud, the Court stated that the Secretary “is required to make
provisions to protect the forest reserves from depredation and harmful
uses.” 220 U.S. at 552. The Secretary’s authority to grant rights-of-way
across national forest lands now is based on 16 U.S.C. §§ 532-538, and
FLPMA, 43 U.S.C. §§ 1761-1771. Both statutes authorize the Secretary
to protect the forest lands.13
This interpretation is consistent with the 1962 opinion of the A ttor
ney G eneral.14 His review of the legislative history of §478 disclosed a
legislative desire to protect explicitly only the rights of ingress and
egress of actual settlers. 42 Op. A tt’y Gen. 127, 138. He found that
entry upon the national forests by all other persons is subject to your
rules and regulations covering the forests and discussed the scope of
your regulatory authority as follows:
,3 S ectio n 504 o f F L P M A . 43 U .S .C . § 1764, d ire c ts ih e S e c re ta ry to issue re g u la tio n s w ith re s p e c t
to th e te rm s an d c o n d itio n s o f th e rig h ts-o f-w a y . S e c tio n 505, 43 U .S .C . § 1765, req u ires, in ter alia, th a t
e a c h rig h t-o f-w a y p erm it c o n ta in te rm s an d c o n d itio n s w h ic h w ill " p r o te c t th e en v iro n m en t.* ' “ p ro te c t
F e d e ra l p r o p e rty ,“ an d “ o th e rw ise p ro te c t th e p u b lic in terest in th e lan d s tra v e rse d b y th e rig h ts-o fw a y o r a d ja c e n t thereto.** T h e A c t o f O c to b e r 13, 1964, 16 U .S .C . §§ 5 3 2 -5 3 8 , w h ic h g e n e ra lly
c o n c e rn s th e c o n s tru c tio n an d m a in te n a n c e o f a sy stem o f ro a d s w ith in th e n atio n al fo rests, a u th o riz e s
th e S e c re ta ry to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts “ u n d e r su ch re g u la tio n s as he m ay p r e
sc rib e ." 16 U .S.C . § 533.
u In 1964, in resp o n se to th e A tto rn e y G e n e ra l’s 1962 o p in io n . C o n g re s s passed le g islatio n .g iv in g
th e S e c re ta ry th e a u th o rity to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts o v e r la n d s m a n ag ed b y th e
D e p a rtm e n t o f A g ric u ltu re . P ub. L. N o. 8 8 -657. § 2 , 78 S tat. 1089 (1964). T h e c o m m itte e re p o rts o f
b o th th e H o u se a n d th e S en ate in d ic a te th a t C o n g re s s u n d e rs to o d th e A tto r n e y G e n e r a l's o p in io n to
h o ld th a t § 478 w as “ n o t to be c o n s tru e d as a s ta tu to ry g u a ra n te e o f ac cess to p riv a te lan d s w ith in th e
n atio n al fo re sts." S. R ep. N o. 1174, 88th C o n g ., 2d Sess. 4 (1964); H .R . R ep. N o . 1920. 88 th C o n g ., 2d
Sess. 4 (1964). In th e S en ate r e p o rt, th e c o m m itte e stated :
It sh o u ld b e ex p ressly n o te d th a t th is le g islatio n is in te n d e d n e ith e r to affirm n o r to
a b ro g a te th e A tto rn e y G e n e ra l’s in te rp re ta tio n o f th e ac t o f J u n e 4. 1897 (30 S tat. 36,
16
U .S .C . 478), w ith resp ect to th e act*s as s u ra n c e o r lack o f assu ran ce, c o n c e rn in g
a c cess to p riv a te lands ac ro s s n atio n al fo rest lands. H o w e v e r, th e p r e d ic ta b le efTect o f
th is legislation w ill be to m inim ize th e lik elih o o d o f litig a tio n b e tw e e n th e U n ited
S ta te s an d p riv a te la n d o w n e rs d e sig n e d to test a p p lic a tio n s o f th e A tto r n e y G e n e r a l’s
in te rp re ta tio n o f th e ac t o f J u n e 4, 1897. T h is le g islatio n w ill p ro v id e to m o st o w n e rs
o f p riv a te land a s a tisfa c to ry a lte rn a tiv e to s ta tu to ry a s s u ra n c e o f a c c e s s to an d fro m
th e ir lands. T h e c o m m itte e th e re fo re re c o m m e n d s e n a c tm e n t o f th e ac t as a m en d ed .
A m e n d m e n ts w h ic h w o u ld h a v e c re a te d a s ta tu to r y rig h t o f a c cess w e re re je c te d b o th in c o m m itte e
(S. R ep . N o. 1174, at 8) an d on th e S e n a te flo o r. 110 C o n g . R ec. 16.413-15 (1964).
37
As the Supreme Court pointed out in United States v.
Grimaud, 220 U.S. 506, 516-17, it is your function to
determine what private use of the national forests in any
given case is consistent with the purposes sought to be
attained by the statute. The imposition of harsh and oner
ous requirements not related to the benefit received or to
your general responsibility to preserve and manage the
national forests, might well constitute an abuse of
discretion.
42 Op. A tt’y Gen. at 147.
Your department argues that it has a long-standing policy that the
Secretary is without discretion to deny access under § 478, and that a
change in this policy would have a drastic effect on the well-established
expectations of landowners within the national forests. It is a familiar
principle that interpretations made contemporaneously with the enact
ment of a statute and consistently followed for a long period are
entitled to great weight, particularly if they have been relied on by the
public. See Zuber v. Allen, 396 U.S. 168, 192-93 (1969); Alaska S.S. Co.
v. United States, 290 U.S. 256, 262 (1933); Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933). Correspondingly, when
an agency’s interpretation has been neither consistent nor long-standing,
the weight given it diminishes accordingly. See Southeastern Community
College v. Davis, 422 U.S. 397, 411-12 (1979); United Housing Founda
tion, Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975). Prior to 1962,
your department relied on the first sentence of § 478 to find the same
rights you now find in the second sentence. This 1962 revision of the
department’s interpretation occurred almost 70 years after enactment of
the statute.15
In any case, to the extent that my judgment is governed by the
customary rules of statutory construction, I am guided by the overrid
ing rule that the statute, and not the agency’s interpretation, is conclu
sive. See, e.g., VolksWagenwerk v. Federal Maritime Commission, 390
U.S. 261, 272 (1968). Additionally, I am persuaded by the legislative
history and by the common sense rule that legislative history disclosing
Congress’ intent is entitled to more weight than a conflicting adminis
trative interpretation and must control. See Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933); Sutherland, Statutes and
Statutory Construction §49.04 (1973 & Supp. 1975).
In sum, I conclude that § 478 does not grant access rights to private
inholders other than actual settlers. In my opinion, absent a right of
access otherwise granted to the landowner by Congress, you may deny
requested access if such denial will protect the public interest in the
14 In S oriano v. U nited States. 494 F .2 d 681, 683 (9 th C ir. 1974), th e c o u r t d e c lin e d to g iv e sp ecial
d e fe re n c e to a re g u la tio n p ro m u lg a te d m o re th a n 100 y ea rs a fte r e n a c tm e n t o f th e statu te.
38
land to be traversed. Because you may not arbitrarily deny access to
private landowners, I do not foresee that this interpretation will have a
drastic effect on their expectations.
II.
Your second question is whether an inholder has an easement by
necessity or other implied easement across national forest land. The
conclusion in Part I (that § 478 does not grant a right of access to
private property across national forest reserves, and that, absent an
access right otherwise guaranteed to a landowner by Congress, § 478
allows denial of access) renders apparent the importance of this
question.
In the 1962 opinion, the Attorney General stated that whether an
easement by necessity lies against the government is a complex and
controversial question. While he concluded that it need not be decided
at that time, the Attorney General nonetheless offered his view that
such an easement does not exist over public lands. 42 Op. A tt’y Gen.
127, 148. It is also my view that the common law doctrine of easement
by necessity does not apply to congressional disposition of the public
domain. This does not mean, however, that access cannot otherwise be
implied. In my opinion, access may be implied if it is necessary to
effectuate the purpose for which the land was granted.
The doctrine of easement by necessity is a common law property
concept that was recently described by the Supreme Court as follows:
“Where a private landowner conveys to another individual a portion of
his lands in a certain area and retains the rest, it is presumed at common
law that the grantor has reserved an easement to pass over the granted
property if such passage is necessary to reach the retained property.”
Leo Sheep Co. v. United States, 440 U.S. 668, 679 (1979).16 Authoritative
treatises on property law identify three basic prerequisites to the cre
ation of an easement by necessity.17 First, the titles to the two tracts in
question at some time must have been held by one person. This is the
unity-of-title requirement. Second, the unity of title must have been
severed by a conveyance of one of the tracts. Third, the easement must
be necessary in order for the owner of the dominant tenement to use
his land. This necessity must exist both at the time of the severance of
title and at the time of application for the exercise of the easement.18
16 In L eo Sheep, th e C o u rt c o n s id e re d th e q u estio n w h e th e r th e U n ite d S ta te s h ad re s e rv e d an
ea sem en t to pass o v e r lan d s w h ic h h ad passed fro m fed eral o w n e rs h ip . Y o u r in q u iry , c o n v e rs e ly , is
w h e th e r th e U nited S tates g ra n te d an e a sem en t to a fed era l land g ra n te e to pass o v e r re ta in e d la n d s to
re a c h th e c o n v e y e d p r o p e rty . T h e L eo S heep ca se is discu ssed in fra at p ag es 19-20, n o te 28.
17 S ee generally 3 P o w e ll on R eal P r o p e rty § 4 1 0 (1979); 2 T h o m p s o n o n R ea l P r o p e r ty § 363, at
4 2 4 -2 7 (1961 & S u p p . 1978); 3 T iffa n y , L a w o f R eal P ro p e r ty § 7 9 3 (3 d ed . 1939 S u p p . 1979);
C o m m e n t, E asem ents B y W ay o f N ecessity Across F ederal L ands, 35 W ash. L . R ev . 105, 107 (1960).
18 C o u rts h a v e e m p h a siz e d v a rio u s fa c to rs in ap p ly in g th is d o c trin e . T h e R e s ta te m e n t o f P r o p e r ty
§ 4 7 6 , lists so m e o f th e se facto rs:
Continued
39
See 3 Powell on Real Property §410, at 34-59 to 34-60 (1979);
Simonton, Ways By Necessity, 25 Colum. L. Rev. 571, 573-79 (1925).
Whether this doctrine applies to the government has not been resolved.
Courts and commentators have differed.19
To determine whether the doctrine applies to property of the federal
government, it is necessary to determine what law controls. Here fed
eral law must control. The Constitution vests in Congress alone author
ity to dispose of and make needful rules concerning the public domain.
U.S. Const., Art. IV, § 3, cl. 2. As I have noted earlier in this opinion,
this power is vested in Congress “without limitation.” United States v.
Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). See also Kleppe v. New
Mexico, 426 U.S. 529, 536 (1976); United States v. San Francisco, 310
U.S. 16, 29-30 (1940). The construction of grants by the United States
has been held to be a federal, not a state, question. United States v.
Oregon, 295 U.S. 1, 27-28 (1935), Packer v. Bird, 137 U.S. 661, 669
(1891).20 With regard to implying an easement across land which the
United States still holds in trust for the public, therefore, federal law
must control. Utah Power & Light Co. v. United States, 243 U.S. 389,
404 (1917).21 Federal property can be made subject to state law only
when congressional authorization is clear and unambiguous. See EPA v.
California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211
(1976); Kleppe v. New Mexico, 426 U.S. 529, 536 (1976).
(a) w h e th e r (he c la im a n t is th e c o n v e y o r o r th e c o n v e y e e ; .
(b) th e te rm s o f th e c o n v e y a n c e :
(c) th e c o n s id e ra tio n g iv e n fo r it:
(d ) w h e th e r th e claim is m a d e ag a in st a s im u lta n e o u s c o n v e y e e ;
(e) th e ex ten t o f th e necessity ;
( 0 w h e th e r r e c ip ro c a l b en e fits resu lt to th e c o n v e y o r o r c o n v e y e e ;
(g) th e m a n n e r o f use o f th e land b e fo re c o n v e y a n c e :
(h) th e ex ten t to w h ic h p rio r use w as k n o w n .
19See. e.g.. U nited S ta tes v. D u n n . 478 F .2 d 443 (9 th C ir. 1973) (h o ld in g , w ith o n e ju d g e d issen tin g ,
th a t th e d o c tr in e is ap p lic a b le ); S u n S tuds. Inc.. 83 I.D . 518 (1976) (h o ld in g th a t th e d o c tr in e is n o t
a p p lic a b le ). S o m e c o m m e n ta to rs s ta te th a t w a y s o f n e c e ssity d o n o t a rise ag a in st th e s o v ereig n . 2 G .
T h o m p s o n , C o m m e n ta rie s o n th e L a w o f R eal P r o p e rty § 362, at 417 (1961); Jo n e s o n E a se m e n ts
§ 3 0 1 , at 247 (1898). O th e rs c o n c lu d e th a t th e d o c trin e sh o u ld be a p p lic a b le . 3 P o w e ll o n R eal
P r o p e rty § 4 1 0 at 34-73 to 3 4 -7 4 (1979); 3 T iffan y , L a w o f R eal P r o p e r ty § 793 (3d ed . 1939).
20 W h e n , h o w e v e r, th e la n d h as passed fro m fed era l o w n e rs h ip , it b e c o m e s su b je c t to th e la w s o f
th e s ta te in w h ic h it is lo c a te d . S ee O regon e x rel. S ta te L a n d Bd. v. C orvallis S a n d <& G ravel Co.. 429
U .S. 363, 372 (1977). It fo llo w s, th e re fo re , th a t w h e re title to b o th a d o m in a n t a n d se rv ie n t te n em en t
h as p assed fro m fed era l o w n e rs h ip , th e q u e stio n w h e th e r th e u n ity -o f-title re q u ire m e n t is satisfied by
p rio r g o v e rn m e n t o w n e rs h ip is a q u e stio n o f s ta te law . S ta te c o u r ts h a v e re a c h e d d iffe rin g o p in io n s o n
th is q u e stio n . C o u rts in C a lifo rn ia , F lo rid a , In d ia n a, O k la h o m a , T e n n e sse e , an d T e x a s h a v e c o n c lu d e d
th a t u n ity o f title c a n n o t be b ased on p rio r g o v e rn m e n t o w n e rs h ip . B u lly H ill Copper M in in g &
S m e ltin g Co. v. Bruson. 4 C al. A p p . 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (F la.
1952); C o n tin en ta l E nterprises Inc. v. Cain, 296 N .E .2 d 170, 171 (In d . 1973); D u d ley v. Meggs, 153 P.
1121, 1122 (O k la. 1915); Pearne v. C oal C reek M in. & M fg. Co.. 9 0 T e n n . 619, 6 2 7 -2 8 , 18 S .W . 4 0 2 -0 4
(1891); S ta te v. B lack Bros.. 116 T e x . 615, 6 2 9 -3 0 , 297 S .W . 213, 2 1 8 -1 9 (1927). C o u r ts in A rk an sas,
M issouri a n d M o n ta n a h a v e re a c h e d th e o p p o s ite c o n c lu s io n . A rka n sa s S ta te H ig h w a y C o m m 'n v.
M arshall. 485 S .W .2d 740, 743 (A rk . 1972); S n y d e r v. Warford, 11 M o . 513, 514 (1848); Violet v.
M artin. 62 M o n t. 335, 205 P. 221, 223 (1922).
21 T h e ru le s a d o p tin g s ta te law to d e te rm in e w h a t rip a ria n rig h ts p ass in a fe d e ra l g r a n t a r e n ot
a p p lic a b le to th e q u e s tio n o f w a y s a c ro s s fed era l land. U tah Power & L ig h t Co. v. U n ited States. 243
U .S. 389, 411 (1917). See O regon e x rel. S ta te L a n d Bd. v. Corvallis S a n d <£ G rave! Co.. 429 U .S . 363,
372 (1977); U nited S ta tes v. Oregon. 295 U .S. 1, 27 (1935); H a rd in v. Jordan. 140 U .S. 371 (1891).
40
To determine what rights have passed under federal law, it is neces
sary to interpret the statute disposing of the land.22 It is a recognized
principle that all federal grants must be construed in favor of the
government “lest they be enlarged to include more than what was
expressly included.” United States v. Grant River Dam Authority, 363
U.S. 229, 235 (1960); United States v. Union Pac. Ry., 353 U.S. 112, 116
(1957).23 In Pearsall v. Great No. Ry., 161 U.S. 646, 664 (1895), the
Court wrote: “Nothing is to be taken as conceded . . . but what is
given in unmistakeable terms, or by an implication equally clear. . . .”
These general rules must not be applied to defeat the intent of Con
gress, however. The Supreme Court has stated that public grants are
“not to be construed as to defeat the intent of the legislature, or to
withhold what is given either expressly or by necessary or fair
implication. . . .” United States v. Denver & Rio Grande R.R., 150 U.S.
1, 14 (1893). In all cases, the intent of Congress must control. Id. See
also Missouri, K. & T. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1878).
These rules dictate that if it is clear that Congress intended to grant
access, such access must be acknowledged, its scope consistent with the
purposes for which the grant was made.24 An implied easement defined
by the actual intent of Congress must be distinguished from an ease
ment by necessity, which relies on a presumed intent of the parties.
There are no clear uniform rules for determining the scope of an
easement by necessity. In some cases, it has been held that the scope
includes whatever access is necessary for any reasonable, beneficial use
of the dominant tenement, not merely the use for which the grant was
made. See, e.g., New York Cent. R.R. v. Yarian, 219 Ind. 477, 39 N.E.2d
604, 606 (1942); Soltis v. Miller, 444 Pa. 357, 283 A.2d 369, 370-71
(1971); Meyers v. Dunn, 49 Conn. 71, 78 (1881); Whittier v. Winkley, 62
N.H. 338, 339-40 (1882); Jones on Easements § 323 (1898). Since the
common law doctrine is based on the presumed intent of the parties, its
operation may have the effect of disregarding or possibly frustrating the
intention of the grantor, absent express language in the conveyance
denying an easement. 2 G. Thompson, Law of Real Property § 362
(1961), citing Lord v. Sanchez, 136 Cal. App. 2d 704 289 P.2d 41 (1955);
Moore v. Indiana & Michigan Elec. Co., 299 Ind. 309, 95 N.E.2d 210
(1950). Thus, if the doctrine were allowed to operate where the G ov
ernment is the grantor, the actual intent of Congress would, at the least,
23 W e n o te th a t y o u r d e p a rtm e n t, w ith o u l re a c h in g th e ea sem en t-b y -n e cessity issue, h as c o n c lu d e d
th a t an ex a m in atio n o f th e g ra n tin g s ta tu te is essential to d e te rm in in g a c cess rig h ts. S ee M e m o ra n d u m :
A c c e ss to S ta te an d P riv a te In h o ld in g s in N a tio n a l F o re s ts at 18, U .S. D e p t, o f A g ric u ltu r e (O c t. 31,
1979).
23 S ee also C a m fie ld v. U nited States, 167 U .S. 518, 52 4 -2 6 (1897); U n ited S ta te s v. C larke, 529 F .2 d
984, 986 (9 th C ir. 1976).
2*See C u rtin v. Benson. 222 U .S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. S u p p . 328,
331 (D . N ev . 1963), th e c o u rt re c o g n iz e d an im plied a c cess rig h t fo r m in in g p u rp o s e s w h e re a m in in g
claim o w n e r had to c ro s s p u b lic d o m a in to reac h his claim . C f A rizona v. C alifornia, 373 U .S. 546,
5 9 9 -6 0 0 (1963); W inters v. U nited States, 207 U .S. 564, 575-77 (1908). T h e se ca ses re c o g n iz e an im p lied
rese rv a tio n o f w a te r rig h ts fo r Indian reserv atio n s.
41
become irrelevant, and, in some cases, would be thwarted. Plainly, the
application of the common law doctrine would be inconsistent with the
established principles that the intent of Congress in disposing of federal
land must control, and that rights in government land cannot be pre
sumed to pass by implication.25
The doctrine of easements by necessity was developed to settle
disputes between private parties, not disputes involving the federal
governm ent.26 The federal government has at one time held title to
over three-fourths of the territory of the United States; it today retains
title to approximately one-third of the nation’s land. One-Third of the
Nation’s Land: A Report to the President and to Congress by the
Public Land Law Review Comm’n, at 8 (1970). It holds property as
sovereign, as well as proprietor, and exercises power beyond that
which is available to a private party. Kleppe v. New Mexico, 426 U.S.
529, 539 (1976); Light v. United States, 220 U.S. 523, 536-37 (191 1).
Throughout its history, statutes have been enacted allowing access
across its land.27 It holds land in trust for all the people and in dispos
ing of it is concerned with the public interest. Utah Power & Light Co.
v. United States, 243 U.S. 389, 409 (1917); Causey v. United States, 240
U.S. 399, 402 (1916). In Causey, the Court wrote that “the Government
in disposing of its public lands does not assume the attitude of mere
seller of real estate at its market value.” Id.
For these reasons, other doctrines applicable to private landowners
have been held inapplicable to the sovereign. In Jourdan v. Barrett, 45
U.S. (4 How.) 169, 184-85 (1846), the Supreme Court held that no
prescriptive rights may be obtained against the sovereign, and in Field
v. Seabury, 60 U.S. (19 How.) 323, 332-33 (1856), the Court held that
government patents may not be collaterally attacked as can grants from
a private party. In United States v. California, 332 U.S. 19 (1947), the
25 It is n o te w o n h y th a t sin ce th e A tto rn e y G e n e ra l o p in e d in 1962 th a t th e d o c tr in e o f ea se m e n ts by
n ec essity w as n o t e n fo rc e a b le ac ro s s fed era l land, C o n g re s s has n o t m o d ified th e rule. A lth o u g h this
g e n e ra lly is n o t s tro n g e v id e n c e w h e n th e re is no in d ic a tio n th a t C o n g re s s w as a w a re o f th e ru lin g
(Z u b e r v. A llen, 396 U .S. 168, 194 (1969)), it is m o re p e rs u a s iv e w h e n , as h e re , co n g re s s io n a l ac tio n
d ire c tly re su lte d from th e o p in io n . S e e n.14, supra. S ee generally B ean v. L ed m a r. 368 U .S. 403, 4 1 2 -1 3
(1962); U nited S ta tes v. M idw est O il Co.. 236 U .S. 459, 481 (1915).
26T h e d o c trin e has b een tra c e d to e a rly E n g lish o rig in s. S im o n to n , W ays o f N ecessity, 25 C o lu m . L.
R ev . 571, 57 2 -7 8 (1925). It u su ally has b een p re d ic a te d on p u b lic p o lic y fa v o rin g lan d u tiliz atio n an d a
p re s u m p tio n o f in ten t. 3 P o w e ll on R ea l P ro p e rty § 4 1 0 at 3 4 -5 9 to 3 4 -6 0 (1979).
21
See. e.g.. A c t o f M a rc h 3, 1875, ch . 252, § 1, 18 S tat. 482 (re p e a le d 1976) (rig h t o f w ay fo r
ra ilro ad s); A c t o f M a rc h 3, 1891, c h . 561, § 18 (re p e a le d 1976) ( rig h t o f w a y fo r irrig a tio n d itc h e s an d
c a n als); A c t o f Ja n . 21, 1895, ch. 37, § I (re p e a le d 1976) (rig h t o f w a y fo r tra m ro d s , ca n als, and
rese rv o irs); A c t o f J u ly 26, 1866, c h . 262, § 8, 14 S tat. 253 (re p e a le d 1976) (rig h t o f w ay fo r h ig h w ay s).
T h e s e s ta tu te s w e re re p e a le d by th e F e d e ra l L a n d P o lic y an d M an a g e m e n t A c t o f 1976 ( F L P M A ) ,
P u b . L. N o . 9 4 -5 7 9 , § § 5 0 1 -5 1 1 , 90 S tat. 2776-82 (co d ifie d at 43 U .S .C . § § 1 7 6 1 -1 7 7 1 ). F L P M A
p ro v id e s, w ith c e rta in e x c e p tio n s, th a t rig h ts o f w a y a c ro s s g o v e rn m e n t lan d c a n o n ly b e o b ta in e d as
p ro v id e d in th a t A c t. 43 U .S .C J770. G e n e ra l a n d c o m p re h e n s iv e le g islatio n , p re sc rib in g a c o u rs e o f
c o n d u c t to be p u rs u e d a n d th e p a rtie s an d th in g s a ffec ted , an d s p ecifically d e s c rib in g lim itatio n s an d
e x c e p tio n s , is in d ic a tiv e o f a le g isla tiv e in ten t th a t th e s ta tu te sh o u ld to ta lly s u p e rs e d e an d re p la c e th e
c o m m o n la w d e a lin g w ith th e s u b je c t m a tte r. Isbrandtsen Co. v. Johnson. 343 U .S. 779, 7 8 7 -8 8 (1952);
S n e e l v. R uppert, 541 P .2 d 1042 (W y o . 1978); J. S u th e rla n d , S ta tu te s an d S ta tu to ry C o n s tru c tio n
§ 50.05 (1973 & S u p p . 1978).
42
Court refused to hold that the federal government had forfeited by
laches or estoppel its interest in littoral property, stating: “The Govern
ment, which holds its interests here as elsewhere in trust for all the
people, is not to be deprived of those interests by the ordinary court
rules designed particularly for private disputes over individually owned
pieces of property. . .
Id. at 40.
These same reasons lead me to conclude, as did the Court in Leo
Sheep, that the doctrine of easements by necessity as applicable to
federal lands is “somewhat strained, and ultimately of little signifi
cance” and that the “pertinent inquiry . . . is the intent of Congress.” 28
A grantee is entitled instead to reasonable access across government
land to use his property, for the purposes for which the land grant was
made, if such an access right either expressly or impliedly arises from
the act authorizing the land grant.29
To interpret correctly congressional intent underlying a statutory
land grant, it is necessary to look at the condition of the country when
the grant was made, as well as the declared purpose of the grant. Leo
Sheep Co. v. United States, 440 U.S. 668, 682 (1979); Winona & St. Paul
R.R. v. Barney, 113 U.S. 618, 625 (1885); Platt v. Union Pacif. R.R., 99
U.S. 48, 64 (1878). In Superior Oil Co. v. United States, 353 F.2d 34 (9th
Cir. 1965), for example, the court looked to the purpose of the grant
and concluded that the scope of the implied access was not broad
enough to include the type of entry sought. The plaintiff oil company
was a lessee of a religious mission which had received a land patent to
facilitate and encourage its activities among the Indians. The land in
question was surrounded by the Hopi Reservation, which the United
States held in trust for the Indians. The issue on appeal was whether
28In L eo Sheep Co. v. U nited States. 440 U .S. 668 (1979), th e C o u rt, in h o ld in g th a t th e fed eral
g o v e rn m e n t d o e s not h a v e a re s e rv e d e a sem en t by n ec essity ac ro s s th e lan d o f its g ra n te e o r its
g r a n te e 's su ccesso r, w ro te :
F irst o f all, w h a te v e r rig h t o f p assag e a p riv a te la n d o w n e r m ig h t h av e , it is n o t at all
c le a r th a t it w o u ld in c lu d e th e rig h t to c o n s tru c t a ro a d fo r p u b lic a c cess to a
re c re a tio n a l a rea . M o re im p o rta n tly , th e ea sem en t is n o t a c tu a lly a m a tte r o f n ec essity
in th is ca se b e c a u se th e G o v e rn m e n t has th e p o w e r o f em in en t d o m a in . J u ris d ic tio n s
h av e g e n e ra lly seen em in en t d o m a in an d e a sem en ts by n ec essity as a lte rn a tiv e w a y s to
e ffect th e sam e results. . . . [S Jtate c o u rts h a v e held th a t th e “e a sem en t b y n e c e ssity ”
d o c trin e is not av a ilab le to th e so v ereig n .
Id. at 679-81 (fo o tn o te s o m itte d ). O f c o u rs e , th e o p in io n in L eo Sheep is n o t a lo n e d is p o s itiv e o f th e
q u estio n you h a v e asked. It in v o lv e d a claim by th e g o v e rn m e n t g ra n to r, n o t th e p riv a te g ra n te e , o f an
e a sem en t by n ecessity. T h e C o u rt th e re d id rely su b stan tially on th e p o w e r o f em in en t d o m a in , an d
w as c a re fu l n o t to d e c id e th e b ro a d e r q u e s tio n o f th e av ailab ility o f th e ea se m e n t-b y -n e c e ssity d o c trin e
g en e ra lly . In an e a rlie r ca se refu sin g to find a re se rv e d w a y o f n ec essity fo r a p u b lic ea se m e n t ac ro ss
p riv a te la n d , a d is tric t c o u r t s tated m o re b ro a d ly : ‘i t is, in m y ju d g m e n t, v e ry d o u b tfu l w h e th e r th e
d o c trin e o f w ay s o f n ec essity has a n y a p p lic a tio n to g ra n ts fr o m th e g e n e ra I G o v e rn m e n t u n d e r th e
p u b lic land la w s ." U nited S ta tes v. R indge, 208 F. 611, 618 (S .D . C al. 1913). S ee also. S u n S tu d s Inc., 83
I.D . 518 (1976). B u t see, B ydlon v. U nited States. 175 F . S u p p . 891 (C t. C l. 1959); M a c k ie v. U n ited
States. 195 F . S upp. 306 (D . M inn. 1961).
29 O f c o u rs e , ev e n w ith o u t su c h an e n title m e n t, a la n d o w n e r m ay ap p ly fo r an ea se m e n t p erm it
u n d e r p ro c e d u re s esta b lish ed p u rsu a n t to o th e r statu tes. S ee F L P M A , 43 U .S .C 1761-1771; A c t o f
O c to b e r 13, 1964, 16 U .S .C . 532 et seq. It c a n n o t b e assum ed th a t C o n g re s s , o r fed era l r e g u la to ry
a u th o ritie s , w ill e x e c u te th e ir p o w e r in su ch a w a y as to b rin g ab o u t in ju stice . S e e U n ited S ta te s v.
C alifornia, 332 U .S. 19, 40 (1947).
43
the oil company was entitled to move heavy equipment across the
reservation to drill for oil on the leased property. In ruling that access
was limited to the scope of the grant, the court stated:
Certainly it cannot be said either that public policy de
mands or that the Indians’ trustee impliedly intended a
grant of a way of access across Indian lands greater in
scope than was required for mission purposes and whose
greater scope was necessary only in order to permit the
granted lands to be used in a fashion adverse to the
interests of the Indians.30
Although some courts that have dealt with this issue have written in
terms of easements by necessity, most of them in effect have looked at
the grant in question and limited access according to the purpose of the
grant. The Superior Oil case was relied on by the Tenth Circuit in
Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978), which held:
An easement by necessity for some purposes could possibly
have arisen when the United States granted the patent to
plaintiffs’ predecessor in interest. . . . While nothing ordi
narily passes by implication in a patent, Walton v. United
States, 415 F.2d 121 (10th Cir.), an implied easement may
arise within the scope o f the patent.
Id. at 161 (emphasis added).
Similar statements appear in Utah v. Andrus, (unreported) C 79-0037
(D. Utah Oct. 1, 1979), in which Utah claimed an easement by neces
sity for access to its school grant lands. Relying on United States v.
Dunn, 478 F.2d 443, 444 n.2 (9th Cir. 1973), the district court con
cluded: “Although this common law presumption might not ordinarily
apply in the context of a Federal land grant, the liberal rules of
construction applied to school trust land allowed for the consideration
of this common law principle and justify its application here.” 31 The
30T h e c o u r t, in e ffec t, c re a te d a h y b rid d o c trin e , a p p ly in g p rin c ip le s o f b o th w a y s o f n ec essity an d
w a y s c r e a te d b y th e a c tu a l in ten t o f th e g ra n to r:
A p p e lla n t's p o sitio n is sim p ly th a t sin ce th e p a te n t fo r th e M ission w as in u n re s tric te d
fee sim p le it c a rrie d w ith it by im p lic a tio n a w a y o f n e c e ssity o v e r lan d s o f th e U n ited
S ta te s fo r all p u rp o s e s to w h ic h th e c o n v e y e d land m ig h t la w fu lly b e put.
S u c h is n o t th e law . T h e s c o p e a n d e x te n t o f th e rig h t o f a c c e s s d e p e n d s n o t u p o n th e
s ta te o f title o f th e d o m in a n t e s ta te , n o r th e e x iste n c e o r la c k o f lim itatio n s in th e g ra n t
o f th a t esta te, b u t u p o n w h a t m ust, u n d e r th e c irc u m s ta n c e s , b e a ttrib u te d to th e
g r a n to r e ith e r by im p lic a tio n o f in te n t o r by o p e ra tio n o f la w fo u n d e d in a pu b lic
p o lic y fa v o rin g land u tiliz atio n .
S u p erio r O il Co. v. U nited Stales, 353 F .2 d 34, 36 -3 7 (9 th C ir. 1965).
31
S lip O p . at 8. In U nited S ta te s v. D u n n , 478 F .2 d 443 (9 th C ir. 1973), th e U n ite d S ta te s s o u g h t an
in ju n c tio n to p re v e n t D u n n , w h o h e ld title as a g ra n te e o f a ra ilro a d , fro m c o n s tr u c tin g an ac c e ss ro a d
fo r c o m m e rc ia l a n d re sid e n tia l d e v e lo p m e n t o f his la n d . T h e d is tric t c o u r t g ra n te d p a rtia l su m m a ry
ju d g m e n t, h o ld in g d e fe n d a n ts tre sp a ss e rs a n d th e g o v e rn m e n t e n title d to im m e d ia te possession. T h e
N in th C irc u it re v e rs e d , h o ld in g th a t s u m m a ry ju d g m e n t w a s p re c lu d e d b e c a u se d e fe n d a n ts raised th e
fa c tu a l issue w h e th e r th e y h a d an e a se m e n t by n ec essity . Id. at 446. T h e D u n n c o u r t 's o n ly d iscu ssio n
o f th e a p p lic a tio n o f th e d o c trin e , h o w e v e r, a p p e a re d in a f o o tn o te re sp o n se to th e d issen tin g ju d g e . In
th e d isse n t. J u d g e W rig h t s ta te d sim p ly th a t h e " w o u ld h o ld th a t u n d e r th e facts o f th is ca se th e
C ontinued
44
court went on to hold that this right is not absolute, however. It
reasoned:
Under the Constitution Congress has the authority and
responsibility to manage Federal land. U.S. Const, art. IV,
§ 3, cl. 2. . . . There is nothing in the school land grant
program that would indicate that when Congress devel
oped the school land grant scheme it intended to abrogate
its right to control activity on Federal land. Further, it is
consistent with common law property principles to find
that the United States, as the holder of the servient tene
ment, has the right to limit the location and use of Utah’s
easement of access to that which is necessary for the
state’s reasonable enjoyment of its right. . . . Thus, the
court holds that, although the State of Utah or its lessee
must be allowed access to section 36, the United States
may regulate the manner of access under statutes such as
FLPMA.
Slip Op. at 21.
Cases like Superior Oil, Kinscherff, and Utah v. Andrus lend support
to my conclusions with respect to implied rights to access across
federal land. While the common law easement by necessity does not
run against the United States, a right to access may nonetheless be
implied by reference to particular grants. And, to the extent that such
implied rights exist, your broad authority—delegated to you by Con
gress—to manage forest reserves empowers you to regulate their exer
cise. See United States v. Perko, 108 F. Supp. 315, 322-23 (D. Minn.
1952), affd, 204 F.2d 446 (8th Cir.), cert, denied, 346 U.S. 832 (1953);
Perko v. Northwest Paper Co., 133 F. Supp. 560, 569 (D. Minn. 1955).
Determining what implied rights exist in the numerous federal land
grants is beyond the scope of this opinion. As set forth above, this
determination depends on when the grant was made and for what
purpose. Mindful of the goal of giving effect to legislative intent, you
must look to the rules the Supreme Court has adopted for interpretation
of federal land grants. As discussed previously, land grants generally
are to be strictly construed. This rule must be balanced against the
conflicting rule that in some situations, certain types of land grants may
deserve a more liberal construction because of the circumstances sur
rounding passage of the statutes in question. See generally Leo Sheep Co.
v. United States, 440 U.S. 668, 682-83 (1979) (railroad land grants);
d o c trin e o f ea se m e n t b y n ec essity is n o t b in d in g o n th e U n ite d S tates. . .
Id. at 446. T h e m a jo rity
resp o n d ed ;
S in ce th e G o v e rn m e n t d id n o t, in o u r ju d g m e n t, raise th e p o in t u p o n w h ic h J u d g e
W rig h t bases his d issen t, w e h a v e n o t d iscu ssed it in th e o p in io n , b u t n e v e rth e le ss d id
g iv e it c o n s id e ra tio n a n d c o n c lu d e d th a t it la ck ed m erit.
Id. at 444 n.2. I d o not find th is ca se p ersu asiv e a u th o rity fo r a p p lic a tio n o f th e d o c trin e .
45
Wyoming v. United States, 255 U.S. 489, 508 (1921) (state school land
grants). Absent express language to the contrary, however, a grant
should not be construed to include broad rights to use retained govern
ment property, particularly in the case of gratuitous grants. See United
States v. Union Pac. R.R., 353 U.S. 112 (1957); Camfield v. United
States, 167 U.S. 518 (1897); Wisconsin Central R.R. v. United States, 164
U.S. 190 (1896); 30 Op. A tt’y Gen. 263, 264 (1941).
Once the right, if any, is found to exist, you should consider how
that right reasonably should be regulated to protect the public’s interest
in federal property. It is beyond dispute that such rights are subject to
reasonable regulation without a resulting inverse condemnation. See
generally Johnson v. United States, 479 F.2d 1383 (Ct. Cl. 1973) (restric
tion of access by erection of fence enclosing extended portion of high
way held not a taking); 2 Nichols on Eminent Domain § 5.72[1] (1978).
Nonetheless, fewer restrictions properly may be imposed on well
established, developed uses than on unexercised rights. See Penn Central
Transp. Corp. v. City o f New York, 438 U.S. 104 (1978); Euclid v. Amber
Realty Co., 272 U.S. 365 (1926). Frustration and appropriation are
essentially different things. United States v. Grand River Dam Authority,
363 U.S. 229, 236 (1960), citing Omnia Co. v. United States, 261, 502,
513 (1923).
III.
Your third question is whether any act of Congress has modified any
implied rights that may accompany federal grants. Of particular con
cern are the Wilderness Act, 16 U.S.C. §§1131-1136, and various
wilderness study acts.32 See, e.g., Montana Wilderness Study Act of
1977, Pub. L. No. 95-150, 91 Stat. 1243; Sheep Mtn. and Snow Mtn.
Wilderness Areas, et al., Pub. L. No. 94-557, § 3, 90 Stat. 2635 (1976).
These wilderness study acts require you to exercise your discretion so
as to preserve the wilderness character of the land.33 If a request for a
particular mode of access would destroy that wilderness character,
therefore, you must deny the request. These acts also provide, how
ever, that their mandates are subject to “existing private rights.” 34 See,
e.g., Montana Wilderness Study Act, § 3(a), 16 U.S.C. § 1132 note. You
must determine, therefore, what implied access rights are guaranteed in
a particular grant, and allow the exercise of those rights. The wilder
32 T h e im p a c t o f th e W ild e rn e ss A c t is d iscu ssed in P a rt IV .
33 S ee P arker v. U ntied States. 448 F .2 d 793 (1 0 th C ir. 1971), cert, d en ied sub. nom ., K a ib a b In d u stries
v. Parker, 405 U .S. 989 (1972) (h e ld S e c r e ta r y ’s d is c re tio n to e n te r in to th e tim b e r h a rv e s tin g c o n tr a c t
fo r p u b lic land is lim ited by 16 U .S .C . § 1132(b)).
34 In a d d itio n to “ ex istin g p r iv a te rights,*' th e W ild e rn e ss A c t p e rm its in g re ss to a n d e g re s s fro m
m in in g lo c a tio n s until D e c e m b e r 31, 1983. 16 U .S .C . § 1133(d)(3). S u c h in g re ss an d eg re s s is s u b je c t to
re a so n a b le re g u la tio n b y th e S e c re ta ry o f A g ric u ltu re , c o n s is te n t w ith use o f th e lan d fo r m in eral
e x p lo ra tio n , lo c a tio n , d e v e lo p m e n t, p ro d u c tio n , a n d re la te d p u rp o ses.
46
ness study acts thus do not modify any implied rights that may accom
pany federal grants.
Nor do I find that the other statutes you cite modify such implied
rights. The Organic Act of 1897, 16 U.S.C. §478, discussed at length in
Part I of this opinion, preserves access rights existing at the time of
creation of a forest reserve. The Act of October 13, 1964, 16 U.S.C.
532-538, which authorizes the Secretary of Agriculture to grant ease
ments for road rights-of-way over lands administered by the Forest
Service,35 was passed in reaction to Attorney General Kennedy’s 1962
interpretation of 16 U.S.C. §478, which, as discussed earlier, allowed
the imposition of a reciprocity requirement with respect to rights-ofway. By empowering the Secretary of Agriculture to grant permanent
easements, the Congress hoped to provide an alternative to statutory
assurance of access to and from private inholdings.36 Thus, the statute
does not substantively modify implied rights of access. It does, along
with FLPMA, allow the imposition of certain procedural requirements,
such as application for a permit prior to road construction. We have
found no other statute that substantively modifies implied access rights.
IV.
Your final question concerns § 5(a) of the Wilderness Act, 16 U.S.C.
1134(a). Your department has concluded that this provision guarantees
a private owner “adequate access” to an inholding unless the land
owner voluntarily chooses a land exchange. Pursuant to this interpreta
tion, regulations have been promulgated providing that access “shall be
given.” 37 The Department of the Interior has taken the position that
§ 5(a) grants the Secretary of the Interior (and, by analogy, the Secre
tary of Agriculture) the authority to deny access to a landowner, and
3516 U .S .C . § 533. S ee p. 10 & n o te 13 supra. T h is s ta tu te w as n ot re p e a le d b y F L P M A . W ith
resp ect to th e S e c re ta ry o f A g ric u ltu r e ’s a u th o rity u n d e r §§ 5 3 2-538, F L P M A p ro v id e d :
[N ]o th in g in th is s u b c h a p te r shall b e c o n s tru e d as affe c tin g o r m o d ify in g th e p ro v isio n s
o f sectio n s 532 to 538 o f title 16 an d in th e e v e n t o f c o n flic t w ith , o r in c o n sisten cy
b e tw e e n , th is s u b c h a p te r a n d sectio n s 532 to 538 o f title 16, th e la tte r shall p rev ail:
Provided fu rth e r. T h a t n o th in g in th is A c t sh o u ld be c o n s tru e d as m a k in g it m a n d a to ry ,
th a t, w ith resp ect to fo rest ro ad s, th e S e c re ta ry o f A g ric u ltu re lim it rig h ts-o f-w a y
g ra n ts o r th e ir te rm s o f y ea rs o r re q u ire d is c lo su re p u rs u a n t to se c tio n 1761(b) o f this
title o r im p o se an y o th e r c o n d itio n c o n te m p la te d by this A c t th a t is c o n tr a r y to p re se n t
p ra c tic e s o f th a t S e c re ta ry u n d e r s e c tio n s 532 to 538 o f title 16.
43 U .S .C . § 1770(a).
36 S. R ep. N o . 1174, 88th C o n g ., 2d Sess. 4 (1964). See n o te 10 supra.
3736 C .F .R . § 293.12. T h is re g u la tio n p ro v id e s in p art:
S ta te s o r p erso n s, a n d th e ir s u c c e sso rs in in te re st, w h o o w n la n d c o m p le te ly s u r
ro u n d e d by N atio n al F o re s t W ild ern ess shall be g iv e n su c h rig h ts as m ay b e n e c e ssa ry
to a ssu re a d e q u a te a c cess to th e land. “ A d e q u a te a c c e s s ” is d e fin e d as th e c o m b in a tio n
o f ro u te s a n d m o d e s o f tra v e l w h ic h w ill, as d e te rm in e d by th e F o re s t S e rv ic e , ca u se
th e least la stin g im p a c t o n th e p rim itiv e c h a ra c te r o f th e land a n d at th e sam e tim e w ill
s e rv e th e re a so n a b le p u rp o s e s fo r w h ic h th e S ta te a n d p riv a te la n d is h e ld o r used.
T h is re g u la tio n is c o n s is te n t w ith y o u r d e p a rtm e n t’s in te rp re ta tio n o f 16 U .S .C . § 4 7 8 . S e e 36 C .F .R .
§ 212.8(b).
47
offer land exchange as indemnity.38 The Interior Department’s interpre
tation, contrary to yours, under appropriate circumstances would allow
denial of “adequate access” to private holdings as well as to stateowned inholdings.
Some initial observations about the Wilderness Act are in order. The
purpose of the Wilderness Act is to “secure for the American people of
present and future generations the benefits of an enduring resource of
wilderness.” 16 U.S.C. § 1131(a). “Wilderness” is defined as an area of
“undeveloped Federal land retaining its primeval character and influ
ence, without permanent improvements or human habitation.” 16
U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited excep
tions, use of motor vehicles or other mechanical transportation. 16
U.S.C. § 1133(c). It also prohibits permanent roads within any wilder
ness area, except as specifically provided in the Act, and subject to
“existing private rights.” Id. The Act directs you to administer wilder
ness areas within your jurisdiction so as to preserve their wilderness
character. 16 U.S.C. § 1133(b). The phrase “existing private rights” in
§ 4(c), 16 U.S.C. § 1133(c), is not defined in the Act or in its legislative
history, but, in my opinion, includes existing easements, which are wellrecognized rights in property.39 Thus, in spite of the A ct’s general
prohibitions, if a private inholder has an implied right to a particular
type of access, that right is preserved.
The Wilderness Act was developed over a 15-year period, with
almost unprecedented citizen participation. See S. Rep. No. 109, 88th
Cong., 1st Sess. 7 (1963). The first major wilderness bill was introduced
in the 85th Congress. S. 1176, 85th Cong., 1st Sess. (1957). In 1961, the
Senate passed a wilderness bill, S. 174, but the House failed to pass it.
38 S u p p le m e n ta l M e m o ra n d u m In S u p p o rt o f P la in tifT s M o tio n fo r P e rm a n e n t In ju n c tio n , at 14-19,
U n ited S ta tes v. C otter Corp., N o. C 7 9 -0 3 0 7 (D . U ta h O c t. 1, 1979). T h e c u r r e n t reg u la tio n o f th e
In te r io r D e p a r tm e n t’s F ish a n d W ild life S e rv ic e , 50 C .F .R . 35.13, a lth o u g h s o m e w h a t am b ig u o u s,
re s tric ts a c cess to m eans an d ro u te s w h ic h w ill “ p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a re a .” T h e
re g u la tio n p ro v id e s:
R ig h ts o f S ta te s o r p e rs o n s an d th e ir su c c e s s o rs in in te re st, w h o se lan d is su rro u n d e d
by a w ild e rn e s s u n it, w ill be re c o g n iz e d to a ssu re a d e q u a te a c cess to th a t land.
A d e q u a te a c c e s s is d e fin e d as th e c o m b in a tio n o f m o d e s a n d ro u te s o f tra v e l w h ic h
w ill best p r e s e r v e th e w ild e rn e s s c h a ra c te r o f th e la n d sc a p e . M o d es o f tra v e l d e s ig
n ated shall be re a so n a b le a n d c o n s is te n t w ith a c c e p te d , c o n v e n tio n a l, c o n te m p o ra ry
m o d e s o f tra v e l in said v ic in ity . U se w ill b e c o n s is te n t w ith re a so n a b le p u rp o se s fo r
w h ic h s u c h la n d is h eld . T h e D ir e c to r w ill issue s u c h p e rm its as a re n e c e ssa ry fo r
ac cess, d e sig n a tin g th e m e an s an d ro u te s o f tra v e l fo r in g re ss an d d e g re s s (sic) so as to
p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a rea .
395ee, e.g.. U nited S ta te s v. Welch, 217 U .S . 333, 339 (1910); M yers v. U n ited States, 378 F .2 d 696,
703 (C t. C l. 1967). It lo g ic a lly c o u ld b e a rg u e d th a t th e p h ra s e “ ex istin g p riv a te r ig h ts '' in c lu d e s an d
p re s e rv e s o n ly th o s e rig h ts w h ic h h a d b ee n e x e rc ise d at th e tim e th e W ild e rn e ss A c t w as p assed . L ittle
s u p p o rt exists, h o w e v e r, for th is a rg u m e n t th a t C o n g re s s in te n d e d to ex tin g u ish u n ex e rc ised ac cess
rig h ts, le a v in g th e la n d o w n e r w ith o n ly th e rig h t to a c cess o r e x c h a n g e u n d e r § 5(a). W h e n p ro v id in g
fo r p r e s e rv a tio n o n ly o f e s ta b lis h e d uses, C o n g re s s c le a rly so in d ic a te d . S ee 16 U .S .C . § 1133(d)(1)
(p e rm ittin g esta b lish e d uses o f a irc ra ft a n d m o to rb o a ts ). In S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2
(1963), th e c o m m itte e s ta te d th a t u n d e r th e W ild e rn e s s P re s e rv a tio n S y stem , “ e x istin g p r iv a te rig h ts
a n d esta b lish ed u ses" a re p e rm itte d to c o n tin u e . (E m p h a s is a d d e d .) A w a y o f a c c e s s to w h ic h a p erso n
is e n title d b y ex p ress o r im p lie d g ra n t p re d a tin g th e W ild ern ess A c t is a rig h t w h ic h ex isted p r io r to
th e e ffe c tiv e d a te o f th e A c t, w h e th e r e x e rc is e d o r u n ex e rc ised .
48
In 1963, S. 4 was introduced in the 86th Congress. It was identical to
S. 174, with one exception not relevant here. It passed the Senate by a
large margin (110 Cong. Rec. 17,458 (1964)), but was amended in the
House (110 Cong. Rec. 17,461 (1964)). A conference committee was
convened and adopted with few amendments the House version of the
bill, H.R. 9070. See H.R. Rep. No. 1829, 88th Cong., 2d Sess. (1964).
The conference bill was approved by both Houses (110 Cong. Rec.
20,603, 20,632 (1964)) and signed by the President on September 3,
1964.
Section 5(a) of the Act deals with state and private property com
pletely surrounded by wilderness areas. It provides:
In any case where State-owned or privately owned land
is completely surrounded by national forest lands within
areas designated by this chapter as wilderness, such State
or private owner shall be given such rights as may be
necessary to assure adequate access to such State-owned
or privately owned land by such State or private owner
and their successors in interest, or the State-owned land
or privately owned land shall be exchanged for federally
owned land in the same State of approximately equal
value under authorities available to the Secretary of Agri
culture: Provided, however, that the United States shall
not transfer to a State or private owner any mineral
interests unless the State or private owner relinquishes or
causes to be relinquished to the United States the mineral
interest in the surrounded land.
Since the enactment of the Wilderness Act, your department has inter
preted this language to preserve the statutory right of access you found
in 16 U.S.C. § 478.40 Because, in my opinion, §478 does not grant a
right of access to inholders other than actual settlers, the question
presented here is whether § 5(a) grants to inholders a broad right of
“adequate access” beyond any existing private rights. I believe it does
not.
The term “adequate access” is not defined in the Act, but the legisla
tive history makes clear that the term includes access not consistent
with wilderness uses.41 For example, in both the Senate and House
40S ee n o te 37 supra.
41
O th e r sectio n s a p p ly to uses c o n s is te n t w ith w ild e rn e ss p re s e rv a tio n . In § 5(b), 16 U .S .C .
§ 1134(b), C o n g re s s p ro v id e d th a t w h e re v alid m in in g claim s o r o th e r v a lid o c c u p a n c ie s a r e s u r
ro u n d e d b y a n atio n al fo rest w ild e rn e ss a rea , th e S e c re ta ry o f A g ric u ltu r e sh all, b y re aso n ab le
re g u la tio n s co n siste n t w ith th e p re s e rv a tio n o f th e a re a as w ild e rn ess, p e rm it in g re ss to a n d eg ress
fro m su ch s u rro u n d e d a re a s by m eans w h ic h h a v e been o r a re b e in g c u s to m a rily e n jo y e d w ith re s p e c t
to sim ilarly s itu a te d area s. Cf. 16 U .S .C . § 1133(d) (p ro v id e s fo r re g u la tio n o f in g re ss a n d e g ress
co n siste n t w ith use o f land fo r m in eral e x p lo ra tio n a n d d e v e lo p m e n t). S e c tio n 5(b) d id n o t a p p e a r in
e ith e r S. 174 o r S. 4. It d id a p p e a r in se v e ra l e a rly H o u se v ersio n s o f th e bill, a n d th e se v ersio n s
ex p ressly in c lu d e d “ p riv a te ly o w n e d la n d s" in a d d itio n to v alid m in in g claim s a n d o th e r valid
C ontinued
49
debates, repeated references were made to road construction for motor
ized vehicles. See, e.g., 107 Cong. Rec. 18,105 (1961); 109 Cong. Rec.
5,925-26 (1963). Accordingly, your regulation defining “adequate
access” does not limit access to established uses or to means consistent
with wilderness uses. It includes access which “will serve the reason
able purposes for which the state and private land is held or used.” 42
What constitutes adequate access will depend on the facts and circum
stances o f each case, and is a determination left to your discretion.
The Act requires that the state or private inholder be given such
rights as are necessary to assure adequate access, or that the land be
exchanged for federally owned land of approximately equal value. The
language of § 5(a) indicates that a landowner has a right to access or
exchange. If he is offered either,, he has been accorded all the rights
granted by the statute. If you offer land exchange, the landowner has
no right of access under § 5(a). This interpretation is supported by the
legislative history of the section.43
The language of § 5(a) first appeared in an amendment to S. 174, 87th
Cong., 1st Sess. (1961). Senator Bennett of Utah proposed the amend
ment in response to concerns of the Western Association of State Land
Commissioners, and, accordingly, the amendment pertained only to
state-owned land. 107 Cong. Rec. 18,092 (1961).44 The Senator identi
fied a series of “loopholes” in the bill. He described the 13th loophole
as follows: “No provision is made in S. 174 to preserve the right of
o c c u p a n c ie s. T h is re fe re n c e to p riv a le ly o w n e d lan d s w as d e le te d in la te r v e rs io n s o f th e b ill, su c h as
H .R . 9070. T h e re p o ris d o n o t e x p lain this d e le tio n . It m ay h a v e o c c u rr e d b e c a u se o f th e d ecisio n
d u rin g th e sam e session to in c lu d e p riv a te ly o w n e d land in § 5(a).
T h e final p a ra g ra p h o f § 5 , 16 U .S .C . § 1134(c), a u th o riz e s y o u to a c q u ire s ta te o r p riv a te ly o w n e d
land o n ly if e ith e r th e o w n e r c o n c u rs o r C o n g re s s s p ecifically a u th o riz e s th e a c q u isitio n .
42 S e e 36 C .F .R . § 293.12, n o te 27 supra.
43 Y o u r d e p a rtm e n t relies o n th e le g isla tiv e h is to ry o f su b se q u en t le g islatio n to s u p p o rt its c o n te n
tio n th a t § 5(a) g ra n ts a rig h t to a d e q u a te ac c e ss to in h o ld e rs. In a re p o rt filed in c o n ju n c tio n w ith th e
In d ia n P eak s W ild ern ess A re a , et a l, 16 U .S .C . § 1132 n o te , th e H o u se C o m m itte e n o te d th a t § 5 o f
th e W ild e rn e s s A c t re q u ire s th e S e c re ta ry to g iv e p riv a te la n d o w n e rs a d e q u a te ac cess. H .R . R ep . N o .
1460, 9 5 th C o n g ., 2d Sess. 9 -1 0 (1978). T h e re p o rt d o e s n o t d iscu ss th e e x c h a n g e o p tio n .
T h is le g is la tiv e o b s e rv a tio n is n o t a p a rt o f th e le g isla tiv e h is to ry o f th e W ild e rn e ss A c t. It is th e
in te n t o f th e C o n g re s s th a t e n a c te d a la w th a t c o n tr o ls in te rp re ta tio n o f th a t law . U n ited A irlines, Inc.
v. M cM a n n . 434 U .S. 192, 200 n.7 (1977); T eam sters v. U nited S ta tes, 431 U .S . 324, 354 n.39 (1977).
W h a te v e r e v id e n c e is p ro v id e d b y th e re p o rt on th e su b se q u en t le g islatio n is o v e r c o m e b y c o n flic tin g
ev id e n c e . See Southeastern C o m m u n ity C ollege v. Davis, 442 U .S . 397, 4 1 1 -1 2 (1979); Oscar M a yer &
Co. v. Evans, 441 U .S. 750, 758 (1979).
44 T h e re so lu tio n passed b y th e W e ste rn S ta te L a n d C o m m issio n e rs s u g g e s te d th a t th e bill be
a m e n d e d to c o n ta in th e fo llo w in g p ro v isio n :
W h e n e v e r an a re a in c lu d in g S ta te -o w n e d land is in c o rp o ra te d in th e w ild e rn e s s sy stem ,
p ro v is io n shall b e m a d e fo r a c cess to su ch land a d e q u a te fo r th e re a so n a b le ex e rc ise o f
its rig h ts th e re in b y th e S ta te a n d th o s e claim in g u n d e r it . . . . P r o v id e d , h o w e v e r,
th a t, if th e re c o m m e n d a tio n b y w h ic h an a re a in c lu d in g S ta te -o w n e d la n d is in c o r p o
ra te d in th e w ild e rn e s s sy stem shall fail to p ro v id e fo r a c c e s s to th e S ta te -o w n e d land
th e re in , th e n th e o w n in g S ta te m ay, at its e le c tio n , use th e in c lu d e d S ta te lan d as b ase
in m a k in g in d e m n ity se le c tio n o f la n d s, in c lu d in g th e m in eral rig h ts th e re in as p ro v id e d
in a p p lic a b le U .S. s ta tu te s.
107 C o n g . R e c . 18,103 (1961). T h e re s o lu tio n illu stra te s th a t th e C o m m issio n ers also b e lie v e d ac cess
c o u ld b e d e n ie d . T h e in d e m n ity s ta tu te s to w h ic h th e re so lu tio n refers, 43 U .S .C . 851, 852, a llo w states
to m a k e in d e m n ity s e le c tio n s w h e n e v e r sc h o o l s e c tio n s a re lost b e c a u se o f o th e r re s e rv a tio n s o r g ra n ts
o f th e land.
50
access to State school sections or other lands. This should certainly be
done or alternatively, the States should be permitted to choose Federal
lands in another location in lieu of the land isolated within wilderness
areas.” Id. The choice referred to by Senator Bennett was the choice of
lands if access were denied, not the choice of either access or exchange.
He stated that the purpose of his amendment was to “give the States
access to State lands within wilderness areas established under the bill,
or indemnify the States for loss of such access.” 107 Cong. Rec. 18,103
(1961). He did not indicate that a state could choose between access
and indemnity. His amendment provided in part:
In any case where State-owned land is completely sur
rounded by lands incorporated into the wilderness system
such State shall be given (1) such rights as may be neces
sary to assure adequate access to such State-owned land
by such State and its successors in interest, or (2) land in
the same State, not exceeding the value of the surrounded
land, in exchange for the surrounded land. Exchanges of
land under the provisions of this subsection shall be ac
complished in the manner provided for the exchange of
lands in national forests.
107 Cong. Rec. 18,103 (1961). In urging support of his amendment,
Senator Bennett explained:45
[T]he Western Association of State Land Commissioners
unanimously adopted a resolution calling for indemnifica
tion to the States which will lose access to State lands in
wilderness areas established under S. 174. Where State
school sections or other State lands are isolated by wilder
ness areas, the State should be given an opportunity, if
access is denied, to make in lieu selections of Federal lands
in other areas.
Id. (emphasis added).46 These statements demonstrate that Senator
Bennett believed that access not consistent with wilderness preservation
could be denied, and wanted to give states an alternative in such
circumstances.
The Senator later explained that his amendment was designed to
correct problems states had experienced with land exchanges in the
past. 107 Cong. Rec. 18,105 (1961). He wanted to ensure that if the
state land was “locked up,” the state clearly would be entitled to an
exchange. He further explained:
45 A u th o rity to e x c h a n g e land is p ro v id e d by 16 U .S .C . § § 4 8 5 , 486 (o rig in a lly e n a c te d as A c t o f
M ar. 20, 1922, c h . 105, 42 S tat. 465) an d 16 U .S .C . § 516 (o rig in a lly e n a c te d as A c t o f M ar. 3, 1925,
ch . 473, 43 S tat. 1215).
46 H is b e lie f th a t a c cess to sta te -o w n e d lan d s m a y be d e n ie d e n tire ly m a y resu lt in p a rt fro m th e
la n g u a g e o f § 4 (c ) , 16 U .S .C . § 1133(c), w h ic h s p ecifically p ro te c te d o n ly ex istin g priva te rig h ts. H e
m a d e n o s ta te m e n ts re ly in g on th is la n g u ag e, h o w e v e r.
51
The first choice, providing that the State shall have adequate
access, would in fact defeat the value o f the wilderness bill,
assuming there were a very valuable mineral in a State
school section, and the State were to decide that it was
worth money to drive a road through the wilderness to
get to it. This would change the situation with respect to
existing law, because we would be imposing particular
restrictions, in spirit at least, with respect to access to the
land.
Id. (emphasis added).
Because of misunderstandings regarding the effect of the proposed
amendment on mineral lands, Senator Bennett withdrew the amend
ment to allow time to confer with other Senators from western states.
He re-offered the amendment the following day, with minor changes
not relevant here. 107 Cong. Rec. 18,384 (1961). Senator Church, who
earlier had expressed reservations about the amendment, now voiced
his support. In his brief remarks, he stated:
I think the amendment is fair to the States involved. If
they need rights of access, they should have them; if they
want to relinquish the land, they ought to have the right
to acquire other land of comparable value.
Id. Although we can infer from these remarks an understanding that
the section gives states the option of choosing access or exchange, the
statement does admit of other interpretations. In light of the evidence
to the contrary, the resolution of this question cannot be rested on the
remarks of one senator during debate on the Senate floor, where “the
choice of words . . . is not always accurate or exact.” In re Carlson,
292 F. Supp. 778, 783 (C.D. Cal. 1968), citing United States v. Internat'l
Union UAW-CIO, 352 U.S. 567, 585-86 (1957). If the Congress had
intended to grant landowners a right to adequate access, it could have
done so expressly. Resolving the doubt in favor of the grantee of such a
right would violate the well-established rule that any doubts as to
congressional grants of property interests must be resolved in favor of
the government. Andrus v. Charleston Stone Prod. Co., 436 U.S. 604, 617
(1978); United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957).
The Senate agreed to Senator Bennett’s amendment to S. 174, but
S. 174 did not pass the House during the 87th Congress. A House
version of the bill did include a similar provision, also applicable only
to state-owned land. The House report on this bill indicated that the
section required only that a state be given either access or exchange; it
did not indicate that the state could choose between them, or that
adequate access otherwise was guaranteed. It stated:
If surrounded land is owned by a State, the State would
be given either right of access or opportunity of exchange.
52
. . . Ingress and egress would be provided for all valid
occupancies.
H.R. Rep. No. 2521, 87th Cong., 2d Sess. 108 (1962) (emphasis added).
Variations of Senator Bennett’s amendment appeared in both the
Senate and House versions of the wilderness legislation in the 88th
Congress. S. 4, 88th Cong., 1st Sess. § 3(j) (1963); H.R. 9070, 88th
Cong., 2d Sess. § 6(a) (1964). The Senate committee report on S. 4
indicates that the understanding that states could be denied access and
offered a land exchange as indemnity remained unchanged:
Section 3(j) provides that where State inholdings exist
in wilderness areas, the State shall be afforded access, or
shall be given Federal lands in exchange of equal value.
The amendment is an attempt to clarify the intention of
the Senate in regard to section 3(j), which was originally
proposed, withdrawn, revised, again proposed and
adopted during floor consideration of S. 174 in 1962 [sic].
The amended section represents a more deliberate and
careful drafting and consideration.
S. Rep. No. 109, 88th Cong., 1st Sess. 10, 21 (1963).
The House modified this section to include “privately owned land”
in the first paragraph regarding “adequate access,” rather than in the
second paragraph regarding “ingress and egress.” This modification is
not explained in the House report. See H.R. Rep. No. 1538, 88th Cong.,
2d Sess. 13 (1963). The change was discussed in both the Senate and
House hearings, however. The sentiment expressed was that private
owners should have the same rights as the States. National Wilderness
Preservation Act: Hearings on H.R. 9070, H.R. 9162, S. 4 and Related
Bills, Before the Subcomm. on Public Lands o f the House Comm, on
Interior and Insular Affairs, 88th Cong., 2d Sess. 1369-72 (1963). Both
public witnesses and congressmen stated that ingress and egress was
uncertain under both 16 U.S.C. §478 and the wilderness acts, and that
the same provision for exchange should be made for private owners as
was made for States. Id. There is no indication that this addition of
privately owned lands modified the purpose of the section as identified
by Senator Bennett.
In sum, if uses are well-established prior to wilderness designation,
they may be permitted to continue.47 In addition, all existing private
47
S ectio n 4(d)(1) o f th e A c t, 16 U .S .C . § 1133(d)(1), p ro v id e s th a t th e “ use o f a irc ra ft o r m o to r
b o ats, w h e re th e se uses h av e a lre a d y b e c o m e esta b lish e d , m ay be p e rm itte d to c o n tin u e su b je c t to su ch
re stric tio n s as th e S e c re ta ry o f A g ric u ltu re d ee m s d e s ira b le .” T h e c o m m itte e re p o rts rev ea l an in ten t
th a t o th e r w ell-estab lish ed uses also be p e rm itte d to c o n tin u e . See. e.g.. S. R ep . N o . 109, 88 th C o n g .,
1st Sess. 2, 10 (1963). See also 109 C o n g . R ec. 5926 (1963) ( S e n a to r C h u r c h , a sp o n so r o f th e bill,
ex p ressed th e v ie w th a t o w n e rs o f ra n c h e s be a llo w e d to c o n tin u e “ th e c u s to m a ry u sag e o f th e ir
p r o p e rty fo r in g re ss an d e g ress a c c o r d in g to th e c u s to m a ry w a y s ” ).
53
rights of access are preserved. Even if the landowner has no prior
existing right to access not consistent with wilderness uses, the Wilder
ness Act requires that “adequate access” be given or that an offer be
made to the landowner to exchange the land for federal land of ap
proximately equal value. As a result of § 5(a), therefore, the inholder
actually may possess more access “rights” than were possessed prior to
wilderness designation. If the landowner rejects an offer of land ex
change, he may retain title to the inholding and exercise access rights
consistent with wilderness uses, or he may consent to acquisition of his
land by the federal government.
These responses to the questions you have asked should provide
satisfactory guidance in your performance of your federal land manage
ment responsibilities.
Sincerely,
B e n ja m in
54
R.
C iv ile tti |
|
Write a legal research memo on the following topic. | Rights-of-Way Across National Forests
T h e A ct o f June 4, 1897, does not grant a right o f access to ow ners o f land surrounded
by national forests, other than actual settlers, and the Secretary o f A griculture has
discretionary authority to deny such access unless a right otherw ise exists.
T h e com m on law doctrine o f easem ent by necessity does not apply to land ow ned by the
federal governm ent, but a right o f access may be implied from the term s of a federal
land grant in some circum stances. N o statutes currently modify any such implied right
found to exist.
Absent a prior existing access right, the Secretary o f A griculture may deny “adequate
access” to land within a national forest w ilderness area, but must offer a land exchange
as indemnity.
June 23, 1980
T
he
Secretary
of
A
g r ic u l t u r e
This replies to your letter of September 18,
1979, requesting my opinion on several questions concerning access
rights of private owners of land located within the boundaries of the
national forests. Your letter poses the following questions:
(1) Whether the Organic Act of June 4, 1897,1 grants to private
landowners,2 other than actual settlers, a right of ingress to and egress
from their properties located within the exterior boundaries of the
national forests, or whether you may deny such access;
(2) W hether private landowners with property located within the
exterior boundaries of the national forests have a right-of-way across
national forest lands by implied easement or easement by necessity
enforceable against the federal government; and, if so, whether this
right-of-way is limited to those instances in which the United States by
its conveyance created a situation in which nonfederal lands are sur
rounded by public lands;
(3) Whether, if a right-of-way exists across national forests, it has
been modified by:
M y D e a r M r. S e c r e ta r y :
(a) The Organic Act of June 4, 1897, 16 U.S.C. § 478;
(b) The Wilderness Act, § 5(a), 16 U.S.C. § 1134(a);
(c) The Act of October 13, 1964, 16 U.S.C. §§ 532-538;
1A c t o f J u n e 4. 1897, c h . 2. § 1. 30 S tat. 36 (c o d ifie d at 16 U .S .C . § 478).
- A s used in th is o p in io n , th e te rm “ p riv a te la n d o w n e rs " re fe rs to all n o n fe d e ra l la n d o w n e rs unless
o th e r w is e in d icated .
30
(d) The Montana Wilderness Study Act of 1977, § 3, 16 U.S.C.
§ 1132 note; or
(e) Any other statute; and
(4)
Whether § 5(a) of the Wilderness Act, 16 U.S.C. § 1134(a), au
thorizes you to deny access and offer as indemnity an exchange of
national forest land for private land, or whether the private landowner
may insist on a right of access.
I conclude, first, that the Organic Act of June 4, 1897, does not grant
a right of access to owners of land surrounded by national forests, other
than actual settlers, and that you have discretionary authority to deny
such access, provided that a right of access does not otherwise exist. Of
course, access cannot be denied arbitrarily.
Second, in my opinion, the common law doctrine of easement by
necessity does not apply to land owned by the federal government. A
right of access may be implied from the terms of a federal land grant
only if Congress intended to grant the right. This intent may be show
from the circumstances surrounding the grant, including the purpose
for which it was made.
Third, none of the statutes you have asked us to consider, nor any
others that we have found, would modify such a right in any case in
which it is found to exist.
Fourth, I conclude that, absent a prior existing access right, you may
deny “adequate access” under the Wilderness Act, but you must offer a
land exchange as indemnity.
I.
Your first question is whether Congress has given private inholders 3
a statutory right of ingress and egress with respect to their property,
including a right to build roads. Congress clearly has the power to
grant such statutory rights.4 The question is whether it has done so.
Your department concludes that the Organic Act of June 4, 1897,
grants a right of access, including a right to build roads, to all owners
3 A n “ in h o ld e r" is a la n d o w n e r w h o se p ro p e rty is c o m p le te ly s u rro u n d e d b y p r o p e r ty o w n e d b y
th e U n ited S tates. A g ain , as used in th is o p in io n th e te rm “ p riv a te inholder*’ re fe rs to all n o n fe d e ra l
in h o ld ers.
4 T h e p o w e r to c o n tro l p u b lic lan d s is g ra n te d to C o n g re s s by th e C o n stitu tio n :
T h e C o n g re s s shall h a v e P o w e r to D isp o se o f an d m ake all n ee d fu l R u les an d
R e g u la tio n s re s p e c tin g th e T e r r ito r y o r o th e r p ro p e rty b e lo n g in g to th e U n ite d
S ta l e s .. . .
U .S. C o n st.. A rt. IV , § 3, cl. 2. T h is c o m p re h e n s iv e co n g re s s io n a l a u th o rity o v e r p u b lic lan d s in c lu d e s
th e p o w e r to p re s c rib e th e tim es, c o n d itio n s , an d m o d e o f tra n sfe r (U n ite d S ta tes v. G ratiot. 39 U .S . (14
P et.) 526, 537-38 (1840)); to d e c la re th e e ffec t o f title e m a n a tin g fro m th e U n ite d S ta te s ( B a g n ell v.
Broderick, 38 U .S. (13 P e t.) 436, 4 5 0 (1839)); a n d to p re v e n t u n la w fu l o c c u p a tio n o f p u b lic p r o p e r ly
(C a m fie ld v. U nited Stoles. 167 U .S. 518, 525 (1897)). In K leppe v. N e w M exico. 426 U .S. 529, 539
(1976), th e C o u rt sta te d : “ (W jh ile th e fu rth e st re a c h e s o f p o w e r g ra n te d b y th e P r o p e r ty C la u se h a v e
n o t yet been d efin ite ly re so lv e d , w e h a v e re p e a te d ly o b s e rv e d th a t th e p o w e r o v e r p u b lic la n d s th u s
e n tru ste d to C o n g re s s is w ith o u t lim ita tio n ."
31
of land surrounded by national forest reserves. Section 478, the codifi
cation of § 1 of the Act, provides:
Nothing in sections 473 to 478, 479 to 482 and 551 of this
title shall be construed as prohibiting the egress or ingress
of actual settlers residing within the boundaries of na
tional forests, or from crossing the same to and from their
property or homes; and such wagon roads and other im
provements may be constructed thereon as may be neces
sary to reach their homes and to utilize their property
under such rules and regulations as may be prescribed by
the Secretary of Agriculture. Nor shall anything in such
sections prohibit any person from entering upon such na
tional forests for all proper and lawful purposes, including
that of prospecting, locating, and developing the mineral
resources thereof. Such persons must comply with the
rules and regulations covering such national forests.
In 1962, Attorney General Kennedy was asked by the Secretary of
Agriculture for his opinion on the meaning of this statute. See 42 Op.
A tt’y Gen. 127 (1962). Prior to 1962, your department interpreted the
first sentence of § 478 as granting a right of access to all owners of land
surrounded by a national forest. It reasoned that the term “ingress and
egress” included the construction of wagon roads, and that the term
“actual settlers” included any person or corporation owning property
within the boundaries of national forests. As a result, private landown
ers, including lumber corporations, were considered to have a statutory
right to build logging roads. Id. at 130. Attorney General Kennedy
opined that the term “actual settlers” includes original settlers who
reside on the land, and excludes corporations and other business enti
ties.5 He further concluded that the Secretary of Agriculture has discre
tionary authority to impose a reciprocity requirement on requests by
inholders, other than actual settlers, to use existing roads or to build
new roads within national forests. Id. at 142-45.
You have advised us that, notwithstanding the 1962 opinion, your
department has continued to maintain that § 478 creates a right of
access for all private inholders. This interpretation, you have informed
us, has been based upon the second sentence of § 478, which was not
directly addressed in the 1962 opinion. My review of the reasoning set
forth in that earlier opinion, as well as my analysis of § 478 and its
legislative history, convinces me that no such access right exists.
The 1962 opinion analyzed § 478 by dividing it into the following
three categories: (1) ingress and egress of actual settlers; (2) construc
5
B etw e en th e e x tre m e s o f th e o rig in a l s e ttle r a n d c o r p o ra tio n s o r b usiness e n titie s a re in te rm e d ia ry
ty p e s o f p ro p e rty o w n e rs su c h as h e irs o r assigns o f an a c tu a l s e ttle r. T h e 1962 o p in io n d id n o t
c o n s id e r w h e th e r th o se in te rm e d ia ry p ro p e r ty o w n e rs a re “ a c tu a l s e ttle rs ” w ith in th e m e an in g o f th e
A c t. 42 O p . A tt’y G en . 127, 138 (1962).
32
tion of wagon roads and other improvements by actual settlers; and (3)
entry upon the national forest for all proper and lawful purposes by any
person. Id. at 127, 138-39. We are concerned here only with the third
category because you inquire as to the rights of landowners other than
actual settlers. In this category, “entry upon” may be subdivided into
entry by mere ingress and egress, in particular the use of existing roads,
and entry requiring construction of roads. Section 478 provides that
any entry upon the forest reserve by any person is subject to the rules
and regulations covering such national forests. The question now pre
sented, therefore, is whether the Secretary’s regulations may, in appro
priate cases, include denial of the requested entry.
To determine correctly the scope of rights protected by the 1897
Act, it is necessary to study carefully the language of the Act itself, and
its legislative history. As the legislative history is fully summarized in
the 1962 opinion, I note only the aspects particularly relevant here. At
the outset, it is helpful to review the sequence of events which led to
the passage of the Act. During the 1800’s the public entered freely
upon federal land, and Congress, although it did not provide specific
legal authority for most uses of the public domain, made no serious
attempt to halt such uses. See generally G. Robinson, The Forest Serv
ice 2-5 (1978); Clawson & Held, The Federal Lands 46 (1957). This
tacit approval constituted an open invitation to the public to avail itself
of the federal land without specific authorization. Most people assumed
that the United States was a temporary titleholder and that the land
would eventually pass into private ownership. See R. Robbins, Our
Landed Heritage: The Public Domain, 1776-1970, 5-6 (1976). The
public land laws of the era, including preemption laws,6 homestead
laws,7 and mining laws,8 presumed unimpeded access to the public
domain.
This policy of unimpeded access was recognized by the Supreme
Court in Buford v. Houtz, 133 U.S. 320, 326 (1890), a case in which the
Court considered the complaints of owners of alternate odd-numbered
sections of land that sheepowners were damaging their land by driving
6T h e A c t o f M ay 29, 1830, 4 S tal. 4 2 0 -2 1 , first g ra n te d p re e m p tio n rig h ts to settlers. U n d e r its
term s, an y p erso n w h o h ad se ttle d on th e p u b lic d o m a in an d h ad c u ltiv a te d a tra c t o f land w as
a u th o riz e d to p u rc h a s e an y n u m b e r o f a c re s up to a m axim um o f 160 a c re s u p o n p ay in g to th e U n ite d
S ta te s a m inim um p ric e fo r Che land.
7
T h e first h o m e stead a c t w as passed in 1862. A c t o f M ay 20, 1862, 12 S ta t. 3 9 2 -9 3 . It p ro v id e d th a t
c e rta in p erso n s c o u ld e n te r u n a p p ro p ria te d p u b lic lan d s an d , u p o n satisfy in g c e rta in c o n d itio n s, o b ta in
a G o v e rn m e n t p a te n t th e re fo r.
8T h e M in in g L a w o f 1866 (A c t o f J u ly 26, 1866, c h . 262, 14 S tat. 251) o p e n e d m in eral d e p o sits o n
p u b lic lands to e x p lo ra tio n , claim , and o c c u p a tio n . T h e o n ly sp ecific re fe re n c e to rig h ts-o f-w ay
ap p e a re d in § 8, w h ic h g ra n te d a rig h t-o f-w a y fo r th e c o n s tru c tio n o f h ig h w a y s o v e r p u b lic lan d s n ot
re se rv e d fo r public uses. T h e M in eral L o c a tio n L a w o f 1872 (A c t o f M ay 10, 1872, c h . 752, 17 S tat.
9 1 -9 6 ) d id not m e n tio n ac cess ac ro ss th e p u b lic d o m a in . F ro m th e o u tse t, h o w e v e r, fed era l m in in g
la w s h av e b een c o n s tru e d as an in v itatio n to e n te r, d is c o v e r, an d lo c a te claim s u p o n p u b lic lands n ot
w ith d ra w n o r reserv ed . See, e.g.. Union O il Co. v. S m ith , 249 U.S. 337, 3 4 6 -4 7 (1919); U n ite d S ta te s v.
Carlile. 67 l.D . 417, 421 (1960). See generally J. L o n e rg a n , A ccess to In te rm in g led M in e ra l Deposits,
M in in g C la im s a n d Private L a n d s Across S u rro u n d in g Public D om ain a n d N a tio n a l Forest L a n d s. 8 L an d
& W a te r L. R ev. 124 (1973).
33
sheep across it to reach the even-numbered sections of the public
domain. The Court denied plaintiffs’ request for an injunction with the
following explanation:
We are of opinion that there is an implied license, grow
ing out of the custom of nearly a hundred years, that the
public lands of the United States . . . shall be free to the
people who seek to use them where they are left open
and unenclosed, and no act of government forbids this
use. . ..
The whole system of the control of the public lands of
the United States as it had been conducted by the G ov
ernment, under acts of Congress, shows a liberality in
regard to their use which has been uniform and
remarkable.
133 U.S. at 326-27. The Court refused to allow the complainants, under
the pretense of owning a small portion of a tract of land, to obtain
control over the entire tract and thereby deny defendants their privi
lege to use the public domain. 133 U.S. at 322. See also, Broder v. Water
Co., 101 U.S. 274, 276 (1879) (Court noted conduct of government
encouraging development of mines and construction of canals and
ditches on public domain); Forbes v. Gracey, 94 U.S. 762 (1876) (Court
noted tacit consent to enter upon the public lands for the purposes of
mining); Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874) (Court noted
“silent acquiescence” to the general occupation of the public lands for
mining).
In the late 19th century, efforts expanded to protect the Nation’s
natural resources from the results of what were perceived as overly
generous land-use policies. See Robbins, supra, at 301-24. In 1891, the
Congress passed a law authorizing the President to reserve forest lands
from the public domain. Act of March 3, 1891, ch. 561, §24, 26 Stat.
1103. One provision of this Act, § 24, later known as the Forest Re
serve Act of 1891, was added as an amendment by the conference
committee.9 The amended bill was considered in the closing days of the
Congress on an oral presentation of its terms, no printed version being
available. It was approved with little debate.10 The status of these forest
9 S e c tio n 24 p ro v id e d :
[T ]h e P re sid e n t o f th e U n ite d S ta te s m a y , fro m tim e to tim e, set a p a rt an d re se rv e , in
a n y S ta te o r T e r rito r y h a v in g p u b lic land b e a rin g forests, a n y part- o f th e p u b lic lands
w h o lly o r in p a rt c o v e re d w ith tim b e r o r u n d e rg ro w th , w h e th e r o f c o m m e rc ia l valu e
o r n o t, as p u b lic re s e rv a tio n s , an d th e P resid en t shall, by p u b lic p ro c la m a tio n , d e c la re
th e esta b lish m e n t o f su ch re s e rv a tio n s an d th e lim its th e reo f.
l0S o m e S e n a to rs ex p ressed c o n c e rn ab o u t not k n o w in g e x a c tly w h a t w as in .t h e r e p o rt, b u t th e
m a jo rity felt th a t in th e c lo sin g d a y s o f th e session “ th e re has g o t to be s o m e th in g ta k en fo r g ra n te d o r
else th e p u b lic b usiness c a n n o t g o fo rw a rd as it should.*’ 22 C o n g . R ec. 3 5 4 6 -4 7 (1891). T h e b rie f
H o u se d e b a te a p p e a rs at 22 C o n g . R ec. 3 6 1 3 -1 6 (1891).
34
reserves was not defined, nor were guidelines provided for the manage
ment of the reserves.
On February 22, 1897, President Cleveland, pursuant to the 1891
Act, issued proclamations placing approximately 20 million acres of
public land in forest reserves. Presidential Proclamations Nos. 19-31,
Feb. 22, 1897, 29 Stat. 893-912. Within the boundaries of the reserves
were villages, patented mining claims, homestead claims of actual set
tlers and other developments. See 30 Cong. Rec. 901-02 (1897). Each of
the proclamations contained the following admonition: “Warning is
hereby expressly given to all persons not to enter or make settlement
upon the tract of land reserved by this proclamation.” See, e.g., 29 Stat.
894 (1897). The proclamations also prohibited the general use of timber
on the reserves, and jeopardized other theretofore legitimate activities
of persons living within or near the reserves.
Congressmen from states affected by the proclamations expressed
outrage at what they considered the President’s hasty and ill-advised
action. 30 Cong. Rec. 902 (1897). This reaction culminated in the
passage of an amendment to the Sundry Civil Expense Appropriation
Act, 30 Stat. 36 (1897). This amendment was designed to solve the
“difficulties surrounding these forest reservations” (id. at 900) and to
provide for “administering the forest so reserved” (id. at 909).11 Senator
Carter of Montana explained that the amendment was offered “not for
the purpose of benefitting any particular individual or class of individ
uals, but for the purpose of permitting existing communities in the
United States to enjoy the privileges which have ordinarily been ac
corded to the pioneer settlers on the frontier everywhere.” Id. at 902.
Other Senators also criticized the provision prohibiting entry or settle
ment upon the reserves. Id. at 910-11. Senator Allison of Iowa stated:
“[I]f segregations are made I think every interest existing at the time,
however remote it may be, should be protected.” Id. at 911 (emphasis
added). The House debate on the amendment indicates that the con
gressmen also were concerned about preserving existing uses of the
forest reserves. Id. at 1007-13 (remarks of Representatives Castle,
Knowles, Lacy, and DeVries).12
The bill was referred to a conference committee, which reported the
bill without changes in or comments upon the access section. Id. at
1242-43. During the Senate debate on the conference report, some of
the same western Senators on whose behalf the amendment was intro
duced sought to change the clause “actual settlers residing within the
boundaries of national forests” to “bona fide settlers or owners within a
reservation.” Id. at 1278-81. Senator White explained that the provision
“ T h e a m e n d m e n t te m p o ra rily re s to re d th e w ith d ra w n lands to th e p u b lic d o m a in b y su sp e n d in g
th e o p e ra tio n o f th e p re sid e n tia l p ro c la m a tio n s fo r a p p ro x im a te ly o n e year. 30 C o n g . R ec. 8 9 9 -9 0 0
(1897). I t also clarifie d th e P re s id e n t’s a u th o rity to re v o k e , m odify, o r su sp e n d s u c h p ro c la m a tio n s.
,2 F o r a c o m p le te d iscu ssio n o f th is le g islativ e h isto ry , see 42 O p . A lt’y G en . 127, 135-38 (1962).
35
as drafted did not adequately protect all persons who had acquired title
in fee from the government. Id. at 1278. The amendment was defeated.
Id. at 1285. Opponents of the amendment emphasized that there was no
intent to deprive any person of access to his property, and that “what
ever rights have been acquired as respects the public lands under the
public land laws are reserved and preserved.” Id. at 1283. It was noted
that entry upon the forests was subject to the rules and regulations of
the Secretary of Interior (who then had this administrative authority)
and that such rules would not likely prevent access to a person’s home.
Id. at 1280 (remarks of Senator Berry). Notwithstanding the concession
that the bill was “imperfect,” the conference report was agreed to. It
was pointed out that further amendment would cause substantial delay
and that any evils could be corrected by subsequent legislation. Id. at
1282—83. The House adopted the conference report without debate on
this provision. Id. at 1397-401.
This legislative history demonstrates that the effect of the second
sentence of § 478 is to protect whatever rights and licenses with regard
to the public domain existed prior to the reservation. We interpret the
provision as a congressional declaration that the establishment of forest
reserves would not alter the long-standing policy of allowing
unimpeded access to the public land or interfere with the rights of
persons then using the land, not as an affirmative grant of a broad right
of entry to all persons. The express language of the statute provides
that nothing in the act shall be construed to prohibit certain activities.
The language grants no rights not already in existence. See Robbins,
supra, at 323; John Ise, The United States Forest Policy 140 (1920).
The protection of “lawful” and “proper” entry upon the reserves
cannot be construed to limit congressional authority to regulate such
entry. No vested right to use the public domain for a particular purpose
arises from the government’s mere acquiescence in such use. In Light v.
United States, 220 U.S. 523 (1911), the Court wrote:
[WJithout passing a statute, or taking any affirmative
action on the subject, the United States suffered its public
domain to be used for such purposes. There thus grew up
a sort of implied license that these lands, thus left open,
might be used so long as the Government did not cancel
its tacit consent. Buford v. Houtz, 133 U.S. 326. Its failure
to object, however, did not confer any vested right on the
complainant, nor did it deprive the United States of the
power of recalling any implied license under which the
land had been used for private purposes.
Id. at 535. See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77
(1872); Frisbie v. Whitney, 76 U.S. (9 Wall.) 187, 194 (1869).
Section 478 clearly subjects entry upon the national forests to reason
able regulation by the Secretary. Prior to the enactment of the Federal
36
Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C.
§§ 1701-1782, and its repeal of § 2 of the Act of June 4, 1897, 16 U.S.C.
§ 551, insofar as the latter section applied to the issuance of rights-ofway through public lands, the Secretary was required to read § 478 and
§551 together. United States v. Grimaud, 220 U.S. 506, 515 (1911).
Section 551 provides that the Secretary shall “make such rules and
regulations and establish such service as will insure the objects of such
reservations, namely, to regulate their occupancy and use and to pre
serve the forests thereon from destruction . . .
This section was held
to confer upon the Secretary a “broad scope of regulation” intended to
“be effective.” See 42 Op. A tt’y Gen. 127, 140, citing Chicago Mil. & St.
P. Ry. v. United States, 218 F. 288, 298 (9th Cir. 1914), affd, 244 U.S.
358 (1917); Shannon v. United States, 160 F. 870, 873 (9th Cir. 1908). In
Grimaud, the Court stated that the Secretary “is required to make
provisions to protect the forest reserves from depredation and harmful
uses.” 220 U.S. at 552. The Secretary’s authority to grant rights-of-way
across national forest lands now is based on 16 U.S.C. §§ 532-538, and
FLPMA, 43 U.S.C. §§ 1761-1771. Both statutes authorize the Secretary
to protect the forest lands.13
This interpretation is consistent with the 1962 opinion of the A ttor
ney G eneral.14 His review of the legislative history of §478 disclosed a
legislative desire to protect explicitly only the rights of ingress and
egress of actual settlers. 42 Op. A tt’y Gen. 127, 138. He found that
entry upon the national forests by all other persons is subject to your
rules and regulations covering the forests and discussed the scope of
your regulatory authority as follows:
,3 S ectio n 504 o f F L P M A . 43 U .S .C . § 1764, d ire c ts ih e S e c re ta ry to issue re g u la tio n s w ith re s p e c t
to th e te rm s an d c o n d itio n s o f th e rig h ts-o f-w a y . S e c tio n 505, 43 U .S .C . § 1765, req u ires, in ter alia, th a t
e a c h rig h t-o f-w a y p erm it c o n ta in te rm s an d c o n d itio n s w h ic h w ill " p r o te c t th e en v iro n m en t.* ' “ p ro te c t
F e d e ra l p r o p e rty ,“ an d “ o th e rw ise p ro te c t th e p u b lic in terest in th e lan d s tra v e rse d b y th e rig h ts-o fw a y o r a d ja c e n t thereto.** T h e A c t o f O c to b e r 13, 1964, 16 U .S .C . §§ 5 3 2 -5 3 8 , w h ic h g e n e ra lly
c o n c e rn s th e c o n s tru c tio n an d m a in te n a n c e o f a sy stem o f ro a d s w ith in th e n atio n al fo rests, a u th o riz e s
th e S e c re ta ry to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts “ u n d e r su ch re g u la tio n s as he m ay p r e
sc rib e ." 16 U .S.C . § 533.
u In 1964, in resp o n se to th e A tto rn e y G e n e ra l’s 1962 o p in io n . C o n g re s s passed le g islatio n .g iv in g
th e S e c re ta ry th e a u th o rity to g ra n t p erm a n e n t o r te m p o ra ry ea se m e n ts o v e r la n d s m a n ag ed b y th e
D e p a rtm e n t o f A g ric u ltu re . P ub. L. N o. 8 8 -657. § 2 , 78 S tat. 1089 (1964). T h e c o m m itte e re p o rts o f
b o th th e H o u se a n d th e S en ate in d ic a te th a t C o n g re s s u n d e rs to o d th e A tto r n e y G e n e r a l's o p in io n to
h o ld th a t § 478 w as “ n o t to be c o n s tru e d as a s ta tu to ry g u a ra n te e o f ac cess to p riv a te lan d s w ith in th e
n atio n al fo re sts." S. R ep. N o. 1174, 88th C o n g ., 2d Sess. 4 (1964); H .R . R ep. N o . 1920. 88 th C o n g ., 2d
Sess. 4 (1964). In th e S en ate r e p o rt, th e c o m m itte e stated :
It sh o u ld b e ex p ressly n o te d th a t th is le g islatio n is in te n d e d n e ith e r to affirm n o r to
a b ro g a te th e A tto rn e y G e n e ra l’s in te rp re ta tio n o f th e ac t o f J u n e 4. 1897 (30 S tat. 36,
16
U .S .C . 478), w ith resp ect to th e act*s as s u ra n c e o r lack o f assu ran ce, c o n c e rn in g
a c cess to p riv a te lands ac ro s s n atio n al fo rest lands. H o w e v e r, th e p r e d ic ta b le efTect o f
th is legislation w ill be to m inim ize th e lik elih o o d o f litig a tio n b e tw e e n th e U n ited
S ta te s an d p riv a te la n d o w n e rs d e sig n e d to test a p p lic a tio n s o f th e A tto r n e y G e n e r a l’s
in te rp re ta tio n o f th e ac t o f J u n e 4, 1897. T h is le g islatio n w ill p ro v id e to m o st o w n e rs
o f p riv a te land a s a tisfa c to ry a lte rn a tiv e to s ta tu to ry a s s u ra n c e o f a c c e s s to an d fro m
th e ir lands. T h e c o m m itte e th e re fo re re c o m m e n d s e n a c tm e n t o f th e ac t as a m en d ed .
A m e n d m e n ts w h ic h w o u ld h a v e c re a te d a s ta tu to r y rig h t o f a c cess w e re re je c te d b o th in c o m m itte e
(S. R ep . N o. 1174, at 8) an d on th e S e n a te flo o r. 110 C o n g . R ec. 16.413-15 (1964).
37
As the Supreme Court pointed out in United States v.
Grimaud, 220 U.S. 506, 516-17, it is your function to
determine what private use of the national forests in any
given case is consistent with the purposes sought to be
attained by the statute. The imposition of harsh and oner
ous requirements not related to the benefit received or to
your general responsibility to preserve and manage the
national forests, might well constitute an abuse of
discretion.
42 Op. A tt’y Gen. at 147.
Your department argues that it has a long-standing policy that the
Secretary is without discretion to deny access under § 478, and that a
change in this policy would have a drastic effect on the well-established
expectations of landowners within the national forests. It is a familiar
principle that interpretations made contemporaneously with the enact
ment of a statute and consistently followed for a long period are
entitled to great weight, particularly if they have been relied on by the
public. See Zuber v. Allen, 396 U.S. 168, 192-93 (1969); Alaska S.S. Co.
v. United States, 290 U.S. 256, 262 (1933); Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933). Correspondingly, when
an agency’s interpretation has been neither consistent nor long-standing,
the weight given it diminishes accordingly. See Southeastern Community
College v. Davis, 422 U.S. 397, 411-12 (1979); United Housing Founda
tion, Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975). Prior to 1962,
your department relied on the first sentence of § 478 to find the same
rights you now find in the second sentence. This 1962 revision of the
department’s interpretation occurred almost 70 years after enactment of
the statute.15
In any case, to the extent that my judgment is governed by the
customary rules of statutory construction, I am guided by the overrid
ing rule that the statute, and not the agency’s interpretation, is conclu
sive. See, e.g., VolksWagenwerk v. Federal Maritime Commission, 390
U.S. 261, 272 (1968). Additionally, I am persuaded by the legislative
history and by the common sense rule that legislative history disclosing
Congress’ intent is entitled to more weight than a conflicting adminis
trative interpretation and must control. See Norwegian Nitrogen Products
Co. v. United States, 288 U.S. 294, 315 (1933); Sutherland, Statutes and
Statutory Construction §49.04 (1973 & Supp. 1975).
In sum, I conclude that § 478 does not grant access rights to private
inholders other than actual settlers. In my opinion, absent a right of
access otherwise granted to the landowner by Congress, you may deny
requested access if such denial will protect the public interest in the
14 In S oriano v. U nited States. 494 F .2 d 681, 683 (9 th C ir. 1974), th e c o u r t d e c lin e d to g iv e sp ecial
d e fe re n c e to a re g u la tio n p ro m u lg a te d m o re th a n 100 y ea rs a fte r e n a c tm e n t o f th e statu te.
38
land to be traversed. Because you may not arbitrarily deny access to
private landowners, I do not foresee that this interpretation will have a
drastic effect on their expectations.
II.
Your second question is whether an inholder has an easement by
necessity or other implied easement across national forest land. The
conclusion in Part I (that § 478 does not grant a right of access to
private property across national forest reserves, and that, absent an
access right otherwise guaranteed to a landowner by Congress, § 478
allows denial of access) renders apparent the importance of this
question.
In the 1962 opinion, the Attorney General stated that whether an
easement by necessity lies against the government is a complex and
controversial question. While he concluded that it need not be decided
at that time, the Attorney General nonetheless offered his view that
such an easement does not exist over public lands. 42 Op. A tt’y Gen.
127, 148. It is also my view that the common law doctrine of easement
by necessity does not apply to congressional disposition of the public
domain. This does not mean, however, that access cannot otherwise be
implied. In my opinion, access may be implied if it is necessary to
effectuate the purpose for which the land was granted.
The doctrine of easement by necessity is a common law property
concept that was recently described by the Supreme Court as follows:
“Where a private landowner conveys to another individual a portion of
his lands in a certain area and retains the rest, it is presumed at common
law that the grantor has reserved an easement to pass over the granted
property if such passage is necessary to reach the retained property.”
Leo Sheep Co. v. United States, 440 U.S. 668, 679 (1979).16 Authoritative
treatises on property law identify three basic prerequisites to the cre
ation of an easement by necessity.17 First, the titles to the two tracts in
question at some time must have been held by one person. This is the
unity-of-title requirement. Second, the unity of title must have been
severed by a conveyance of one of the tracts. Third, the easement must
be necessary in order for the owner of the dominant tenement to use
his land. This necessity must exist both at the time of the severance of
title and at the time of application for the exercise of the easement.18
16 In L eo Sheep, th e C o u rt c o n s id e re d th e q u estio n w h e th e r th e U n ite d S ta te s h ad re s e rv e d an
ea sem en t to pass o v e r lan d s w h ic h h ad passed fro m fed eral o w n e rs h ip . Y o u r in q u iry , c o n v e rs e ly , is
w h e th e r th e U nited S tates g ra n te d an e a sem en t to a fed era l land g ra n te e to pass o v e r re ta in e d la n d s to
re a c h th e c o n v e y e d p r o p e rty . T h e L eo S heep ca se is discu ssed in fra at p ag es 19-20, n o te 28.
17 S ee generally 3 P o w e ll on R eal P r o p e rty § 4 1 0 (1979); 2 T h o m p s o n o n R ea l P r o p e r ty § 363, at
4 2 4 -2 7 (1961 & S u p p . 1978); 3 T iffa n y , L a w o f R eal P ro p e r ty § 7 9 3 (3 d ed . 1939 S u p p . 1979);
C o m m e n t, E asem ents B y W ay o f N ecessity Across F ederal L ands, 35 W ash. L . R ev . 105, 107 (1960).
18 C o u rts h a v e e m p h a siz e d v a rio u s fa c to rs in ap p ly in g th is d o c trin e . T h e R e s ta te m e n t o f P r o p e r ty
§ 4 7 6 , lists so m e o f th e se facto rs:
Continued
39
See 3 Powell on Real Property §410, at 34-59 to 34-60 (1979);
Simonton, Ways By Necessity, 25 Colum. L. Rev. 571, 573-79 (1925).
Whether this doctrine applies to the government has not been resolved.
Courts and commentators have differed.19
To determine whether the doctrine applies to property of the federal
government, it is necessary to determine what law controls. Here fed
eral law must control. The Constitution vests in Congress alone author
ity to dispose of and make needful rules concerning the public domain.
U.S. Const., Art. IV, § 3, cl. 2. As I have noted earlier in this opinion,
this power is vested in Congress “without limitation.” United States v.
Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). See also Kleppe v. New
Mexico, 426 U.S. 529, 536 (1976); United States v. San Francisco, 310
U.S. 16, 29-30 (1940). The construction of grants by the United States
has been held to be a federal, not a state, question. United States v.
Oregon, 295 U.S. 1, 27-28 (1935), Packer v. Bird, 137 U.S. 661, 669
(1891).20 With regard to implying an easement across land which the
United States still holds in trust for the public, therefore, federal law
must control. Utah Power & Light Co. v. United States, 243 U.S. 389,
404 (1917).21 Federal property can be made subject to state law only
when congressional authorization is clear and unambiguous. See EPA v.
California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211
(1976); Kleppe v. New Mexico, 426 U.S. 529, 536 (1976).
(a) w h e th e r (he c la im a n t is th e c o n v e y o r o r th e c o n v e y e e ; .
(b) th e te rm s o f th e c o n v e y a n c e :
(c) th e c o n s id e ra tio n g iv e n fo r it:
(d ) w h e th e r th e claim is m a d e ag a in st a s im u lta n e o u s c o n v e y e e ;
(e) th e ex ten t o f th e necessity ;
( 0 w h e th e r r e c ip ro c a l b en e fits resu lt to th e c o n v e y o r o r c o n v e y e e ;
(g) th e m a n n e r o f use o f th e land b e fo re c o n v e y a n c e :
(h) th e ex ten t to w h ic h p rio r use w as k n o w n .
19See. e.g.. U nited S ta tes v. D u n n . 478 F .2 d 443 (9 th C ir. 1973) (h o ld in g , w ith o n e ju d g e d issen tin g ,
th a t th e d o c tr in e is ap p lic a b le ); S u n S tuds. Inc.. 83 I.D . 518 (1976) (h o ld in g th a t th e d o c tr in e is n o t
a p p lic a b le ). S o m e c o m m e n ta to rs s ta te th a t w a y s o f n e c e ssity d o n o t a rise ag a in st th e s o v ereig n . 2 G .
T h o m p s o n , C o m m e n ta rie s o n th e L a w o f R eal P r o p e rty § 362, at 417 (1961); Jo n e s o n E a se m e n ts
§ 3 0 1 , at 247 (1898). O th e rs c o n c lu d e th a t th e d o c trin e sh o u ld be a p p lic a b le . 3 P o w e ll o n R eal
P r o p e rty § 4 1 0 at 34-73 to 3 4 -7 4 (1979); 3 T iffan y , L a w o f R eal P r o p e r ty § 793 (3d ed . 1939).
20 W h e n , h o w e v e r, th e la n d h as passed fro m fed era l o w n e rs h ip , it b e c o m e s su b je c t to th e la w s o f
th e s ta te in w h ic h it is lo c a te d . S ee O regon e x rel. S ta te L a n d Bd. v. C orvallis S a n d <& G ravel Co.. 429
U .S. 363, 372 (1977). It fo llo w s, th e re fo re , th a t w h e re title to b o th a d o m in a n t a n d se rv ie n t te n em en t
h as p assed fro m fed era l o w n e rs h ip , th e q u e stio n w h e th e r th e u n ity -o f-title re q u ire m e n t is satisfied by
p rio r g o v e rn m e n t o w n e rs h ip is a q u e stio n o f s ta te law . S ta te c o u r ts h a v e re a c h e d d iffe rin g o p in io n s o n
th is q u e stio n . C o u rts in C a lifo rn ia , F lo rid a , In d ia n a, O k la h o m a , T e n n e sse e , an d T e x a s h a v e c o n c lu d e d
th a t u n ity o f title c a n n o t be b ased on p rio r g o v e rn m e n t o w n e rs h ip . B u lly H ill Copper M in in g &
S m e ltin g Co. v. Bruson. 4 C al. A p p . 180, 87 P. 237, 238 (1906); G uess v. Azar. 57 So. 2d 443, 444 (F la.
1952); C o n tin en ta l E nterprises Inc. v. Cain, 296 N .E .2 d 170, 171 (In d . 1973); D u d ley v. Meggs, 153 P.
1121, 1122 (O k la. 1915); Pearne v. C oal C reek M in. & M fg. Co.. 9 0 T e n n . 619, 6 2 7 -2 8 , 18 S .W . 4 0 2 -0 4
(1891); S ta te v. B lack Bros.. 116 T e x . 615, 6 2 9 -3 0 , 297 S .W . 213, 2 1 8 -1 9 (1927). C o u r ts in A rk an sas,
M issouri a n d M o n ta n a h a v e re a c h e d th e o p p o s ite c o n c lu s io n . A rka n sa s S ta te H ig h w a y C o m m 'n v.
M arshall. 485 S .W .2d 740, 743 (A rk . 1972); S n y d e r v. Warford, 11 M o . 513, 514 (1848); Violet v.
M artin. 62 M o n t. 335, 205 P. 221, 223 (1922).
21 T h e ru le s a d o p tin g s ta te law to d e te rm in e w h a t rip a ria n rig h ts p ass in a fe d e ra l g r a n t a r e n ot
a p p lic a b le to th e q u e s tio n o f w a y s a c ro s s fed era l land. U tah Power & L ig h t Co. v. U n ited States. 243
U .S. 389, 411 (1917). See O regon e x rel. S ta te L a n d Bd. v. Corvallis S a n d <£ G rave! Co.. 429 U .S . 363,
372 (1977); U nited S ta tes v. Oregon. 295 U .S. 1, 27 (1935); H a rd in v. Jordan. 140 U .S. 371 (1891).
40
To determine what rights have passed under federal law, it is neces
sary to interpret the statute disposing of the land.22 It is a recognized
principle that all federal grants must be construed in favor of the
government “lest they be enlarged to include more than what was
expressly included.” United States v. Grant River Dam Authority, 363
U.S. 229, 235 (1960); United States v. Union Pac. Ry., 353 U.S. 112, 116
(1957).23 In Pearsall v. Great No. Ry., 161 U.S. 646, 664 (1895), the
Court wrote: “Nothing is to be taken as conceded . . . but what is
given in unmistakeable terms, or by an implication equally clear. . . .”
These general rules must not be applied to defeat the intent of Con
gress, however. The Supreme Court has stated that public grants are
“not to be construed as to defeat the intent of the legislature, or to
withhold what is given either expressly or by necessary or fair
implication. . . .” United States v. Denver & Rio Grande R.R., 150 U.S.
1, 14 (1893). In all cases, the intent of Congress must control. Id. See
also Missouri, K. & T. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1878).
These rules dictate that if it is clear that Congress intended to grant
access, such access must be acknowledged, its scope consistent with the
purposes for which the grant was made.24 An implied easement defined
by the actual intent of Congress must be distinguished from an ease
ment by necessity, which relies on a presumed intent of the parties.
There are no clear uniform rules for determining the scope of an
easement by necessity. In some cases, it has been held that the scope
includes whatever access is necessary for any reasonable, beneficial use
of the dominant tenement, not merely the use for which the grant was
made. See, e.g., New York Cent. R.R. v. Yarian, 219 Ind. 477, 39 N.E.2d
604, 606 (1942); Soltis v. Miller, 444 Pa. 357, 283 A.2d 369, 370-71
(1971); Meyers v. Dunn, 49 Conn. 71, 78 (1881); Whittier v. Winkley, 62
N.H. 338, 339-40 (1882); Jones on Easements § 323 (1898). Since the
common law doctrine is based on the presumed intent of the parties, its
operation may have the effect of disregarding or possibly frustrating the
intention of the grantor, absent express language in the conveyance
denying an easement. 2 G. Thompson, Law of Real Property § 362
(1961), citing Lord v. Sanchez, 136 Cal. App. 2d 704 289 P.2d 41 (1955);
Moore v. Indiana & Michigan Elec. Co., 299 Ind. 309, 95 N.E.2d 210
(1950). Thus, if the doctrine were allowed to operate where the G ov
ernment is the grantor, the actual intent of Congress would, at the least,
23 W e n o te th a t y o u r d e p a rtm e n t, w ith o u l re a c h in g th e ea sem en t-b y -n e cessity issue, h as c o n c lu d e d
th a t an ex a m in atio n o f th e g ra n tin g s ta tu te is essential to d e te rm in in g a c cess rig h ts. S ee M e m o ra n d u m :
A c c e ss to S ta te an d P riv a te In h o ld in g s in N a tio n a l F o re s ts at 18, U .S. D e p t, o f A g ric u ltu r e (O c t. 31,
1979).
23 S ee also C a m fie ld v. U nited States, 167 U .S. 518, 52 4 -2 6 (1897); U n ited S ta te s v. C larke, 529 F .2 d
984, 986 (9 th C ir. 1976).
2*See C u rtin v. Benson. 222 U .S. 78, 86 (1911). In U nited States v. 9.947.71 Acres. 220 F. S u p p . 328,
331 (D . N ev . 1963), th e c o u rt re c o g n iz e d an im plied a c cess rig h t fo r m in in g p u rp o s e s w h e re a m in in g
claim o w n e r had to c ro s s p u b lic d o m a in to reac h his claim . C f A rizona v. C alifornia, 373 U .S. 546,
5 9 9 -6 0 0 (1963); W inters v. U nited States, 207 U .S. 564, 575-77 (1908). T h e se ca ses re c o g n iz e an im p lied
rese rv a tio n o f w a te r rig h ts fo r Indian reserv atio n s.
41
become irrelevant, and, in some cases, would be thwarted. Plainly, the
application of the common law doctrine would be inconsistent with the
established principles that the intent of Congress in disposing of federal
land must control, and that rights in government land cannot be pre
sumed to pass by implication.25
The doctrine of easements by necessity was developed to settle
disputes between private parties, not disputes involving the federal
governm ent.26 The federal government has at one time held title to
over three-fourths of the territory of the United States; it today retains
title to approximately one-third of the nation’s land. One-Third of the
Nation’s Land: A Report to the President and to Congress by the
Public Land Law Review Comm’n, at 8 (1970). It holds property as
sovereign, as well as proprietor, and exercises power beyond that
which is available to a private party. Kleppe v. New Mexico, 426 U.S.
529, 539 (1976); Light v. United States, 220 U.S. 523, 536-37 (191 1).
Throughout its history, statutes have been enacted allowing access
across its land.27 It holds land in trust for all the people and in dispos
ing of it is concerned with the public interest. Utah Power & Light Co.
v. United States, 243 U.S. 389, 409 (1917); Causey v. United States, 240
U.S. 399, 402 (1916). In Causey, the Court wrote that “the Government
in disposing of its public lands does not assume the attitude of mere
seller of real estate at its market value.” Id.
For these reasons, other doctrines applicable to private landowners
have been held inapplicable to the sovereign. In Jourdan v. Barrett, 45
U.S. (4 How.) 169, 184-85 (1846), the Supreme Court held that no
prescriptive rights may be obtained against the sovereign, and in Field
v. Seabury, 60 U.S. (19 How.) 323, 332-33 (1856), the Court held that
government patents may not be collaterally attacked as can grants from
a private party. In United States v. California, 332 U.S. 19 (1947), the
25 It is n o te w o n h y th a t sin ce th e A tto rn e y G e n e ra l o p in e d in 1962 th a t th e d o c tr in e o f ea se m e n ts by
n ec essity w as n o t e n fo rc e a b le ac ro s s fed era l land, C o n g re s s has n o t m o d ified th e rule. A lth o u g h this
g e n e ra lly is n o t s tro n g e v id e n c e w h e n th e re is no in d ic a tio n th a t C o n g re s s w as a w a re o f th e ru lin g
(Z u b e r v. A llen, 396 U .S. 168, 194 (1969)), it is m o re p e rs u a s iv e w h e n , as h e re , co n g re s s io n a l ac tio n
d ire c tly re su lte d from th e o p in io n . S e e n.14, supra. S ee generally B ean v. L ed m a r. 368 U .S. 403, 4 1 2 -1 3
(1962); U nited S ta tes v. M idw est O il Co.. 236 U .S. 459, 481 (1915).
26T h e d o c trin e has b een tra c e d to e a rly E n g lish o rig in s. S im o n to n , W ays o f N ecessity, 25 C o lu m . L.
R ev . 571, 57 2 -7 8 (1925). It u su ally has b een p re d ic a te d on p u b lic p o lic y fa v o rin g lan d u tiliz atio n an d a
p re s u m p tio n o f in ten t. 3 P o w e ll on R ea l P ro p e rty § 4 1 0 at 3 4 -5 9 to 3 4 -6 0 (1979).
21
See. e.g.. A c t o f M a rc h 3, 1875, ch . 252, § 1, 18 S tat. 482 (re p e a le d 1976) (rig h t o f w ay fo r
ra ilro ad s); A c t o f M a rc h 3, 1891, c h . 561, § 18 (re p e a le d 1976) ( rig h t o f w a y fo r irrig a tio n d itc h e s an d
c a n als); A c t o f Ja n . 21, 1895, ch. 37, § I (re p e a le d 1976) (rig h t o f w a y fo r tra m ro d s , ca n als, and
rese rv o irs); A c t o f J u ly 26, 1866, c h . 262, § 8, 14 S tat. 253 (re p e a le d 1976) (rig h t o f w ay fo r h ig h w ay s).
T h e s e s ta tu te s w e re re p e a le d by th e F e d e ra l L a n d P o lic y an d M an a g e m e n t A c t o f 1976 ( F L P M A ) ,
P u b . L. N o . 9 4 -5 7 9 , § § 5 0 1 -5 1 1 , 90 S tat. 2776-82 (co d ifie d at 43 U .S .C . § § 1 7 6 1 -1 7 7 1 ). F L P M A
p ro v id e s, w ith c e rta in e x c e p tio n s, th a t rig h ts o f w a y a c ro s s g o v e rn m e n t lan d c a n o n ly b e o b ta in e d as
p ro v id e d in th a t A c t. 43 U .S .C J770. G e n e ra l a n d c o m p re h e n s iv e le g islatio n , p re sc rib in g a c o u rs e o f
c o n d u c t to be p u rs u e d a n d th e p a rtie s an d th in g s a ffec ted , an d s p ecifically d e s c rib in g lim itatio n s an d
e x c e p tio n s , is in d ic a tiv e o f a le g isla tiv e in ten t th a t th e s ta tu te sh o u ld to ta lly s u p e rs e d e an d re p la c e th e
c o m m o n la w d e a lin g w ith th e s u b je c t m a tte r. Isbrandtsen Co. v. Johnson. 343 U .S. 779, 7 8 7 -8 8 (1952);
S n e e l v. R uppert, 541 P .2 d 1042 (W y o . 1978); J. S u th e rla n d , S ta tu te s an d S ta tu to ry C o n s tru c tio n
§ 50.05 (1973 & S u p p . 1978).
42
Court refused to hold that the federal government had forfeited by
laches or estoppel its interest in littoral property, stating: “The Govern
ment, which holds its interests here as elsewhere in trust for all the
people, is not to be deprived of those interests by the ordinary court
rules designed particularly for private disputes over individually owned
pieces of property. . .
Id. at 40.
These same reasons lead me to conclude, as did the Court in Leo
Sheep, that the doctrine of easements by necessity as applicable to
federal lands is “somewhat strained, and ultimately of little signifi
cance” and that the “pertinent inquiry . . . is the intent of Congress.” 28
A grantee is entitled instead to reasonable access across government
land to use his property, for the purposes for which the land grant was
made, if such an access right either expressly or impliedly arises from
the act authorizing the land grant.29
To interpret correctly congressional intent underlying a statutory
land grant, it is necessary to look at the condition of the country when
the grant was made, as well as the declared purpose of the grant. Leo
Sheep Co. v. United States, 440 U.S. 668, 682 (1979); Winona & St. Paul
R.R. v. Barney, 113 U.S. 618, 625 (1885); Platt v. Union Pacif. R.R., 99
U.S. 48, 64 (1878). In Superior Oil Co. v. United States, 353 F.2d 34 (9th
Cir. 1965), for example, the court looked to the purpose of the grant
and concluded that the scope of the implied access was not broad
enough to include the type of entry sought. The plaintiff oil company
was a lessee of a religious mission which had received a land patent to
facilitate and encourage its activities among the Indians. The land in
question was surrounded by the Hopi Reservation, which the United
States held in trust for the Indians. The issue on appeal was whether
28In L eo Sheep Co. v. U nited States. 440 U .S. 668 (1979), th e C o u rt, in h o ld in g th a t th e fed eral
g o v e rn m e n t d o e s not h a v e a re s e rv e d e a sem en t by n ec essity ac ro s s th e lan d o f its g ra n te e o r its
g r a n te e 's su ccesso r, w ro te :
F irst o f all, w h a te v e r rig h t o f p assag e a p riv a te la n d o w n e r m ig h t h av e , it is n o t at all
c le a r th a t it w o u ld in c lu d e th e rig h t to c o n s tru c t a ro a d fo r p u b lic a c cess to a
re c re a tio n a l a rea . M o re im p o rta n tly , th e ea sem en t is n o t a c tu a lly a m a tte r o f n ec essity
in th is ca se b e c a u se th e G o v e rn m e n t has th e p o w e r o f em in en t d o m a in . J u ris d ic tio n s
h av e g e n e ra lly seen em in en t d o m a in an d e a sem en ts by n ec essity as a lte rn a tiv e w a y s to
e ffect th e sam e results. . . . [S Jtate c o u rts h a v e held th a t th e “e a sem en t b y n e c e ssity ”
d o c trin e is not av a ilab le to th e so v ereig n .
Id. at 679-81 (fo o tn o te s o m itte d ). O f c o u rs e , th e o p in io n in L eo Sheep is n o t a lo n e d is p o s itiv e o f th e
q u estio n you h a v e asked. It in v o lv e d a claim by th e g o v e rn m e n t g ra n to r, n o t th e p riv a te g ra n te e , o f an
e a sem en t by n ecessity. T h e C o u rt th e re d id rely su b stan tially on th e p o w e r o f em in en t d o m a in , an d
w as c a re fu l n o t to d e c id e th e b ro a d e r q u e s tio n o f th e av ailab ility o f th e ea se m e n t-b y -n e c e ssity d o c trin e
g en e ra lly . In an e a rlie r ca se refu sin g to find a re se rv e d w a y o f n ec essity fo r a p u b lic ea se m e n t ac ro ss
p riv a te la n d , a d is tric t c o u r t s tated m o re b ro a d ly : ‘i t is, in m y ju d g m e n t, v e ry d o u b tfu l w h e th e r th e
d o c trin e o f w ay s o f n ec essity has a n y a p p lic a tio n to g ra n ts fr o m th e g e n e ra I G o v e rn m e n t u n d e r th e
p u b lic land la w s ." U nited S ta tes v. R indge, 208 F. 611, 618 (S .D . C al. 1913). S ee also. S u n S tu d s Inc., 83
I.D . 518 (1976). B u t see, B ydlon v. U nited States. 175 F . S u p p . 891 (C t. C l. 1959); M a c k ie v. U n ited
States. 195 F . S upp. 306 (D . M inn. 1961).
29 O f c o u rs e , ev e n w ith o u t su c h an e n title m e n t, a la n d o w n e r m ay ap p ly fo r an ea se m e n t p erm it
u n d e r p ro c e d u re s esta b lish ed p u rsu a n t to o th e r statu tes. S ee F L P M A , 43 U .S .C 1761-1771; A c t o f
O c to b e r 13, 1964, 16 U .S .C . 532 et seq. It c a n n o t b e assum ed th a t C o n g re s s , o r fed era l r e g u la to ry
a u th o ritie s , w ill e x e c u te th e ir p o w e r in su ch a w a y as to b rin g ab o u t in ju stice . S e e U n ited S ta te s v.
C alifornia, 332 U .S. 19, 40 (1947).
43
the oil company was entitled to move heavy equipment across the
reservation to drill for oil on the leased property. In ruling that access
was limited to the scope of the grant, the court stated:
Certainly it cannot be said either that public policy de
mands or that the Indians’ trustee impliedly intended a
grant of a way of access across Indian lands greater in
scope than was required for mission purposes and whose
greater scope was necessary only in order to permit the
granted lands to be used in a fashion adverse to the
interests of the Indians.30
Although some courts that have dealt with this issue have written in
terms of easements by necessity, most of them in effect have looked at
the grant in question and limited access according to the purpose of the
grant. The Superior Oil case was relied on by the Tenth Circuit in
Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978), which held:
An easement by necessity for some purposes could possibly
have arisen when the United States granted the patent to
plaintiffs’ predecessor in interest. . . . While nothing ordi
narily passes by implication in a patent, Walton v. United
States, 415 F.2d 121 (10th Cir.), an implied easement may
arise within the scope o f the patent.
Id. at 161 (emphasis added).
Similar statements appear in Utah v. Andrus, (unreported) C 79-0037
(D. Utah Oct. 1, 1979), in which Utah claimed an easement by neces
sity for access to its school grant lands. Relying on United States v.
Dunn, 478 F.2d 443, 444 n.2 (9th Cir. 1973), the district court con
cluded: “Although this common law presumption might not ordinarily
apply in the context of a Federal land grant, the liberal rules of
construction applied to school trust land allowed for the consideration
of this common law principle and justify its application here.” 31 The
30T h e c o u r t, in e ffec t, c re a te d a h y b rid d o c trin e , a p p ly in g p rin c ip le s o f b o th w a y s o f n ec essity an d
w a y s c r e a te d b y th e a c tu a l in ten t o f th e g ra n to r:
A p p e lla n t's p o sitio n is sim p ly th a t sin ce th e p a te n t fo r th e M ission w as in u n re s tric te d
fee sim p le it c a rrie d w ith it by im p lic a tio n a w a y o f n e c e ssity o v e r lan d s o f th e U n ited
S ta te s fo r all p u rp o s e s to w h ic h th e c o n v e y e d land m ig h t la w fu lly b e put.
S u c h is n o t th e law . T h e s c o p e a n d e x te n t o f th e rig h t o f a c c e s s d e p e n d s n o t u p o n th e
s ta te o f title o f th e d o m in a n t e s ta te , n o r th e e x iste n c e o r la c k o f lim itatio n s in th e g ra n t
o f th a t esta te, b u t u p o n w h a t m ust, u n d e r th e c irc u m s ta n c e s , b e a ttrib u te d to th e
g r a n to r e ith e r by im p lic a tio n o f in te n t o r by o p e ra tio n o f la w fo u n d e d in a pu b lic
p o lic y fa v o rin g land u tiliz atio n .
S u p erio r O il Co. v. U nited Stales, 353 F .2 d 34, 36 -3 7 (9 th C ir. 1965).
31
S lip O p . at 8. In U nited S ta te s v. D u n n , 478 F .2 d 443 (9 th C ir. 1973), th e U n ite d S ta te s s o u g h t an
in ju n c tio n to p re v e n t D u n n , w h o h e ld title as a g ra n te e o f a ra ilro a d , fro m c o n s tr u c tin g an ac c e ss ro a d
fo r c o m m e rc ia l a n d re sid e n tia l d e v e lo p m e n t o f his la n d . T h e d is tric t c o u r t g ra n te d p a rtia l su m m a ry
ju d g m e n t, h o ld in g d e fe n d a n ts tre sp a ss e rs a n d th e g o v e rn m e n t e n title d to im m e d ia te possession. T h e
N in th C irc u it re v e rs e d , h o ld in g th a t s u m m a ry ju d g m e n t w a s p re c lu d e d b e c a u se d e fe n d a n ts raised th e
fa c tu a l issue w h e th e r th e y h a d an e a se m e n t by n ec essity . Id. at 446. T h e D u n n c o u r t 's o n ly d iscu ssio n
o f th e a p p lic a tio n o f th e d o c trin e , h o w e v e r, a p p e a re d in a f o o tn o te re sp o n se to th e d issen tin g ju d g e . In
th e d isse n t. J u d g e W rig h t s ta te d sim p ly th a t h e " w o u ld h o ld th a t u n d e r th e facts o f th is ca se th e
C ontinued
44
court went on to hold that this right is not absolute, however. It
reasoned:
Under the Constitution Congress has the authority and
responsibility to manage Federal land. U.S. Const, art. IV,
§ 3, cl. 2. . . . There is nothing in the school land grant
program that would indicate that when Congress devel
oped the school land grant scheme it intended to abrogate
its right to control activity on Federal land. Further, it is
consistent with common law property principles to find
that the United States, as the holder of the servient tene
ment, has the right to limit the location and use of Utah’s
easement of access to that which is necessary for the
state’s reasonable enjoyment of its right. . . . Thus, the
court holds that, although the State of Utah or its lessee
must be allowed access to section 36, the United States
may regulate the manner of access under statutes such as
FLPMA.
Slip Op. at 21.
Cases like Superior Oil, Kinscherff, and Utah v. Andrus lend support
to my conclusions with respect to implied rights to access across
federal land. While the common law easement by necessity does not
run against the United States, a right to access may nonetheless be
implied by reference to particular grants. And, to the extent that such
implied rights exist, your broad authority—delegated to you by Con
gress—to manage forest reserves empowers you to regulate their exer
cise. See United States v. Perko, 108 F. Supp. 315, 322-23 (D. Minn.
1952), affd, 204 F.2d 446 (8th Cir.), cert, denied, 346 U.S. 832 (1953);
Perko v. Northwest Paper Co., 133 F. Supp. 560, 569 (D. Minn. 1955).
Determining what implied rights exist in the numerous federal land
grants is beyond the scope of this opinion. As set forth above, this
determination depends on when the grant was made and for what
purpose. Mindful of the goal of giving effect to legislative intent, you
must look to the rules the Supreme Court has adopted for interpretation
of federal land grants. As discussed previously, land grants generally
are to be strictly construed. This rule must be balanced against the
conflicting rule that in some situations, certain types of land grants may
deserve a more liberal construction because of the circumstances sur
rounding passage of the statutes in question. See generally Leo Sheep Co.
v. United States, 440 U.S. 668, 682-83 (1979) (railroad land grants);
d o c trin e o f ea se m e n t b y n ec essity is n o t b in d in g o n th e U n ite d S tates. . .
Id. at 446. T h e m a jo rity
resp o n d ed ;
S in ce th e G o v e rn m e n t d id n o t, in o u r ju d g m e n t, raise th e p o in t u p o n w h ic h J u d g e
W rig h t bases his d issen t, w e h a v e n o t d iscu ssed it in th e o p in io n , b u t n e v e rth e le ss d id
g iv e it c o n s id e ra tio n a n d c o n c lu d e d th a t it la ck ed m erit.
Id. at 444 n.2. I d o not find th is ca se p ersu asiv e a u th o rity fo r a p p lic a tio n o f th e d o c trin e .
45
Wyoming v. United States, 255 U.S. 489, 508 (1921) (state school land
grants). Absent express language to the contrary, however, a grant
should not be construed to include broad rights to use retained govern
ment property, particularly in the case of gratuitous grants. See United
States v. Union Pac. R.R., 353 U.S. 112 (1957); Camfield v. United
States, 167 U.S. 518 (1897); Wisconsin Central R.R. v. United States, 164
U.S. 190 (1896); 30 Op. A tt’y Gen. 263, 264 (1941).
Once the right, if any, is found to exist, you should consider how
that right reasonably should be regulated to protect the public’s interest
in federal property. It is beyond dispute that such rights are subject to
reasonable regulation without a resulting inverse condemnation. See
generally Johnson v. United States, 479 F.2d 1383 (Ct. Cl. 1973) (restric
tion of access by erection of fence enclosing extended portion of high
way held not a taking); 2 Nichols on Eminent Domain § 5.72[1] (1978).
Nonetheless, fewer restrictions properly may be imposed on well
established, developed uses than on unexercised rights. See Penn Central
Transp. Corp. v. City o f New York, 438 U.S. 104 (1978); Euclid v. Amber
Realty Co., 272 U.S. 365 (1926). Frustration and appropriation are
essentially different things. United States v. Grand River Dam Authority,
363 U.S. 229, 236 (1960), citing Omnia Co. v. United States, 261, 502,
513 (1923).
III.
Your third question is whether any act of Congress has modified any
implied rights that may accompany federal grants. Of particular con
cern are the Wilderness Act, 16 U.S.C. §§1131-1136, and various
wilderness study acts.32 See, e.g., Montana Wilderness Study Act of
1977, Pub. L. No. 95-150, 91 Stat. 1243; Sheep Mtn. and Snow Mtn.
Wilderness Areas, et al., Pub. L. No. 94-557, § 3, 90 Stat. 2635 (1976).
These wilderness study acts require you to exercise your discretion so
as to preserve the wilderness character of the land.33 If a request for a
particular mode of access would destroy that wilderness character,
therefore, you must deny the request. These acts also provide, how
ever, that their mandates are subject to “existing private rights.” 34 See,
e.g., Montana Wilderness Study Act, § 3(a), 16 U.S.C. § 1132 note. You
must determine, therefore, what implied access rights are guaranteed in
a particular grant, and allow the exercise of those rights. The wilder
32 T h e im p a c t o f th e W ild e rn e ss A c t is d iscu ssed in P a rt IV .
33 S ee P arker v. U ntied States. 448 F .2 d 793 (1 0 th C ir. 1971), cert, d en ied sub. nom ., K a ib a b In d u stries
v. Parker, 405 U .S. 989 (1972) (h e ld S e c r e ta r y ’s d is c re tio n to e n te r in to th e tim b e r h a rv e s tin g c o n tr a c t
fo r p u b lic land is lim ited by 16 U .S .C . § 1132(b)).
34 In a d d itio n to “ ex istin g p r iv a te rights,*' th e W ild e rn e ss A c t p e rm its in g re ss to a n d e g re s s fro m
m in in g lo c a tio n s until D e c e m b e r 31, 1983. 16 U .S .C . § 1133(d)(3). S u c h in g re ss an d eg re s s is s u b je c t to
re a so n a b le re g u la tio n b y th e S e c re ta ry o f A g ric u ltu re , c o n s is te n t w ith use o f th e lan d fo r m in eral
e x p lo ra tio n , lo c a tio n , d e v e lo p m e n t, p ro d u c tio n , a n d re la te d p u rp o ses.
46
ness study acts thus do not modify any implied rights that may accom
pany federal grants.
Nor do I find that the other statutes you cite modify such implied
rights. The Organic Act of 1897, 16 U.S.C. §478, discussed at length in
Part I of this opinion, preserves access rights existing at the time of
creation of a forest reserve. The Act of October 13, 1964, 16 U.S.C.
532-538, which authorizes the Secretary of Agriculture to grant ease
ments for road rights-of-way over lands administered by the Forest
Service,35 was passed in reaction to Attorney General Kennedy’s 1962
interpretation of 16 U.S.C. §478, which, as discussed earlier, allowed
the imposition of a reciprocity requirement with respect to rights-ofway. By empowering the Secretary of Agriculture to grant permanent
easements, the Congress hoped to provide an alternative to statutory
assurance of access to and from private inholdings.36 Thus, the statute
does not substantively modify implied rights of access. It does, along
with FLPMA, allow the imposition of certain procedural requirements,
such as application for a permit prior to road construction. We have
found no other statute that substantively modifies implied access rights.
IV.
Your final question concerns § 5(a) of the Wilderness Act, 16 U.S.C.
1134(a). Your department has concluded that this provision guarantees
a private owner “adequate access” to an inholding unless the land
owner voluntarily chooses a land exchange. Pursuant to this interpreta
tion, regulations have been promulgated providing that access “shall be
given.” 37 The Department of the Interior has taken the position that
§ 5(a) grants the Secretary of the Interior (and, by analogy, the Secre
tary of Agriculture) the authority to deny access to a landowner, and
3516 U .S .C . § 533. S ee p. 10 & n o te 13 supra. T h is s ta tu te w as n ot re p e a le d b y F L P M A . W ith
resp ect to th e S e c re ta ry o f A g ric u ltu r e ’s a u th o rity u n d e r §§ 5 3 2-538, F L P M A p ro v id e d :
[N ]o th in g in th is s u b c h a p te r shall b e c o n s tru e d as affe c tin g o r m o d ify in g th e p ro v isio n s
o f sectio n s 532 to 538 o f title 16 an d in th e e v e n t o f c o n flic t w ith , o r in c o n sisten cy
b e tw e e n , th is s u b c h a p te r a n d sectio n s 532 to 538 o f title 16, th e la tte r shall p rev ail:
Provided fu rth e r. T h a t n o th in g in th is A c t sh o u ld be c o n s tru e d as m a k in g it m a n d a to ry ,
th a t, w ith resp ect to fo rest ro ad s, th e S e c re ta ry o f A g ric u ltu re lim it rig h ts-o f-w a y
g ra n ts o r th e ir te rm s o f y ea rs o r re q u ire d is c lo su re p u rs u a n t to se c tio n 1761(b) o f this
title o r im p o se an y o th e r c o n d itio n c o n te m p la te d by this A c t th a t is c o n tr a r y to p re se n t
p ra c tic e s o f th a t S e c re ta ry u n d e r s e c tio n s 532 to 538 o f title 16.
43 U .S .C . § 1770(a).
36 S. R ep. N o . 1174, 88th C o n g ., 2d Sess. 4 (1964). See n o te 10 supra.
3736 C .F .R . § 293.12. T h is re g u la tio n p ro v id e s in p art:
S ta te s o r p erso n s, a n d th e ir s u c c e sso rs in in te re st, w h o o w n la n d c o m p le te ly s u r
ro u n d e d by N atio n al F o re s t W ild ern ess shall be g iv e n su c h rig h ts as m ay b e n e c e ssa ry
to a ssu re a d e q u a te a c cess to th e land. “ A d e q u a te a c c e s s ” is d e fin e d as th e c o m b in a tio n
o f ro u te s a n d m o d e s o f tra v e l w h ic h w ill, as d e te rm in e d by th e F o re s t S e rv ic e , ca u se
th e least la stin g im p a c t o n th e p rim itiv e c h a ra c te r o f th e land a n d at th e sam e tim e w ill
s e rv e th e re a so n a b le p u rp o s e s fo r w h ic h th e S ta te a n d p riv a te la n d is h e ld o r used.
T h is re g u la tio n is c o n s is te n t w ith y o u r d e p a rtm e n t’s in te rp re ta tio n o f 16 U .S .C . § 4 7 8 . S e e 36 C .F .R .
§ 212.8(b).
47
offer land exchange as indemnity.38 The Interior Department’s interpre
tation, contrary to yours, under appropriate circumstances would allow
denial of “adequate access” to private holdings as well as to stateowned inholdings.
Some initial observations about the Wilderness Act are in order. The
purpose of the Wilderness Act is to “secure for the American people of
present and future generations the benefits of an enduring resource of
wilderness.” 16 U.S.C. § 1131(a). “Wilderness” is defined as an area of
“undeveloped Federal land retaining its primeval character and influ
ence, without permanent improvements or human habitation.” 16
U.S.C. § 1131(c). Section 4(c) of the Act prohibits, with limited excep
tions, use of motor vehicles or other mechanical transportation. 16
U.S.C. § 1133(c). It also prohibits permanent roads within any wilder
ness area, except as specifically provided in the Act, and subject to
“existing private rights.” Id. The Act directs you to administer wilder
ness areas within your jurisdiction so as to preserve their wilderness
character. 16 U.S.C. § 1133(b). The phrase “existing private rights” in
§ 4(c), 16 U.S.C. § 1133(c), is not defined in the Act or in its legislative
history, but, in my opinion, includes existing easements, which are wellrecognized rights in property.39 Thus, in spite of the A ct’s general
prohibitions, if a private inholder has an implied right to a particular
type of access, that right is preserved.
The Wilderness Act was developed over a 15-year period, with
almost unprecedented citizen participation. See S. Rep. No. 109, 88th
Cong., 1st Sess. 7 (1963). The first major wilderness bill was introduced
in the 85th Congress. S. 1176, 85th Cong., 1st Sess. (1957). In 1961, the
Senate passed a wilderness bill, S. 174, but the House failed to pass it.
38 S u p p le m e n ta l M e m o ra n d u m In S u p p o rt o f P la in tifT s M o tio n fo r P e rm a n e n t In ju n c tio n , at 14-19,
U n ited S ta tes v. C otter Corp., N o. C 7 9 -0 3 0 7 (D . U ta h O c t. 1, 1979). T h e c u r r e n t reg u la tio n o f th e
In te r io r D e p a r tm e n t’s F ish a n d W ild life S e rv ic e , 50 C .F .R . 35.13, a lth o u g h s o m e w h a t am b ig u o u s,
re s tric ts a c cess to m eans an d ro u te s w h ic h w ill “ p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a re a .” T h e
re g u la tio n p ro v id e s:
R ig h ts o f S ta te s o r p e rs o n s an d th e ir su c c e s s o rs in in te re st, w h o se lan d is su rro u n d e d
by a w ild e rn e s s u n it, w ill be re c o g n iz e d to a ssu re a d e q u a te a c cess to th a t land.
A d e q u a te a c c e s s is d e fin e d as th e c o m b in a tio n o f m o d e s a n d ro u te s o f tra v e l w h ic h
w ill best p r e s e r v e th e w ild e rn e s s c h a ra c te r o f th e la n d sc a p e . M o d es o f tra v e l d e s ig
n ated shall be re a so n a b le a n d c o n s is te n t w ith a c c e p te d , c o n v e n tio n a l, c o n te m p o ra ry
m o d e s o f tra v e l in said v ic in ity . U se w ill b e c o n s is te n t w ith re a so n a b le p u rp o se s fo r
w h ic h s u c h la n d is h eld . T h e D ir e c to r w ill issue s u c h p e rm its as a re n e c e ssa ry fo r
ac cess, d e sig n a tin g th e m e an s an d ro u te s o f tra v e l fo r in g re ss an d d e g re s s (sic) so as to
p re s e rv e th e w ild e rn e s s c h a ra c te r o f th e a rea .
395ee, e.g.. U nited S ta te s v. Welch, 217 U .S . 333, 339 (1910); M yers v. U n ited States, 378 F .2 d 696,
703 (C t. C l. 1967). It lo g ic a lly c o u ld b e a rg u e d th a t th e p h ra s e “ ex istin g p riv a te r ig h ts '' in c lu d e s an d
p re s e rv e s o n ly th o s e rig h ts w h ic h h a d b ee n e x e rc ise d at th e tim e th e W ild e rn e ss A c t w as p assed . L ittle
s u p p o rt exists, h o w e v e r, for th is a rg u m e n t th a t C o n g re s s in te n d e d to ex tin g u ish u n ex e rc ised ac cess
rig h ts, le a v in g th e la n d o w n e r w ith o n ly th e rig h t to a c cess o r e x c h a n g e u n d e r § 5(a). W h e n p ro v id in g
fo r p r e s e rv a tio n o n ly o f e s ta b lis h e d uses, C o n g re s s c le a rly so in d ic a te d . S ee 16 U .S .C . § 1133(d)(1)
(p e rm ittin g esta b lish e d uses o f a irc ra ft a n d m o to rb o a ts ). In S. R ep . N o . 109, 88 th C o n g ., 1st Sess. 2
(1963), th e c o m m itte e s ta te d th a t u n d e r th e W ild e rn e s s P re s e rv a tio n S y stem , “ e x istin g p r iv a te rig h ts
a n d esta b lish ed u ses" a re p e rm itte d to c o n tin u e . (E m p h a s is a d d e d .) A w a y o f a c c e s s to w h ic h a p erso n
is e n title d b y ex p ress o r im p lie d g ra n t p re d a tin g th e W ild ern ess A c t is a rig h t w h ic h ex isted p r io r to
th e e ffe c tiv e d a te o f th e A c t, w h e th e r e x e rc is e d o r u n ex e rc ised .
48
In 1963, S. 4 was introduced in the 86th Congress. It was identical to
S. 174, with one exception not relevant here. It passed the Senate by a
large margin (110 Cong. Rec. 17,458 (1964)), but was amended in the
House (110 Cong. Rec. 17,461 (1964)). A conference committee was
convened and adopted with few amendments the House version of the
bill, H.R. 9070. See H.R. Rep. No. 1829, 88th Cong., 2d Sess. (1964).
The conference bill was approved by both Houses (110 Cong. Rec.
20,603, 20,632 (1964)) and signed by the President on September 3,
1964.
Section 5(a) of the Act deals with state and private property com
pletely surrounded by wilderness areas. It provides:
In any case where State-owned or privately owned land
is completely surrounded by national forest lands within
areas designated by this chapter as wilderness, such State
or private owner shall be given such rights as may be
necessary to assure adequate access to such State-owned
or privately owned land by such State or private owner
and their successors in interest, or the State-owned land
or privately owned land shall be exchanged for federally
owned land in the same State of approximately equal
value under authorities available to the Secretary of Agri
culture: Provided, however, that the United States shall
not transfer to a State or private owner any mineral
interests unless the State or private owner relinquishes or
causes to be relinquished to the United States the mineral
interest in the surrounded land.
Since the enactment of the Wilderness Act, your department has inter
preted this language to preserve the statutory right of access you found
in 16 U.S.C. § 478.40 Because, in my opinion, §478 does not grant a
right of access to inholders other than actual settlers, the question
presented here is whether § 5(a) grants to inholders a broad right of
“adequate access” beyond any existing private rights. I believe it does
not.
The term “adequate access” is not defined in the Act, but the legisla
tive history makes clear that the term includes access not consistent
with wilderness uses.41 For example, in both the Senate and House
40S ee n o te 37 supra.
41
O th e r sectio n s a p p ly to uses c o n s is te n t w ith w ild e rn e ss p re s e rv a tio n . In § 5(b), 16 U .S .C .
§ 1134(b), C o n g re s s p ro v id e d th a t w h e re v alid m in in g claim s o r o th e r v a lid o c c u p a n c ie s a r e s u r
ro u n d e d b y a n atio n al fo rest w ild e rn e ss a rea , th e S e c re ta ry o f A g ric u ltu r e sh all, b y re aso n ab le
re g u la tio n s co n siste n t w ith th e p re s e rv a tio n o f th e a re a as w ild e rn ess, p e rm it in g re ss to a n d eg ress
fro m su ch s u rro u n d e d a re a s by m eans w h ic h h a v e been o r a re b e in g c u s to m a rily e n jo y e d w ith re s p e c t
to sim ilarly s itu a te d area s. Cf. 16 U .S .C . § 1133(d) (p ro v id e s fo r re g u la tio n o f in g re ss a n d e g ress
co n siste n t w ith use o f land fo r m in eral e x p lo ra tio n a n d d e v e lo p m e n t). S e c tio n 5(b) d id n o t a p p e a r in
e ith e r S. 174 o r S. 4. It d id a p p e a r in se v e ra l e a rly H o u se v ersio n s o f th e bill, a n d th e se v ersio n s
ex p ressly in c lu d e d “ p riv a te ly o w n e d la n d s" in a d d itio n to v alid m in in g claim s a n d o th e r valid
C ontinued
49
debates, repeated references were made to road construction for motor
ized vehicles. See, e.g., 107 Cong. Rec. 18,105 (1961); 109 Cong. Rec.
5,925-26 (1963). Accordingly, your regulation defining “adequate
access” does not limit access to established uses or to means consistent
with wilderness uses. It includes access which “will serve the reason
able purposes for which the state and private land is held or used.” 42
What constitutes adequate access will depend on the facts and circum
stances o f each case, and is a determination left to your discretion.
The Act requires that the state or private inholder be given such
rights as are necessary to assure adequate access, or that the land be
exchanged for federally owned land of approximately equal value. The
language of § 5(a) indicates that a landowner has a right to access or
exchange. If he is offered either,, he has been accorded all the rights
granted by the statute. If you offer land exchange, the landowner has
no right of access under § 5(a). This interpretation is supported by the
legislative history of the section.43
The language of § 5(a) first appeared in an amendment to S. 174, 87th
Cong., 1st Sess. (1961). Senator Bennett of Utah proposed the amend
ment in response to concerns of the Western Association of State Land
Commissioners, and, accordingly, the amendment pertained only to
state-owned land. 107 Cong. Rec. 18,092 (1961).44 The Senator identi
fied a series of “loopholes” in the bill. He described the 13th loophole
as follows: “No provision is made in S. 174 to preserve the right of
o c c u p a n c ie s. T h is re fe re n c e to p riv a le ly o w n e d lan d s w as d e le te d in la te r v e rs io n s o f th e b ill, su c h as
H .R . 9070. T h e re p o ris d o n o t e x p lain this d e le tio n . It m ay h a v e o c c u rr e d b e c a u se o f th e d ecisio n
d u rin g th e sam e session to in c lu d e p riv a te ly o w n e d land in § 5(a).
T h e final p a ra g ra p h o f § 5 , 16 U .S .C . § 1134(c), a u th o riz e s y o u to a c q u ire s ta te o r p riv a te ly o w n e d
land o n ly if e ith e r th e o w n e r c o n c u rs o r C o n g re s s s p ecifically a u th o riz e s th e a c q u isitio n .
42 S e e 36 C .F .R . § 293.12, n o te 27 supra.
43 Y o u r d e p a rtm e n t relies o n th e le g isla tiv e h is to ry o f su b se q u en t le g islatio n to s u p p o rt its c o n te n
tio n th a t § 5(a) g ra n ts a rig h t to a d e q u a te ac c e ss to in h o ld e rs. In a re p o rt filed in c o n ju n c tio n w ith th e
In d ia n P eak s W ild ern ess A re a , et a l, 16 U .S .C . § 1132 n o te , th e H o u se C o m m itte e n o te d th a t § 5 o f
th e W ild e rn e s s A c t re q u ire s th e S e c re ta ry to g iv e p riv a te la n d o w n e rs a d e q u a te ac cess. H .R . R ep . N o .
1460, 9 5 th C o n g ., 2d Sess. 9 -1 0 (1978). T h e re p o rt d o e s n o t d iscu ss th e e x c h a n g e o p tio n .
T h is le g is la tiv e o b s e rv a tio n is n o t a p a rt o f th e le g isla tiv e h is to ry o f th e W ild e rn e ss A c t. It is th e
in te n t o f th e C o n g re s s th a t e n a c te d a la w th a t c o n tr o ls in te rp re ta tio n o f th a t law . U n ited A irlines, Inc.
v. M cM a n n . 434 U .S. 192, 200 n.7 (1977); T eam sters v. U nited S ta tes, 431 U .S . 324, 354 n.39 (1977).
W h a te v e r e v id e n c e is p ro v id e d b y th e re p o rt on th e su b se q u en t le g islatio n is o v e r c o m e b y c o n flic tin g
ev id e n c e . See Southeastern C o m m u n ity C ollege v. Davis, 442 U .S . 397, 4 1 1 -1 2 (1979); Oscar M a yer &
Co. v. Evans, 441 U .S. 750, 758 (1979).
44 T h e re so lu tio n passed b y th e W e ste rn S ta te L a n d C o m m issio n e rs s u g g e s te d th a t th e bill be
a m e n d e d to c o n ta in th e fo llo w in g p ro v isio n :
W h e n e v e r an a re a in c lu d in g S ta te -o w n e d land is in c o rp o ra te d in th e w ild e rn e s s sy stem ,
p ro v is io n shall b e m a d e fo r a c cess to su ch land a d e q u a te fo r th e re a so n a b le ex e rc ise o f
its rig h ts th e re in b y th e S ta te a n d th o s e claim in g u n d e r it . . . . P r o v id e d , h o w e v e r,
th a t, if th e re c o m m e n d a tio n b y w h ic h an a re a in c lu d in g S ta te -o w n e d la n d is in c o r p o
ra te d in th e w ild e rn e s s sy stem shall fail to p ro v id e fo r a c c e s s to th e S ta te -o w n e d land
th e re in , th e n th e o w n in g S ta te m ay, at its e le c tio n , use th e in c lu d e d S ta te lan d as b ase
in m a k in g in d e m n ity se le c tio n o f la n d s, in c lu d in g th e m in eral rig h ts th e re in as p ro v id e d
in a p p lic a b le U .S. s ta tu te s.
107 C o n g . R e c . 18,103 (1961). T h e re s o lu tio n illu stra te s th a t th e C o m m issio n ers also b e lie v e d ac cess
c o u ld b e d e n ie d . T h e in d e m n ity s ta tu te s to w h ic h th e re so lu tio n refers, 43 U .S .C . 851, 852, a llo w states
to m a k e in d e m n ity s e le c tio n s w h e n e v e r sc h o o l s e c tio n s a re lost b e c a u se o f o th e r re s e rv a tio n s o r g ra n ts
o f th e land.
50
access to State school sections or other lands. This should certainly be
done or alternatively, the States should be permitted to choose Federal
lands in another location in lieu of the land isolated within wilderness
areas.” Id. The choice referred to by Senator Bennett was the choice of
lands if access were denied, not the choice of either access or exchange.
He stated that the purpose of his amendment was to “give the States
access to State lands within wilderness areas established under the bill,
or indemnify the States for loss of such access.” 107 Cong. Rec. 18,103
(1961). He did not indicate that a state could choose between access
and indemnity. His amendment provided in part:
In any case where State-owned land is completely sur
rounded by lands incorporated into the wilderness system
such State shall be given (1) such rights as may be neces
sary to assure adequate access to such State-owned land
by such State and its successors in interest, or (2) land in
the same State, not exceeding the value of the surrounded
land, in exchange for the surrounded land. Exchanges of
land under the provisions of this subsection shall be ac
complished in the manner provided for the exchange of
lands in national forests.
107 Cong. Rec. 18,103 (1961). In urging support of his amendment,
Senator Bennett explained:45
[T]he Western Association of State Land Commissioners
unanimously adopted a resolution calling for indemnifica
tion to the States which will lose access to State lands in
wilderness areas established under S. 174. Where State
school sections or other State lands are isolated by wilder
ness areas, the State should be given an opportunity, if
access is denied, to make in lieu selections of Federal lands
in other areas.
Id. (emphasis added).46 These statements demonstrate that Senator
Bennett believed that access not consistent with wilderness preservation
could be denied, and wanted to give states an alternative in such
circumstances.
The Senator later explained that his amendment was designed to
correct problems states had experienced with land exchanges in the
past. 107 Cong. Rec. 18,105 (1961). He wanted to ensure that if the
state land was “locked up,” the state clearly would be entitled to an
exchange. He further explained:
45 A u th o rity to e x c h a n g e land is p ro v id e d by 16 U .S .C . § § 4 8 5 , 486 (o rig in a lly e n a c te d as A c t o f
M ar. 20, 1922, c h . 105, 42 S tat. 465) an d 16 U .S .C . § 516 (o rig in a lly e n a c te d as A c t o f M ar. 3, 1925,
ch . 473, 43 S tat. 1215).
46 H is b e lie f th a t a c cess to sta te -o w n e d lan d s m a y be d e n ie d e n tire ly m a y resu lt in p a rt fro m th e
la n g u a g e o f § 4 (c ) , 16 U .S .C . § 1133(c), w h ic h s p ecifically p ro te c te d o n ly ex istin g priva te rig h ts. H e
m a d e n o s ta te m e n ts re ly in g on th is la n g u ag e, h o w e v e r.
51
The first choice, providing that the State shall have adequate
access, would in fact defeat the value o f the wilderness bill,
assuming there were a very valuable mineral in a State
school section, and the State were to decide that it was
worth money to drive a road through the wilderness to
get to it. This would change the situation with respect to
existing law, because we would be imposing particular
restrictions, in spirit at least, with respect to access to the
land.
Id. (emphasis added).
Because of misunderstandings regarding the effect of the proposed
amendment on mineral lands, Senator Bennett withdrew the amend
ment to allow time to confer with other Senators from western states.
He re-offered the amendment the following day, with minor changes
not relevant here. 107 Cong. Rec. 18,384 (1961). Senator Church, who
earlier had expressed reservations about the amendment, now voiced
his support. In his brief remarks, he stated:
I think the amendment is fair to the States involved. If
they need rights of access, they should have them; if they
want to relinquish the land, they ought to have the right
to acquire other land of comparable value.
Id. Although we can infer from these remarks an understanding that
the section gives states the option of choosing access or exchange, the
statement does admit of other interpretations. In light of the evidence
to the contrary, the resolution of this question cannot be rested on the
remarks of one senator during debate on the Senate floor, where “the
choice of words . . . is not always accurate or exact.” In re Carlson,
292 F. Supp. 778, 783 (C.D. Cal. 1968), citing United States v. Internat'l
Union UAW-CIO, 352 U.S. 567, 585-86 (1957). If the Congress had
intended to grant landowners a right to adequate access, it could have
done so expressly. Resolving the doubt in favor of the grantee of such a
right would violate the well-established rule that any doubts as to
congressional grants of property interests must be resolved in favor of
the government. Andrus v. Charleston Stone Prod. Co., 436 U.S. 604, 617
(1978); United States v. Union Pac. R.R., 353 U.S. 112, 116 (1957).
The Senate agreed to Senator Bennett’s amendment to S. 174, but
S. 174 did not pass the House during the 87th Congress. A House
version of the bill did include a similar provision, also applicable only
to state-owned land. The House report on this bill indicated that the
section required only that a state be given either access or exchange; it
did not indicate that the state could choose between them, or that
adequate access otherwise was guaranteed. It stated:
If surrounded land is owned by a State, the State would
be given either right of access or opportunity of exchange.
52
. . . Ingress and egress would be provided for all valid
occupancies.
H.R. Rep. No. 2521, 87th Cong., 2d Sess. 108 (1962) (emphasis added).
Variations of Senator Bennett’s amendment appeared in both the
Senate and House versions of the wilderness legislation in the 88th
Congress. S. 4, 88th Cong., 1st Sess. § 3(j) (1963); H.R. 9070, 88th
Cong., 2d Sess. § 6(a) (1964). The Senate committee report on S. 4
indicates that the understanding that states could be denied access and
offered a land exchange as indemnity remained unchanged:
Section 3(j) provides that where State inholdings exist
in wilderness areas, the State shall be afforded access, or
shall be given Federal lands in exchange of equal value.
The amendment is an attempt to clarify the intention of
the Senate in regard to section 3(j), which was originally
proposed, withdrawn, revised, again proposed and
adopted during floor consideration of S. 174 in 1962 [sic].
The amended section represents a more deliberate and
careful drafting and consideration.
S. Rep. No. 109, 88th Cong., 1st Sess. 10, 21 (1963).
The House modified this section to include “privately owned land”
in the first paragraph regarding “adequate access,” rather than in the
second paragraph regarding “ingress and egress.” This modification is
not explained in the House report. See H.R. Rep. No. 1538, 88th Cong.,
2d Sess. 13 (1963). The change was discussed in both the Senate and
House hearings, however. The sentiment expressed was that private
owners should have the same rights as the States. National Wilderness
Preservation Act: Hearings on H.R. 9070, H.R. 9162, S. 4 and Related
Bills, Before the Subcomm. on Public Lands o f the House Comm, on
Interior and Insular Affairs, 88th Cong., 2d Sess. 1369-72 (1963). Both
public witnesses and congressmen stated that ingress and egress was
uncertain under both 16 U.S.C. §478 and the wilderness acts, and that
the same provision for exchange should be made for private owners as
was made for States. Id. There is no indication that this addition of
privately owned lands modified the purpose of the section as identified
by Senator Bennett.
In sum, if uses are well-established prior to wilderness designation,
they may be permitted to continue.47 In addition, all existing private
47
S ectio n 4(d)(1) o f th e A c t, 16 U .S .C . § 1133(d)(1), p ro v id e s th a t th e “ use o f a irc ra ft o r m o to r
b o ats, w h e re th e se uses h av e a lre a d y b e c o m e esta b lish e d , m ay be p e rm itte d to c o n tin u e su b je c t to su ch
re stric tio n s as th e S e c re ta ry o f A g ric u ltu re d ee m s d e s ira b le .” T h e c o m m itte e re p o rts rev ea l an in ten t
th a t o th e r w ell-estab lish ed uses also be p e rm itte d to c o n tin u e . See. e.g.. S. R ep . N o . 109, 88 th C o n g .,
1st Sess. 2, 10 (1963). See also 109 C o n g . R ec. 5926 (1963) ( S e n a to r C h u r c h , a sp o n so r o f th e bill,
ex p ressed th e v ie w th a t o w n e rs o f ra n c h e s be a llo w e d to c o n tin u e “ th e c u s to m a ry u sag e o f th e ir
p r o p e rty fo r in g re ss an d e g ress a c c o r d in g to th e c u s to m a ry w a y s ” ).
53
rights of access are preserved. Even if the landowner has no prior
existing right to access not consistent with wilderness uses, the Wilder
ness Act requires that “adequate access” be given or that an offer be
made to the landowner to exchange the land for federal land of ap
proximately equal value. As a result of § 5(a), therefore, the inholder
actually may possess more access “rights” than were possessed prior to
wilderness designation. If the landowner rejects an offer of land ex
change, he may retain title to the inholding and exercise access rights
consistent with wilderness uses, or he may consent to acquisition of his
land by the federal government.
These responses to the questions you have asked should provide
satisfactory guidance in your performance of your federal land manage
ment responsibilities.
Sincerely,
B e n ja m in
54
R.
C iv ile tti |
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Write a legal research memo on the following topic. | Amendment of the Farmers Home Administration
Disaster Loan Program
U n d er applicable provisions o f th e A dm inistrative P ro ced u re Act, am endm ents to regula
tions gov ern in g the disaster lo a n program adm inistered b y the Farm ers H om e A dm inis
tratio n (F m H A ) can be m ade effective im m ediately, w ithout giving the public a prior
o p p o rtu n ity to com m ent, if th e F m H A finds for “g o o d cause” th at notice and public
p ro c ed u re thereon would be “ im practicable, unnecessary, or con trary to the public
in terest.”
It is fo r th e rulem aking agency to determ ine w h e th er th ere is “good cause” for dispensing
w ith notice and comm ent; h o w e v er, if the facts are such that the authorized adm inistra
tiv e purpose w ould be frustrated by delay, th e argum ent for proceeding expeditiously is
reasonable on its face.
April 24, 1981
- M EM ORANDUM O P IN 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 D G ET
You have requested the views of this Office on a procedural question
that involves regulations that govern the disaster loan program adminis
tered by the Farmers Hom e Administration (FmHA). The question is
w hether the Fm H A can amend these regulations and make the amend
ment effective immediately, without giving the public an opportunity to
comm ent on the amendment beforehand.
T he relevant facts, as we understand them, are as follows: The
disaster loan program is governed by Title III of the Consolidated
Farm and Rural Development Act, as amended (the Act), 7 U.S.C.
§§ 1961-1996. The Act authorizes the Secretary of Agriculture to make
and insure loans for persons whose agricultural operations have been
“substantially affected” by natural disaster. 7 U.S.C. § 1961(b). It also
gives the Secretary broad authority to make regulations that prescribe
the terms and conditions under which those loans will be made and
insured. See 7 U.S.C. § 1989. Relying upon that general authority, the
Fm H A has promulgated elaborate regulations that establish eligibility
standards, loan criteria, and loan application procedures. See 45 Fed.
Reg. 9848 (1980). The Fm H A is now considering various amendments
to these regulations, and the question has arisen whether these amend
ments can be made effective for loan applications arising from disasters
that occurred in the 1980 crop year. With the advent of the new
planting season, the 1980 applications are being filed and granted at a
104
rapid rate, and the process will be complete in a few weeks. The
amendments now under consideration cannot substantially affect that
process unless they are made effective immediately.
The Act itself does not require the agency to follow any particular
procedure in making or amending the regulations that govern the loan
program. The relevant provisions of this Administrative Procedure Act
(APA), which establish a generic “notice and comment” procedure for
informal agency rulemaking, do not apply of their own force to matters
relating to agency “loans.” 5 U.S.C. § 553(a)(2). The Secretary of
Agriculture, however, has adopted the APA procedure and has made it
applicable to all USDA loans. In a memorandum published in July,
1971, the Secretary announced the following policy:
The public participation requirements prescribed by 5
U.S.C. § 553(b) and (c) will be followed by all agencies of
the Departm ent in rule making relating to . . . loans . . . .
The exemptions permitted from such requirements where
an agency finds for good cause that compliance would be
impracticable, unnecessary, or contrary to the public in
terest will be used sparingly, that is, only when there is a
substantial basis therefor. Where such a finding is made,
the finding and a statement of the reasons therefore [sic]
will be published with the rule.
36 Fed. Reg. 13,804 (1971).1
To our knowledge, this memorandum has never been modified or
withdrawn. It has been treated by the courts as an agency rule, binding
on the Fm HA while in force. See Berends v. Butz, 357 F. Supp. 143 (D.
Minn. 1973).
The 1971 memorandum makes reference to the statutory exemption
that permits new agency rules to be effective without prior comment
by the public. Under the APA, this exemption may be invoked if the
agency finds, for “good cause,” that notice o f a proposed rule and
public procedure thereon would be “impracticable, unnecessary, or
contrary to the public interest.” 5 U.S.C. §§ 553(b)(B), 553(d)(1). In
accordance with the terms of the 1971 memorandum, the Fm HA may
invoke the statutory exemption if it makes the required “good cause”
finding and the finding is supported by a “substantial basis.”
It is for the agency to determine whether the circumstances of the
present case are such that the exemption to the notice and comment
procedure should be invoked. The judgment whether notice and com
ment is “impracticable, unnecessary, or contrary to the public interest”
is judicially reviewable, see, e.g., Nader v. Sawhill, 514 F.2d 1064
(Temp. Emer. Ct. App. 1975); but at bottom it is a policy judgment,
1We note that the 1971 memorandum adopts the “ public participation” requirements o f § 553(b) and
§ 553(c) but does not by its terms adopt the 30-day publication requirement of § 553(d)
105
grounded in facts and in the agency’s view o f what the interests of the
public require. W e note simply that if the amendments under consider
ation here are authorized by the Act, and if the facts are such that the
authorized administrative purpose would be frustrated if the effective
date o f the amendments were delayed, the argument for proceeding
expeditiously, on grounds o f practicality and public interest, is reason
able on its face.2
T
heodore
B.
O
lson
Assistant Attorney General
Office o f Legal Counsel
2 W e would also observe that the Secretary of Agriculture is free at any time to revoke or render
inapplicable to any particular rulemaking the policy established in 1971. Such revocation, in toto or as
applied to a specific rulemaking, w ould, we believe, be dispositive of the question raised by the
existence o f that policy. Such revocation should be done tn a public document at any point prior to
issuance o f a final rule. See Nader v. Bork, 366 F. Supp. 104 (D .D .C. 1973).
106 |
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Write a legal research memo on the following topic. | Senatorial Courtesy
The custom known as “senatorial courtesy,” whereby certain nominations to federal office have been
objected to by an individual senator on the ground that the person nominated is not acceptable to
him, appears recently to have been limited to local offices of the federal government.
May 29, 1942
MEMORANDUM OPINION FOR A UNITED STATES SENATOR*
The custom known as “senatorial courtesy” is not a formal rule of the Senate,
and is not included in the published rules of that body. The term is used to refer to
a practice of long standing whereby certain nominations to federal office have
been objected to by an individual senator on the ground that the person nominated
is not acceptable to him. The question of whether this practice is in any sense
justifiable or desirable is one which the Senate itself must decide. In this memorandum I am merely calling attention to relevant authorities and precedents,
without attempting to state my own personal views on the desirability of the
practice or, of course, attempting to advise the Senate.
If it be conceded that the practice may in certain instances be justifiable and
even desirable, in sound reason it would seem that the exercise of the practice
should be limited to cases in which a senator makes objection to an individual who
is a resident of the senator’s own state, and has been nominated for local federal
office in that state. The argument is advanced, perhaps not without some merit,
that the senator is in a position to report to his colleagues the views of his constituents as to the qualifications of the individual in question—an individual whose
duties will bring him in intimate contact with the daily lives of those constituents.
This argument would not seem to be applicable to positions of national importance, the duties of which are not limited to any one state. As to such a
position, an individual senator would seem to be acting in his capacity as a
member of the council of elder statesmen of the nation, rather than as a representative primarily of his own constituents.
Expressions by distinguished members of the Senate in recent years have tended to be in accord with the view that senatorial courtesy should apply only to local
offices, the duties of which are limited to the state of the objecting senator. For
example, on March 23, 1932, Senator Watson said:
Mr. WATSON. . . . [W]hen I came here I adopted the policy of
voting against the confirmation of any man appointed to a Federal
*
Editor’s Note: This memorandum was conveyed under cover of a letter from Assistant Solicitor
General Cox to Senator George L. Radcliffe of Maryland, stating as follows: “The Attorney General
has asked me to prepare and send to you a memorandum on the custom known as ‘Senatorial
Courtesy.’ I am herewith transmitting a copy of such a memorandum.”
88
Senatorial Courtesy
position if and when a Senator from the State in which he lived rose
in his place on the floor of the Senate and stated that the appointment
was personally obnoxious and personally offensive to him. Originally that rule was followed without regard to the field of activity of the
appointee; that is to say, if a man were appointed to office anywhere
and a Senator rose to say the appointment was personally offensive,
it was regarded as sufficient to cause rejection. But about 10 years
ago there was a modification of the rule here, and I was one of those
who led the fight to bring about the modification.
....
Mr. NORRIS. The Senator does not mean to say there is a rule on
that subject in the Senate?
Mr. WATSON. No; I do not mean to say there is a rule; but there
is a practice; if the Senator please, an unwritten rule. . . .
It is a practice or custom that has been followed; so that where a
man is appointed to serve wholly within the State represented by the
Senator who makes the objection, in such a case his objection on
such grounds is sufficient reason for rejection.
75 Cong. Rec. 6729.
On March 23, 1934, the following colloquy between Senator Overton and
Senator Barkley occurred:
Mr. OVERTON. . . . Mr. President, let me make the additional
statement that I understood that whenever a Senator from a State
made an objection to the appointment of someone who was to discharge the duties of an office that was wholly intrastate, and based
that objection upon the ground that the person named was personally
obnoxious to him, the Senate respected that objection. . . .
Mr. BARKLEY. . . . I realize that from time immemorial, where a
Senator objects to a nomination or appointment of a citizen of his
State to a local office, and states that the appointment is personally
objectionable and obnoxious to him, the Senate heretofore, almost as
a universal rule—which does not have the force of law, but is the
result of courtesy—has respected that objection, and has refused to
confirm the nominee. In recent years, I think it ought to be said,
there has been some modification of that unwritten rule to the extent
of asking or expecting the Senator who makes the objection on per-
89
Supplemental Opinions of the Office of Legal Counsel in Volume 1
sonal grounds to present some reason for the objection. Otherwise its
arbitrary exercise would make it impossible for an Executive to appoint anybody in the State who could be confirmed.
78 Cong. Rec. 5251.
Similarly, on June 29, 1939, Senator Wheeler said:
In the 16 years I have been a Member of the Senate I have not
known the Postmaster General of the United States to name appointees in a particular State over the objection of either one of the Senators. Perhaps it has been done; but, if so, it has never been called to
my attention during my service in the Senate. . . .
It has always been recognized that a different rule applies to
appointments outside the State from that applying to appointments
within the State.
84 Cong. Rec. 8225, 8226.
Leading text writers, apparently without exception, have indicated that senatorial courtesy should be confined to local offices. To quote:
“[T]hrough the development of what is known as the ‘courtesy of the
Senate,’ the Senators from each state when they belong to the same
political party as the President generally control the nominations to
local offices of the national government within their own state.” John
A. Fairlie, The National Administration of the United States of America 45–46 (1905).
“The Constitution provides that appointments to federal office shall
be made by the President with the advice and consent of the Senate.
But in consequence of the custom known as ‘senatorial courtesy,’
when the President makes an appointment to a local federal office he
is virtually obliged to obtain the consent of the senators from the particular state in which the office is located, if they belong to his party.
Otherwise the Senate will not approve the appointment.” James Wilford Garner & Louise Irving Capen, Our Government: Its Nature,
Structure, and Functions 263 (1938).
“In late years, however, there has come into existence the custom
known as ‘senatorial courtesy,’ according to which the President
must obtain in advance the approval of the senators from the particular state in which an office to be filled is located, provided they
belong to his political party. If he refuses to do so and nominates a
90
Senatorial Courtesy
person who is objectionable to the senators from that state, the other
senators as a matter of ‘courtesy’ to their offended colleagues will
come to their rescue and refuse to approve the appointment. It has
come to pass, therefore, that individual senators in many cases are
virtually the choosers of federal officers in their states.” Id. at 333.
“A class of important federal offices scattered among the states,
though nominally filled by the President with the advice and consent
of the Senate, is subject largely to the control of the latter, as a result
of a time-honored practice known as ‘senatorial courtesy.’ Under its
power to advise and consent, the Senate does not officially suggest
names to the President, but it will ratify nominations to many offices
only under certain conditions. If either one or both of the Senators
from the state in which the offices under consideration are located
belong to the President’s political party, then executive freedom of
choice almost disappears.” Charles A. Beard, American Government
and Politics 151 (8th ed. 1939).
Haynes, in his Senate of the United States, has perhaps the most complete
discussion of the subject. He cites a few instances in which attempts were made to
apply the practice of senatorial courtesy to nominations to national offices, though
it is clear that he does not approve of such application. He refers to the Rublee
incident in 1916, and states that Senator La Follette, in challenging Senator Gallinger’s request for application of the practice, declared that “this was the first time
since he had been in the Senate that the ‘personally obnoxious’ rule had been
applied to a national appointment.” 2 George H. Haynes, The Senate of the United
States: Its History and Practice 741 n.2 (1938).
As the Rublee incident shows, individual senators have not at all times agreed
upon the extent to which the practice should be applied. Senatorial courtesy is,
after all, simply based on custom, the boundaries of which may change from time
to time, and which can never be said to be subject to exact definition. If a senator
wishes to do so, he may object to any nomination on whatever ground he sees fit.
His colleagues in the Senate will then judge whether these objections should be
given weight. The purpose of this memorandum is to point out that the views
expressed in recent years by some of the leading members of the Senate and by
text writers have tended in the direction of limiting the practice to local offices.
Such examination of the actual precedents in the Senate as has been made in
the limited time at my disposal appears to indicate that senators have from time to
time attempted to invoke the practice of senatorial courtesy in respect of offices of
national importance, and that in a few cases the Senate has in fact failed to confirm
the nominee. In most, if not all, of these instances, however, it would appear that
the Senate’s action was based on considerations independent of the objection so
raised. In no case which has come to my attention—not even the Rublee case—
91
Supplemental Opinions of the Office of Legal Counsel in Volume 1
does it appear that such a nomination was rejected solely on the ground of
senatorial courtesy.
OSCAR S. COX
Assistant Solicitor General
92 |
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Write a legal research memo on the following topic. | Reconsideration of Applicability of the Davis-Bacon Act to the
Veterans Administration’s Lease of Medical Facilities
C o n tra ry to the v iew e x p re sse d in an e a rlie r o p in io n o f th e O ffice o f L egal C o u n se l, the p la in la n g u a g e
o f the D a v is-B a c o n A ct d o e s not b a r its a p p lic a tio n to a lease c o n tra c t o n th e g ro u n d th a t such
c o n tra c ts are p e r s e not c o n tra c ts fo r c o n stru ctio n . T h e a p p lic a b ility o f the D a v is-B a c o n A c t to any
sp e c ific lease c o n tra c t c an b e d e te rm in e d o n ly by c o n sid e rin g the d e ta ils o f the p a rtic u la r c o n tra c t.
M ay 23, 1994
M e m o r a n d u m O p i n i o n f o r t h e S o l ic it o r
D epa r tm en t o f L abo r
and
T h e G eneral C o unsel
D e p a r t m e n t o f V e t e r a n s A f f a ir s
At the request of the Attorney General, we have reviewed the principles and
reasoning of a 1988 Office of Legal Counsel opinion concluding that the DavisBacon Act did not cover a contract entered into by the Veterans Administration
(now Department of Veterans Affairs) (“VA”) for the long-term lease and con
struction of a building to be used as an outpatient clinic. Applicability o f the
Davis-Bacon A ct to the Veterans Adm inistration’s Lease o f M edical Facilities, 12
Op. O.L.C. 89 (1988) (“ 1988 O.L.C. Opinion,” or “ 1988 Opinion”). We have
concluded that the 1988 Opinion erred in concluding that the plain language of the
Davis-Bacon Act bars its application to any lease contract, whether or not the lease
contract also calls for construction of a public work or public building. We believe
that the applicability of the Davis-Bacon Act to any specific lease contract can be
determined only by considering the facts of the particular contract.
I.
The 1988 O.L.C. opinion arose out of a dispute between the VA and the De
partment of Labor. The VA had entered into a contract (the “Crown Point con
tract”) with a developer for the long-term lease of space for use as a VA health
clinic, in a building that the developer would build to house the clinic. In re Appli
cability o f Davis-Bacon Act to Lease o f Space fo r Outpatient Clinic, Crown Point,
Indiana, WAB Case No. 86-33, 1987 WL 247049, at 2 (W.A.B. June 26, 1987)
(“ 1987 WAB Opinion”). The dispute concerned whether the contract was covered
by the Davis-Bacon Act. That Act applies to
every contract in excess of $2,000 to which the United States or the
District of Columbia is a party, for construction, alteration, and/or
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O pinions o f the O ffice o f L egal C ounsel
repair, including painting and decorating, of public buildings or
public works . . . .
40 U.S.C. § 276a(a). The Act provides that such contracts shall include provisions
that mechanics and laborers employed on these projects be paid prevailing wages
to be determined by the Secretary o f Labor. Id.
Although the Crown Point
contract called for the lease of clinic space, it also included numerous provisions
requiring that the building be constructed according to VA specifications, on a
VA timetable, and subject to VA inspection. 1987 WAB Opinion at 4-5. Nonethe
less, the VA had concluded that the Act did not apply to the Crown Point agree
ment because it was a lease and, in the VA’s view, a lease is not a “contract. . . for
construction” under the Act. Therefore, the contract contained no provisions man
dating compliance with the prevailing wage requirements of the Davis-Bacon Act.
Upon learning of VA’s plans, the Building and Construction Trades Department
of the AFL-CIO requested a ruling from the Wage and Hour Administrator of the
Department of Labor that the construction of the building was covered by the
Davis-Bacon Act. The Administrator, applying the Wage Appeals Board’s
(“WAB”) analysis in a similar case, agreed that the contract should have included
Davis-Bacon prevailing wage provisions. See 1987 WAB Opinion at 1-2 (noting
Administrator’s reliance on In re M ilitary Housing, Ft. Drum, WAB Case No. 8516 (Aug. 23, 1985)). The VA appealed to the WAB, which upheld the Adminis
trator’s action. Id.
However, the VA continued to resist the Department of Labor’s interpretation
of the Act. While the AFL-CIO sought a court judgment to compel the VA to
comply with the W AB’s decision, the VA sought an opinion from the Attorney
General that the WAB had misread the law. The result was a court determination
that the WAB decision was a reasonable interpretation of ambiguous language in
the Act under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), Building and Constr. Trades D e p ’t, AFL-CIO v. Turnage,
705 F. Supp. 5 (D.D.C. 1988), and an O.L.C. ruling that the WAB decision con
flicted with the plain language of the Act (the 1988 Opinion). The Department of
Justice did not appeal the Turnage case because of the confused procedural posture
it presented, but instructed Labor to comply with the reasoning of the 1988 O.L.C.
opinion in future cases. Letter for Jerry G. Thorn, Acting Solicitor, Department of
Labor, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal
Counsel (Jan. 23, 1989).
You have asked that we review our ruling in the 1988 Opinion that the plain
language and legislative history of the Davis-Bacon Act indicate that the Act does
not extend to leases. We have reviewed the prior opinion, solicited the views of
affected executive departments, and conducted a thorough review of the legislative
history, case law, and executive, judicial, and congressional interpretations of the
Act. We have concluded that the portion of the 1988 Opinion that addressed the
110
Reconsideration o f A pplicability o f the D avis-B acon A ct lo the
V eterans A dm inistration's Lease o f M edical F acilities
meaning of the Davis-Bacon Act was incorrect. We do not, however, address the
question whether the particular contract at issue in that case was a contract for con
struction of a public work within the meaning of the Davis-Bacon Act, because the
decision not to appeal the ruling in the Turnage case has mooted the point. Nev
ertheless, we can say that the fact that a contract is a lease is not the sole determi
native factor in deciding whether that contract is also a contract for construction
within the meaning of the Davis-Bacon Act.
II.
The 1988 OLC Opinion concluded that a lease-construction contract for a Vet
erans Administration outpatient clinic was not a contract for construction of a pub
lic building or public work within the meaning of the Davis-Bacon Act, because
the plain meaning of the term “contract . . . for construction” could not be read to
include a lease, even one that contemplated, and resulted in, the construction of a
building for long-term public use.
We do not think the question is so simple. The words “contract . . . for con
struction . . . of public buildings or public works” do not plainly and precisely indi
cate that a contract must include provisions dealing only with construction. Rather,
the plain language would seem to require only that there be a contract, and that one
of the things required by that contract be construction of a public work. This inter
pretation of the Act is supported not only by its language, but also by the legisla
tive history, by reference to the goals of the Act, by judicial and executive
interpretation of the Act, and by the interpretation of similar language in related
Acts.
A.
Since the 1988 Opinion rested on its reading of the plain language of the Act,
we begin by setting forth that language. The Act provides that
[t]he advertised specifications for every contract in excess of
$2,000, to which the United States or the District of Columbia is a
party, for construction, alteration, and/or repair, including painting
and decorating, of public buildings or public works of the United
States or the District of Columbia . . . which requires or involves the
employment of mechanics and/or laborers shall contain a provision
stating the minimum wages to be paid various classes of laborers
and mechanics which shall be based upon the wages that will be
determined by the Secretary of Labor to be prevailing for the corre
sponding classes of laborers and mechanics employed on projects of
111
O pinions o f the O ffice o f L egal C ounsel
a character similar to the contract work in the [area where] the work
is to be performed . . . .
40 U.S.C. § 276a(a).'
The 1988 Opinion concluded that this language “plainly and precisely” limited
the A ct’s coverage to “construction contracts,” and thus could not be read to
include a lease. 1988 Opinion at 93-94.2 While this may be true so far as it goes,
we do not think the term “construction contract” sheds much light on the meaning
of the more elaborate statutory term “contract . . . for construction, alteration,
and/or repair, including painting and decorating.” In particular, we do not think
the term “construction contract,” any more than the term “contract . . . for
1 A n e arlier v ersion o f the A ct provided for c o v erag e o f
e v ery c o n tra c t in excess o f $5,000 in am o u n t, to w hich the U nited S tates or the D istrict of C o
lu m b ia is a party, w hich requires or in v o lv e s the em p lo y m ent o f laborers or m echanics in the
c o n stru ctio n , alteration, an d /o r repair o f a n y public b u ild in g s o f the U nited Slates.
D avis-B aco n A ct, ch . 4 1 1 , § 1, 4 6 Stat. 1494, 1494 (1931) S e e A rm and J Thieblot, Jr., P revailing Wage
L e gislatio n . The D a v is-B a c o n Act, State "L ittle D avis-B acon ” A cts, the W alsh-H ealey Act, a nd the Service
C o ntract A c t 31 (1 9 8 6 ) ( “T h ieb lo t”)
T he A ct w as rev ised in 1935 to add coverage o f public w orks and o f p a in tin g and decorating contracts, to
low er the c o n tra c t th resh o ld from $5,000 to $ 2 ,0 0 0 (to reflect the relatively sm all dollar value o f p ainting and
decoratin g c o n tracts), to p ro v id e for predeterm ination o f w age rates by the D epartm ent o f Labor, and to
provide fo r re m e d ie s fo r w orkers not paid the p ro p e r rates on covered contracts See S. R ep No. 74-1155
(1935), H R R ep N o. 7 4 -1 7 5 6 (1935); T h ieb lo t at 3, 28, 2 9 (discussing purpose o f A ct); id at 32-34
(discussin g 1935 am en d m en ts)
T here is no suggestion in the legislative history that the sw itch from
“c o n tract
. w h ich requires o r involves the em p lo y m en t o f laborers or m echanics in .
construction” to the
current lan g u ag e o f “co n tract . . . fo r construction . . . w hich requires o r involves the em ploym ent o f me
chanics an d /o r la b o re rs” w as intended to have an y narrow ing effect See, e.g , S R ep No. 1155; H R Rep
No. 7 4 -1 7 5 6 T he A ct w as m o d ified again in 1964 to include fringe benefits in the calculation of prevailing
w ages S ee S R ep. N o 88-963 (1964), rep rin ted in 1964 U .S .C C A N 2339; T hieblot at 34.
T h e 7 4 th C o n g re ss — the sam e one that a m e n d ed the D avis-B acon A ct to include the language at issue
here (A ct o f A ug. 30, 1935, ch 825, § I, 49 S tat 1011) — also passed the closely related M iller Act, 40
U S C § 2 7 0 a (A ct o f A ug 24, 1935, ch. 642, § 1, 49 Stat. 7 93). The M iller Act provides lhat contractors
shall furnish b o n d s on “ any con tract, exceeding $25,000 in am ount, for the construction, alteration, or repair
o f any p u b lic b u ild in g o r public w ork ” The lan g u ag e o f the M iller Act is a lm ost identical to that used in the
1935 am en d m en ts lo ihe D av is-B aco n Act th en being co n sid ered , and the M iller A ct originally included the
sam e $ 2 ,0 0 0 th resh o ld as the 1935 D avis-B acon A ct T h ieb lo t at 37 n 40 , U niversities Research A s s 'n v.
Coutit, 4 5 0 U .S 7 5 4 ,7 5 8 -5 9 (1981). See a lso S Rep No. 74-1155, at 4 , H.R Rep N o 74-1756, at 4, 5
(noting relatio n b e tw ee n D av is-B aco n am endm ents and the H eard Act (w hich the M iller Act replaced))
T h e n early identical language o f the M iller A c t has been applied lo c onstruction even o f public w orks that
w ould be p riv ately ow ned, see, e g . U nited S ta tes ex rel N o land C o v Irw in, 316 U S 23 (1942)
(construction o f H ow ard U niversity library), a n d to the relocation o f a privately-ow ned railroad that w ould be
flooded by a federal d am , P eterso n v. United S ta te s , 119 F.2d 145 (6th C ir 1941) T hese cases focused on
w hether the co n stru ctio n in q u estio n was o f a public w ork; ihere seem s to have been no challenge on the
basis th a i the c o n tracts w ere not for construction The one difference in language betw een the M iller and
D avis-B aco n A cts — lhat the Davis-Bacon A c t refers to c o n tracts “to w hich the U nited Stales or ihe D istrict
o f C o lu m b ia is a p a rty ,” 4 0 U S C. § 276a(a), w hile the M iller A ct does not, see 4 0 U.S C § 270a(a) — is
not sig n ific a n t in th is setting, since the U nited States is undeniably a party to the contract to build and lease
the C row n Poini facility; the d ifficulty is tn d eterm in in g w hat sort o f contract that contract is.
■ T h e 1988 O p in io n does not indicate w here the new term “construction contracts” com es from. It is not
a technical term d ra w n from case law interpreting the D avis-B acon A ct, or used elsew here as a m eans of
explainin g w h at the A ct covers o r does not c o v e r R ather, it appears to be an im provised shorthand for the
m ore ela b o ra te statu to ry language. We can see no ju stificatio n for using a shorthand phrase neither endorsed
by C o n g re ss n or ex p la in ed in ihe case law to b u ttress a narrow reading o f the statutory language
112
Reconsideration o f A pplicability o f the D avis-B acon A ct to the
Veterans A dm inistration s Lease o f M edical F acilities
construction,” unambiguously excludes a contract for the long-term lease of a
building to be constructed to comply with the contract, especially when the con
tracting agency contemplates the construction of a new building and includes sub
stantial provisions concerning construction in the contract. Even prominent critics
of the Act have conceded as much. See, e.g., Thieblot at 39 n.50 (“In some cir
cumstances, privately financed construction may be subject to prevailing wage
requirements if, for example, the facilities are specially constructed with the inten
tion of leasing them to government occupants.”). To rule otherwise would leave
substantial room for agencies to evade the requirements of the Act by contracting
for long-term lease rather than outright ownership of public buildings and public
works.
The Crown Point lease provides a good illustration of the principle that a
lease may look very much like a “contract . . . for construction.”3 According to
the 1987 WAB Opinion, the Solicitation for Offer “specifically provides for lease
of a building to be ‘constructed in accordance with VA specifications.’” Id. at 3.
The requirements under the Solicitation include “preliminary plans and specifica
tions; other working drawings; issuance of a building permit; completed construc
tion documents; start of construction; completion of principal categories of work;
phase completion; and final construction completion;” along with “name and expe
rience of the proposed construction contractor,” and “evidence of award of the
construction contract within 15 days of award.” Id. Under the terms of the Solici
tation, the winning bidder would be required to submit construction progress re
ports to the VA and to allow the VA to inspect the site. Id. All of these
requirements indicate that while the contract was labeled a lease, it called for the
construction of a building, at least as one expected means of satisfying the terms of
the contract. To say that the contract is not “for construction” ignores what the
contract itself says.
In short, to regard all lease-construction contracts as outside the scope of the
Davis-Bacon Act is contrary to the plain language of the Act: many such leases are
in fact contracts that call for the construction of a public work. The difficulty is in
determining whether a particular lease is really a contract for construction of a
public building or public work, or just a contract to secure the use of private prem
ises on a temporary basis. “Plain language” is of little use in policing this border
line.
1
T here can be no question that a lease is a contract, obliging each party to take certain actions S e e 1
A rthur Linton C orbin, C orbin on C o m m its Sfc 1 2-1 3 (rev ed , Joseph M Penllo, ed , 1993) (defining
“ legal oblig atio n ” and “contract,” respectively); A la ska v. U nited States', 16 Cl Ct. 5 (1988) (docum ent need
no t be labeled a contract to be a contract) The real question is w hether such a contract is “ for construction.'*
113
Opinions o f th e Office o f L egal C ounsel
B.
The legislative history and the purposes of the Act strongly support this inter
pretation as well. The Act was passed in 1931, and amended in 1935, to ensure
that contractors bidding on public works projects would not lower wages so as to
be sure to make the lowest bid; and to permit government agencies, which were
required to accept the lowest bids, to employ contractors who paid a “fair” wage
rather than those who competed by reducing wage rates. S. Rep. No. 74-1155,
(1935); H.R. Rep. No. 74-1756 (1935); S. Rep. No. 71-1445, at 1-2 (1931); H.R.
Rep. No. 71-2453, at 1-2 (1931 );4 see also 74 Cong. Rec. 6505 (1931) (remarks of
Rep. Welch). The sponsor, Representative Bacon, justified the bill by stating that
the “Government must not be put in the position of helping to demoralize the local
labor market.”5
The Davis-Bacon Act was passed during the Depression, when federal con
struction accounted for a large portion of construction overall6 and workers des
perate to take any job could be hired at wages far below those available in the
past.7 The result was a concern that the federal public works program would not
achieve its desired effect of assisting local communities in regaining prosperity, but
instead would allow contractors — and indeed the government itself — to exploit
4 T h e se rep o rts staled that
T h e F ederal G o v e rn m e n t has entered u p o n an extensive public bu ild in g program
. intended [in
part] . . to b en efit the U nited States at larg e through d istrib ution o f construction throughout the
co m m u n ities o f the co u n try without fav o rin g any p articu lar section
T h e Federal G o v ern m en t m ust, under th e law, aw ard its co n tracts to the low est responsible bid
d e r T h is has p rev en ted representatives o f the d ep artm en ts involved from requiring successful
b idders to pay w ages to their employees com parable to the w ages paid for sim ilar labor by pri
vate in d u stry in the v icin ity o f the b u ild in g projects un d er construction.
[SJom e successful
b id d ers have selfish ly im ported labor fro m distant localities and have exploited this labor at
w ag es far b elow local w age rates
T h is practice, w hich the Federal G overnm ent is now pow erless to stop, has resulted in a very u n
h ealth y situ atio n . Local artisans and m echanics, m any o f w hom are fam ily m en . . can not hope
to co m p ete w ith this m igratory labor N o t only are local w orkm en affected, but qualified c o n
tra c to rs resid in g and d o in g business in th e section o f the co untry to w hich Federal buildings are
a llo cated find it im possible to compete w ith the o u tsid e co n tractors, w ho base th eir estim ates for
lab o r upon the low w ages they can pay to unattached, m igratory w orkm en . . . .
S R ep. No. 7 1 -1 4 4 5 , at 1-2; H .R. Rep No. 7 1 -2 4 5 3 , at 1-2.
5 74 C o n g R ec. 6 5 1 0 (1 9 3 1 ). See also S. R ep No. 74 -1 1 5 5 , at 1-2, H .R Rep. N o. 74-1756, at 1 (both
stating that the a m en d m en ts w ere needed to m ake the A ct m ore enforceable, because “ unscrupulous con
tractors have taken ad v an tag e o f the w ide-spread unem ploym ent am ong the buildings crafts to exploit labor
and to d ep riv e em p lo y ees o f the w ages to w h ich they w ere en titled under the law ’’); S. Rep. No. 88-963, at 1,
2 (1 9 6 4 ), r ep rin te d mi 1964 U S C C.A N 2 3 3 9 , 2340 (rev iew in g the purposes of the A ct), T hieb lo t at 3, 28,
29, 32-34 (rev ie w in g the p u rposes o f this and related acts and d iscussing the 1935 am endm ents).
6 See, e.g ., T h ieb lo t at 29, 29 n. 18 (betw een 1929 and 1933, pu blic construction rose from less than oneq u a rte r to m ore than o n e -h a lf o f all construction nationw ide); S Rep. No. 71-1445, at I (1931) (federal
go vern m en t h a s em b a rk e d on new , large-scale public w orks co n stru ctio n program ); H R R ep N o. 71-2453,
at 1 (1 9 3 1 ) (sa m e), 74 C ong. R ec 6 5 11 (1931) (rem arks o f Rep. B acon) (sam e).
7 See, e g , T h ieb lo t at 28 (indicating th a t average con stru ction w ages had fallen to h a lf their preD epression rates by 1931); 74 C ong Rec 6 5 1 0 (1931) (rem ark s o f Rep. Johnson hypothesizing w age reduc
tion fro m $4 to $2 75 p er d ay )
114
Reconsideration o f A pplicability o f the D avis-B acon A ct to the
Veterans A dm inistration's Lease o f M edical F acilities
desperate laborers, in some cases imported from other parts of the country.8 While
Congress was presented with evidence that the loss of jobs to outsiders was rare,
see 74 Cong. Rec. at 6506 (chart noting origins of workers on public building proj
ects), the evidence before Congress also showed that it did occur. Representative
Bacon, for example, who sponsored the bill in the House, saw a contract for a Vet
erans’ Bureau hospital in his district go to an outside contractor who employed
laborers from Alabama, “huddled in shacks living under most wretched conditions
and being paid wages far below the standard,” 74 Cong. Rec. at 6510 (statement of
Rep. LaGuardia). Meanwhile, unemployed workers in Representative Bacon’s
own community apparently remained jobless, unable or unwilling to compete for
jobs with those willing to accept the substandard conditions.
This view of the purposes of the Act — that government should not act to de
press labor conditions, but should ensure that government and government con
tractors employ workers at fair wages — continues to prevail. See, e.g., Walsh v.
Schlecht, 429 U.S. 401, 411 (1977) (Davis-Bacon protects workers, not contrac
tors, setting a floor but not a ceiling for wage rates); United States v. Binghamton
Constr. Co., 347 U.S. 171, 177 (1954) (same), Unity Bank <& Trust Co. v. United
States, 756 F.2d 870, 873 (Fed. Cir. 1985) (same); Building and Constr. Trades
D e p ’t, AFL-CIO v. Donovan, 712 F.2d 611, 613-14, 620-21 (D.C. Cir. 1983)
(noting that Davis-Bacon was designed to counteract the potential effect of the
government’s low-bid requirement on wages), cert, denied, 464 U.S. 1069 (1984).9
In view of these purposes, we believe that the device of lease-construction, at least
to the extent that it is used to build public works outside the prevailing wage sys
tem, lies well within the contours of the Act. Whether the government construction
is paid for upfront or by means of a long-term lease is of no significance to workers
8 See. e g , S Rep No. 7 4 -1 155, at 2, H.R Rep No. 71-2453, at 2, 74 C ong Rec at 6510 Som e com m entators have suggested that the purposes o f ihe Act w ere not al! benign and lhat som e o f ihe concern about
outside labor m ay have been based on the fact that som e o f the new com petition for jo b s cam e from black
w orkers See T hieblot at 30, David E Bernstein, Roots o f the ‘U n d e rc la ss’ The D ecline o j L aissez-F aire
Jurispru d en ce a n d the R ise o f Racist L a b o r L e g isla tio n, 43 Am. U L Rev 85, 1 14-16 (1993) (arguing that
D avis-B acon reinforced labor u nions’ discrim ination a g ain st black w orkers by elim inating nonunion w ork
e rs ’ ability lo com pete by offering to work for low er w ages), 74 C ong. Rec at 6513 (rem arks o f Rep. A ll
good). Indeed, ihe contract to build the V eterans' hospital in R epresentative B ac o n 's d istrict w ent lo an
A labam a co n tracto r w ho b rought black laborers to Long Island to build the project B ernstein at 114, see
also 74 C ong Rec. at 6513 (rem arks o f Rep A llgood, apparently concerning the project in R ep. B aco n ’s
district) O th er C ongressm en, how ever, w ithout discussing the race o f the w orkers involved, argued that the
im ported w orkers were being exploited by the substandard w age rates and w orking conditions. See, e.g , 74
C ong. Rec at 6 5 1 0 (rem arks o f Rep L aG uardia concerning the situation in Rep B aco n 's district)
9 See also T hieblot at 122-23 (quoting D avis-B acon W orks a n d W orks W ellr: A n Interview w ith Jorm er
U.S. L a b o r S ecreta ry Ray M arshall, 3 B uilders Special Rep (M arch 7, 1981), in turn quoting Secretary
M arshall as staling lhat ‘‘[i]he basic rationale for ihe D avis-B acon law is really quite sim ple It is based on
the idea that the federal governm ent should not use ta x p a y ers’ m oney to undercut local area em ploym ent
conditions
[I]f the federal governm ent perm itted its construction dollars lo be used [in this way to]
undercut prevailing pay standards[, w]e w ould be helping to drive dow n w ages in any com m unity in which
such federal o r federally-assisted construction was taking place . ")
115
Opinions o f the Office o f Legal C ounsel
who must take lower pay or to local contractors forced to compete by cutting labor
costs. The effect on them is the same.
While the public generally has an undeniable interest in paying as little as pos
sible for the construction of public works, the purpose of the Davis-Bacon Act was
precisely to subordinate that interest to the extent necessary to set minimum wage
standards for such construction work. If an agency decides to construct a public
work — not just acquire a privately-owned building — that agency cannot evade
the purposes of this country’s labor laws by clever drafting. This does not mean
that construction related to any lease is “construction, alteration and/or repair” of a
public work within the meaning of the Act — but neither can the “plain language”
of the Act be read as declaring that a 99-year lease of a brand new building that
would never otherwise have been built is not the construction of a public work.
The answer in any particular case will depend on the facts.
C.
The Department of Labor’s longstanding interpretation of the Davis-Bacon Act
is designed to counteract just such evasion, and the views of the courts, Comptrol
lers General, and Attorneys General, with few exceptions, support this interpreta
tion of the Act.
The Department of Labor consistently has taken the position that a contract is a
contract for construction within the meaning of the Davis-Bacon Act “if more than
an incidental amount of construction-type activity is involved in the performance
of a government contract.” 1987 WAB Opinion at 2 (quoting In re Military
Housing, Ft. Drum, WAB Case No. 85-16, at 4 (Aug. 23, 1985)). Similarly, the
Federal Acquisition Regulations instruct agencies that Davis-Bacon wage rates
should be included in nonconstruction contracts involving some construction work
when “[t]he contract contains specific requirements for a substantial amount of
construction work,” 48 C.F.R. § 22.402(b)(ii) (1994), which is “physically or
functionally separate from, and is capable of being performed on a segregated basis
from, the other work required by the contract,” 48 C.F.R. § 22.402(b)(iii). See
also 29 C.F.R. § 4 .1 16(c)(2) (1994) (providing that Davis-Bacon wage rates shall
apply in similar circumstances in contracts otherwise covered by the wage and hour
provisions of the Service Contract Act).
This interpretation has been approved by the Comptroller General. In re
Fischer E n g’g & Maintenance Co., No. B-223359, 1986 WL 64093, at 2 (C.G.
Sept. 16, 1986) (Davis-Bacon applies to lease-construction of military housing, so
long as project is “clothed sufficiently with elements indicating that [it] indeed . . .
serv[es] a public purpose”); In re D.E. Clarke, No. B-146824, 1975 WL 8417, at 1
(C.G. May 28, 1975) (contract is covered if it “essentially or substantially contem
plates the performance of work described by the enumerated items”); 40 Comp.
Gen. 565, 565, 567 (1961) (“[t]he test for determination of the applicability of the
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Veterans A dm inistration's Lease o f M edical Facilities
Davis-Bacon Act . . . is not the nature of the specific work but the nature of the
contract, that is, whether the contract essentially or substantially contemplates the
performance of work described by the enumerated items ‘construction, alteration,
and/or repair, including painting and decorating’”; applying this standard to a con
tract ostensibly dealing with “maintenance,” the Comptroller General ultimately
determined that the work required was in fact maintenance rather than construc
tion); 34 Comp. Gen. 697 (1955) (lease-purchase agreements fall within the DavisBacon and related Acts); 10 Comp. Gen. 461 (1931) (Act applies to temporary
housing and other buildings erected for use during construction of the Hoover
Dam).
The 1988 O.L.C. Opinion, however, relied heavily on a 1962 Comptroller Gen
eral opinion at odds with the Comptroller’s other cases, without discussing the
more recent cases. In that opinion, the Comptroller General argued that leases are
never contracts for the construction of public works. 42 Comp. Gen. 47 (1962).
The 1962 opinion addressed the concept of lease and lease-option contracts in the
abstract, and concluded that such contracts are not Davis-Bacon contracts because
“of the basic distinction which exists between the procurement of a right to use
improvements, even though constructed for that particular usage, and the actual
procurement of such improvements.” Id. at 49. The opinion asserted that “the
mere fact that construction work is prerequisite to supplying a public need or use
does not give such work a Davis-Bacon status.” Id. In rejecting such a sweeping
interpretation of the Davis-Bacon Act, the Comptroller General unnecessarily sug
gested that no leases are covered unless the government ultimately acquires title to
the work. In contrast, the Attorney General had already determined that acquisi
tion of title was not necessary to bring a contract within the Davis-Bacon Act,
Wage Law Applicable to Alley Dwelling Authority fo r the District o f Columbia, 38
Op. Att’y Gen. 229, 233 (1935); and the courts had reached the same conclusion in
construing the nearly identical language of the closely related Miller Act, e.g.,
United States ex rel. Noland Co. v. Irwin, 316 U.S. 23 (1942) (construction of
Howard University library).
In a later opinion, the Comptroller General emphatically rejected the 1962
opinion’s reading of the statute, approving instead the Department of Labor’s
analysis of a particular lease-construction contract similar to the one involved in
the 1988 O.L.C. Opinion. In re Fischer Eng’g & Maintenance Co., No. B223359, 1986 WL 64093 (C.G. Sept. 26, 1986). The Fischer Engineering case
emphasized that the 1962 opinion had addressed the issue only in the abstract.
Even were we to regard the decisions of the Comptroller General as controlling,
which we do not, we think the reasoning of the more recent Fischer Engineering
case is both more consistent with other Comptroller General opinions and more
accurate in its reading of the Act, because it is more attentive to the underlying
intent of the Act.
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Opinions o f th e O ffice o f L egal C ounsel
Similarly, the courts have identified the Davis-Bacon Act as a remedial statute
that should be “liberally construed to effectuate its beneficent purposes.” E.g.,
Drivers Local Union No. 695 v. NLRB, 361 F.2d 547, 553 n.23 (D.C. Cir. 1966)
(citing United States v. Binghamton Constr. Co., 347 U.S. 171, 177 (1954), for
conclusion that statute is remedial). While the courts have not addressed the leaseconstruction contract situation directly, except in the Turnage case (which con
cluded that the Crown Point contract was covered by the Davis-Bacon Act), they
have made clear that public ownership is not essential for a finding that a contract
is for construction of a public work under the related Miller Act. See, e.g., United
States ex rel. N oland Co. v. Irwin, 316 U.S. 23 (1942) (Howard University li
brary). This and similar cases did not even consider the possibility that the con
tracts were not for construction; rather they focused on whether the construction
was of a public work, defining the term as “including ‘any projects . . . carried on
either directly by public authority or with public aid to serve the interests of the
general public.’” Id. at 28, 30 (quoting the National Industrial Recovery Act’s
definition of “public work” and applying it to a Miller Act bond case). The classic
definition of a public work for purposes of the Depression-era labor statutes was
set forth in the case of Peterson v. United States, 119 F.2d 145 (6th Cir. 1941),
which stated that
The term “public work” as used in the [Miller Act] is without tech
nical meaning and is to be understood in its plain, obvious and ra
tional sense. The Congress was not dealing with mere technicalities
in the passage of the Act in question. “Public work” as used in the
act includes any work in which the United States is interested and
which is done for the public and for which the United States is
authorized to expend funds.
There is nothing in [Title Guaranty & Trust Co. v. Crane Co., 219
U.S. 24 (1910) (holding that ships are public works under predeces
sor Heard Act, though not on public soil, because they are publicly
owned)] from which an inference may be drawn that ownership was
the sole criterion. To so circumscribe the act would destroy its
purpose.
Id. at 147. See also 29 C.F.R. § 5.2(k) (1994) (project is a public work if it is
“carried on directly by authority of or with funds of a Federal agency,” and
“serve[s] the interest of the general public regardless of whether title thereof is in a
Federal agency”).
While Peterson and other cases do not address directly the question whether a
lease-construction contract is covered by the Davis-Bacon Act, they do suggest that
a technical reading of the Act that defeats its purpose is inconsistent with the text
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Veterans A dm inistration's Lease o f M edical Facilities
as well as the purpose of the Act. See also Title Guaranty & Trust Co. v. Crane
Co., 219 U.S. 24 (1910) (ships are public works under Heard Act though not af
fixed to public property); Applicability o f Certain Acts to Construction, Alteration,
and Repair o f Coast Guard Vessels, Boats, and Aircraft, 38 Op. Att’y Gen. 418
(1936) (same, under Davis-Bacon Act); Fidelity and Deposit Co. v. Harris, 360
F.2d 402, 408 (9th Cir. 1966) (construction of building for the Jet Propulsion
Laboratory at the California Institute of Technology is a public work under the
Miller Act); Autrey v. Williams and Dunlap, 343 F.2d 730, 734 (5th Cir. 1965)
(Capehart Housing Act military housing project is a public work under Miller Act,
“[although title . . . does not pass immediately to the United States, due to the
novel financing plan” of the Capehart Act); United States ex rel. Gamerston &
Green Lumber Co. v. Phoenix Assurance Co., 163 F. Supp. 713 (N.D. Cal. 1958)
(Miiler Act applies to construction of post library at the Presidio, though paid for
from nonappropriated funds).10
Finally, past Attorney General opinions also support a broad reading of the Act.
See, e.g., Federal Aid Highway Program — Prevailing Wage Determination, 41
Op. Att’y Gen. 488, 500-01 (1960) (definition of mechanics and laborers under
Davis-Bacon Act “is not to be given a niggardly construction” because the Act “is
to be interpreted broadly to accomplish its purpose”); Wage Law Applicable to
Alley Dwelling Authority fo r the District o f Columbia, 38 Op. Att’y Gen. 229, 233
(1935) (“broad construction” that Act covers buildings that may be resold to pri
vate parties is “supported both by the language of the Act and by the apparent pur
10
T he 1988 O pinion did not address the question w hether the clinic construction called for u n d e r the
C row n Point contract fell w ithin the definition o f a “public buildm g[] or public w ork[]” for purposes o f the
D avis-B acon Act, and the status o f the C row n Point contract is no longer a m atter o f dispute in light of
Building a n d C onstr. Trades D e p ’t, A F L -C IO v Turnage, 705 F. Supp 5 (D D C 1988) (holding lhat leaseconstruction o f V eterans A dm inistration outpatient clinic u n d er the C row n Point contract was c o v e re d by
D avis-B acon). W ith respect to the C row n Point contract, how ever, we w ould note that v eterans’ hospitals,
w hen constructed under ordinary financing m echanism s, w ere am ong the principal public buildings that the
drafters had in mind, see, e.g , 74 C ong. Rec 6510-11 (1931) (rem arks o f R ep B acon), id at 6 5 0 6 (chart),
and unquestionably serve a public purpose Furtherm ore, it is w ell established that the governm ent n eed not
have eith er initial o r perm anent title to a building for the construction project to be deem ed a public w ork
(though governm ent-ow ned property presents an easier case) See, e.g.. W age Law A p p lica b le to A lley
D w elling A u th o rity f o r the D istrict oj C olum bia, 38 Op. A tt'y G en 229 (1935) (housing constructed under
D C. A lley D w elling A uthority Act o f 1934 is a public work even though it may later be sold to p rivate p a r
ties), U nited States ex rel. N oland Co v. In vin , 316 U S. 23, 2 9-30 (1942) (construction o f H ow ard U n iv e r
sity library is a public work under related M iller Act, though library w as to be the property o f a private
university), P eterson v. U nited States, 1 19 F 2d 145 (6th C ir 1941) (relocation of privately-ow ned railw ay
that w ould be flooded by federal d am is a public w ork) W e believe that, in general, the d eterm ination
w hether a lease-construction contract calls for construction o f a public building or public work likely will
depend on the details o f the p articu lar arrangem ent. T hese m ay include such factors as the length o f the
lease, the extent o f governm ent involvem ent in the construction project, the extent to w hich the c onstruction
will be used for private rather than public purposes, the extent to w hich the costs of construction will be fully
paid for by the lease paym ents, and w hether the contract is w ritten as a lease solely to evade the requirem ents
o f the D avis-B acon Act, a possibility contem plated by the d issen ter from the 1987 W AB O pinion. H ow ever,
we further believe that the fact that a novel financing m echanism is em ployed should not in itself d efeat the
reading o f such a contract as being a contract for construction o f a public building or public work.
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Opinions o f th e Office o f L e g a l C ounsel
poses intended to be accomplished”). The sole exception to this trend is the 1988
O.L.C. Opinion.
The 1988 Opinion quoted language from the 1935 and 1960 Attorney General
opinions to suggest that the use of direct federal funds was an absolute requirement
for Davis-Bacon coverage, citing a statement in the 1935 opinion that the Act ap
plied to “buildings erected with funds supplied by the Congress,” 38 Op. Att’y
Gen. at 233, and a statement in the 1960 opinion that it applied to “direct Federal
construction,” 41 Op. Att’y Gen. at 495. Neither the opinions nor the quoted ex
cerpts suggest that these are the only situations in which Davis-Bacon would apply.
In both opinions, the Attorney General explicitly rejected narrow readings of the
Act in favor of quite expansive ones, and used the “federal funds” concept to argue
that a narrower reading would undermine the Act and the public goals it was de
signed to serve. Neither opinion discussed lease-construction or any similar con
struction financing mechanism, nor did either opinion suggest that the Act would
not apply if the construction was not built with federal funds but instead was built
under federal direction and later paid for with federal funds. A consideration of
the context in which these opinions arose will illustrate the point. The 1935 opin
ion involved construction and demolition of buildings under the D.C. Alley
Dwelling Authority, which was empowered to tear down old buildings and con
struct new ones to redevelop alleys in the District of Columbia. Because the Act
contemplated that the new dwellings might later be leased or sold to private parties,
it was contended that Davis-Bacon should not apply. Attorney General Cummings,
however, determined that the prospect that the buildings would be sold did not
detract from the public character o f the construction:
I approve the broad construction which has thus been placed upon
the statute and regard it as supported both by the language of the
Act and by the apparent purposes intended to be accomplished.
Under this view buildings erected with funds supplied by the Con
gress for the furtherance of public purposes are not to be distin
guished, so as to affect the application of the statute, upon
consideration of their character or the particular public purpose
which their building is intended to further; nor do I regard it as
controlling that some of them will be, or may be, conveyed for a
consideration to private persons at some time after completion.
38 Op. Att’y Gen. at 233.
The 1988 Opinion’s quote from the 1960 opinion is itself a quote from the leg
islative history of the Federal Highway and Highway Revenue Acts of 1956, and
was drawn from a section of the history urging that Davis-Bacon wage standards
should apply not only to “direct Federal construction” — highways constructed by
the government (without regard to financing mechanisms) — but also to highways
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Veterans A d m in istra tio n 's Lease o f M edical F acilities
constructed by state and local governments, with federal financial assistance. 41
Op. Att’y Gen. at 495; H.R. Rep. No. 84-2022, at 12-13 (1956); 23 U.S.C. § 113
(successor Act). While the quoted legislative history indicates that the Congress
thought that federally-aided nonfederal highway projects were not covered, this
distinction is irrelevant to the question at issue here. Neither the 1960 opinion nor
the Highway Act nor the quoted legislative history defines “direct Federal con
struction” in such a way as to exclude lease-construction contracts. The only light
these sources shed on the question of how lease-construction should be categorized
is to emphasize that where the government is financially responsible for construc
tion costs, the purposes of the Davis-Bacon Act may be implicated. Furthermore,
this commentary was meant as background. The question at issue in the 1960
opinion was whether independent owner-operators of trucks on a Davis-Bacon
project were nonetheless employee “mechanics and laborers,” subject to the Act’s
prevailing wage requirement. The Attorney General concluded that they were, in
part because a “niggardly construction” of the term “mechanics and laborers”
would be inconsistent with the remedial purposes of the Act. 41 Op. Att’y Gen. at
500.
In short, the cited Attorney General opinions interpreted the Davis-Bacon Act
expansively to ensure that its beneficial purposes would not be evaded. Conse
quently, we do not think that these opinions support the argument that particular
financing mechanisms remove public construction projects, such as those paid for
by long-term lease, from the Act.
D.
One final argument has been put forth to support the conclusion reached by the
1988 Opinion: that Congress, in other statutes, explicitly indicated that DavisBacon requirements would apply to particular lease contracts; and that these stat
utes “indicate[] not only that Congress knows how to insure that leases are covered
by the Davis-Bacon Act in those few situations where it so chooses, but also that
section 276a(a) by itself does not include leases.” 1988 Opinion at 95. The pri
mary statute relied upon is 39 U.S.C. § 410(d)(1), which states that
A lease agreement by the Postal Service for rent of net interior
space in excess of 6,500 square feet in any building or facility, or
part of a building or facility, to be occupied for purposes of the
Postal Service shall include a provision that all laborers and me
chanics employed in the construction, modification, alteration, re
pair, painting, decoration, or other improvement of the building or
space covered by the agreement, or improvement at the site . . . shall
be paid [Davis-Bacon wage rates].
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O pinions o f th e O ffice o f L e g a l C ounsel
This statute covers not just the lease-construction of entire buildings, but construc
tion involved in short-term use o f relatively small amounts of space in larger
buildings, including incidental construction and improvements beyond those cited
in the Davis-Bacon Act. It would take a more expansive reading of the DavisBacon Act than Labor has urged in this case to match this coverage. In light of
this, the House Report cited in the 1988 Opinion almost certainly was correct in
concluding that the statute extended Davis-Bacon coverage. H.R. Rep. No. 911104, at 27 (1970). Too, the Act was passed in 1970, before the Comptroller Gen
eral reversed his 1962 decision that Davis-Bacon did not apply to leases. In view
of these factors, we do not believe that this statute sheds much light on how Con
gress intended Davis-Bacon to apply in other lease-construction settings.
III.
The Department of Labor also suggests that we should defer to its determination
whether a particular contract is covered by Davis-Bacon, citing 29 C.F.R. §§ 5.13
and 7.1(d) (1994), Reorg. Plan No. 14 of 1950, 3 C.F.R. 1007 (1950), reprinted in
5 U.S.C. app. at 1261 (1988),11 and a variety of cases. While the authorities cited
clearly indicate that Labor has authority to set wage rates, they do not indicate
whether Labor’s resolution of legal questions relating to coverage disputes super
cedes the Attorney General’s authority, under Executive Order No. 12146, 3
C.F.R. 409 (1979), to resolve legal disputes between executive branch agencies.
Rather, these sources state that the contracting agency has the initial responsibility
for determining coverage, see, e.g., Universities Research A ss’n v. Coutu, 450 U.S.
754, 759 n.6, 760 (1981); North G eorgia Building and Constr. Trades Council v.
Goldschmidt, 621 F.2d 697, 703 (5th Cir. 1980); and that the Reorg. Plan and La
bor Department regulations provide for review by Labor of contracting agencies’
coverage determinations. Reorg. Plan No. 14 of 1950; 29 C.F.R. §§ 5.13 and
7 .1(d); Coutu, 450 U.S. at 760; North Georgia, 621 F.2d at 704.12
11 R eorg Plan No. 14 provides
In o rd er to assu re c o o rd in atio n of ad m in istratio n and co n sistency o f enforcem ent o f ihe labor
stan d a rd s pro v isio n s o f e ac h o f the fo llo w in g Acts [in clu d ing the D avis-B acon A ci] by the F e d
eral agencies responsible for the adm inistration thereof, the Secretary o f Labor shall prescribe
ap p ro p ria te stan d ard s, regulations, and procedures, w hich shall be observed by these agencies,
and cau se lo b e m ade b y the D epartm ent o f Labor such in vestigations, with respect to co m p li
ance w ith and e n fo rcem en t o f such labor standards, as he d eem s desirable
5 U .S C app at 1261
12 W hile Ihe N o rth G eo rg ia case also stales that the W age A ppeals B oard is “authorized [by 29 C F.R.
§ 7 1(d)] to act w ith finality on b eh alf of the S ecretary o f L ab o r” in review ing determ inauons m ade by agen
cies in ap p ly in g the D av is-B aco n A ct, 621 F 2 d at 704, the q u o te d language indicates only that the W A B has
final a u th o rity to act fo r the Secretary of L a b o r and does not indicate w hether, and lo w hai extent, the D e
p a rtm e n t’s ex ercise o f that au th o rity is rev iew ab le by the A tto rney G eneral or by the courts. 29 C F R
§ 7 .1 (d ) say s only th a t the B oard “ shall act as fully and finally as m ight the Secretary o f Labor concerning
such m a tte rs.”
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Veterans A dm inistration ’s Lease o f M edical Facilities
It is true that Reorganization Plan No. 14 of 1950 seeks coordination of admini
stration and consistency of enforcement of, among other statutes, the Davis-Bacon
Act, and that the Plan places the principal authority for bringing about consistent
administration of the statute with the Department of Labor. 5 U.S.C. app. at 1261.
That authority, however, must be reconciled with the authority of the Attorney
General to make final decisions for the executive branch on legal determinations
under Executive Order No. 12146, which provides that the Attorney General may
resolve “legal disputes” between executive agencies. See also 28 U.S.C. § 511
(“The Attorney General shall give [her] advice and opinion on questions of law
when required by the President”) and 28 U.S.C. § 512 (“The head of an executive
department may require the opinion of the Attorney General on questions of law
arising in the administration of his department”). We believe that, read together,
the Davis-Bacon Act, the Reorganization Plan, 28 U.S.C. §§ 511 and 512, and
Executive Order No. 12146, while granting the primary responsibility for inter
preting Davis-Bacon to Labor, also confer on the Attorney General, at the request
of appropriate officials, the authority to review the general legal principles under
lying certain of the Secretary’s decisions under the Act. Accord Application o f the
Davis-Bacon Act to Urban Development Projects that Receive Partial Federal
Funding, 11 Op. O.L.C. 92, 94-95 (1987) (Reorganization Plan 14 “speaks only to
the respective functions of HUD [the contracting agency] and Labor in adminis
tering [Davis-Bacon provisions of] the Housing and Community Development
Act,” and “does not preclude either the head of a department from seeking, or the
Attorney General from rendering, an opinion on a question of law arising in the
administration of his department”).13
13
T h is view is consistent with prior decisions o f the A ttorney G eneral som etim es cited for the pro p o sitio n
that Labor has final authority to interpret the D avis-B acon Act. Thus, for exam ple, in F ederal A id H ighw ay
P rogram — P revailing Wage D e term in a tio n, 41 O p A tt’y G en. 488 (1960), the A ttorney G eneral agreed
only lhat Labor has authority under the R eorganization Plan and the statute to determ ine w hether certain
em ployees w ere 'la b o re rs or m echanics” w ithin the m eaning o f the D avis-B acon A ct — not w hether the
contract itse lf was covered. Since this opinion resolved a dispute betw een the D epartm ents o f L abor and
C om m erce o v er w hich o f those iw o agencies should m ake the determ ination, it did not fully ad d ress the
question o f the extent o f the authority o f the D epartm ent o f Justice to review Labor D epartm ent legal d e te r
m inations under the Act
Sim ilarly, in O ffice o f Federal Procurem ent P olicy — A u th o rity to D eterm ine W hether the S ervice C on
tract Act, W al.sh-H ealev Act, o r D avis-B acon A ct A p p lies to C lasses o f F ederal P rocurem ent C o ntracts, 43
O p. A tt’y G en 150 (1979), w hile the A ttorney G eneral did conclude thai the D epartm ent o f L abor had
authority to m ake contract coverage determ inations under the W alsh-H ealey and Service-C ontract A cts that
are ' ‘binding on the procurem ent agencies,” id at 161, and that the O ffice of Federal Procurem ent Policy
does not have statutory authority to m ake coverage d eterm inations under those statutes, id , these statem ents
do not underm ine the authority o f the A ttorney G eneral to review legal aspects o f interagency d isputes relat
ing to coverage decisions made by the D epartm ent o f Labor Furtherm ore, the 1979 A ttorney G eneral o p in
ion m ade no such express determ ination concerning the S ecretary ’s authority to m ake final D avis-B acon
coverage decisions, and indeed, no one had contended that D avis-B acon covered the p articular c o n tract at
issue in that case. S e e id. at 151 W hile the 1979 opinion also stated that L abor has authority to m ake c o v
erage determ inations under ’‘the contract labor standards statu tes,” including D avis-B acon, id at 153, this
statem en t does not address the disputed question: w hether this authority precludes the D epartm ent o f Justice
from review ing such decisions, and n eith er the opinion nor the cases cited in support o f this passage indicate
123
Opinions o f th e Office o f L egal C ounsel
IV.
For these reasons, we conclude that the ruling of the 1988 O.L.C. Opinion that
the plain language of the Davis-Bacon Act indicates that it can never apply to a
lease that calls for construction of a public work was incorrect. We believe that the
determination whether a particular lease-construction contract is a “contract. . . for
construction” of a public building or public work within the meaning of the DavisBacon Act will depend upon the details of the particular agreement.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
that the A tto rn ey G eneral m ay not address leg al q uestions arising from Labor D epartm ent D avis-B acon
coverag e d ecisions.
124 |
|
Write a legal research memo on the following topic. | Availability of Judgment Fund in Cases
Not Involving a Money Judgment Claim
The Judgment Fund is not available for suits that do not seek to require the government to
make direct payments of money to individuals, but merely would require the government
to take actions that result in the expenditure of government funds.
The Judgment Fund is available: (1) for the payment of final “money judgments" (but not
for “non-money judgments”) whose payment is not “otherwise provided for”; (2) for the
payment of tort settlements covered by statutory provisions listed in 31 U.S.C. § 1304(a);
and (3) for the payment of non-tort settlements authorized by the Attorney General or his
designee, whose payment is not “otherwise provided for,” if and only if the cause of
action that gave rise to the settlement could have resulted in a final money judgment.
April 14, 1989
M em orandum O pinion
fo r the A ssistant A ttorney
C ivil D ivision
G eneral
This memorandum responds to your request1 for the opinion of this
Office concerning the availability of the permanent appropriation estab
lished pursuant to 31 U.S.C. § 1304 (“the Judgment Fund”) for the pay
ment of judgments or settlements not involving “money judgment”
claims, i.e., “cases that are not framed in typical money damages terms
[that] may nevertheless, at bottom, seek the expenditure of money by the
government and are capable of compromise on that basis.” Civil
Memorandum at 1. We conclude: (1) that fined judgments whose payment
is not “otherwise provided for”2 are payable from the Judgment Fund if
1Memorandum for Douglas W Kmiec, Acting Assistant Attorney GeneraJ, Office of Legal Counsel, from
John R Bolton, Assistant Attorney General, Civil Division, Re: Use o f the Judgment Fund fo r Settlement
o f Cases or Payment o f Judgments that Do Not Involve a “Money Judgment” Claim (July 21, 1988)
(“Civil Memorandum”)
2 We reaffirm this Office’s traditional position that a payment is “otherwise provided for” in two different
situations. First, when a statute provides that particular kinds of judgments are to be paid from agency
appropriations, the “otherwise provided for” criterion is satisfied with respect to judgments and settle
ments. Second, judgments or settlements incurred by agencies in the course of certain “business-type” pro
grams are also “otherwise provided for.” See Memorandum for D Lowell Jensen, Acting Deputy Attorney
General, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel at 7-11 (Feb. 24,
1984); Memorandum for Abraham D Sofaer, Legal Adviser, Department of State, from Charles J Cooper,
Assistant Attorney General, Office of Legal Counsel, Re- Availability of Judgment Fund to Pay
Compivmise Settlement o f Iraman Claim at 4-5 (Feb. 16, 1988) The Comptroller General also has
endorsed this two-pronged test for determining whether a payment is “otherwise provided for.” See General
Continued
98
they require the government to make direct payments of money to indi
viduals, but not if they merely require the government to take actions that
result in the expenditure of government funds; (2) that a settlement is
payable from the Judgment Fund if it involves a tort claim statutorily rec
ognized in 31 U.S.C. § 1304(a), and its “payment is not otherwise provid
ed for”; and (3) that a non-tort settlement is payable from the Judgment
Fund under 28 U.S.C. § 2414 only if the litigation giving rise to the settle
ment could have required the direct payment of money by the govern
ment, had it resulted in a final judgment.
I. Analysis
We start as always with the plain language of the statutory text at issue.
The Judgment Fund statute, 31 U.S.C. § 1304, provides in pertinent part:
(a) Necessary amounts are appropriated to pay final judg
ments, awards, compromise settlements, and interest and
costs specified in the judgments or otherwise authorized by
law when —
(1) payment is not otherwise provided for;
(2) payment is certified by the Comptroller General;
and
(3) the judgment, award, or settlement is payable —
(A) under section 2414, 2517, 2672, or 2677 of title
28;
(B) under section 3723 of this title;
(C) under a decision of a board of contract
appeals; or
(D) in excess of an amount payable from the
appropriations of an agency for a meritorious
claim under section 2733 or 2734 of title 10,
section 715 of title 32, or section 203 of the
National Aeronautics and Space Act of 1958
(42 U.S.C. 2473).
Section 1304 thus imposes three requirements that must be met before
the Judgment Fund may be utilized. First, the judgment must be payable
pursuant to one of a number of specified sections of the U.S. Code.
2 (...continued)
Accounting Office, Principles o f Fedeinl Appropriations Law 12-14 (1982) (describing first test) (“GAO
Manual”), 62 Comp Gen. 12, 14 (1982) (descnbing second test) (Although the opinions of the Comptroller
General, an agent of Congress, are not binding on the executive branch, we regularly consult these opin
ions for their informational and analytic value)
99
Second, there must not be another source of funds available to pay the
judgment. Finally, payment of the judgment must be certified by the
Comptroller General.
The final requirement — the necessity of certification by the
Comptroller General — does not appear to impose any additional sub
stantive requirements on access to the judgment fund. The Comptroller
General’s certification apparently follows from satisfaction of the other
two requirements and completion of the necessary paperwork.3 Thus, we
need only determine whether the first condition precludes the payment
of non-money judgment claims from the Judgment Fund. (The second
condition is analyzed in note 1, supra.)
Two distinct categories of claims are payable from the Judgment Fund:
final judgments and settlements. We examine those categories in turn.
A. Final Judgments
As indicated above, 31 U.S.C. § 1304(a) plainly states that “[n]ecessary
amounts are appropriated to pay final judgments, awards, compromise
settlements, and interest and costs ... when ... the judgment, award, or
settlement is payable” under any one of a specified list of statutory pro
visions. The primary statutory provision4 in that list that applies to final
judgments is the first paragraph of 28 U.S.C. § 2414, which states (empha
sis added):
Except as provided by the Contract Disputes Act of 1978,
payment of final judgments rendered by a district court or
the Court of International Trade against the United States
shall be made on settlements by the General Accounting
Office. Payment offinal judgments rendered by a State or
foreign court or tribunal against the United States, or
against its agencies or officials upon obligations or liabili
ties of the United States, shall be made on settlements by
the General Accounting Office after certification by the
Attorney General that it is in the interest of the United
States to pay the same.
3 GAO itself takes this position, stating that the requirement of certification by the Comptroller General
“is an essentially ministerial function and does not contemplate review of the merits of a particular judg
m ent B-129227 (Dec. 22, 1960); see also 22 Comp. Dec. 520 (1916), 8 Comp Gen 603, 605 (1929) " GAO
Manual, supra note 2, at 12-2. Indeed, w e believe that were the requirement of certification to be other
than a ministerial function it would raise serious questions under the Supreme Court’s holding in
Bowsker v. Synar, 478 U.S. 714 (1986) (Congress cannot constitutionally assign to the Comptroller
General, an arm of Congress, the duty of executing the laws)
4Two other provisions authorize the payment of final judgments in specific types of cases, viz , 28
U.S.C. § 2517 (authorizing the payment of final judgments rendered by the United States Claims Court
against the United States); and 31 U S.C. § 1304(a)(3)(C) (authorizing the payment of final judgments
under “decisionls] of ... board[s] of contract appeals”).
100
Since section 2414 encompasses “payment offinal judgments," by def
inition it only provides for disbursements from the Judgment Fund for
judgments that are payable, i.e., judgments that, by their terms, require
the United States to pay specified sums of money to certain parties.5
Applying this principle, final judgments that impose costs on the govern
ment, but do not require the United States to make specific cash dis
bursements, would appear to fall outside the scope of section 2414. Thus,
for example, final judgments that required the United States to furnish
subsidized housing,6 or that required the United States to correct struc
tural defects in housing,7 would not be eligible for payment from the
Judgment Fund (even though they might impose readily ascertainable
money costs), because they would not require the United States to make
cash payments to individuals. In sum, under our analysis, final court judg
ments against the United States that require anything other than the
direct payment of specified sums of money may not be paid from the
Judgment Fund.8
6The legislative history of section 2414 supports this conclusion, which is drawn from the plain mean
ing of the statute. At the time the Judgment Fund statute was originally enacted in 1956 (Supplemental
Appropnation Act of 1957, Pub. L. No 84-814, § 1302, 70 Stat. 678, 694 (1956)), section 2414 only covered
final judgments rendered by a federal district court When the first paragraph of section 2414 was revised
in 1961 to authorize the payment of judgments rendered by state and foreign courts (previously that para
graph had only authorized the payment of federal court judgments), and the payment of settlements, the
House and Senate Judiciary Committee Reports dealing with that revision favorably incorporated by ref
erence a Justice Department letter that discussed the use of the Judgment Fund to pay judgments. With
respect to judgments, that letter stated in pertinent part:
Prior to the enactment of the [judgment fund statute],. a large percentage of the judgments
rendered against the United States were payable only upon the enactment of specific appro
priations legislation for that purpose The enactment of that statute has materially reduced the
administrative and legislative burdens involved in effecting the payments of judgments ... and
it has substantially shortened the interval of the time between the entry of judgments and their
satisfaction The legislation has both reduced the interest charges accruing upon judgments
against the United States and the irritations inevitably associated with the delays occasioned
by the former method of payment. The attached draft bill would .. provide a corresponding
simplification in the procedures for the payment of judgments of State and foreign courts
S. Rep No 733, 87th Cong., 1st Sess 1-2 (1961), reprinted %n 1961 U.S.C.C A N 2439, 2439; H.R. Rep. No
428, 87th Cong., 1st Sess 2 (1961).
In short, this discussion manifests an understanding that the Judgment Fund was designed to effect pay
ments of Final judgments without the need for the enactment of specific appmpriations bills, and to pre
vent the accnial o f interest on unpaid final judgments That understanding, which centers solely on m on
etary judgments (judgments that previously required specific appropriations and on which interest could
accrue), supports the conclusion that the Judgment Fund is to be tapped for final judgments requiring the
United States to pay specified sums of money Our interpretation squares with both the Civil Division’s
view and the Comptroller General’s view of the legislative history. See Memorandum for Michael Jay
Singer, Assistant Director, Appellate Staff, Civil Division, from Irene M. Solet, Attorney, Appellate Staff, Re:
Possible Use o f the Judgment Fund ” For Payment o f a Settlement in Garrett v City o f Hamtramck at
2 (July 12,1988) (“Solet Memorandum”) (“Congress contemplated that the fund would be used for money
judgments"), B-193323, 1980 WL 17186 (C G ), at *3 (Jan 31, 1980) (the judgment fund was “established
for the purpose of paying money judgments against the United States”) (emphasis added)
6See Solet Memorandum, supra note 5, at 3.
7See B-193323, discussed in Solet Memorandum, supra note 5, at 2-3.
8 Judgments rendered by the United States Claims Court (which are money judgments) and by boards
of contract appeals are also specifically made payable from the Judgment Fund. See supra note 4
101
B. Settlements
Several statutory provisions found in the Judgment Fund statute pro
vide for the payment of settlements, including 28 U.S.C. § 2672 (authoriz
ing the settlement of “any claim for money damages” against the United
States for torts committed by the employee of any federal agency while
acting within the scope of his employment); 28 U.S.C. § 2677 (authorizing
the Attorney General to “arbitrate, compromise, or settle any claim cog
nizable under” 28 U.S.C. § 1346(b), the jurisdictional provision that allows
courts to hear tort claims for money damages against the United States);
and 31 U.S.C. § 3723 (authorizing agency heads to settle small tort claims
for damage or loss, to private property due to a federal officer’s or
employee’s negligence). In addition, the Judgment Fund is available for
the payment of the “excess of an amount payable from the appropriations
of an agency for a meritorious claim under 10 U.S.C. §§ 2733-2734”
(authorizing the Secretaries of military departments to settle tort claims
arising out of the actions of their employees, at home or abroad), 32
U.S.C. § 715 (authorizing the Secretary of the Army or the Secretary of the
Air Force to settle certain tort claims arising out of certain actions by
members of the Army or Air National Guard), and 42 U.S.C. § 2473
(authorizing the NASA Administrator to settle certain tort claims arising
out of NASA’s activities). In short, 31 U.S.C. § 1304(a) contains a variety
of specific provisions authorizing the payment of a variety of tort settle
ments from the Judgment Fund. The primary provision authorizing the
payment of settlements from the Judgment Fund, is, however, 28 U.S.C. §
2414, the third paragraph of which provides:
Except as otherwise provided by law, compromise set
tlements of claims referred to the Attorney General for
defense of imminent litigation or suits against the United
States, or against its agencies or officials upon obligations
or liabilities of the United States, made by the Attorney
General or any person authorized by him, shall be settled
and paid in a manner similar to judgments in like causes
and appropriations or funds available for the payment of
such judgments are hereby made available for the payment
of such compromise settlements.9
In short, under the third paragraph of section 2414, compromise set
tlements of suits against the United States, its agencies, or officials, made
by the Attorney General or any person he authorizes, “shall be settled and
9 The second paragraph of section 2414, not reproduced in this memorandum, is not relevant to the
questions addressed herein That paragraph merely specifies that the Attorney General’s decision not to
appeal a court judgment renders it final.
102
paid in a manner sim ilar to judgments in like causes." (Emphasis
added.) By its very terms, this paragraph contemplates that the manner
of payment for a settlement approved by the Attorney General or his
designee turns upon the manner in which a “judgment[] in [a] like
cause[]” would have been paid. Since the term “like cause[]” is not statu
torily defined,10and its meaning is not self-evident, we turn to the princi
ple of statutory construction that statutory provisions “relating to the
same person or thing or having a common purpose” are in “pari materia
[and] are to be construed together,” i.e., in a consistent manner. Black’s
Law Dictionary 711 (5th ed. 1979).11 Applying this principle, we turn to
the first paragraph of section 2414 (which shares with the third paragraph
the “common purpose” of delineating the availability of the Judgment
Fund) to gain insight into the manner in which judgments are to be paid.
As previously discussed, the first paragraph makes it plain that final judg
ments requiring the direct payment of money are payable from the
Judgment Fund, while non-money judgments must be paid from other
sources. Accordingly, it is logical to infer that the reference to the “man
ner (of payment) similar to judgments in like causes” in the third para
graph of section 2414 is a shorthand term for linking the payment of a set
tlement to the payment either of a money judgment or of a non-money
judgment. Employing this logic, if the underlying “cause[]” of a settlement
could have led to a money judgment, had no settlement been reached,
then the settlement, similar to the judgment, is payable from the
Judgment Fund. On the other hand, if the underlying “cause[]” would
have led to a non-money judgment, then the settlement, similar to the
judgment, is not payable from the Judgment Fund. It therefore follows
that, in determining whether a proposed settlement is payable from the
Judgment Fund, the Attorney General or his designee should examine the
underlying cause of action, and decide whether the rendering of a final
judgment against the United States under such a cause would have
required a payment from the Judgment Fund.
10The only congressional discussion of the phrase referring to “like causes” is a brief reference in the
Senate and House Judiciary Committee Reports reiterating the plain statutory language H R Rep. No.
428, supra note 5, at 3 (“compromises effected by the Attorney General or any person authorized by him
shall be settled and paid in the same manner as judgments in like causes”), S. Rep. No 733, repnnted in
1961 U S.C C A.N. at 2441, supra note 5, at 3 (same).
11The federal courts have recognized that when statutes are in pan materia they should be construed
consistently, if at all possible See, e.g., Haig v. Agee, 453 U S. 280, 300-01 (1981) (statute making it
unlawful to travel abroad without a passport even in peacetime must be read in pan materia with —
i e., in a manner harmonious with — the Passport Act), FAIC Securities, Inc v. United States, 768
F.2d 352, 363 (D C. Cir 1985) (National Housing Act and Federal Insurance Corporation Act are in pari
materia since they share “the common purpose of insuring funds placed in depository institutions,”
and, therefore, “the two statutes .. cannot be construed to reach different results”); United States v
Stauffer Chemical Co , 684 F.2d 1174, 1184, 1188 (6th Cir 1982), cert granted, 460 U.S. 1080 (1983),
aff’d, 464 U.S 165 (1984) (provisions in pari m atena “should be given the same meaning . section 114
of the Clean Air Act and section 308 of the Clean Water Act are in pan materia, and (therefore) should
be interpreted the same way").
103
Our conclusion that section 2414 only authorizes Judgment Fund dis
bursements for settlements of causes that could have resulted in money
judgments is consistent with the historical development of the Judgment
Fund statute. When the Judgment Fund statute was enacted in 1956, only
the payment of money judgments was provided for, see supra note 5. Had
Congress wished to provide for the payment from the Judgment Fund of
all settlements when it amended the Judgment Fund statute in 1961, pre
sumably it would specifically have so indicated. Its failure to do so sup
ports the conclusion that in extending the Judgment Fund statute to
reach settlements, Congress believed it was only bringing within that
statute’s ambit settlements of causes that could have resulted in
Judgment Fund disbursements, had such causes resulted in final money
judgments, rather than settlements.
Finally, any conclusion that would permit the Judgment Fund to pay
out settlements in cases in which it would not pay out judgments would
provide agencies with an incentive to urge settlement of cases in order to
avoid payment from agency funds. We would not lightly attribute to
Congress an intent to create a structure that might encourage settlements
that would not otherwise be in the interest of the United States.
II. Conclusion
For the foregoing reasons, we conclude that the Judgment Fund is
available: (1) for the payment of final “money judgments” (but not “non
money judgments”) whose payment is not “otherwise provided for”; (2)
for the payment of tort settlements covered by statutory provisions listed
in 31 U.S.C. § 1304(a); and (3) for the payment of non-tort settlements
authorized by the Attorney General or his designee, whose payment is
“not otherwise provided for,” if and only if the cause of action that gave
rise to the settlement could have resulted in a final money judgment.
DOUGLAS W. KMIEC
Assistant Attorney General
Office of Legal Counsel
104 |
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Write a legal research memo on the following topic. | Calculating Rate of Pay of Department of Justice Employees
for Purposes of “ Covered Persons” Determination Under
Independent Counsel Act
The term “ rate o f p a y ” in the section of th e Independent C ounsel Act that indicates w hich D epartm ent
o f Ju stice em p lo y ees are “ covered p erso n s” does not include “ locality-based com parability pay
m e n ts” under 5 U S.C §5 3 0 4 .
April 2, 1997
M
em orandum
O p in io n
fo r t h e
A c t in g D e p u t y A t t o r n e y G e n e r a l
Under 28 U.S.C. § 591(b)(4) (1994), the class of “ covered persons” subject
to investigation by an Independent Counsel includes “ any individual working in
the Department of Justice who is compensated at a rate of pay at or above level
III of the Executive Schedule under section 5314 of title 5.” You have asked
whether the term “ rate of pay” in this section includes “ [l]ocality-based com
parability paym ents” under 5 U.S.C. §5304 (1994). We conclude that it does
not.
Under provisions in the Ethics in Government Act of 1978, Pub. L. No. 95521, §601, 92 Stat. 1824, 1867 (codified as amended at 28 U.S.C. §§591-599
(1994 & Supp. II 1996)) ( “ Act” or “ Independent Counsel Act” ), an Independent
Counsel may be appointed to investigate alleged crimes by certain high-level offi
cials of the government.1 In some instances, the officials subject to such investiga
tions are identified by their level o f pay. The Act reflects the judgment that, in
the Department of Justice, officials whose rate of pay equals or exceeds Level
III of the Executive Schedule “ are those . . . closest to the Attorney General
and the President and would, therefore, present the most serious conflict of interest
of an institutional nature if the Department of Justice were to have to investigate
and prosecute serious criminal allegations against any of these individuals.” S.
Rep. No. 95-170, at 53 (1977). The “ covered persons” include the Deputy
Attorney General, the Associate Attorney General, and the Solicitor General. See
5 U.S.C. §5313 (1994 & Supp. II 1996); id. §5314. The Act also specifies that
the Assistant Attorneys General are “ covered persons,” even though they are paid
less than the amount for Level III. See 28 U.S.C. § 591(b)(4); 5 U.S.C. §5315.
The Act, however, does not make clear whether the “ rate of pay” that identifies
officials subject to investigation by an Independent Counsel refers to (1) total
pay, including locality-based adjustments, or (2) “ basic pay,” exclusive o f such
'T he application of the Act to high-level officials is sometimes called the “ mandatory coverage” of the Act
See, e.g , S Rep. No 103-101, at 19 (1993), reprinted m 1994 U S C C A N 748, 763 (“ Senate Report” ) The
Act also allows the Attorney General to seek appointment of an Independent Counsel where she “ determines that
an investigation or prosecution of a person by the Department of Justice may result in a personal, financial, or
political conflict of interest,” 28 U S C § 591(c)(1) (1994), or where the allegation is against a member of Congress,
id § 591(c)(2)
68
Calculating Rate o f Pay o f Department o f Justice Employees fo r Purposes o f “Covered P ersons"
Determination Under Independent Counsel Act
adjustments. If locality-based adjustments are excluded, officials in the Senior
Executive Service are not “ covered persons.” The rate of pay for such officials,
excluding locality-based adjustments, can be no higher than $115,700 a year, but
the benchmark for coverage — Level III of the Executive Schedule — is a yearly
pay rate of $123,100. See Exec. Order No. 13033, 61 Fed. Reg. 68,987, 68,992
(1996). On the other hand, if locality-based adjustments are included, officials
in the top three levels of the Senior Executive Service (ES-4, ES-5, and E S 6) could become “ covered persons,” depending on the area of the country where
they work.2
We believe that locality-based adjustments do not count as part of the “ rate
of pay” under 28 U.S.C. §591. When Congress provided for locality-based pay
in the Federal Employees Pay Comparability Act of 1990, 5 U.S.C.
§ 5304(d)(1)(A), it aimed at “ pay parity, between Federal employees and their
nonfederal counterparts on a locality-by-locality basis.” H.R. Conf. Rep. No. 101—
906, at 87 (1990) (calling for comparison with the “ rates of pay generally paid
to non-Federal workers for the same levels of work within each pay locality” ).
A locality-based adjustment, therefore, corresponds to the supply-and-demand
conditions in the particular location, rather than the importance of the official
receiving the adjustment or his or her closeness to the Attorney General. As a
consequence, interpreting “ rate of pay” to include locality-based adjustments
would distort the design of the Act. Persons otherwise not covered by the Act
would become “ covered persons” as a result of the location where they work,
rather than the position they occupy. Such a result would not only fail to serve
the purposes of the Act, but would actually be contrary to them as well. A higherlevel official, paid as an E S-6 and working in an area to which a specific localitybased adjustment would not be applicable, would not be a “ covered person,”
while a lower -level official, paid as an ES-4 and (for example) working in
Houston, would be “ covered.” 3
Inclusion of locality-based adjustments is also inconsistent with Congress’s
apparent intent, insofar as it can be discerned from the legislative history. When
Congress most recently reauthorized the Independent Counsel Act in 1994, it
assumed that approximately fifty officials would come within the mandatory cov
erage of the Act. Senate Report at 19, reprinted in 1994 U.S.C.C.A.N. at 764.
If locality-based adjustments were included in the “ rate of pay” under 28 U.S.C.
§ 591, the number of additional “ covered persons” in the Federal Bureau of Inves
tigation alone would double the total in the government as a whole otherwise
reached by the Act. See Memorandum for Michael R. Stiles, United States
2 For example, an official paid as an ES-4 who lived m the area of Houston-Galveston-Brazona, Texas, would
receive a locality-based increase of 11 52 percent, which would bring his or her salary to approximately $124,790.
This amount would exceed the $123,100 benchmark Exec Order No 13033,61 Fed Reg. at 68,996
3 At present, there is a locality-based comparability adjustment of 4.81 percent for all parts of the United States
not covered by specific adjustments. See Exec Order No 13033, 61 Fed. Reg at 68,996 However, an official
paid at the ES-6 level who benefits from this general adjustment would still be making less than the Level 111
benchmark.
69
Opinions o f the Office o f Legal Counsel in Volume 21
Attorney, and H. Marshall Jarrett, Chief, Criminal Division, from Steven W. Pelak
and Carol Fortine, Assistant United States Attorneys, Re: Additional Information
Regarding the Scope o f the Independent Counsel Statute at 3 (Mar. 18, 1997).
Such a broad sweep would be inconsistent with Congress’s understanding.
We appreciate that there is a reasonable argument on the other side. Congress
adopted the phrase “ rate of pay,” rather than “ rate of basic pay,” a term of
art specifically meaning “ the rate o f pay . . . before any deductions and exclusive
of additional pay of any other kind, such as locality-based comparability pay
ments.” 5 C.F.R. § 534.401(b)(3) (1996). Elsewhere, Congress has distinguished
between “ rate of basic pay” and “ total” pay, including comparability payments,
see 5 U.S.C. § 5304(g)(1), or, where it has wanted to include locality-based adjust
ments as part of “ basic pay” for specific purposes, such as retirement and insur
ance, has done so expressly, see id. § 5304(c)(2). By not employing the term “ rate
of basic pay,” but using “ rate o f pay” instead, Congress arguably meant to
include comparability payments in determining the coverage of the Act. Indeed,
when Congress set up the current system of locality-based comparability adjust
ments, it expressly provided that the post-employment restrictions dictating a oneyear “ cooling o f f ’ period would apply to (among others) persons “ employed
in a position . . . for which the basic rate o f pay, exclusive of any locality-based
pay adjustment,” is above a specified level. 18 U.S.C. § 207(c)(2)(A)(ii) (1994
& Supp. II 1996). It enacted no such amendment to the Independent Counsel
Act. Furthermore, the Act uses “ rate of pay” as a proxy for closeness to the
Attorney General, and because salary does not necessarily reflect this closeness,
the fit between the statute’s standard and its purpose already is imprecise. There
fore, although inclusion of locality-based pay might make the fit even less precise,
this difference would be a matter o f degree, rather than kind.
We nevertheless believe that, on the better view, locality-based pay should be
excluded. The Act has contained the “ rate of pay” language since its original
passage in 1978. At that time, the provisions establishing a “ pay comparability
system,” see 5 U.S.C. §§5301-5308 (1976), stated that “ [p]ay may not be paid,
by reason of any provision of this subchapter, at a rate in excess of the rate of
basic pay for level V of the Executive Schedule,” id. §5308; see also Legislative
Branch Appropriation Act, 1979, Pub. L. No. 95-391, §304, 92 Stat. 763, 78889 (1978). Under those provisions, therefore, an official’s salary could not rise
to the level at which the Act would apply. Although Congress could have clarified
the issue by using the “ rate of basic pay” formulation in the 1994 reauthorization
(or earlier in the statute creating the current system of locality-based comparability
adjustments), it does not appear to have focused on this matter,4 and the legislative
history (as discussed above) shows an understanding of the Act’s coverage that
4 The only consideration of locality-based adjustments dunng the passage of the 1994 reauthonzation appears
in connection with an amendment to the section on the pay of staff in an Independent Counsel’s office. 28 U S C
§ 594(c).
70
Calculating Rate o f Pay o f Department o f Justice Employees fo r Purposes o f ‘'Covered Persons ’'
Determination Under Independent Counsel Act
is more consistent with the interpretation we adopt than with the contrary one.
We therefore do not believe that much weight can rest on the failure to use the
“ rate of basic pay” language5 or that any fair inference against our conclusion
can be drawn from amendments of other statutes making clear that locality-based
comparability adjustments are, for particular purposes, to be disregarded. Further
more, although the use of pay as a measure of closeness to the Attorney General
is necessarily inexact, inclusion of locality-based pay in the “ rate of pay” would
greatly magnify the imprecision. An additional extraneous factor— geography —
would become relevant, and officials at lower pay grades would come within
the Act while others at higher grades would remain outside it. We thus believe
that the argument for including locality-based pay, while reasonable, is ultimately
less than persuasive.
RICHARD L. SHIFFRIN
Deputy Assistant Attorney General
Office o f Legal Counsel
*See also Treasury, Posial Service and General Government Appropriations Act, 1991, Pub L No 101-509,
§ 101(c)(1)(B), 104 Stat 1389, 1442 (using “ rate of pay” to refer to pay under the General Schedule excluding
locality-based adjustments)
71 |
|
Write a legal research memo on the following topic. | Application of 18 U.S.C. § 208 to Service by Executive Branch
Employees on Boards of Standard-Setting Organizations
U n d er 18 U S.C . § 208, a federal em ployee may serve as a m em ber o f the board o f a private voluntary
standards organization to the extent necessary to perm it participation in his or her official capacity
in the o rg an izatio n ’s standard-setting activities.
August 24, 1998
M
em orand um
O p in io n
O f f ic e
of
fo r th e
G en era l C o u n sel
G o v e r n m e n t E t h ic s
This responds to your request o f August 10, 1998 for our opinion whether,
absent a waiver, 18 U.S.C. §208 (1994) would forbid employees of the executive
branch from serving, in their official capacities, as members of the boards of pri
vate voluntary standards organizations. We believe that, to the extent necessary
to permit the federal employees to take part in the standard-setting activities, § 208
does not bar such service.
Section 208 prohibits an officer or employee from taking part as a government
official in any “ particular matter” in which he or she has a financial interest.
The statute imputes to the employee the financial interests of certain other persons
and entities, including an “ organization in which he is serving as officer, director,
trustee, general partner or employee.” 18 U.S.C. § 208(a). In an earlier opinion,
we observed that when an employee is acting in his or her official capacity as
a director or officer of an outside entity, the work for that entity necessarily entails
official action affecting the entity’s financial interests. We therefore concluded
that, under 18 U.S.C. §208, the “ broad prohibition against conflicts o f interest
within the federal government would prevent a government employee from serving
on the board o f directors of an outside organization in his or her official capacity,
in the absence of: (1) statutory authority or a release of fiduciary obligations by
the organization that might eliminate the conflict of interest, or (2) a waiver of
the requirements of § 208(a), pursuant to 18 U.S.C. § 208(b).” Service on the
Board o f Directors o f Non-Federal Entities by Federal Bureau o f Investigation
Personnel in Their Official Capacities, 20 Op. O.L.C. 379, 379 (1996) (“ FBI
Opinion” ). In particular, if “ Congress has authorized the service by statute, the
official ‘serves . . . in an ex officio rather than personal capacity,’ owes a duty
only to the United States, and does not violate section 208.” Service by Federal
Officials on the Board o f Directors o f the Bank fo r International Settlements, 21
Op. O.L.C. 87 (1997) (citation omitted) (“ FRB Opinion” ).
Since the FBI Opinion, we have had a number of occasions to consider whether
particular statutes confer authority for service on outside boards. We have found
such authority in a range of circumstances. Sometimes the statutes expressly con
templated official service on an outside board. See Memorandum for Files, from
210
A pplication o f 18 U.S.C. § 2 0 8 to Service by Executive B ranch E m ployees on B oards o f StandardSetting Organizations
Daniel Koffsky, Special Counsel, Office of Legal Counsel, Re: Foundations and
Commissions Under Fulbright Program (Oct. 24, 1997); Memorandum for Files,
from Daniel Koffsky, Special Counsel, Office of Legal Counsel, Re: Service on
Outside Board (Feb. 27, 1998) (United States-India Fund for Cultural, Edu
cational, and Scientific Cooperation). In another instance, the statute was less
explicit, but we found the authority because service on the outside entity was
a means by which the United States negotiated with foreign governments and
“ the breadth of the President’s power [in that area] counsels a broad reading of
congressional authorization for particular means by which the power may be exer
cised.” FRB Opinion, 21 Op. O.L.C. at 89 (citation omitted). In one other
instance, where the agency largely conducts its operations in secret and had to
create the outside entity to preserve the secrecy of its work, we concluded that
the outside organization was, for relevant purposes, a part of the federal govern
ment, and thus no conflict existed.
As this experience in applying the principles of the FBI Opinion has made clear,
Congress has enacted a variety of arrangements contemplating, directly or
indirectly, that federal employees will participate in outside organizations,
including by serving on their boards, and it would frustrate these arrangements
if such service were considered a disqualifying “ director[ship]” under 18 U.S.C.
§208. See Applicability o f 18 U.S.C. §208 to Proposed Appointment o f Govern
ment Official to the Board o f Connie Lee, 18 Op. O.L.C. 136, 138 (1994) (cat
egories of service considered outside statute). We believe that there are cir
cumstances in which statutory authority for service on an outside board can be
found even though Congress has not expressly addressed that service. When Con
gress has specifically provided for participation in outside organizations and such
participation, to carry out the statutory purposes, entails service on a board, statu
tory authorization may be inferred.
Here, Congress has provided that, in general, federal agencies and departments
“ shall use technical standards that are developed or adopted by voluntary con
sensus standards bodies” and, in carrying out this requirement, “ shall consult
with voluntary, private sector, consensus standards bodies and shall, when such
participation is in the public interest and is compatible with agency and depart
mental missions, authorities, priorities, and budget resources, participate with such
bodies in the development o f technical standards." National Technology Transfer
and Advancement Act of 1995, Pub. L. No. 104—113, § 12(d)(1) & (2), 110 Stat.
775, 783 (1996), 15 U.S.C. §272 note (1994) (emphasis added). As the legislative
history explains, Congress desired and anticipated that federal agencies would
“ work closely” with voluntary standard-setting organizations, that these organiza
tions would “ include active government participation,” and that agencies would
“ work with these voluntary consensus standards bodies, whenever and wherever
appropriate.” H.R. Rep. No. 104—390, at 15, 25 (1995). When the board o f an
outside organization plays an integral role in the process of setting standards, it
211
Opinions of the Office o f Legal Counsel in Volume 22
would therefore frustrate the statute to forbid federal employees from being on
the board. They could not then take the “ active” role that Congress mandated.
To carry out the statute, therefore, employees may serve on these outside boards
without running afoul of 18 U.S.C. §208, if the boards are engaged in the
standard-setting activities in which Congress directed federal agencies to partici
pate.
To be sure, §208 allows for waivers when the employee’s “ interest is not so
substantial as to be deemed likely to affect the integrity of the services which
the Government may expect,” 18 U.S.C. § 208(b)(1), and thus a conclusion that
§ 208 generally would bar employees from serving on standard-setting bodies in
their official capacities would not necessarily have prevented the service in every
instance. Nevertheless, reliance on the waiver procedure would not be consonant
with the statutory scheme here. Congress itself has resolved the possible conflict
between duties to the organization and duties to the United States, at least to
the extent that the criminal prohibition may be at issue.
W e would not reach the same conclusion, however, if the board of an organiza
tion had only administrative responsibilities and was not directly involved in
standard-setting. In that event, the congressional direction to “ participate . . . in
the development of technical standards” would not apply. Consequently, in
accordance with the FBI Opinion, § 208 would bar the service on the board, absent
a waiver or an effective release from fiduciary duty.
Finally, you also ask us to confirm your view that an employee’s service in
an official capacity as the chair o f a working committee or subcommittee of a
standard-setting organization, to the extent the position imposes no fiduciary duty
and creates no employer-employee relationship, would not implicate 18 U.S.C.
§ 208. W e agree that service in such a position would not itself trigger the statute.
Indeed, we are far from certain that a position other than one specified in § 208—
“ officer, director, trustee, general partner or employee” —could be the basis for
imputing an organization’s financial interest to the employee, even if that other
position created a fiduciary duty to the organization. In any event, the positions
you describe would not give rise to an imputed disqualification.
BETH NOLAN
Deputy Assistant Attorney General
Office o f Legal Counsel
212 |
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Write a legal research memo on the following topic. | President’s Receipt of the Nobel Peace Prize
The Emoluments Clause of the Constitution does not bar the President from accepting the
Nobel Peace Prize without congressional consent, because the Norwegian Nobel
Committee is not a “King, Prince, or foreign State.”
The Foreign Gifts and Decorations Act does not bar the President from accepting the
Nobel Peace Prize without congressional consent, because the Norwegian Nobel
Committee is not a “unit of a foreign governmental authority,” an “international or
multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.”
December 7, 2009
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This memorandum concerns whether the President’s receipt of the
Nobel Peace Prize would conflict with the Emoluments Clause of the
Constitution, which provides that “no Person holding any Office of Profit
or Trust under [the United States], 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.” U.S. Const. art. I, § 9,
cl. 8. As we previously explained in our oral advice and now explain in
greater detail, because the Nobel Committee that awards the Peace Prize
is not a “King, Prince, or foreign State,” the Emoluments Clause does not
apply. You have also asked whether the Foreign Gifts and Decorations
Act, 5 U.S.C. § 7342 (2006), bars the President from receiving the Peace
Prize. Here, too, we confirm our previous oral advice that it does not.
I.
On October 9, 2009, the Norwegian Nobel Committee (the “Peace Prize
Committee,” or the “Committee”), headquartered in Oslo, Norway,
announced that the President will be this year’s recipient of the Nobel
Peace Prize. The 2009 Peace Prize, which will consist of ten million
Swedish Kroner (or approximately $1.4 million), a certificate, and a gold
medal bearing the image of Alfred Nobel, is expected to be awarded by
the Nobel Committee to the President on December 10, 2009—the anniversary of Nobel’s death. See Statutes of the Nobel Foundation § 9,
http://nobelprize.org/nobelfoundation/statutes.html (last visited Nov.
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President’s Receipt of the Nobel Peace Prize
24, 2009) (“Nobel Foundation Statutes”); see also The Nobel Prize
Amounts, http://nobelprize.org/nobel_prizes/amounts.html (last visited
Nov. 24, 2009).
The Peace Prize is a legacy of Swedish chemist Alfred Bernhard Nobel. In his will, Nobel directed that a portion of his wealth be used to
establish a set of awards, one of which, the Peace Prize, was intended to
honor the person or entity that “shall have done the most or the best
work for fraternity between nations, for the abolition or reduction of
standing armies and for the holding and promotion of peace congresses.” Nobel Foundation Statutes § 1 (setting forth the pertinent provision
of Nobel’s will). The relevant assets of the Nobel estate have been
managed since 1900 by the Nobel Foundation, a private institution
based in Stockholm, Sweden. See Birgitta Lemmel, The Nobel Foundation: A Century of Growth and Change (2007) (“Lemmel”), http://
nobelprize.org/nobelfoundation/history/lemmel (last visited Nov. 24,
2009). The Foundation is responsible for managing the assets of the
bequest in such a manner as to provide for the annual award of the Nobel
prizes and the operation of the prize-awarding bodies, including the Nobel
Committee that selects the Peace Prize. Nobel Foundation Statutes § 14;
see also Lemmel (“One vital task of the Foundation is to manage its assets
in such a way as to safeguard the financial base of the prizes themselves
and of the prize selection process.”). Unlike the other Nobel prizes, for
accomplishments in fields such as literature and physics, which are
awarded by committees appointed by Swedish institutions, Nobel specified in his will that the recipient of the prize “for champions of peace”
was to be selected “by a committee of five persons to be elected by the
Norwegian Storting [i.e., the Norwegian Parliament].” Nobel Foundation
Statutes § 1.
On April 26, 1897, the Storting formally agreed to carry out Nobel’s
will and, in August of that year, elected the first members of the Nobel
Committee that would award the prize funded by Nobel’s estate. That
Committee—not the Storting itself, or any other official institution of the
Norwegian government, or the Nobel Foundation—has selected the Peace
Prize recipients since 1901. To be sure, in its nascent years, the Nobel
Committee was more “closely linked not only to the Norwegian political
establishment in general, but also to the Government,” than it is today. See
Øyvind Tønnesson, The Norwegian Nobel Committee (1999) (“Tønnes371
33 Op. O.L.C. 370 (2009)
son”), http://nobelprize.org/nobel_prizes/peace/articles/committee (last
visited Nov. 24, 2009). Indeed, until 1977, the Committee’s official title
was the Nobel Committee of the Norwegian Storting. Nevertheless, it has
long been recognized that the “[C]ommittee is formally independent even
of the Storting, and since 1901 it has repeatedly emphasized its independence.” Id. In 1936, for instance, the Norwegian Foreign Minister and a
former Prime Minister recused themselves from the Committee’s deliberations out of concern that bestowing the award on the German pacifist Carl
von Ossietzky would be perceived as an act of Norwegian foreign policy.
Id.; see also Berlin Protests Ossietzky Award, N.Y. Times, Nov. 26, 1936,
at 22 (noting that “Norway [d]enies [r]esponsibility for Nobel [d]ecision”).
To make clear the independent nature of the Committee’s decisions, moreover, the Storting in the very next year, 1937, barred government ministers
from sitting on the Nobel Committee. See Special Regulations for the
Award of the Nobel Peace Prize and the Norwegian Nobel Institute, etc.,
adopted by the Nobel Committee of the Norwegian Storting on the 10th
day of April in the year 1905 (including amendments of 1977, 1991, 1994,
1998 and 2000), § 9, http://nobelprize.org/nobelfoundation/statutes-no.
html (last visited Nov. 24, 2009) (“Nobel Peace Prize Regulations”) (“If a
member of the [Nobel] Committee is appointed a member of the Government during his period of office, or if a member of the Government is
elected a member of the Committee, he shall resign from the Committee
for as long as he continues in office as a Minister”). Furthermore, for
nearly 36 years, no member of the Committee has been permitted as a
general matter to continue serving in the Storting. See Tønnesson (“[I]n
1977 . . . the Storting decided that its members should not participate in
nonparliamentary committees appointed by the Storting itself.”). 1 That
said, an appointment to the Committee does not appear to require a sitting
member of the Storting to resign immediately from his or her government
position, and thus two of the current members, who joined the Nobel
Committee in 2009, appear to have served on the Storting during much, if
not all, of the period during which this year’s Prize recipient was selected.
See List of Nobel Committee Members, http://nobelpeaceprize.org/en_GB/
To further emphasize the Committee’s independence from the Norwegian government, including the monarchy, “[u]nlike the prize award ceremony in Stockholm [for the
other Nobel Prizes], it is the Chairperson of the Nobel Committee, and not the King [of
Norway]” who formally presents the Peace Prize. Tønnesson.
1
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President’s Receipt of the Nobel Peace Prize
nomination_committee/members/ (last visited Dec. 4, 2009). The other
three members of the Committee were private individuals. Id.
Apart from the Storting’s role in selecting the members of the Nobel
Committee, the Norwegian government has no meaningful role in selecting the Prize recipients or financing the Prize itself. In addition to fully
funding the Prize, the Sweden-based private Nobel Foundation, established pursuant to Alfred Nobel’s will, is responsible for the Committee’s
viability and the administration of the award. Specifically, your Office has
informed us that the Committee’s operations, including the salaries of the
various Committee members and of the staff, are funded by the Foundation and not by the Norwegian or Swedish governments. See E-mail for
David J. Barron, Acting Assistant Attorney General, Office of Legal
Counsel, from Virginia R. Canter, Associate Counsel to the President,
(Nov. 2, 2009, 19:11 EST) (“Canter E-mail”) (summarizing telephonic
interview with Geir Lundestad, Secretary to the Nobel Committee and
Director of the Nobel Institute); see also Nobel Foundation Statutes § 11
(“The Board of the Foundation shall establish financial limits on the work
that the prize-awarding bodies perform in accordance with these statutes”); id. § 6 (“A member of a Nobel Committee shall receive remuneration for his work, in an amount to be determined by the prize-awarding
body [i.e., the Nobel Committee].”). The Committee also deliberates
and maintains staff in the Nobel Institute building, which is owned by
the private Nobel Foundation rather than by the government of Sweden
or Norway. See The Nobel Institute, http://nobelpeaceprize.org/en_GB/
institute/ (last visited Dec. 4, 2009) (noting that Nobel Institute building is
also where the recipient of the Peace Prize is announced); see also Description of Nobel Institute Building, http://nobelpeaceprize.org/en_GB/
institute/nobel-building/ (last visited Dec. 4, 2009). Although the Nobel
Foundation plays a critical role in sustaining the Nobel Committee and the
Peace Prize, it is the Nobel Committee that independently selects the
Prize recipients. See Organizational Structure of the Nobel Entities, http://
nobelprize.org/nobelfoundation/org_structure.html (last visited Nov. 24,
2009) (“The Nobel Foundation does not have the right or mandate to
influence the nomination and selection procedures of the Nobel Laureates.”); see also Lemmel (“[T]he Prize-Awarding Institutions are not only
entirely independent of all government agencies and organizations, but
also of the Nobel Foundation.”).
373
33 Op. O.L.C. 370 (2009)
II.
The Emoluments Clause provides that “no Person holding any Office of
Profit or Trust under [the United States], 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.” U.S. Const. art. I, § 9,
cl. 8. Adopted unanimously at the Constitutional Convention, the Emoluments Clause was intended to recognize the “necessity of preserving
foreign Ministers & other officers of the U.S. independent of external
influence,” specifically, undue influence and corruption by foreign governments. See 2 The Records of the Federal Convention of 1787, at 389
(Max Farrand ed., rev. ed. 1966) (notes of James Madison); see also 3 id.
at 327 (“It was thought proper, in order to exclude corruption and foreign
influence, to prohibit any one in office from receiving or holding any
emoluments from foreign states.”) (remarks of Governor Randolph);
Applicability of the Emoluments Clause to Non-Government Members of
ACUS, 17 Op. O.L.C. 114, 116 (1993) (“ACUS ”); President Reagan’s
Ability to Receive Retirement Benefits from the State of California, 5 Op.
O.L.C. 187, 188 (1981) (discussing the background of the ratification of
the Clause).
The President surely “hold[s] an[] Office of Profit or Trust,” and the
Peace Prize, including its monetary award, is a “present” or “Emolument
. . . of any kind whatever.” U.S. Const. art. I, § 9, cl. 8. The critical question, therefore, concerns the status of the institution that makes the award.
Based on the consistent historical practice of the political branches for
more than a century with respect to receipt of the Peace Prize by high
federal officials, as well as our Office’s precedents interpreting the Emoluments Clause in other contexts, we conclude that the President in accepting the Prize would not be accepting anything from a “foreign State”
within the Clause’s meaning. Accordingly, we do not believe that the
President’s acceptance of the Peace Prize without congressional consent
would violate the Emoluments Clause.
A.
None of our Office’s precedents concerning the Emoluments Clause
specifically considers the status of the Nobel Committee (or the Nobel
Foundation), but there is substantial and consistent historical practice of
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President’s Receipt of the Nobel Peace Prize
the political branches that is directly relevant. The President would be far
from the first government official holding an “Office of Profit or Trust” to
receive the Nobel Peace Prize. Rather, since 1906, there have been at least
six federal officers who have accepted the Prize while serving in their
elected or appointed offices. The Peace Prize has been received by two
other sitting Presidents—Theodore Roosevelt and Woodrow Wilson—by
a sitting Vice President, Secretary of State, and Senator, and by a retired
General of the Army, 2 with the most recent of these acceptances having
occurred in 1973. Throughout this history, we have found no indication
that either the Executive or the Legislative Branch thought congressional
approval was necessary.
The first instance of the Nobel Committee awarding the Peace Prize
to a sitting officer occurred only five years after the Committee began
awarding the Prize. In 1906, President Theodore Roosevelt received the
Peace Prize. 3 On December 10 of that year, United States Minister to
Norway Herbert H.D. Pierce accepted the “diploma, medal, and order
upon the Nobel trustees [of the Nobel Foundation] for the amount of the
prize” on Roosevelt’s behalf. See “Emperor Dead” and Other Historic
American Diplomatic Dispatches 336–37 (dispatch from Pierce to Secretary of State Elihu Root) (Peter D. Eicher ed., 1997) (“Pierce Dispatch”).
Not only did Roosevelt accept the Peace Prize while President, he also
chose as President to use the award money (roughly $37,000) to establish
a foundation for the promotion of “industrial peace.” See Oscar S. Straus,
Under Four Administrations: From Cleveland to Taft 239–40 (1922)
(“Straus”) (noting that Roosevelt transferred the draft of the monetary
award to Chief Justice Fuller in January of 1907 to initiate efforts to
establish the Foundation).
We have found no indication that the President or Congress believed
that receipt of the Prize, including its award money, required legislative
approval. Although Congress passed legislation to establish Roosevelt’s
See Memorandum for the File from Richard L. Shiffrin, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Proposed Award of Honorary British Knighthood
to Retiring Military Officer (Aug. 27, 1996) (retired military officers continue to “hold[]
[an] Office of Profit or Trust” under the United States and hence remain subject to the
Emoluments Clause); see also 53 Comp. Gen. 753 (1974) (same).
3 See List of Nobel Peace Prize Laureates, http://nobelprize.org/nobel_prizes/peace/
laureates (last visited Nov. 19, 2009).
2
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33 Op. O.L.C. 370 (2009)
foundation, see Act of Mar. 2, 1907, ch. 2558, Pub. L. No. 59-217, 34
Stat. 1241, it did so some months after he accepted the Peace Prize, and
we think it clear that neither the President nor Congress thought this law
necessary to satisfy the Emoluments Clause. 4 The bill that established the
trust said nothing about consent even though Congress assuredly knew
how to express such legislative approval for Emoluments Clause purposes. For instance, the same Congress that established the foundation at
Roosevelt’s request also “authorized [Professor Simon Newcomb, a
retired Naval Officer] to accept the decoration of the order ‘Pour le
Mérite, für Wissenschaftern und Kunste,’ conferred upon him by the
German Emperor,” Act of Mar. 30, 1906, ch. 1353, Priv. Res. No. 591280, 34 Stat. 1713, 1713, and granted “[p]ermission . . . to [a Navy RearAdmiral] . . . to accept the China war medal, with Pekin clasp, tendered
to him by the King of Great Britain, and the Order of the Red Eagle, with
swords, tendered to him by the Emperor of Germany,” Act of Mar. 4,
1907, Priv. Res., 34 Stat. 2825, 2825 (S.J. Res. 98, 59th Cong.). 5
4 Consistent with this understanding of the congressional action, the bill establishing
the foundation was modeled after documents creating trusts, see Straus at 239, and not
statutes conferring legislative consent to officers’ receipt of gifts from foreign states.
Further, the statute’s legislative history contains no indication that the bill was intended to
ratify Roosevelt’s acceptance of a gift from a foreign power; nor does it indicate that his
acceptance of the Prize without congressional consent was inappropriate. See S. Rep. No.
59-7283 (1907); see also 41 Cong. Rec. 4113 (1907) (“There can be no possible objection
[to the bill]. It establishes trustees, who are to receive from the President the Nobel prize
for the foundation of a society for the promotion of industrial peace.”) (statement of Sen.
Lodge). Ultimately, the Foundation never expended any funds, and in July of 1918,
Congress dissolved the trust. See Act of July 12, 1918, ch. 150, Pub. Res. No. 65-37, 40
Stat. 899 (H.J. Res. 313) (“Joint Resolution Providing for the disposition of moneys
represented in the Alfred Bernard Nobel peace prize, awarded in nineteen hundred and
six”). Roosevelt then distributed the Nobel Prize money, along with the interest it had
accrued, to various charities in the United States and Europe. See Straus at 241.
5 See also, e.g., Act of Apr. 2, 1896, Priv. Res. No. 54-39, 29 Stat. 759, 759 (“authoriz[ing]” President Harrison “to accept certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United
States”); Act of Apr. 20, 1871, Priv. Res. No. 42-4, 17 Stat. 643, 643 (“[C]onsent of
Congress is hereby given to . . . [the] secretary of the Smithsonian Institution, to accept
the title and regalia of a commander of the Royal Norwegian Order of St. Olaf, conferred
upon him for his distinguished scientific service and character by the King of Sweden and
Norway”); Act of Mar. 3, 1865, Priv. Res. No. 38-39, 13 Stat. 604, 604 (Navy Captain
“authorized to accept the sword of honor recently presented to him by the government of
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President’s Receipt of the Nobel Peace Prize
Perhaps most importantly, the statute that established the foundation to
administer the prize money that Roosevelt had accepted does not address
at all Roosevelt’s receipt of the gold medal and diploma. Yet the medal
and the diploma have always constituted elements of the Peace Prize, see
Pierce Dispatch at 337 (noting receipt of Nobel medal); see also Nobel
Lecture of President Roosevelt (May 5, 1910), http://nobelprize.org/
nobel_prizes/peace/laureates/1906/roosevelt-lecture.html (last visited
Nov. 23, 2009) (“The gold medal which formed part of the prize I shall
always keep, and I shall hand it on to my children as a precious heirloom.”), and they constitute a “present” or “Emolument . . . of any kind
whatever” within the meaning of the Emoluments Clause. Thus, if the law
establishing the trust to be funded by the award money had been intended
to provide congressional consent for President Roosevelt’s receipt of the
Prize, it would presumably have encompassed these elements of the Prize
as well.
The example more than a decade later of President Wilson also clearly
reflects an understanding by the political branches that receipt of the
Peace Prize does not implicate the Emoluments Clause. When, in December of 1920, President Wilson received the Peace Prize, he, unlike President Roosevelt, did not seek to donate the Prize proceeds to a charitable
cause or enlist Congress’s aid in accomplishing such a charitable purpose.
Instead, he simply accepted the Prize and deposited the award money in a
personal account in a Swedish bank, apparently hoping for a favorable
movement in the Kroner/dollar exchange rate. See 67 The Papers of
Woodrow Wilson 51–52 (Arthur S. Link ed., 1992) (diary of Charles Lee
Swem). President Wilson does not appear to have sought congressional
approval for his acceptance, nor does it appear that Congress thought its
consent was required.
These Presidents are not, as indicated above, the only federal officers
who have received the Peace Prize. Senator Elihu Root in 1913, Vice
President Charles Dawes in 1926, retired General of the Army George
Marshall in 1953, and Secretary of State Henry Kissinger in 1973 each
received the Nobel Peace Prize. See List of Nobel Peace Prize Laureates,
Great Britain”); Act of June 29, 1854, Priv. Res. No. 33-14, 10 Stat. 830, 830 (“authoriz[ing] . . . accept[ance of ] a gold medal recently presented . . . by His Majesty the King
of Sweden”).
377
33 Op. O.L.C. 370 (2009)
supra note 3. As was the case with Presidents Roosevelt and Wilson, none
of these recipients, as far as we are aware, received congressional consent
prior to accepting the Prize or congressional ratification of such receipt at
any time thereafter.
This longstanding treatment of the Nobel Peace Prize is particularly
significant to our analysis because several of the Prizes were awarded
when the Nobel Committee—then known as the Nobel Committee of the
Norwegian Storting—lacked some of the structural barriers to governmental control that are present today, such as rules generally barring
government ministers and legislators from serving on the Committee. If
anything, then, these prior cases arguably would cause more reason for
concern than would be present today, and yet the historical record reveals
no indication that either the Congress or the Executive believed receipt of
the Prize implicated the Emoluments Clause at all. The absence of such
evidence is particularly noteworthy since the Clause was recognized as a
bar to gifts by foreign states without congressional consent throughout
this same period of time, such that the Attorney General and this Office
advised that various gifts from foreign states could not be accepted, see,
e.g., Gifts from Foreign Prince, 24 Op. Att’y Gen. 116, 118 (1902), and
Congress passed legislation specifically manifesting its consent to some
gifts bestowed by foreign states on individuals covered by the Clause. See
supra note 5. To be sure, this long, unbroken practice of high federal
officials accepting the Nobel Peace Prize without congressional consent
cannot dictate the outcome of our constitutional analysis. But we do think
such practice strongly supports the conclusion that the President’s receipt
of the Nobel Peace Prize would not conflict with the Emoluments Clause,
as it may fairly be said to reflect an established understanding of what
constitutes a gift from a “foreign State” that would trigger application of
the Clause’s prohibition. Cf. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396,
415 (2003) (analyzing President’s foreign affairs power under the Constitution in light of “longstanding practice” in Executive Branch and congressional silence); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)
(noting that a “‘systematic, unbroken, executive practice, long pursued to
the knowledge of the Congress and never before questioned . . . may be
treated as a gloss on’” the Constitution); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)
(“Deeply embedded traditional ways of conducting government cannot
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President’s Receipt of the Nobel Peace Prize
supplant the Constitution or legislation, but they give meaning to the
words of a text or supply them.”); McCulloch v. Maryland, 17 U.S. (4
Wheat.) 315, 401 (1819) (where “the great principles of liberty are not
concerned . . . [a doubtful question,] if not put at rest by the practice of
the government, ought to receive a considerable impression from that
practice”).
B.
The precedents of our Office reinforce the constitutional conclusion
that the historical practice recounted above strongly suggests. Indeed, our
Office’s numerous opinions on the Emoluments Clause have never adverted to the receipt of the Peace Prize by government officials and certainly have never suggested that the numerous acceptances of the Prize
were contrary to the Clause. That is not surprising. Under these same
opinions, it is clear that, due to the unique organization of the Nobel
Committee (including its reliance on the privately endowed Nobel Foundation), Nobel Peace Prize recipients do not receive presents or emoluments from a “foreign State” for purposes of the Emoluments Clause.
The precedents of the Office do establish that the Emoluments Clause
reaches not only “foreign State[s]” as such but also their instrumentalities.
ACUS, 17 Op. O.L.C. at 122; Applicability of Emoluments Clause to
Employment of Government Employees by Foreign Public Universities,
18 Op. O.L.C. 13, 18 (1994) (“Public Universities”). Quite clearly, the
Nobel Committee is not itself a foreign state in any traditional sense. The
issue, therefore, is whether the Committee has the kind of ties to a foreign
government that would make it, and by extension the Nobel Foundation in
financing the Prize, an instrumentality of a foreign state under our precedents. Our past opinions make clear that an entity need not engage specifically in “political, military, or diplomatic functions” to be deemed an
instrumentality of a foreign state. 6 See Public Universities, 18 Op. O.L.C.
Accordingly, we have explained that corporations owned or controlled by a foreign
government are presumptively foreign states under the Emoluments Clause, even though
the Act of State doctrine suggests that “when foreign governments act in their commercial
capacities, they do not exercise powers peculiar to sovereigns,” and thus are not entitled
to the immunity from suit that might be available. ACUS, 17 Op. O.L.C. at 120
6
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33 Op. O.L.C. 370 (2009)
at 19; see also ACUS, 17 Op. O.L.C. at 122 (“[T]he language of the
Emoluments Clause does not warrant any distinction between the various
capacities in which a foreign State may act.”). Thus, for example, we have
determined that entities such as corporations owned or controlled by a
foreign government and foreign public universities may fall within the
prohibition of the Clause. ACUS, 17 Op. O.L.C. at 121–22.
To determine whether a particular case involves receipt of a present or
emolument from a foreign state, however, our Office has closely examined the particular facts at hand. Specifically, we have sought to determine from those facts whether the entity in question is sufficiently independent of the foreign government to which it is arguably tied—
specifically with respect to the conferral of the emolument or present at
issue, e.g., hiring an employee or bestowing an award, Public Universities, 18 Op. O.L.C. at 20—that its actions cannot be deemed to be those of
that foreign state. In short, our opinions reflect a consistent focus on
whether an entity’s decision to confer a particular present or emolument is
subject to governmental control or influence. 7
The factors we have considered include whether a government is the
substantial source of funding for the entity, see, e.g., Applicability of
Emoluments Clause to Proposed Service of Government Employee on
Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987)
(“International Historians”); whether a government, as opposed to a
private intermediary, makes the ultimate decision regarding the gift or
emolument, see, e.g., Memorandum for John G. Gaine, General Counsel,
Commodity Futures Trading Commission, from Leon Ulman, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with Trip to Indonesia (Aug. 11, 1980) (“Trip to
Indonesia”); and whether a government has an active role in the management of the entity, such as through having government officials serve on
an entity’s board of directors, see, e.g., Public Universities, 18 Op. O.L.C.
(“[N]othing in the text of the Emoluments Clause limits its application solely to foreign
governments acting as sovereigns.”).
7 Where a foreign state indisputably and directly confers a present or emolument, such
considerations of autonomy and control may be relevant, but not decisive. See ACUS, 17
Op. O.L.C. at 119. Here, however, the critical issue is whether the Nobel Committee, and
by extension the Nobel Foundation, is an instrumentality of a foreign government for
purposes of awarding the privately endowed Peace Prize.
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at 15. No one of these factors has proven dispositive in our prior consideration of Emoluments Clause issues. Rather, we have looked to them in
combination to assess the status of the entity for purposes of the Clause,
keeping in mind at all times the underlying purpose that the Clause is
intended to serve. See, e.g., Memorandum for H. Gerald Staub, Office of
Chief Counsel, National Aeronautics and Space Administration, from
Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Emoluments Clause Questions Raised by NASA Scientist’s
Proposed Consulting Arrangement with the University of New South
Wales (May 23, 1986) (“given [foreign public university’s] functional and
operational separation and independence from the government of Australia and state political instrumentalities . . . [t]he answer to the Emoluments
Clause question . . . must depend [on] whether the consultancy would
raise the kind of concern (viz., the potential for ‘corruption and foreign
influence’) that motivated the Framers in enacting the constitutional
prohibition”).
Consistent with this analysis, we have concluded in the past that Emoluments Clause concerns are raised where the “ultimate control” over the
decision at issue—e.g., an employment decision or a decision to bestow
an award—resides with the foreign government. For instance, an employee of the Nuclear Regulatory Commission (“NRC”) sought authorization
to work for a consulting firm that was retained by the Mexican government. Application of the Emoluments Clause of the Constitution and the
Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982). Because we concluded that the “ultimate control, including selection of
personnel, remains with the Mexican government,” id. (“the retention of
the NRC employee by the consulting firm appears to be the principal
reason for selection of the consulting firm by the Mexican government”),
we determined that the Emoluments Clause barred the arrangement.
Similarly, we concluded that an invitation to join a commission of international historians that was established and funded entirely by the Austrian government constituted an invitation from the Austrian government
itself. International Historians, 11 Op. O.L.C. at 90.
By contrast, although we have previously opined that foreign public
universities are presumptively instrumentalities of a foreign state for the
purposes of the Emoluments Clause, we determined that two NASA
scientists on leave without pay could be employed by the University of
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33 Op. O.L.C. 370 (2009)
Victoria in British Columbia, Canada, without triggering that constitutional restraint. Public Universities, 18 Op. O.L.C. at 13. We came to this
conclusion because the evidence demonstrated that the University acted
independently of the Canadian (or the British Columbian) government
when making faculty employment decisions. Id. at 15 (“[T]he University
of Victoria should not be considered a foreign state.”). To be sure, as we
acknowledged, the University was under the formal control of the British
Columbia government. Id. at 20 (noting that the government had “ultimate” control of the University); see also id. at 15 (noting that the faculty
was “constituted” by the University’s Board of Governors, the majority of
whom were appointed by the provincial government). Nevertheless, it was
critical to our analysis that the specific conduct at issue—the University’s
selection of faculty—was not made by the University “under statutory
compulsion” or pursuant to the “dictates of the government.” Id. at 20–21
(quoting McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269 (Can.)
(plurality op.)).
Similar considerations of autonomy informed our view that a federal
officer could serve as a consultant to Harvard University on a project
funded by the government of Indonesia. See Trip to Indonesia at 5. Although the consulting services were to be rendered for the benefit of
Indonesia and the individual consultant’s expenses were to be reimbursed
by Harvard from funds paid by Indonesia, we identified no violation of
the Emoluments Clause. We reached this conclusion in significant part
because, under the consulting arrangement, Harvard had the sole discretion over the consultants it chose, and Indonesia had no veto power
over those choices. Id. (“Since . . . the foreign government neither controls nor even influences the selection and payment of consultants, the
Emoluments Clause is not implicated.”).
In light of these precedents, we believe that it is significant that the
Nobel Committee’s selection of the Peace Prize recipient is independent
of the dictate or influence of the Norwegian government. As far as we are
aware, the Norwegian government has no authority to compel the Committee to choose the Prize recipient; nor does it have any veto authority
with respect to the selection by the Committee members, who, in any
event, are not appointed by a single official to whom they are accountable, but are instead elected by the multimember Storting. See Nobel
Foundation Statutes § 1. To be sure, Norwegian government officials may
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submit nominations to the Committee, but that opportunity is shared by
any “[m]embers of national assemblies and governments of states,” along
with “University rectors” and “professors of social sciences, history,
philosophy, law and theology.” Nobel Peace Prize Regulations § 3. Indeed, the formal process of nomination and selection of a Prize recipient
is not guided by the government, but by the private, Sweden-based Nobel
Foundation and the Nobel Committee. 8 For example, pursuant to the
Foundation’s rules, no prize-awarding body, including the Peace Prize
Committee, may reveal the details of its deliberations “until at least 50
years have elapsed after the date on which the decision in question was
made.” Nobel Foundation Statutes § 10. We have found no indication that
the Norwegian government or its officials, if requesting such information,
would be exempt from this restraint on disclosure. Other aspects of the
selection process, including guidelines on nominations and supporting
materials, are either provided in the private Foundation’s statutes or
delegated by the Foundation—not by the Norwegian government—to the
prize-awarding bodies, including the Peace Prize Committee. E.g., id. § 7
(“To be considered eligible for an award, it is necessary to be nominated
in writing by a person competent to make such a nomination.”). These
formal limits on the capacity of the Norwegian government to influence,
let alone control, the Committee’s decision, are consistent with the Committee’s own repeated assertions of its independence. See Tønnesson.
The Government of Norway’s financial connection to the Nobel Committee is even more attenuated. It appears that the members of the Nobel
Committee are compensated for their services by the privately funded
Nobel Foundation, see Canter E-mail, and the precise amount of the
remuneration is set by the Nobel Committee, not the Norwegian government. See Nobel Foundation Statutes § 6. The Peace Prize itself, including
The Storting appears to have the limited authority only to approve “[i]nstructions
concerning the election of members of the Nobel Committee” itself. See Nobel Foundation Regulations § 9. Any other amendments to the Committee’s rules of operation,
including its award selection guidelines, are decided upon by the Committee itself, after
views are solicited from the Nobel Foundation. Id. (“Proposals for amendments to other
provisions of these regulations may be put forward by members of the Norwegian Nobel
Committee or by members of the Board of Directors of the Nobel Foundation. Before the
Norwegian Nobel Committee makes a decision concerning the proposal, it shall be
submitted to the Board of Directors of the Nobel Foundation for an opinion.”).
8
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33 Op. O.L.C. 370 (2009)
its cash award and other elements, is funded by the Nobel Foundation,
which alone is responsible for ensuring that all of the Nobel prizeawarding bodies can accomplish their purposes and which is itself financed by private investments and not government funding. Id. § 14
(“The Board [of the Foundation] shall administer the property of the
Foundation for the purposes of maintaining good long-term prizeawarding capacity and safeguarding the value of the Foundation’s assets
in real terms.”); see also The Nobel Foundation’s Income Statement
(2008), http://nobelprize.org/nobelfoundation/incomes.html (last visited
Dec. 7, 2009); Lemmel (describing Nobel Foundation’s investment strategies to ensure financial base of Nobel Prizes).
Thus, in our view, the only potentially relevant tie to the Norwegian
government is that, in accordance with Alfred Nobel’s will, the Storting
elects the Nobel Committee’s five members. Further, we are aware that,
notwithstanding the rules generally barring sitting members of the Storting from the Nobel Committee, two members of the Storting served on
the Committee for several months before leaving their parliamentary
seats. However, in light of the strong basis for the Committee’s autonomy,
both as to the decision it makes and the finances upon which it draws, we
do not view the Storting’s appointment authority, or a minority of the
Committee members’ short-term overlap with parliamentary service, as
having dispositive significance.
Nor has our Office done so in the past in analogous cases. In determining that an award to a Navy scientist from the Alexander von Humboldt
Foundation was from the German government for the purposes of the
Emoluments Clause, for example, we noted that the “awards are made by
a ‘Special Committee,’ on which the Federal Ministries for Foreign Affairs and Research and Technology are represented.” See Letter for Walter
T. Skallerup, Jr., General Counsel, Department of the Navy, from Robert
B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at
2 (Mar. 17, 1983). But we did not indicate that the presence of the government ministers on the award committee was the decisive factor in our
analysis. Instead, we also noted that the Foundation was reestablished
(because it had once been dissolved) by the Federal Republic of Germany,
specifically by its Ministry of Foreign Affairs. In addition, we noted that
the Foundation that administered the award was financed mainly through
annual payments from the West German government. See id. By contrast,
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the Nobel Committee is financed by the private Nobel Foundation, and
although the Norwegian government may have formally established the
Committee (as the “Nobel Committee of the Norwegian Storting”), it did
so pursuant to a private individual’s will, which assigned the Storting the
limited role of electing the Committee’s members, who would be charged
with exercising their independent judgments.
Likewise, we concluded that the University of British Columbia in hiring faculty was not acting as a foreign state for the purposes of the Emoluments Clause—notwithstanding the provincial government’s power to
appoint a majority of the members of the University’s board of governors.
Public Universities, 18 Op. O.L.C. at 14, 22 (citing Harrison v. Univ. of
British Columbia, [1990] 3 S.C.R. 451, 459 (Can.) (plurality op.)). We
also determined that the Prince Mahidol Foundation was not an instrumentality of the Government of Thailand for the purposes of the Emoluments Clause, although several officials of the Thai government and the
Royal Princess of Thailand sat on the Foundation’s board. Memorandum
for the File from Daniel L. Koffsky, Office of Legal Counsel, Re: Application of the Emoluments Clause to a U.S. Government Employee Who
Performs Services for the Prince Mahidol Foundation (Nov. 19, 2002)
(“Prince Mahidol Foundation”). 9 In each case, we found countervailing
indications of autonomy to be more significant. As noted above, we
concluded that the University of British Columbia’s faculty decisions,
including contract negotiations and collective bargaining, were not subject
to governmental compulsion. Public Universities, 18 Op. O.L.C. at 20–21
(noting University’s “‘legal autonomy’”). And despite the presence of the
Thai government and royalty, we determined that the decision-making
process of the Prince Mahidol Foundation’s Board evidenced “independ9 Similarly, the Supreme Court has indicated that a government’s appointment authority is not given dispositive weight in determining whether a nominally private entity is, in
fact, “what the Constitution regards as the Government.” See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that Amtrak was a state actor subject to
the First Amendment). That the federal government appointed a majority of Amtrak’s
directors was not considered to be of controlling importance. As the Lebron Court observed, the Consolidated Rail Corporation (“Conrail”) was held “not to be a federal
instrumentality, despite the President’s power to appoint, directly or indirectly, 8 of its 15
directors.” Id. at 399; see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 152
(1974) (“Conrail is not a federal instrumentality by reason of the federal representation on
its board of directors.”).
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33 Op. O.L.C. 370 (2009)
ent judgment.” Prince Mahidol Foundation at 4 (also noting that “most of
the funds for the Foundation do not come from the [Thai] government”).
These same considerations concerning the exercise of independent judgment and financial autonomy are at least as present here.
In sum, determining whether an entity is an instrumentality of a foreign
government is necessarily a fact-bound inquiry, see Application of the
Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (“Each situation must . . . be
judged on its facts.”), and the weight of the evidence in light of this Office’s consistent precedents—and as reinforced by the substantial historical practice—demonstrates that the awarding of the privately financed
Peace Prize through the Nobel Committee does not constitute the conferral of a present or emolument by a “foreign State” for the purposes of the
Emoluments Clause.
III.
Our reasoning regarding the Emoluments Clause is equally applicable
to the Foreign Gifts and Decorations Act. The Act provides express consent for officials to accept “gifts and decorations” from “foreign government[s]” under certain limited circumstances not present here. See
5 U.S.C. § 7342(b) (2006) (“An employee may not . . . accept a gift or
decoration, other than in accordance with the provisions of” the Act); see
also id. § 7342(a)(1)(E) (providing that the President is subject to the
Act). Section 7342(a)(2) defines the term “foreign government” as follows:
“foreign government” means—
(A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;
(B) any international or multinational organization whose membership is composed of any unit of foreign government described in
subparagraph (A); and
(C) any agent or representative of any such unit or such organization, while acting as such.
While we do not necessarily assume that Congress intended the meaning of “foreign government” to be coextensive with the constitutional
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term “foreign State,” we have recognized that the Act’s reference to “any
unit of foreign governmental authority” is likely narrower in scope than
the Emoluments Clause. See ACUS, 17 Op. O.L.C. at 121 (recognizing
that corporations owned or controlled by foreign States are arguably not
“units of foreign governmental authority,” although they are presumptively subject to the Emoluments Clause); cf. S. Rep. No. 95-194, at 29 (1977)
(definition of “foreign government” intended to reach “foreign governmental subdivision(s)” and “quasi-government organizations”). For the
reasons discussed in detail above, the Nobel Committee in choosing the
recipients of the Peace Prize, like the Nobel Foundation in financing the
Prize, operates as a private non-governmental organization and not as a
“unit” of a foreign government. Moreover, given the Foundation’s private
nature and the facts that the Committee acts independently of any government and is not required to include any government officials on it, see
The Norwegian Nobel Committee, http://nobelprize.org/prize_awarders/
peace/committee.html (last visited Nov. 23, 2009) (“Although this is not a
requirement, all committee members have been Norwegian nationals.”),
we conclude that neither is an “international or multinational organization” because neither is “composed of any unit of foreign government,”
let alone composed of units of more than one foreign government.
5 U.S.C. § 7342(a)(2)(B); see also Emoluments Clause and World Bank,
25 Op. O.L.C. 113, 117 (2001) (concluding that international organizations of which the United States is a member are not generally subject to
the Emoluments Clause and observing that the Act’s coverage of international organizations was likely “motivated by policy concerns as opposed
to constitutional ones”). Nor is the Committee as a whole, or, by extension, the Nobel Foundation in financing the Prize, an “agent or representative” of any unit of a foreign government or any international organization
for purposes of the Act. Although two members of the Committee continued to serve in the Storting before leaving their parliamentary seats, we
do not believe this limited tie between the Government of Norway and the
Committee, affecting a minority of the Committee’s members, transformed the Nobel Committee into an agent or representative of the Norwegian Government. Id. § 7342(a)(2)(C). The countervailing indications
of autonomy described above support that conclusion. Consequently, the
Foreign Gifts and Decorations Act poses no bar to the President’s receipt
of the Peace Prize.
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33 Op. O.L.C. 370 (2009)
IV.
For the reasons given above, we conclude that neither the Emoluments
Clause nor the Foreign Gifts and Decorations Act prohibits the President
from receiving the Nobel Peace Prize without congressional consent.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
388 |
|
Write a legal research memo on the following topic. | President’s Receipt of the Nobel Peace Prize
The Emoluments Clause of the Constitution does not bar the President from accepting the
Nobel Peace Prize without congressional consent, because the Norwegian Nobel
Committee is not a “King, Prince, or foreign State.”
The Foreign Gifts and Decorations Act does not bar the President from accepting the
Nobel Peace Prize without congressional consent, because the Norwegian Nobel
Committee is not a “unit of a foreign governmental authority,” an “international or
multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.”
December 7, 2009
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This memorandum concerns whether the President’s receipt of the
Nobel Peace Prize would conflict with the Emoluments Clause of the
Constitution, which provides that “no Person holding any Office of Profit
or Trust under [the United States], 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.” U.S. Const. art. I, § 9,
cl. 8. As we previously explained in our oral advice and now explain in
greater detail, because the Nobel Committee that awards the Peace Prize
is not a “King, Prince, or foreign State,” the Emoluments Clause does not
apply. You have also asked whether the Foreign Gifts and Decorations
Act, 5 U.S.C. § 7342 (2006), bars the President from receiving the Peace
Prize. Here, too, we confirm our previous oral advice that it does not.
I.
On October 9, 2009, the Norwegian Nobel Committee (the “Peace Prize
Committee,” or the “Committee”), headquartered in Oslo, Norway,
announced that the President will be this year’s recipient of the Nobel
Peace Prize. The 2009 Peace Prize, which will consist of ten million
Swedish Kroner (or approximately $1.4 million), a certificate, and a gold
medal bearing the image of Alfred Nobel, is expected to be awarded by
the Nobel Committee to the President on December 10, 2009—the anniversary of Nobel’s death. See Statutes of the Nobel Foundation § 9,
http://nobelprize.org/nobelfoundation/statutes.html (last visited Nov.
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24, 2009) (“Nobel Foundation Statutes”); see also The Nobel Prize
Amounts, http://nobelprize.org/nobel_prizes/amounts.html (last visited
Nov. 24, 2009).
The Peace Prize is a legacy of Swedish chemist Alfred Bernhard Nobel. In his will, Nobel directed that a portion of his wealth be used to
establish a set of awards, one of which, the Peace Prize, was intended to
honor the person or entity that “shall have done the most or the best
work for fraternity between nations, for the abolition or reduction of
standing armies and for the holding and promotion of peace congresses.” Nobel Foundation Statutes § 1 (setting forth the pertinent provision
of Nobel’s will). The relevant assets of the Nobel estate have been
managed since 1900 by the Nobel Foundation, a private institution
based in Stockholm, Sweden. See Birgitta Lemmel, The Nobel Foundation: A Century of Growth and Change (2007) (“Lemmel”), http://
nobelprize.org/nobelfoundation/history/lemmel (last visited Nov. 24,
2009). The Foundation is responsible for managing the assets of the
bequest in such a manner as to provide for the annual award of the Nobel
prizes and the operation of the prize-awarding bodies, including the Nobel
Committee that selects the Peace Prize. Nobel Foundation Statutes § 14;
see also Lemmel (“One vital task of the Foundation is to manage its assets
in such a way as to safeguard the financial base of the prizes themselves
and of the prize selection process.”). Unlike the other Nobel prizes, for
accomplishments in fields such as literature and physics, which are
awarded by committees appointed by Swedish institutions, Nobel specified in his will that the recipient of the prize “for champions of peace”
was to be selected “by a committee of five persons to be elected by the
Norwegian Storting [i.e., the Norwegian Parliament].” Nobel Foundation
Statutes § 1.
On April 26, 1897, the Storting formally agreed to carry out Nobel’s
will and, in August of that year, elected the first members of the Nobel
Committee that would award the prize funded by Nobel’s estate. That
Committee—not the Storting itself, or any other official institution of the
Norwegian government, or the Nobel Foundation—has selected the Peace
Prize recipients since 1901. To be sure, in its nascent years, the Nobel
Committee was more “closely linked not only to the Norwegian political
establishment in general, but also to the Government,” than it is today. See
Øyvind Tønnesson, The Norwegian Nobel Committee (1999) (“Tønnes371
33 Op. O.L.C. 370 (2009)
son”), http://nobelprize.org/nobel_prizes/peace/articles/committee (last
visited Nov. 24, 2009). Indeed, until 1977, the Committee’s official title
was the Nobel Committee of the Norwegian Storting. Nevertheless, it has
long been recognized that the “[C]ommittee is formally independent even
of the Storting, and since 1901 it has repeatedly emphasized its independence.” Id. In 1936, for instance, the Norwegian Foreign Minister and a
former Prime Minister recused themselves from the Committee’s deliberations out of concern that bestowing the award on the German pacifist Carl
von Ossietzky would be perceived as an act of Norwegian foreign policy.
Id.; see also Berlin Protests Ossietzky Award, N.Y. Times, Nov. 26, 1936,
at 22 (noting that “Norway [d]enies [r]esponsibility for Nobel [d]ecision”).
To make clear the independent nature of the Committee’s decisions, moreover, the Storting in the very next year, 1937, barred government ministers
from sitting on the Nobel Committee. See Special Regulations for the
Award of the Nobel Peace Prize and the Norwegian Nobel Institute, etc.,
adopted by the Nobel Committee of the Norwegian Storting on the 10th
day of April in the year 1905 (including amendments of 1977, 1991, 1994,
1998 and 2000), § 9, http://nobelprize.org/nobelfoundation/statutes-no.
html (last visited Nov. 24, 2009) (“Nobel Peace Prize Regulations”) (“If a
member of the [Nobel] Committee is appointed a member of the Government during his period of office, or if a member of the Government is
elected a member of the Committee, he shall resign from the Committee
for as long as he continues in office as a Minister”). Furthermore, for
nearly 36 years, no member of the Committee has been permitted as a
general matter to continue serving in the Storting. See Tønnesson (“[I]n
1977 . . . the Storting decided that its members should not participate in
nonparliamentary committees appointed by the Storting itself.”). 1 That
said, an appointment to the Committee does not appear to require a sitting
member of the Storting to resign immediately from his or her government
position, and thus two of the current members, who joined the Nobel
Committee in 2009, appear to have served on the Storting during much, if
not all, of the period during which this year’s Prize recipient was selected.
See List of Nobel Committee Members, http://nobelpeaceprize.org/en_GB/
To further emphasize the Committee’s independence from the Norwegian government, including the monarchy, “[u]nlike the prize award ceremony in Stockholm [for the
other Nobel Prizes], it is the Chairperson of the Nobel Committee, and not the King [of
Norway]” who formally presents the Peace Prize. Tønnesson.
1
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nomination_committee/members/ (last visited Dec. 4, 2009). The other
three members of the Committee were private individuals. Id.
Apart from the Storting’s role in selecting the members of the Nobel
Committee, the Norwegian government has no meaningful role in selecting the Prize recipients or financing the Prize itself. In addition to fully
funding the Prize, the Sweden-based private Nobel Foundation, established pursuant to Alfred Nobel’s will, is responsible for the Committee’s
viability and the administration of the award. Specifically, your Office has
informed us that the Committee’s operations, including the salaries of the
various Committee members and of the staff, are funded by the Foundation and not by the Norwegian or Swedish governments. See E-mail for
David J. Barron, Acting Assistant Attorney General, Office of Legal
Counsel, from Virginia R. Canter, Associate Counsel to the President,
(Nov. 2, 2009, 19:11 EST) (“Canter E-mail”) (summarizing telephonic
interview with Geir Lundestad, Secretary to the Nobel Committee and
Director of the Nobel Institute); see also Nobel Foundation Statutes § 11
(“The Board of the Foundation shall establish financial limits on the work
that the prize-awarding bodies perform in accordance with these statutes”); id. § 6 (“A member of a Nobel Committee shall receive remuneration for his work, in an amount to be determined by the prize-awarding
body [i.e., the Nobel Committee].”). The Committee also deliberates
and maintains staff in the Nobel Institute building, which is owned by
the private Nobel Foundation rather than by the government of Sweden
or Norway. See The Nobel Institute, http://nobelpeaceprize.org/en_GB/
institute/ (last visited Dec. 4, 2009) (noting that Nobel Institute building is
also where the recipient of the Peace Prize is announced); see also Description of Nobel Institute Building, http://nobelpeaceprize.org/en_GB/
institute/nobel-building/ (last visited Dec. 4, 2009). Although the Nobel
Foundation plays a critical role in sustaining the Nobel Committee and the
Peace Prize, it is the Nobel Committee that independently selects the
Prize recipients. See Organizational Structure of the Nobel Entities, http://
nobelprize.org/nobelfoundation/org_structure.html (last visited Nov. 24,
2009) (“The Nobel Foundation does not have the right or mandate to
influence the nomination and selection procedures of the Nobel Laureates.”); see also Lemmel (“[T]he Prize-Awarding Institutions are not only
entirely independent of all government agencies and organizations, but
also of the Nobel Foundation.”).
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33 Op. O.L.C. 370 (2009)
II.
The Emoluments Clause provides that “no Person holding any Office of
Profit or Trust under [the United States], 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.” U.S. Const. art. I, § 9,
cl. 8. Adopted unanimously at the Constitutional Convention, the Emoluments Clause was intended to recognize the “necessity of preserving
foreign Ministers & other officers of the U.S. independent of external
influence,” specifically, undue influence and corruption by foreign governments. See 2 The Records of the Federal Convention of 1787, at 389
(Max Farrand ed., rev. ed. 1966) (notes of James Madison); see also 3 id.
at 327 (“It was thought proper, in order to exclude corruption and foreign
influence, to prohibit any one in office from receiving or holding any
emoluments from foreign states.”) (remarks of Governor Randolph);
Applicability of the Emoluments Clause to Non-Government Members of
ACUS, 17 Op. O.L.C. 114, 116 (1993) (“ACUS ”); President Reagan’s
Ability to Receive Retirement Benefits from the State of California, 5 Op.
O.L.C. 187, 188 (1981) (discussing the background of the ratification of
the Clause).
The President surely “hold[s] an[] Office of Profit or Trust,” and the
Peace Prize, including its monetary award, is a “present” or “Emolument
. . . of any kind whatever.” U.S. Const. art. I, § 9, cl. 8. The critical question, therefore, concerns the status of the institution that makes the award.
Based on the consistent historical practice of the political branches for
more than a century with respect to receipt of the Peace Prize by high
federal officials, as well as our Office’s precedents interpreting the Emoluments Clause in other contexts, we conclude that the President in accepting the Prize would not be accepting anything from a “foreign State”
within the Clause’s meaning. Accordingly, we do not believe that the
President’s acceptance of the Peace Prize without congressional consent
would violate the Emoluments Clause.
A.
None of our Office’s precedents concerning the Emoluments Clause
specifically considers the status of the Nobel Committee (or the Nobel
Foundation), but there is substantial and consistent historical practice of
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the political branches that is directly relevant. The President would be far
from the first government official holding an “Office of Profit or Trust” to
receive the Nobel Peace Prize. Rather, since 1906, there have been at least
six federal officers who have accepted the Prize while serving in their
elected or appointed offices. The Peace Prize has been received by two
other sitting Presidents—Theodore Roosevelt and Woodrow Wilson—by
a sitting Vice President, Secretary of State, and Senator, and by a retired
General of the Army, 2 with the most recent of these acceptances having
occurred in 1973. Throughout this history, we have found no indication
that either the Executive or the Legislative Branch thought congressional
approval was necessary.
The first instance of the Nobel Committee awarding the Peace Prize
to a sitting officer occurred only five years after the Committee began
awarding the Prize. In 1906, President Theodore Roosevelt received the
Peace Prize. 3 On December 10 of that year, United States Minister to
Norway Herbert H.D. Pierce accepted the “diploma, medal, and order
upon the Nobel trustees [of the Nobel Foundation] for the amount of the
prize” on Roosevelt’s behalf. See “Emperor Dead” and Other Historic
American Diplomatic Dispatches 336–37 (dispatch from Pierce to Secretary of State Elihu Root) (Peter D. Eicher ed., 1997) (“Pierce Dispatch”).
Not only did Roosevelt accept the Peace Prize while President, he also
chose as President to use the award money (roughly $37,000) to establish
a foundation for the promotion of “industrial peace.” See Oscar S. Straus,
Under Four Administrations: From Cleveland to Taft 239–40 (1922)
(“Straus”) (noting that Roosevelt transferred the draft of the monetary
award to Chief Justice Fuller in January of 1907 to initiate efforts to
establish the Foundation).
We have found no indication that the President or Congress believed
that receipt of the Prize, including its award money, required legislative
approval. Although Congress passed legislation to establish Roosevelt’s
See Memorandum for the File from Richard L. Shiffrin, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Proposed Award of Honorary British Knighthood
to Retiring Military Officer (Aug. 27, 1996) (retired military officers continue to “hold[]
[an] Office of Profit or Trust” under the United States and hence remain subject to the
Emoluments Clause); see also 53 Comp. Gen. 753 (1974) (same).
3 See List of Nobel Peace Prize Laureates, http://nobelprize.org/nobel_prizes/peace/
laureates (last visited Nov. 19, 2009).
2
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33 Op. O.L.C. 370 (2009)
foundation, see Act of Mar. 2, 1907, ch. 2558, Pub. L. No. 59-217, 34
Stat. 1241, it did so some months after he accepted the Peace Prize, and
we think it clear that neither the President nor Congress thought this law
necessary to satisfy the Emoluments Clause. 4 The bill that established the
trust said nothing about consent even though Congress assuredly knew
how to express such legislative approval for Emoluments Clause purposes. For instance, the same Congress that established the foundation at
Roosevelt’s request also “authorized [Professor Simon Newcomb, a
retired Naval Officer] to accept the decoration of the order ‘Pour le
Mérite, für Wissenschaftern und Kunste,’ conferred upon him by the
German Emperor,” Act of Mar. 30, 1906, ch. 1353, Priv. Res. No. 591280, 34 Stat. 1713, 1713, and granted “[p]ermission . . . to [a Navy RearAdmiral] . . . to accept the China war medal, with Pekin clasp, tendered
to him by the King of Great Britain, and the Order of the Red Eagle, with
swords, tendered to him by the Emperor of Germany,” Act of Mar. 4,
1907, Priv. Res., 34 Stat. 2825, 2825 (S.J. Res. 98, 59th Cong.). 5
4 Consistent with this understanding of the congressional action, the bill establishing
the foundation was modeled after documents creating trusts, see Straus at 239, and not
statutes conferring legislative consent to officers’ receipt of gifts from foreign states.
Further, the statute’s legislative history contains no indication that the bill was intended to
ratify Roosevelt’s acceptance of a gift from a foreign power; nor does it indicate that his
acceptance of the Prize without congressional consent was inappropriate. See S. Rep. No.
59-7283 (1907); see also 41 Cong. Rec. 4113 (1907) (“There can be no possible objection
[to the bill]. It establishes trustees, who are to receive from the President the Nobel prize
for the foundation of a society for the promotion of industrial peace.”) (statement of Sen.
Lodge). Ultimately, the Foundation never expended any funds, and in July of 1918,
Congress dissolved the trust. See Act of July 12, 1918, ch. 150, Pub. Res. No. 65-37, 40
Stat. 899 (H.J. Res. 313) (“Joint Resolution Providing for the disposition of moneys
represented in the Alfred Bernard Nobel peace prize, awarded in nineteen hundred and
six”). Roosevelt then distributed the Nobel Prize money, along with the interest it had
accrued, to various charities in the United States and Europe. See Straus at 241.
5 See also, e.g., Act of Apr. 2, 1896, Priv. Res. No. 54-39, 29 Stat. 759, 759 (“authoriz[ing]” President Harrison “to accept certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United
States”); Act of Apr. 20, 1871, Priv. Res. No. 42-4, 17 Stat. 643, 643 (“[C]onsent of
Congress is hereby given to . . . [the] secretary of the Smithsonian Institution, to accept
the title and regalia of a commander of the Royal Norwegian Order of St. Olaf, conferred
upon him for his distinguished scientific service and character by the King of Sweden and
Norway”); Act of Mar. 3, 1865, Priv. Res. No. 38-39, 13 Stat. 604, 604 (Navy Captain
“authorized to accept the sword of honor recently presented to him by the government of
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President’s Receipt of the Nobel Peace Prize
Perhaps most importantly, the statute that established the foundation to
administer the prize money that Roosevelt had accepted does not address
at all Roosevelt’s receipt of the gold medal and diploma. Yet the medal
and the diploma have always constituted elements of the Peace Prize, see
Pierce Dispatch at 337 (noting receipt of Nobel medal); see also Nobel
Lecture of President Roosevelt (May 5, 1910), http://nobelprize.org/
nobel_prizes/peace/laureates/1906/roosevelt-lecture.html (last visited
Nov. 23, 2009) (“The gold medal which formed part of the prize I shall
always keep, and I shall hand it on to my children as a precious heirloom.”), and they constitute a “present” or “Emolument . . . of any kind
whatever” within the meaning of the Emoluments Clause. Thus, if the law
establishing the trust to be funded by the award money had been intended
to provide congressional consent for President Roosevelt’s receipt of the
Prize, it would presumably have encompassed these elements of the Prize
as well.
The example more than a decade later of President Wilson also clearly
reflects an understanding by the political branches that receipt of the
Peace Prize does not implicate the Emoluments Clause. When, in December of 1920, President Wilson received the Peace Prize, he, unlike President Roosevelt, did not seek to donate the Prize proceeds to a charitable
cause or enlist Congress’s aid in accomplishing such a charitable purpose.
Instead, he simply accepted the Prize and deposited the award money in a
personal account in a Swedish bank, apparently hoping for a favorable
movement in the Kroner/dollar exchange rate. See 67 The Papers of
Woodrow Wilson 51–52 (Arthur S. Link ed., 1992) (diary of Charles Lee
Swem). President Wilson does not appear to have sought congressional
approval for his acceptance, nor does it appear that Congress thought its
consent was required.
These Presidents are not, as indicated above, the only federal officers
who have received the Peace Prize. Senator Elihu Root in 1913, Vice
President Charles Dawes in 1926, retired General of the Army George
Marshall in 1953, and Secretary of State Henry Kissinger in 1973 each
received the Nobel Peace Prize. See List of Nobel Peace Prize Laureates,
Great Britain”); Act of June 29, 1854, Priv. Res. No. 33-14, 10 Stat. 830, 830 (“authoriz[ing] . . . accept[ance of ] a gold medal recently presented . . . by His Majesty the King
of Sweden”).
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33 Op. O.L.C. 370 (2009)
supra note 3. As was the case with Presidents Roosevelt and Wilson, none
of these recipients, as far as we are aware, received congressional consent
prior to accepting the Prize or congressional ratification of such receipt at
any time thereafter.
This longstanding treatment of the Nobel Peace Prize is particularly
significant to our analysis because several of the Prizes were awarded
when the Nobel Committee—then known as the Nobel Committee of the
Norwegian Storting—lacked some of the structural barriers to governmental control that are present today, such as rules generally barring
government ministers and legislators from serving on the Committee. If
anything, then, these prior cases arguably would cause more reason for
concern than would be present today, and yet the historical record reveals
no indication that either the Congress or the Executive believed receipt of
the Prize implicated the Emoluments Clause at all. The absence of such
evidence is particularly noteworthy since the Clause was recognized as a
bar to gifts by foreign states without congressional consent throughout
this same period of time, such that the Attorney General and this Office
advised that various gifts from foreign states could not be accepted, see,
e.g., Gifts from Foreign Prince, 24 Op. Att’y Gen. 116, 118 (1902), and
Congress passed legislation specifically manifesting its consent to some
gifts bestowed by foreign states on individuals covered by the Clause. See
supra note 5. To be sure, this long, unbroken practice of high federal
officials accepting the Nobel Peace Prize without congressional consent
cannot dictate the outcome of our constitutional analysis. But we do think
such practice strongly supports the conclusion that the President’s receipt
of the Nobel Peace Prize would not conflict with the Emoluments Clause,
as it may fairly be said to reflect an established understanding of what
constitutes a gift from a “foreign State” that would trigger application of
the Clause’s prohibition. Cf. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396,
415 (2003) (analyzing President’s foreign affairs power under the Constitution in light of “longstanding practice” in Executive Branch and congressional silence); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)
(noting that a “‘systematic, unbroken, executive practice, long pursued to
the knowledge of the Congress and never before questioned . . . may be
treated as a gloss on’” the Constitution); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)
(“Deeply embedded traditional ways of conducting government cannot
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President’s Receipt of the Nobel Peace Prize
supplant the Constitution or legislation, but they give meaning to the
words of a text or supply them.”); McCulloch v. Maryland, 17 U.S. (4
Wheat.) 315, 401 (1819) (where “the great principles of liberty are not
concerned . . . [a doubtful question,] if not put at rest by the practice of
the government, ought to receive a considerable impression from that
practice”).
B.
The precedents of our Office reinforce the constitutional conclusion
that the historical practice recounted above strongly suggests. Indeed, our
Office’s numerous opinions on the Emoluments Clause have never adverted to the receipt of the Peace Prize by government officials and certainly have never suggested that the numerous acceptances of the Prize
were contrary to the Clause. That is not surprising. Under these same
opinions, it is clear that, due to the unique organization of the Nobel
Committee (including its reliance on the privately endowed Nobel Foundation), Nobel Peace Prize recipients do not receive presents or emoluments from a “foreign State” for purposes of the Emoluments Clause.
The precedents of the Office do establish that the Emoluments Clause
reaches not only “foreign State[s]” as such but also their instrumentalities.
ACUS, 17 Op. O.L.C. at 122; Applicability of Emoluments Clause to
Employment of Government Employees by Foreign Public Universities,
18 Op. O.L.C. 13, 18 (1994) (“Public Universities”). Quite clearly, the
Nobel Committee is not itself a foreign state in any traditional sense. The
issue, therefore, is whether the Committee has the kind of ties to a foreign
government that would make it, and by extension the Nobel Foundation in
financing the Prize, an instrumentality of a foreign state under our precedents. Our past opinions make clear that an entity need not engage specifically in “political, military, or diplomatic functions” to be deemed an
instrumentality of a foreign state. 6 See Public Universities, 18 Op. O.L.C.
Accordingly, we have explained that corporations owned or controlled by a foreign
government are presumptively foreign states under the Emoluments Clause, even though
the Act of State doctrine suggests that “when foreign governments act in their commercial
capacities, they do not exercise powers peculiar to sovereigns,” and thus are not entitled
to the immunity from suit that might be available. ACUS, 17 Op. O.L.C. at 120
6
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33 Op. O.L.C. 370 (2009)
at 19; see also ACUS, 17 Op. O.L.C. at 122 (“[T]he language of the
Emoluments Clause does not warrant any distinction between the various
capacities in which a foreign State may act.”). Thus, for example, we have
determined that entities such as corporations owned or controlled by a
foreign government and foreign public universities may fall within the
prohibition of the Clause. ACUS, 17 Op. O.L.C. at 121–22.
To determine whether a particular case involves receipt of a present or
emolument from a foreign state, however, our Office has closely examined the particular facts at hand. Specifically, we have sought to determine from those facts whether the entity in question is sufficiently independent of the foreign government to which it is arguably tied—
specifically with respect to the conferral of the emolument or present at
issue, e.g., hiring an employee or bestowing an award, Public Universities, 18 Op. O.L.C. at 20—that its actions cannot be deemed to be those of
that foreign state. In short, our opinions reflect a consistent focus on
whether an entity’s decision to confer a particular present or emolument is
subject to governmental control or influence. 7
The factors we have considered include whether a government is the
substantial source of funding for the entity, see, e.g., Applicability of
Emoluments Clause to Proposed Service of Government Employee on
Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987)
(“International Historians”); whether a government, as opposed to a
private intermediary, makes the ultimate decision regarding the gift or
emolument, see, e.g., Memorandum for John G. Gaine, General Counsel,
Commodity Futures Trading Commission, from Leon Ulman, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Expense Reimbursement in Connection with Trip to Indonesia (Aug. 11, 1980) (“Trip to
Indonesia”); and whether a government has an active role in the management of the entity, such as through having government officials serve on
an entity’s board of directors, see, e.g., Public Universities, 18 Op. O.L.C.
(“[N]othing in the text of the Emoluments Clause limits its application solely to foreign
governments acting as sovereigns.”).
7 Where a foreign state indisputably and directly confers a present or emolument, such
considerations of autonomy and control may be relevant, but not decisive. See ACUS, 17
Op. O.L.C. at 119. Here, however, the critical issue is whether the Nobel Committee, and
by extension the Nobel Foundation, is an instrumentality of a foreign government for
purposes of awarding the privately endowed Peace Prize.
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at 15. No one of these factors has proven dispositive in our prior consideration of Emoluments Clause issues. Rather, we have looked to them in
combination to assess the status of the entity for purposes of the Clause,
keeping in mind at all times the underlying purpose that the Clause is
intended to serve. See, e.g., Memorandum for H. Gerald Staub, Office of
Chief Counsel, National Aeronautics and Space Administration, from
Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Emoluments Clause Questions Raised by NASA Scientist’s
Proposed Consulting Arrangement with the University of New South
Wales (May 23, 1986) (“given [foreign public university’s] functional and
operational separation and independence from the government of Australia and state political instrumentalities . . . [t]he answer to the Emoluments
Clause question . . . must depend [on] whether the consultancy would
raise the kind of concern (viz., the potential for ‘corruption and foreign
influence’) that motivated the Framers in enacting the constitutional
prohibition”).
Consistent with this analysis, we have concluded in the past that Emoluments Clause concerns are raised where the “ultimate control” over the
decision at issue—e.g., an employment decision or a decision to bestow
an award—resides with the foreign government. For instance, an employee of the Nuclear Regulatory Commission (“NRC”) sought authorization
to work for a consulting firm that was retained by the Mexican government. Application of the Emoluments Clause of the Constitution and the
Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982). Because we concluded that the “ultimate control, including selection of
personnel, remains with the Mexican government,” id. (“the retention of
the NRC employee by the consulting firm appears to be the principal
reason for selection of the consulting firm by the Mexican government”),
we determined that the Emoluments Clause barred the arrangement.
Similarly, we concluded that an invitation to join a commission of international historians that was established and funded entirely by the Austrian government constituted an invitation from the Austrian government
itself. International Historians, 11 Op. O.L.C. at 90.
By contrast, although we have previously opined that foreign public
universities are presumptively instrumentalities of a foreign state for the
purposes of the Emoluments Clause, we determined that two NASA
scientists on leave without pay could be employed by the University of
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33 Op. O.L.C. 370 (2009)
Victoria in British Columbia, Canada, without triggering that constitutional restraint. Public Universities, 18 Op. O.L.C. at 13. We came to this
conclusion because the evidence demonstrated that the University acted
independently of the Canadian (or the British Columbian) government
when making faculty employment decisions. Id. at 15 (“[T]he University
of Victoria should not be considered a foreign state.”). To be sure, as we
acknowledged, the University was under the formal control of the British
Columbia government. Id. at 20 (noting that the government had “ultimate” control of the University); see also id. at 15 (noting that the faculty
was “constituted” by the University’s Board of Governors, the majority of
whom were appointed by the provincial government). Nevertheless, it was
critical to our analysis that the specific conduct at issue—the University’s
selection of faculty—was not made by the University “under statutory
compulsion” or pursuant to the “dictates of the government.” Id. at 20–21
(quoting McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269 (Can.)
(plurality op.)).
Similar considerations of autonomy informed our view that a federal
officer could serve as a consultant to Harvard University on a project
funded by the government of Indonesia. See Trip to Indonesia at 5. Although the consulting services were to be rendered for the benefit of
Indonesia and the individual consultant’s expenses were to be reimbursed
by Harvard from funds paid by Indonesia, we identified no violation of
the Emoluments Clause. We reached this conclusion in significant part
because, under the consulting arrangement, Harvard had the sole discretion over the consultants it chose, and Indonesia had no veto power
over those choices. Id. (“Since . . . the foreign government neither controls nor even influences the selection and payment of consultants, the
Emoluments Clause is not implicated.”).
In light of these precedents, we believe that it is significant that the
Nobel Committee’s selection of the Peace Prize recipient is independent
of the dictate or influence of the Norwegian government. As far as we are
aware, the Norwegian government has no authority to compel the Committee to choose the Prize recipient; nor does it have any veto authority
with respect to the selection by the Committee members, who, in any
event, are not appointed by a single official to whom they are accountable, but are instead elected by the multimember Storting. See Nobel
Foundation Statutes § 1. To be sure, Norwegian government officials may
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submit nominations to the Committee, but that opportunity is shared by
any “[m]embers of national assemblies and governments of states,” along
with “University rectors” and “professors of social sciences, history,
philosophy, law and theology.” Nobel Peace Prize Regulations § 3. Indeed, the formal process of nomination and selection of a Prize recipient
is not guided by the government, but by the private, Sweden-based Nobel
Foundation and the Nobel Committee. 8 For example, pursuant to the
Foundation’s rules, no prize-awarding body, including the Peace Prize
Committee, may reveal the details of its deliberations “until at least 50
years have elapsed after the date on which the decision in question was
made.” Nobel Foundation Statutes § 10. We have found no indication that
the Norwegian government or its officials, if requesting such information,
would be exempt from this restraint on disclosure. Other aspects of the
selection process, including guidelines on nominations and supporting
materials, are either provided in the private Foundation’s statutes or
delegated by the Foundation—not by the Norwegian government—to the
prize-awarding bodies, including the Peace Prize Committee. E.g., id. § 7
(“To be considered eligible for an award, it is necessary to be nominated
in writing by a person competent to make such a nomination.”). These
formal limits on the capacity of the Norwegian government to influence,
let alone control, the Committee’s decision, are consistent with the Committee’s own repeated assertions of its independence. See Tønnesson.
The Government of Norway’s financial connection to the Nobel Committee is even more attenuated. It appears that the members of the Nobel
Committee are compensated for their services by the privately funded
Nobel Foundation, see Canter E-mail, and the precise amount of the
remuneration is set by the Nobel Committee, not the Norwegian government. See Nobel Foundation Statutes § 6. The Peace Prize itself, including
The Storting appears to have the limited authority only to approve “[i]nstructions
concerning the election of members of the Nobel Committee” itself. See Nobel Foundation Regulations § 9. Any other amendments to the Committee’s rules of operation,
including its award selection guidelines, are decided upon by the Committee itself, after
views are solicited from the Nobel Foundation. Id. (“Proposals for amendments to other
provisions of these regulations may be put forward by members of the Norwegian Nobel
Committee or by members of the Board of Directors of the Nobel Foundation. Before the
Norwegian Nobel Committee makes a decision concerning the proposal, it shall be
submitted to the Board of Directors of the Nobel Foundation for an opinion.”).
8
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33 Op. O.L.C. 370 (2009)
its cash award and other elements, is funded by the Nobel Foundation,
which alone is responsible for ensuring that all of the Nobel prizeawarding bodies can accomplish their purposes and which is itself financed by private investments and not government funding. Id. § 14
(“The Board [of the Foundation] shall administer the property of the
Foundation for the purposes of maintaining good long-term prizeawarding capacity and safeguarding the value of the Foundation’s assets
in real terms.”); see also The Nobel Foundation’s Income Statement
(2008), http://nobelprize.org/nobelfoundation/incomes.html (last visited
Dec. 7, 2009); Lemmel (describing Nobel Foundation’s investment strategies to ensure financial base of Nobel Prizes).
Thus, in our view, the only potentially relevant tie to the Norwegian
government is that, in accordance with Alfred Nobel’s will, the Storting
elects the Nobel Committee’s five members. Further, we are aware that,
notwithstanding the rules generally barring sitting members of the Storting from the Nobel Committee, two members of the Storting served on
the Committee for several months before leaving their parliamentary
seats. However, in light of the strong basis for the Committee’s autonomy,
both as to the decision it makes and the finances upon which it draws, we
do not view the Storting’s appointment authority, or a minority of the
Committee members’ short-term overlap with parliamentary service, as
having dispositive significance.
Nor has our Office done so in the past in analogous cases. In determining that an award to a Navy scientist from the Alexander von Humboldt
Foundation was from the German government for the purposes of the
Emoluments Clause, for example, we noted that the “awards are made by
a ‘Special Committee,’ on which the Federal Ministries for Foreign Affairs and Research and Technology are represented.” See Letter for Walter
T. Skallerup, Jr., General Counsel, Department of the Navy, from Robert
B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at
2 (Mar. 17, 1983). But we did not indicate that the presence of the government ministers on the award committee was the decisive factor in our
analysis. Instead, we also noted that the Foundation was reestablished
(because it had once been dissolved) by the Federal Republic of Germany,
specifically by its Ministry of Foreign Affairs. In addition, we noted that
the Foundation that administered the award was financed mainly through
annual payments from the West German government. See id. By contrast,
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the Nobel Committee is financed by the private Nobel Foundation, and
although the Norwegian government may have formally established the
Committee (as the “Nobel Committee of the Norwegian Storting”), it did
so pursuant to a private individual’s will, which assigned the Storting the
limited role of electing the Committee’s members, who would be charged
with exercising their independent judgments.
Likewise, we concluded that the University of British Columbia in hiring faculty was not acting as a foreign state for the purposes of the Emoluments Clause—notwithstanding the provincial government’s power to
appoint a majority of the members of the University’s board of governors.
Public Universities, 18 Op. O.L.C. at 14, 22 (citing Harrison v. Univ. of
British Columbia, [1990] 3 S.C.R. 451, 459 (Can.) (plurality op.)). We
also determined that the Prince Mahidol Foundation was not an instrumentality of the Government of Thailand for the purposes of the Emoluments Clause, although several officials of the Thai government and the
Royal Princess of Thailand sat on the Foundation’s board. Memorandum
for the File from Daniel L. Koffsky, Office of Legal Counsel, Re: Application of the Emoluments Clause to a U.S. Government Employee Who
Performs Services for the Prince Mahidol Foundation (Nov. 19, 2002)
(“Prince Mahidol Foundation”). 9 In each case, we found countervailing
indications of autonomy to be more significant. As noted above, we
concluded that the University of British Columbia’s faculty decisions,
including contract negotiations and collective bargaining, were not subject
to governmental compulsion. Public Universities, 18 Op. O.L.C. at 20–21
(noting University’s “‘legal autonomy’”). And despite the presence of the
Thai government and royalty, we determined that the decision-making
process of the Prince Mahidol Foundation’s Board evidenced “independ9 Similarly, the Supreme Court has indicated that a government’s appointment authority is not given dispositive weight in determining whether a nominally private entity is, in
fact, “what the Constitution regards as the Government.” See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that Amtrak was a state actor subject to
the First Amendment). That the federal government appointed a majority of Amtrak’s
directors was not considered to be of controlling importance. As the Lebron Court observed, the Consolidated Rail Corporation (“Conrail”) was held “not to be a federal
instrumentality, despite the President’s power to appoint, directly or indirectly, 8 of its 15
directors.” Id. at 399; see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 152
(1974) (“Conrail is not a federal instrumentality by reason of the federal representation on
its board of directors.”).
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33 Op. O.L.C. 370 (2009)
ent judgment.” Prince Mahidol Foundation at 4 (also noting that “most of
the funds for the Foundation do not come from the [Thai] government”).
These same considerations concerning the exercise of independent judgment and financial autonomy are at least as present here.
In sum, determining whether an entity is an instrumentality of a foreign
government is necessarily a fact-bound inquiry, see Application of the
Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) (“Each situation must . . . be
judged on its facts.”), and the weight of the evidence in light of this Office’s consistent precedents—and as reinforced by the substantial historical practice—demonstrates that the awarding of the privately financed
Peace Prize through the Nobel Committee does not constitute the conferral of a present or emolument by a “foreign State” for the purposes of the
Emoluments Clause.
III.
Our reasoning regarding the Emoluments Clause is equally applicable
to the Foreign Gifts and Decorations Act. The Act provides express consent for officials to accept “gifts and decorations” from “foreign government[s]” under certain limited circumstances not present here. See
5 U.S.C. § 7342(b) (2006) (“An employee may not . . . accept a gift or
decoration, other than in accordance with the provisions of” the Act); see
also id. § 7342(a)(1)(E) (providing that the President is subject to the
Act). Section 7342(a)(2) defines the term “foreign government” as follows:
“foreign government” means—
(A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;
(B) any international or multinational organization whose membership is composed of any unit of foreign government described in
subparagraph (A); and
(C) any agent or representative of any such unit or such organization, while acting as such.
While we do not necessarily assume that Congress intended the meaning of “foreign government” to be coextensive with the constitutional
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President’s Receipt of the Nobel Peace Prize
term “foreign State,” we have recognized that the Act’s reference to “any
unit of foreign governmental authority” is likely narrower in scope than
the Emoluments Clause. See ACUS, 17 Op. O.L.C. at 121 (recognizing
that corporations owned or controlled by foreign States are arguably not
“units of foreign governmental authority,” although they are presumptively subject to the Emoluments Clause); cf. S. Rep. No. 95-194, at 29 (1977)
(definition of “foreign government” intended to reach “foreign governmental subdivision(s)” and “quasi-government organizations”). For the
reasons discussed in detail above, the Nobel Committee in choosing the
recipients of the Peace Prize, like the Nobel Foundation in financing the
Prize, operates as a private non-governmental organization and not as a
“unit” of a foreign government. Moreover, given the Foundation’s private
nature and the facts that the Committee acts independently of any government and is not required to include any government officials on it, see
The Norwegian Nobel Committee, http://nobelprize.org/prize_awarders/
peace/committee.html (last visited Nov. 23, 2009) (“Although this is not a
requirement, all committee members have been Norwegian nationals.”),
we conclude that neither is an “international or multinational organization” because neither is “composed of any unit of foreign government,”
let alone composed of units of more than one foreign government.
5 U.S.C. § 7342(a)(2)(B); see also Emoluments Clause and World Bank,
25 Op. O.L.C. 113, 117 (2001) (concluding that international organizations of which the United States is a member are not generally subject to
the Emoluments Clause and observing that the Act’s coverage of international organizations was likely “motivated by policy concerns as opposed
to constitutional ones”). Nor is the Committee as a whole, or, by extension, the Nobel Foundation in financing the Prize, an “agent or representative” of any unit of a foreign government or any international organization
for purposes of the Act. Although two members of the Committee continued to serve in the Storting before leaving their parliamentary seats, we
do not believe this limited tie between the Government of Norway and the
Committee, affecting a minority of the Committee’s members, transformed the Nobel Committee into an agent or representative of the Norwegian Government. Id. § 7342(a)(2)(C). The countervailing indications
of autonomy described above support that conclusion. Consequently, the
Foreign Gifts and Decorations Act poses no bar to the President’s receipt
of the Peace Prize.
387
33 Op. O.L.C. 370 (2009)
IV.
For the reasons given above, we conclude that neither the Emoluments
Clause nor the Foreign Gifts and Decorations Act prohibits the President
from receiving the Nobel Peace Prize without congressional consent.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
388 |
|
Write a legal research memo on the following topic. | Constitutionality of Nuclear Regulatory Commission’s
Imposition of Civil Penalties on the Air Force
In the absence of Presidential intervention to review its decision, the Nuclear Regulatory
Commission may constitutionally issue an order imposing civil penalties on the
Department of the Air Force under the Atomic Energy Act of 1954.
Although Congress may not deprive the President of an opportunity to review a decision
made by an agency subject to his supervisory authority, the President is not constitu
tionally required to review all such decisions before they may be lawfully implemented.
Because the Atomic Energy Act gives the Attorney General exclusive authonty and discre
tion to enforce civil penalties imposed under the Act, an interagency dispute regarding
the collection of such penalties would properly be resolved within the executive branch
rather than through interagency litigation.
June 8, 1989
M em orandum O pinio n fo r t h e G en er a l C o un sel
D epa r tm en t o f th e A ir F o rce
This memorandum responds to your request for an opinion of this
Office on the constitutionality of the United States Nuclear Regulatory
Commission’s (“NRC”) imposition of civil penalties on the Department of
the Air Force under the Atomic Energy Act of 1954, as amended (“Act”),
42 U.S.C. §§ 2011-2296. In particular, you have asked whether the
Constitution permits the NRC: 1) to issue an order imposing civil penal
ties against the Air Force without a prior opportunity for the Air Force to
contest the fine within the executive branch; or 2) to collect civil penal
ties against the Air Force by litigation in court.
We believe, as a general matter, that the President has authority to
review and revise decisions of his subordinates in the executive branch.
Although the President cannot be deprived of the opportunity to review
a decision subject to his supervisory authority, this does not mean that
the President is constitutionally compelled to review every decision
before it is implemented. After reviewing the questions you have posed,
we conclude that, because the President has expressed no interest in
reviewing either personally or through a delegate the NRC’s issuance of
orders, we need not reach whether, and to what extent, the President’s
supervisory authority extends to orders issued by the NRC.1On the other
hand, we agree with you that there would be significant constitutional
131
problems had Congress directed the NRC to collect the penalties it orders
by suing the Air Force in federal court. The Act, however, permits the
Attorney General to determine whether, and to what extent, civil penal
ties should be collected. Thus, any issue regarding your liability for civil
penalties may be resolved by an executive branch agency and without
resort to interagency litigation.
I. Background
The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, as amended by
the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5851, estab
lished the Nuclear Regulatory Commission (“NRC”). The agency is
charged with broad licensing and regulatory authority over the develop
ment and utilization of atomic energy, the construction and maintenance
of facilities, and the uses and storage of nuclear material. 42 U.S.C. §§
2061-2064 (ownership and acquisition of production facilities); 42 U.S.C.
§§ 2071-2078, 2091-2099, and 2111-2114 (regulation of nuclear materials
and byproducts); 42 U.S.C. §§ 2131-2140 Oicensing); 42 U.S.C. §§ 22012213 (general powers and duties). The Act provides that Commissioners
are appointed by the President, with the advice and consent of the
Senate, and “may be removed by the President for inefficiency, neglect of
duty, or malfeasance in office.” 42 U.S.C. § 5841(a), (e).
The Act invests the NRC with broad authority to regulate uses of
nuclear power, with certain exceptions for military purposes expressly
provided for in the Act.2Specifically, the NRC has the authority to license
nuclear facilities and material, id. §§ 2133, 2073, including those of gov
ernment agencies, id. § 2014(s); to issue rules and regulations, id. § 2201;
and to inspect and investigate alleged violations of its rules, id.
In 1969, Congress passed amendments to the Atomic Energy Act autho
rizing the NRC to levy civil monetary penalties for violations of its regu
lations. The addition of monetary penalties was intended to give the NRC
additional flexibility to deal with infractions of regulations that did not
require the harsher sanctions of revocation or suspension of a license or
1The Air Force does not argue that all actions by the NRC are unconstitutional because of the NRC’s
status as an agency with some statutory independence We thus do not address the constitutional status
of the NRC or the constitutionality of its actions generally.
2 The President is authorized by the Act to require the Commission to deliver nuclear material and to
authorize its use for military purposes:
The President from time to time may direct the Commission (1) to deliver such quantities
of special nuclear material or atomic weapons to the Department of Defense for such use as
he deems necessary in the interest o f national defense, or (2) to authorize the Department of
Defense to manufacture, produce, or acquire any atomic weapon or utilization facility for
military purposes: Provided, however, That such authorization shall not extend to the pro
duction of special nuclear material other than that incidental to the operation of such uti
lization facilities
42 U S C. § 2121(b). A license is not required for any actions authorized under section 2121. See 42 U.S C.
§ 2140(b).
132
a cease and desist order. See S. Rep. No. 553, 91st Cong., 1st Sess. 9-12
(1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1615-19.3
Section 2282(a) provides:
Any person who (1) violates any licensing provision ... or
any rule, regulation, or order issued thereunder, or any
term, condition, or limitation of any license issued thereun
der, or (2) commits any violation for which a license may be
revoked under section 2236 of this title, shall be subject to
a civil penalty, to be imposed by the Commission, of not to
exceed $100,000 for each such violation. If any violation is
a continuing one, each day of such violation shall constitute
a separate violation for the purpose of computing the
applicable civil penalty. The Commission shall have the
power to compromise, mitigate or remit such penalties.
42 U.S.C. § 2282(a). The term “person” is defined specifically to include
government agencies:
The term “person” means (1) any individual, corporation,
partnership, firm, association, trust, estate, public or pri
vate institution, group, Government agency other than the
Commission ....
42 U.S.C. § 2014(s). “Government Agency” includes any executive depart
ment of the United States. 42 U.S.C. § 2014(1).
Whenever the Commission has reason to believe that a violation sub
ject to a civil penalty has occurred, the Commission is required to notify
the person, identify the alleged violation, advise the person of the pro
posed penalty, and provide an opportunity to demonstrate why the penal
ty should not be imposed. 42 U.S.C. § 2282(b). The Commission has for
mally adopted procedures for the imposition of civil penalties. See 10
C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. (1988). Under these provisions, the
person charged with a civil penalty will receive a written notice of viola
tion specifying the date and nature of the alleged violation, the particular
provision, rule, or regulation allegedly violated, and the amount of the
proposed penalty. 10 C.F.R. § 2.2.01(a). Payment of the penalty or a writ
ten answer either denying the violation or showing extenuating circum
stances is required within twenty days. Id. § 2.201(a), (b). The NRC may,
at this time, issue an order dismissing, mitigating or imposing a civil
penalty. The person charged may then request a hearing at which the
3 In 1980, the maximum penalty for each violation was raised from $5000 to $100,000 to provide the
NRC with escalated enforcement sanctions and a greater prospect of deterrence Pub L No. 96-295, 94
Stat. 780, 787 (1980).
133
merits of the alleged violation and the applicability of the rules and regu
lations can be contested. Id. § 2.205(c), (d). After the hearing, the Com
mission will issue an order dismissing, mitigating, or imposing the civil
penalty. Id. § 2.205(f).4
The Commission, however, does not itself have authority directly to
collect the amount of the penalty assessed if the violator fails to pay the
fine upon issuance of a final order. Instead, the Act permits the NRC to
refer the matter to the Attorney General for collection. Section 2282(c)
provides:
On the request of the Commission, the Attorney General is
authorized to institute a civil action to collect a penalty
imposed pursuant to this section. The Attorney General shall
have the exclusive power to compromise, mitigate, or remit
such civil penalties as are referred to him for collection.
42 U.S.C. § 2282(c). The Senate Report accompanying the civil penalty
provisions makes clear that the Attorney General is authorized, but not
required, to institute a civil action to collect the penalty:
While the bill would confer on the Commission the power
of compromise, mitigation, and remission of penalties, such
power would reside exclusively with the Attorney General
under the bill with respect to such civil penalties as are
referred by the AEC to him for collection.
S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969
U.S.C.C.A.N. 1607, 1618. In 1980, the NRC requested authority to collect
civil penalties directly, but Congress refused to change the law.5
4 The NRC assesses civil penalties based in part on the seventy of the violation. See 10 C.FR § 2 205
and 10 C.F.R pt. 2, app C (1988). Violations for which civil penalties can be imposed are broken down
into five seventy levels, and in determining the amount of the violation, the Commission will take into
account such factors as whether the violation was identified by the licensee, whether it was reported by
the licensee, the corrective action taken, and whether the violation or similar violations have been recurnng. See 10 C.F.R. pt. 2, app C.
6See S Rep. No. 176, 96th Cong , 1st Sess. 24 (1980), reprinted in 1980 U.S.C C.A N. 2216, 2239
The Commission also requested that it be given the authority to administratively impose
and collect penalties without the opportunity for de novo trial before a Federal Distnct
Court. According to the Comnussion, the present system of imposing and collecting a civil
penalty through action of the Attorney General in Federal district court denies the
Commission full control of its enforcement action, and raises the possibility that the
Attorney General will settle the action for a lower penalty than that sought by NRC. The
Commission recognizes, however, that the present enforcement approach, including the
opportunity for de novo trial, is typical for Federal agencies Further, the Commission has
failed to identify any instances in which the present approach has resulted in a significant
weakening of the enforcement action proposed by NRC
The committee believes that there is considerable value in retaining the existing approach ....
Accordingly, the committee recommends that the present statutory mechanism for imposing
and correcting civil penalties be retamed
134
Under its section 2282 authority to impose civil penalties, the NRC sent
the Air Force a Notice of Violation and Proposed Imposition of Civil
Penalties of $102,500 on June 17, 1988. The alleged violation arose from
the accidental spill in 1986 of radioactive materials from a barrel stored
on Wright-Patterson Air Force Base, Ohio. The penalty was proposed
because of the alleged failure of the Air Force personnel to adequately
report the spill to the NRC.
The Air Force replied to the alleged violation with a written response
on July 15, 1988. Air Force officials had an extended meeting with the
NRC at which they contested the underlying factual basis for the charges.
The principal factual disagreement is whether and to what extent certain
Air Force personnel were involved in a deliberate or willful failure to
report the spill. The Air Force has not participated in internal adminis
trative hearings before the NRC, but has instead raised constitutional
defenses, asserting both that the NRC cannot constitutionally issue a
final order assessing a penalty without prior review by the President and
that in any event the penalty cannot be enforced by the Attorney General
through litigation. The NRC has agreed to hold its final order in abeyance
pending our resolution of these issues.
II. Imposition of Civil Penalties Against Federal Agencies
The Air Force contends that the Constitution does not permit the NRC
unilaterally to impose civil penalties against a member of the executive
branch because both the NRC and the Air Force are “part of one of the
three fundamental Branches of the Government under our Constitution.”
Letter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal
Counsel, from Ann N. Foreman, General Counsel, Department of the Air
Force at 3 (Mar. 17, 1989) (“Foreman Letter”). Underlying this contention
is the Air Force’s view that “[t]he President is the final arbiter of a singu
lar executive branch policy and of how any dispute between agencies will
be resolved.” Id. The Air Force concludes from this premise that the NRC
cannot constitutionally issue a final order against the Air Force until the
President resolves any differences between the two agencies.
Although we agree as a general matter with the premise underlying the
Air Force’s argument — namely that the President must have an oppor
tunity to review disputes between members of the executive branch —
we disagree with its conclusion that the President is affirmatively com
pelled to resolve this dispute between the NRC and itself. In our view, the
President may permit the NRC to carry out a decision taken pursuant to
its statutory duties despite the objection of another agency.
The President’s authority to review and revise the decisions of his
subordinates derives from his authority under Article II of the
Constitution, which states that “[t]he executive Power shall be vested in
a President of the United States of America.” U.S. Const, art. II, § 1, cl.
135
1. Moreover, the President has the constitutional responsibility to “take
Care that the Laws be faithfully executed.” Id. § 3. It is well-established
that these provisions generally authorize the President to supervise and
guide executive officers in the administration of their statutory duties.
See Myers v. United States, 272 U.S. 52, 135 (1926) (The President has
the authority to “supervise and guide” executive officers in “their con
struction 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.”).
Although the President m ay take the opportunity to review decisions
pursuant to his Article II authority, Article II does not mandate that he
undertake such review. Thus, the President’s subordinates may make
decisions pursuant to the statutory duties that Congress has entrusted to
their respective offices even in the absence of the President’s actual
review of those decisions so long as the President is not precluded from
the opportunity to review these decisions. This understanding of the
President’s supervisory authority comports with the practical reality of
decisionmaking within the executive branch: day-to-day decisions are
often made by the President’s subordinates although the President does
not review these decisions.
The President’s authority to review disputes between his subordinates
is simply an aspect of his general supervisory authority over the execu
tive branch. For instance, when two of his subordinates dispute the
meaning of a statute, the President may decide to review the matter. The
Constitution, however, does not mandate that he resolve disputes either
personally or through his subordinates.6 If it is the President’s choice not
to review the dispute, then the agencies may act in accordance with their
respective statutory authorities. Thus, it is not inconsistent with the
Constitution for an executive agency to impose a penalty on another
6 The Air Force quotes testimony from former Assistant Attorney General for Land and Natural
Resources F. Henry Habicht II that “Executive Branch agencies may not sue one another, nor may one
agency be ordered by another to comply with an administrative order without the prior opportunity to
contest the order within the Executive BranchEnvironm ental Compliance by Federal Agencies
Hearings Before the Subcomm on Oversight and Investigations o f the House Comm, on Energy and
Commerce, 100th Cong., 1st Sess. 210 (1987) (statement of F Henry Habicht). We believe, however, that
Mr Habicht’s testimony is consistent with our view that, while the President must have the opportuni
ty to review decisions subject to his supervisory authonty, the Constitution does not compel him to
review such decisions. The Air Force cannot contend that it has had no opportunity to contest the
NRC’s order within the executive branch It could have brought this dispute to the attention of the
President at any time after it received notice from the NRC on June 17, 1988. Moreover, Mr. Habicht’s
testimony occurred in the context of an oversight hearing relating to the Resource Conservation and
Recovery Act (“RCRA”), a statute that perm its the EPA directly to impose civil penalties on other agen
cies. 42 U.S.C. §§ 6927(c), 6928(c). The President has specified an internal dispute resolution mecha
nism for agency disagreements with the EPA See Exec Order No. 12088, 3 C FR. 243 (1978) (authonzing the Director of the Office of Management and Budget to consider unresolved conflicts between
agencies at the request of the EPA Administrator).
136
executive agency pursuant to its statutory authority so long as the
President is not deprived of his opportunity to review the matter.7
A number of Executive Orders illustrate that the President does estab
lish formal dispute resolution mechanisms for executive branch dis
agreements when he deems them necessary. For certain executive
branch disputes, for example, the President has directly asserted his
authority by ordering such agencies to submit the dispute to the Attorney
General.8 The President has also directed that agencies in conflict with
the Equal Employment Opportunity Commission on a question of em
ployment standards refer their dispute to the Executive Office of the
President.9 Finally, in a context similar to this one, the President has
issued an Executive Order requiring that certain disputes relating to pol
lution controls enforceable by the EPA shall be resolved by the Director
of OMB.10 This last order requires the Administrator of EPA to “make
every effort to resolve conflicts regarding” agency violations, and pro
vides that the Director of OMB shall adjudicate if the Administrator is
unsuccessful. Exec. Order No. 12088, § 1-602, 3 C.F.R. 244 (1978). The
Order is significant both in its anticipation that the EPA may enforce envi
ronmental laws against other federal agencies and in its prescribing a
method of resolving interagency disputes should they arise.
The President, however, has issued no such order concerning the
NRC’s issuance of civil penalties against other agencies. Nor has the
7 The Air Force also contends that the Office of Management and Budget “expressed the
Administration’s view” that several proposed bills “raise[dj senous constitutional problems” because
they provided “for one agency or office of the federal government to issue administrative orders and take
judicial enforcement action against another." Foreman Letter at 3. We would first note that the
Administration positions on which the Air Force relies were merely drafts that are necessarily summary
and tentative in nature Moreover, two of the draft statements are wholly unrelated to the issue of
enforcement orders by one agency against another. See draft Floor Statement on H.R. 3781 (objecting to
the requirement that the Department of Energy provide certain documents to Congress prior to any
clearance by the President or Secretary of Energy); draft Floor Statement on H R. 3782 (objecting to the
proposed creation of a Special Environmental Counsel independent of the President and the Department
of Justice). The draft Floor Statement on H R 3785 did relate to the President’s authonty to resolve dis
putes within the executive branch, but that bill contained objectionable provisions that would have
appeared to restnct the President’s authority to establish a dispute resolution mechanism between EPA
and other agencies This draft floor statement may thus be understood as seeking to preserve the
President’s opportunity to review Finally, the Air Force cites a letter by Assistant Attorney General John
R Bolton, Office of Legislative and Intergovernmental Affairs, to Chairman John D Dingell of the House
Subcommittee on Oversight and Investigations, December 20,1985 (“Bolton Letter”), for the proposition
that administrative orders to other executive agencies raise senous constitutional objections. We read
the Bolton letter, however, simply as a discussion of the justiciability of suits between executive agen
cies, a subject we discuss below
8 Exec Order No 12146, § 1-402, 3 C.F.R. 409 (1979). The mandatory provision of this Executive Order,
by its terms, applies only to “Executive agencies whose heads serve at the pleasure of the President.” Cf
id § 1401 (stating that “each agency is encouraged” to submit a dispute to the Attorney General when
there is an interagency dispute over junsdiction or a particular activity).
9See Exec Order No 12067, § 1-307 (1978)
10See Exec Order No. 12088, § 1-603, 3 C.F.R 244 (1978) (requmng the Director of OMB to “consider
unresolved conflicts at the request of the Administrator”). This Order further provides that “[tjhese con
flict resolution procedures are in addition to, not in lieu of, other procedures, including sanctions, for the
enforcement of applicable pollution control standards.” Id § 1-604
137
President been deprived of an opportunity to review the dispute. The
statute expressly provides that the regulated agency be given a reason
able opportunity to respond to the Commission whenever the latter
intends to impose a civil penalty. 42 U.S.C. § 2282(b). The NRC sent
notice to the Air Force of its intent to impose a civil penalty on June 17,
1988. Thus, the statutory scheme provides, and the Air Force has
received, sufficient opportunity to raise this dispute with the President.
Moreover, before this penalty is collected from an unwilling agency, the
NRC must refer the civil penalty order to the Attorney General for col
lection.11 As we discuss below, this procedure may itself serve as a dis
pute resolution mechanism under the control of one of the President’s
subordinates.
Accordingly, we conclude that because the President has neither
expressed any interest in, nor been precluded from, reviewing the NRC’s
orders imposing civil liability on executive branch agencies, there is no
constitutional requirement that the NRC submit its decision to issue an
order imposing civil fines on the Air Force to prior Presidential review.12
III. Lawsuits Between Federal Agencies
The Air Force also contends that a lawsuit between the NRC and the
Air Force would not be justiciable. It argues that because the lawsuit
would be between two members of the executive branch, there would be
no Article III “case or controversy,” and therefore the federal courts could
not adjudicate the dispute. We agree that substantial constitutional diffi
culties are raised by interagency lawsuits, but we believe that the Act per
mits resolution of your dispute with the NRC over any civil penalty with
out resort to such litigation.
The Office of Legal Counsel has long held the view that lawsuits
between two federal agencies are not generally justiciable. Proposed Tax
Assessment Against the United States Postal Service, 1 Op. O.L.C. 79
(1977). In this opinion, we stated that a dispute between the Postal
Service and the IRS over the service’s tax liability could not be enter
tained in court. We relied on the principle that the federal courts may only
adjudicate actual cases and controversies. Muskrat v. United States, 219
U.S. 346 (1911). A lawsuit involving the same person as plaintiff and
defendant does not constitute an actual controversy. Lord v. Veazie, 49
U.S. (8 How.) 251 (1850); Cleveland v. Chamberlain, 66 U.S. (1 Black) 419
(1862). This principle applies to lawsuits between members of the exec
utive branch. United States v. Shell Oil Co., 605 F. Supp. 1064, 1082 (D.
11See 10 C FR. § 2 205(h).
12The Air Force, of course, may urge the President to take the opportunity to review any issue relating
to the proposed civil penalty. Assuming the President expressed an interest in such review, the question
as to the extent of the President’s authority to review and supervise the NRC would then be raised
138
Colo. 1985); United States v. Easement and Right of Way over Certain
Land in Bedford County, Tenn., 204 F. Supp. 837, 839 (E.D. Tenn. 1962);
Defense Supplies Corp. v. United States Lines Co., 148 F.2d 311, 312-13
(2d. Cir.), cert, denied, 326 U.S. 746 (1945).
The reasoning of our 1977 opinion applied to so-called “independent
agencies.” The opinion described the Postal Service as having “a degree
of independence from the executive branch” and as “removed from direct
political control.” 1 Op. O.L.C. at 83. Our position is also consistent with
the Supreme Court’s most recent analysis concerning officials who do not
serve at the pleasure of the President. Morrison v. Olson, 487 U.S. 654
(1988), indicates that despite the removal restrictions, such agencies
exercise executive power and are members of the executive branch. Id.
at 690 n.28, 691 (“[T]he real question is whether the removal restrictions
[including those at issue in Humphrey’s Executor v. United States, 295
U.S. 602 (1935) and Wiener v. United States, 357 U.S. 349 (1958)] are of
such a nature that they impede the President’s ability to perform his con
stitutional duty.”).
We have recognized that the Supreme Court has decided several cases
that appeared to be between two members of the executive branch. 1 Op.
O.L.C. at 80. On further examination, however, we have concluded that
such suits are only nominally between two agencies: one of the executive
agencies is not the “real part[y] in interest” but simply a stand-in for pri
vate interests. Id. at 81. The Supreme Court first made the “real party in
interest” distinction in United States v. ICC , 337 U.S. 426 (1949), where
the United States, in its role as a shipper, contended that charges imposed
on it by railroads violated a statute. The United States unsuccessfully
filed a complaint against the railroads before the Interstate Commerce
Commission (“ICC”), and then brought an action in court to set aside the
Commission’s order. Pursuant to statute, the United States was made a
defendant in its action to set aside the ICC order. Responding to the argu
ment that the suit was nor\justiciable because the United States was suing
itself, the Court stated:
There is much argument with citation of many cases to
establish the long-recognized general principle that no per
son may sue himself. Properly understood the general prin
ciple is sound, for courts only adjudicate justiciable con
troversies.... Thus a suit filed by John Smith against John
Smith might present no case or controversy which courts
could determine. But one person named John Smith might
have a justiciable controversy with another John Smith.
This illustrates that courts must look behind names that
symbolize the parties to determine whether a justiciable
case or controversy is presented.
139
337 U.S. at 430. The Court then applied this standard to the dispute
between the United States and the railroads:
While this case is United States v. United States, et at., it
involves controversies of a type which are traditionally jus
ticiable. The basic question is whether railroads have ille
gally exacted sums of money from the United States.... To
collect the alleged illegal exactions from the railroads the
United States instituted proceedings before the Interstate
Commerce Commission.... This suit therefore is a step in
proceedings to settle who is legally entitled to sums of
money, the Government or the railroads.... Consequently,
the established principle that a person cannot create a justi
ciable controversy against himself has no application here.
Id. at 430-31. Thus, the Court concluded that the lawsuit could be brought
because the railroads, and not the United States, were in essence the real
parties in interest as defendants. Id. at 432.
We believe that this reasoning explains other cases in which the
Supreme Court has appeared to decide a case between two members of
the executive branch. In these cases, one of the members of the executive
branch was not the real party in interest, and therefore, the suit was, for
purposes of justiciability analysis, actually between a private party and a
government agency. In Secretary of Agriculture v. United States, 347 U.S.
645, 647 (1954), the Court was at pains to point out that the Secretary of
Agriculture was appearing in the litigation in opposition to the ICC “on
behalf of the affected agricultural interests,” pursuant to specific statuto
ry authorization. Bureau of Alcohol, Tobacco and Firearms v. Federal
Labor Relations Auth., 464 U.S. 89 (1983), involved a dispute between the
National Treasury Employees Union and the Bureau over reimbursement
of a union representative for travel expenses. In United States ex rel.
Chapman v. Federal Power Comm’n, 345 U.S. 153 (1953), the dispute was
actually between the Secretary of Interior and a private power company.
See Ishverlal Madanlal & Co. v. SS Vishva Mangal, 358 E Supp. 386
(S.D.N.Y. 1973).13 Other cases where a private party was the real party in
interest include Udall v. Federal Power Comm’n , 387 U.S. 428 (1967) (dis
pute between nonfederal power companies and Secretary of Interior over
the award of construction licenses); Federal Maritime Bd. v. Isbrandtsen,
l3ln UnitedSlates v. Marine Bancorp , Inc., 418 U.S. 602 (1974) and United States v. Connecticut Nat’l
418 U.S. 656 (1974), the United States had brought civil antitrust actions under section 7 of the
Clayton Act challenging the proposed merger of banks in each of the respective cases The Comptroller
of the Currency intervened in both actions as a party defendant pursuant to 12 U.S.C. § 1828(c)(7)(D).
See Marine, 418 U.S. at 614 The Supreme Court did not address whether the intervention of the
Comptroller General denied the Court federal jurisdiction The presence of private parties as the real
parties-in-interest, however, distinguishes those cases from mere interagency litigation.
Bank,
140
356 U.S. 481,483 n.2 (1958) (dispute between shipper, joined by the United
States, against Federal Maritime Board over shipping rates approved by
the Maritime Board); Interstate Commerce Comm’n v. Jersey City, 322
U.S. 503 (1944) (dispute' between municipality and Interstate Commerce
Commission, with U.S. Price Administrator intervening on behalf of
municipality); Mitchell v. United States, 313 U.S. 80 (1941) (dispute
between private citizen, supported by a brief from the United States, and
the ICC concerning dismissal of a discrimination complaint).
Finally, in United States v. Nixon, 418 U.S. 683 (1974), the Court found
justiciable a lawsuit between the special prosecutor and President Nixon
over the validity of a subpoena issued to acquire evidence in a pending
criminal case. The Court concluded that “[i]n light of the uniqueness of
the setting in which the conflict arises, the fact that both parties are offi
cers of the executive branch cannot be viewed as a barrier to justiciabil
ity.” Id. at 697. The Court noted that the President had been named as an
unindicted coconspirator by the grand jury, id. at 687, and that the ques
tion of the validity of a subpoena to acquire evidence from a person in a
pending criminal case was “traditionally justiciable.” Id. at 697. In view of
these special circumstances, we have understood the decision as based
on the Court’s view that the real party in interest was President Nixon in
his private capacity.
Application of these principles strongly suggests that the dispute
between the NRC and the Air Force is not justiciable. Both the NRC and
the Air Force would be the real parties in interest in the lawsuit. The NRC
seeks enforcement of its civil penalties against violators of its regula
tions. See 10 C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. The civil penalty would
be imposed directly on the Air Force, which would be required to make
the payment out of its appropriated funds. No private party has a direct
interest in the lawsuit.
We believe, however, that this constitutional issue need not arise,
because the framework of the Act clearly permits this dispute over civil
penalties to be resolved within the executive branch, and without
recourse to the judiciary. The Attorney General has the exclusive author
ity to collect civil penalties for the NRC, 42 U.S.C. § 2282(c), and there
fore may exercise his discretion to resolve the dispute without resort to
litigation.
Under 42 U.S.C. § 2282(a), the NRC is given the authority to impose civil
penalties, and to “compromise, mitigate, or remit such penalties.” The
NRC, however, cannot enforce its decision to impose civil penalties, nor is
there a procedure for judicial review of the decision. Rather, if the defen
dant disagrees with the NRC’s decision, the civil penalties may be
enforced or collected only by the Attorney General. Section 2282(c) pro
vides that “the Attorney General is authorized to institute a civil action to
collect” the civil penalty, thus indicating that he is not required to do so.
42 U.S.C. § 2282(c) (emphasis added). The section also expressly provides
141
that “[t]he Attorney General shall have the exclusive power to compro
mise, mitigate, or remit such civil penalties as are referred to him for col
lection.” Id. (emphasis added). Thus, it is clear that the Attorney General
has complete control concerning enforcement of the civil penalty.
The committee report accompanying the bill that was adopted by
Congress as the Atomic Energy Act Amendments confirms the breadth of
the Attorney General’s discretion with respect to enforcement:
The Attorney General would be authorized, but not
required, to institute a civil action in a court of competent
jurisdiction to collect the penalty. While the bill would con
fer on the Commission the power of compromise, mitiga
tion, and remission of penalties, such power would reside
exclusively with the Attorney General under the bill with
respect to such civil penalties as are referred by the
[Commission] to him for collection.
The committee also has accepted the recommendation ...
that the legislation provide discretion to the Department,
after the matter has been referred to it by the Commission,
to determine whether a civil action should be instituted,
since that Department would have basic responsibility for
that action.
S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969
U.S.C.C.A.N. 1607, 1618-19.
Finally, it is also evident that the Attorney General’s discretion extends
to the underlying merits of the lawsuit. Because there is no judicial
review of the NRC’s initial decision to order payment of civil penalties,
the collection suit itself is the vehicle for judicial review. Moreover, both
the legislative history of the Act14 and case law15indicate that the judicial
14In 1969 when the civil penalty provisions were enacted, the General Counsel for the Atomic Energy
Commission testified before the Joint Committee on Atomic Energy that violations of the provisions
were to receive de novo review. See AEC Omnibus Legislation 1969: Hearings Before the Joint Comm
on Atomic Energy , 91st C ong, 1st Sess. 29-30 (1969) (statement of Joseph F Hennessey, General Counsel
for AEC) That testimony provided as follows
Section c. [42 U SC . 2282(c)] deals with the responsibility of the Attorney General. If after
the Commission determines that a penalty should be imposed, the licensee fails to pay, the
m atter is referred to the Attorney General. He will determine whether a civil action for col
lection in Federal district court should be instituted. He is given exclusive authority to com
promise, mitigate, or remit the civil penalty after the matter has been referred by the AEC.
Under these provisions, an alleged violator is guaranteed an opportunity for a full hearing
on the merits in Federal district court before any civil penalty may be collected from him.
Id Mr Hennessey further noted that, “[a]s we understand it, no agency has been given this type of
Continued
142
review takes the form of a trial de novo. Because the trial is not limited
in scope, the Attorney General’s prosecutorial discretion should be simi
larly plenary.
It is therefore clear that the Attorney General may exercise his discre
tion to ensure that no lawsuits are filed by the NRC against other agen
cies 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 con
stitutional problems noted above. Rather, procedures internal to the
executive branch are adequate to resolve the dispute through the deter
mination that the Air Force is liable.16
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.
IV. Conclusion
We conclude that, unless the President seeks to review the NRC’s deci
sion, the NRC may issue an order imposing civil fines on the Air Force.
We further conclude that any issue regarding the Air Force’s liability for
such fines may be resolved within the executive branch and without
resort to litigation.
WILLIAM P. BARR
Assistant Attorney GeneralOffice of Legal Counsel
14(. .continued)
authonty [to collect its own fines] because this would tend to cut off a judicial trial de novo of a ‘penal
ty’ action.” Id. at 38
16See United States Nuclear Regulator Comm’n v Radiation Technology, Inc , 519 F. Supp. 1266
(D.N.J. 1981). To determine the proper scope of judicial review, the district court examined the legisla
tive history of NRC’s penalty provisions and analogous civil penalty provisions of other regulatory agen
cies to conclude that Congress intended NRC’s collection actions to receive de novo review. Id at 127586. Radiation Technology is the only reported case interpreting the NRC’s civil penalty provisions.
10 The Attorney General has authonty to resolve conclusively any legal question on which he and the
Air Force disagree See Exec. Order No. 12146, 3 C.F R 409 (1979) (mandating that the Attorney General
resolve legal disputes between agencies whose heads serve at the pleasure of the President) Any remain
ing disagreement between the Attorney General and the Air Force could be submitted to the President
for his resolution.
143 |
|
Write a legal research memo on the following topic. | Applicability of the Davis-Bacon Act to the Veterans
Administration’s Lease of Medical Facilities
T he A ttorney General has authority to review legal determ inations m ade by the Secretary of L abor
under the D avis-B acon Act.
A lease o f a privately ow ned facility is not a “contract for construction o f a public building” w ithin
the m eaning o f the D avis-B acon Act. The m ere fact that a lessor undertakes construction in o rder
to fulfill its obligations is insufficient to convert a lease into such a contract.
June 6,1988
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
V e t e r a n s A d m in is t r a t io n
This memorandum responds to the Veterans Administration’s December 16,
1987, request for an opinion on the applicability of the Davis-Bacon Act (“the
Act”) to the lease of a privately owned facility by the Veterans Administration.
I. Background
The Veterans Administration (“VA”) is authorized to lease space that the Ad
ministrator of Veterans Affairs considers necessary for use as a medical facility.
38 U.S.C. § 5003. Pursuant to that authority, the VA entered into a lease to ob
tain space for an outpatient clinic in Crown Point, Indiana. On June 10, 1986, and
again on July 25, 1986, the President of the Building and Construction Trades
Department, AFL-CIO, requested a ruling from the Department of Labor’s Wage
and Hour Administrator that the Davis-Bacon Act—which applies to certain
“contract[s] . . . for construction . . . of public buildings”— be applied retroac
tively to the Crown Point lease.
In a decision dated August 15, 1986, the Administrator advised the VA that
the Davis-Bacon Act was applicable to the Crown Point lease, because in this in
stance the lessor had chosen to construct a new facility to lease to the VA, and
1
In soliciting offers for the lease, the VA did not specify that it was seeking either a new or a preexisting facil
ity, and indeed the VA’s Solicitation for Offers contemplated that an offeror with a suitable existing building could
be awarded the lease E g § 16 (“Preference will be given to offerors o f space in buildings on, or formally listed as
eligible for inclusion in, the National Register of Historic Places and to histoncaJly significant buildings in historic
districts listed in the National Register.”); § 33 (“Buildings which have incurable functional obsolescence . may
be rejected by the Contracting Officer.”), § 97 (dealing with asbestos in “existing buildings” offered for lease) As
stated by the Veterans Administration
The V A ’s decision to lease space for the Crown Point clinic was based on an economic cost analysis
performed pnor to the issuance o f the [solicitation for offers]. This analysis is used to determine the
least costly method o f providing the necessary space to accommodate veterans’ medical care needs
Here, leasing proved to be the least costly alternative .. When this [solicitation] is prepared, the type
89
therefore “the nature of the agreement [is] a contract for construction.” Id. at 1.1
The Administrator reaffirmed that ruling on November 13, 1986. The Depart
ment of Labor’s Wage Appeals Board upheld the Administrator on June 26,1987,
stating that even though “the principal purpose of the VA contract is to lease a
facility,” “ [t]he lease aspect o f the negotiations between the VA and the devel
oper does not in any way change the construction nature of the contract.” In re
Applicability o f Davis-Bacon A ct to Lease o f Space For Outpatient Clinic, Crown
Point, Indiana, WAB Case No. 86-33, at 6 ,4 (June 26, 1987).
The VA thereafter expressed its disagreement with that interpretation of the
Davis-Bacon Act, and announced its intention to seek the opinion of the Attor
ney General as to the applicability of the Davis-Bacon Act to a lease by the VA,
pursuant to 38 U.S.C. § 5003, o f privately owned and privately constructed fa
cilities.2
1 ( .. . continued)
o f space that will be offered, i.e , space already in existence, presently under construction, or in a fa
cility that will be constructed, cannot be anticipated.
Letter for Charles J. Cooper, Assistant A ttorney General, Office o f Legal Counsel, from Donald L lvers, General
Counsel, V eterans Administration at 7 (Dec. 16,1987) (“lvers Letter”). Although the lessor o f the Crown Point fa
cility chose to construct a new facility, the lessor was clearly not required to do so Legal and equitable title will
remain in the lessor throughout the term o f th e lease, and the lessor is free to sell the building or to lease it to some
one else at the conclusion o f the lease. Lease payments began “after the VA [took] occupancy o f the leased premises,”
and will continue “ on a monthly basis in arrears ” Id at 6.
The Department o f Labor suggests that there was “ a lump sum payment by the VA to the contractor of
$440,128.16 for . . construction” of certain “ Schedule B” items. Letter for Charles J Cooper, Assistant Attorney
G eneral, Office o f Legal Counsel, from G eorge R. Salem, Solicitor of Labor at 8 (Apr. 22, 1988) (“Salem Letter”).
This assertion would appear to conflict w ith the VA’s statement that “Federal funds [were] not provided for the
purposes o f construction” at Crown Point. Ivers Letter at 6.
W hether any or all o f these “Schedule B” items constitute construction is a factual issue which was neither
relied upon by the Department o f Labor’s W age Appeals Board in its Crown Point decision, nor directly presented
to us for resolution There is nothing precluding lease payments, or portions o f lease payments, from being paid as
a lump sum, rather than over time. Indeed, under the VA’s solicitation for offers, offerors were required to provide
alternate proposals, calculating the “Schedule B” items both as “ lump sum payment not to be included in the rental
rate,” and as a rental rate “which included th e cost o f these items.” The VA reserved to itself the right to select the
“ most favorable” option. Solicitation for O ffers, § 10. Moreover, we note that even under the regulations purport
ing to cover “ nonconstruction contracts”— and even assuming that those regulations apply to leases— there is an
exception to coverage for construction work that “is incidental to the furnishing of supplies, equipment, or services”
o r that is “so merged with nonconstruction work” as to be incapable o f being “segregated” as a separate contrac
tual requirement. 48 C.F.R § 22.402(b). S e e also infra note 12.
Thus, while we do not here attempt to resolve this factual issue, considerable evidence exists to support the
V A ’s position that the payments contemplated for “Schedule B ” items were not for construction. In any event, it is
clear that even if the Department of Labor’s factual contention regarding the nature o f the “Schedule B” items is
correct, application o f Davis-Bacon requirements would be limited under the statute to the payments (or some part
thereof) attributable to the “Schedule B” items.
2 Both the General Services Administration and the Department of Defense have submitted written statements
supporting the V A ’s interpretation of the Davis-Bacon Act. Letter for Charles J. Cooper, Assistant Attorney Gen
eral, Office o f Legal Counsel, from Clyde C . Pearce, Jr , General Counsel, General Services Administration (Dec
31, 1987); Letter for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Kathleen A.
Buck, General Counsel, Department of D efense (May 5, 1988) (“Any expansion of the Davis-Bacon Act beyond
its express language should be done by C ongress, not by agency interpretation.”)
90
II. Discussion
A. Jurisdiction
Before turning to the substantive issues presented by the VA’s request, we ad
dress a threshold jurisdictional matter: whether the Attorney General, and hence
this Office, has authority to render an opinion on the proper interpretation of the
Davis-Bacon Act at the request of the VA. The Department of Labor, by letter
dated April 22, 1988, has suggested that Executive Order No. 12146, 3 C.F.R.
409 (1979), governs the issue of the Attorney General’s authority to give an opin
ion in this matter, and that that Executive Order, by its terms, prohibits the At
torney General from responding to the VA’s request.3
As an initial matter, the Executive Order is not the sole basis for the Attorney
General’s jurisdiction over this matter. Congress has authorized the Veterans Ad
ministration to “require the opinion of the Attorney General on any question of
law arising in the administration of the Veterans Administration.” 38 U.S.C.
§ 2 1 1(b). The applicability vel non of the Davis-Bacon Act to leases entered into
by the VA is clearly a “question of law arising in the administration of the Vet
erans Administration”; among other things, the interpretation given to the DavisBacon Act may determine the required terms of certain contracts entered into by
the Administrator.4 Accordingly, the VA has statutory authority under section
211 to request an opinion from the Attorney General, and the Attorney General
has statutory authority to respond to that request.5
Moreover, contrary to the Department of Labor’s suggestion, Executive Or
der No. 12146 also authorizes the Attorney General to issue an opinion in this
matter. The Executive Order provides in part:
Section 1-401. Whenever two or more Executive agencies are un
able to resolve a legal dispute between them, including the ques
tion of which has jurisdiction to administer a particular program
or to regulate a particular activity, each agency is encouraged to
submit the dispute to the Attorney General.
3 Salem Letter at 1-6.
4 See Application o f the Davis-Bacon Act to Urban Development Projects that Receive Partial Federal Fund
ing, 11 Op. O.L.C. 92, 95 (1987) (interpretation of statute that will affect contracts entered into by department is a
legal question “arising in the administration o f [the] department'’ within meaning of identical language contained
in 28 U S C . §512).
5 Accord, id. at 94-95 (construing identical statutory language contained in 28 U S.C § 512 to mean that the re
questing agency “ is entitled by law to the opinion o f the Attorney General”)
The Department of Labor seeks to distinguish the Cooper Opinion, by noting that the Attorney General ex
ercised jurisdiction therein pursuant to 28 U.S.C. § 512, whereas in the present instance 28 U S.C § 512 has no ap
plication— implying that if 28 U.S.C § 512 did apply, the Department would not contest the jurisdtctional issue.
Salem Letter at 1 n. 1. The pertinent language o f 28 U S C. § 512, however, is identical to the language o f 38 U.S.C.
§211, which is applicable here. The Department o f Labor does not address 38 U.S.C. § 211 in the Salem Letter.
91
The Department of Labor interprets section 1-401 to mean that the Attorney Gen
eral may exercise jurisdiction only when the dispute is “voluntarily submitted by
the disagreeing agencies,” i.e., only when both (or all) agencies involved agree
to submit the dispute to the Attorney General. Because in this case the Secretary
of Labor “does not submit this matter for resolution by the Attorney General,”
the Department urges that section 1-401 may not serve as a basis for the Attor
ney General’s jurisdiction.6
We believe that the Department’s interpretation is incorrect. Section 1-401
specifically states that each agency is encouraged to submit any such dispute to
the Attorney General: there is no requirement that every agency involved in a dis
pute request an opinion from the Attorney General. Thus, section 1-401 entitles
any agency, by itself, to request the Attorney General to resolve a legal dispute
with another agency— as the VA has done here. The interpretation offered by the
Department of Labor is contradicted by the plain language of the Order itself.
Further, that interpretation would defeat the purposes of the Order by granting
any agency a “veto” over the Attorney General’s section 1-401 jurisdiction,
thereby insuring that some disputes could never be resolved within the terms of
the Executive Order. Nothing in the Executive Order supports such an anomalous
result.7
The Attorney General’s statutory authority over all litigation in which a United
States agency is a party provides an additional basis for the exercise of jurisdic
tion here.8 As we noted in a prior opinion, in response to a similar challenge to
the Attorney General’s jurisdiction:
[Tjhe Attorney General’s authority to give his opinion . . . is also
confirmed by 28 U.S.C. 516 and 5 U.S.C. 3106. The former re
serves generally to the Attorney General the conduct of all litiga
tion in which the United States, an agency, or officer thereof is a
party. The latter generally prohibits the head of an Executive de
partment from employing an attorney for the conduct of litigation
in which the United States, an agency, or an employee thereof is
a party, requiring instead that the matter be referred to the De
partment of Justice. Both provisions admit of exceptions only
when “otherwise authorized by law.” Although Congress has es
tablished “a solicitor for the Department of Labor,” 29 U.S.C. 555,
the solicitor has no general litigating authority; his authority is
narrowly drawn, see 29 U.S.C. 663 (representation of the Secre
6 Salem Letter at 2
7 See also 11 Op. O L.C. at 97 (reaffirming the authonty o f the head of any executive department, acting alone
and without obtaining the consent of any other agency that may be a party to a dispute, to request an opinion from
the Attorney General under 28 U S C § 512). Executive O rder No 12146 “expands the authority of the Attorney
General to render legal opinions beyond his statutory obligation,” id , further suggesting that no “one agency veto”
provision should be read into section 1-401.
8 G iven the clear jurisdictional bases fo r the Attorney G eneral’s opinion in this matter, we need not consider
w hether section 1—401 o f Executive Order No. 12146 provides further authority for the Attorney General to re
spond to the V A ’s request. See also 11 Op. O.L.C at 97-98
92
tary of Labor in occupational safety and health litigation); 29
U.S.C. 1852(b) (litigation for the protection of migrant and sea
sonal workers); 30 U.S.C. 822 (representation of the Secretary of
Labor in mine safety and health litigation), and nevertheless “sub
ject to the direction and control of the Attorney General.” Id. The
Attorney General’s authority to conduct litigation on behalf of the
United States necessarily includes the exclusive and ultimate au
thority to determine the position of the United States on the proper
interpretation of statutes before the courts.9
Thus, we conclude that the Attorney General has the authority to decide the le
gal question presented by the VA.10
B. Substantive Issues
The Davis-Bacon Act, at 40 U.S.C. § 276a(a), provides in part:
The advertised specifications for every contract in excess of
$2000, to which the United States . . . is a party, for construction,
alteration, and/or repair. . . of public buildings or public works of
the United States . . . and which requires or involves the employ
ment of mechanics and/or laborers shall contain a provision stat
ing the minimum wages to be paid various classes of laborers and
mechanics which shall be based upon the wages that will be de
termined by the Secretary of Labor to be prevailing for the corre
sponding classes of laborers and mechanics employed on projects
of a character similar to the contract work in the city, town, vil
lage . . . in which the work is to be performed . . . .
The language of the statute is both plain and precise. Section 276a(a) applies only
to certain contracts to which the United States “is a party,” and that are “for con
9 Id. at 98.
We note that on October 20, 1987, the AFL-CIO’s Building and Construction Trades Department filed suit
to compel the VA to comply with the Department of Labor’s W age Appeals Board’s June 26, 1987 decision B uild
ing and Construction Trades Department v. Turnage, 705 F. Supp. 5 (D.D.C. 1988).
The Department o f Labor implicitly challenges the Attorney G eneral’s litigating authority as a basis for ju
risdiction here, by suggesting that the interpretation of the Davis-Bacon Act is not an issue in the pending litiga
tion. Salem Letter at 6. That suggestion is incorrect* resolution o f the conflicting interpretations o f the Davis-Ba
con Act will clearly affect the conduct o f the litigation. For example, should we conclude that the V A ’s interpretation
of the Davis-Bacon Act is incorrect, that decision would be binding upon the VA and the litigation would be mooted.
See, e g , Executive Order No 2877 (May 31, 1918).
10 As set out above, the Attorney General is authorized to provide opinions on “questions o f law” and to resolve
“legal disputes” within the executive branch E.g , 38 U.S C § 211, Executive Order No. 12146. How far that au
thority permits the Attorney General to resolve factual questions necessarily incident to a properly presented legal
dispute need not be addressed here As we conceive the question posed by the VA, our analysis does not turn upon
the particular facts surrounding the Crown Point lease; rather, our opinion is addressed to the question of DavisBacon coverage o f leases, as a matter o f statutory construction.
93
struction, alteration, and/or repair . . . of public buildings.” The question pre
sented here is whether the lease o f a privately owned facility is a “contract. . .
for construction . . . of [a] public building” within the meaning of the Act. We
think the plain language of section 276a(a) demonstrates that it is not.
We start with the well-established principle that “[statutory construction must
begin with the language employed by Congress and the assumption that the or
dinary meaning of that language accurately expresses the legislative purpose.”
Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985); see
American Tobacco Co. v. Patterson, 456 U.S. 63,68 (1982). Although the DavisBacon Act is a remedial statute, to be construed liberally, the carefully drawn lan
guage of section 276a(a) limits its application to “contracts] . . . for construc
tion”; there is nothing in the language of the statute to suggest that it was meant
to extend beyond construction contracts to leases, or to construction undertaken
by private entities in order to enter into or fulfill a lease agreement with the gov
ernm ent.11
That the words “contract. . . for construction” in the Act were meant to have
their plain meaning was confirmed by Attorney General Cummings, who re
viewed the legislative history o f the Davis-Bacon Act, noted that the Act was “re
stricted by its terms to ‘construction, alteration, and/or repair’” and concluded
that the Act applied to “buildings erected with funds supplied by the Congress.”
38 Op. A tt’y Gen. 229, 233 (1935) (emphasis added). Similarly, Attorney Gen
eral Rogers noted that the House Committee on Public Works characterized the
Davis-Bacon Act as “applfying] to all direct Federal construction.” 41 Op. Att’y
Gen. 488,495(1960).
A contract to lease a privately owned facility, however, is not a contract to
erect buildings “with funds supplied by the Congress,” nor does such a lease in
volve “direct Federal construction.” See 38 Op. Att’y Gen. at 233; 41 Op. Att’y
Gen. at 495. Similarly, the fact that a private entity might undertake construction
with private funds in order to offer the government a lease, or to fulfill lease oblig
ations, does not make the United States a party to a contract for construction, nor
does that fact convert a lease into a contract for “direct Federal construction.” 41
Op. A tt’y Gen. at 495. More specifically, construction undertaken by a private
party, with private funds, in order to satisfy government specifications and thus
to enable the private party to fulfill its obligations as a lessor to the government,
or to enter into a lessor relationship with the government, is not construction pur
suant to a “co n tract. . . for construction” to which “the United States . . . is a
11
Congress has not only crafted 40 U.S.C. § 276a(a) to exclude leases, but has also distinguished between con
struction contracts and leases in the statute authorizing the VA to enter into leases. Thus, 38 U.S C. § 5003(a)(1)
authorizes the VA to “construct or alter” any medical facility; 38 U.S.C. § 5003(a)(2) separately authorizes the VA
to acquire such facilities “ by lease.” The statute was comprehensively amended in 1979 in part “[t]o help assure
the tim ely completion o f leasing arrangements.” S. Rep. No. 100,96th Cong., IstSess. 58(1979),reprintedin 1979
U.S.C.C.A.N. 169.212.
94
party” as required by the language of the Act. Accordingly, such privately fi
nanced construction is not covered by the Act.12
The Comptroller General has reached the same conclusion, holding that the
Davis-Bacon Act does not apply to the construction of buildings in accordance
with government specifications, for lease by the government. The Comptroller
General acknowledged the “basic distinction which exists between the procure
ment of a right to use improvements, even though constructed for that particular
usage, and the actual procurement of such improvements.” In light o f that dis
tinction, the Comptroller General held that “the mere fact that construction work
is prerequisite to supplying a public need or use does not give such work a DavisBacon status.” 42 Comp. Gen. 47,49 (1962).13
The language of section 276a(a) also contrasts sharply with the language of
several similar statutes under which leases are explicitly subject to the prevail
ing wage requirements of the Davis-Bacon Act. For example, 39 U.S.C.
§ 410(d)(1) states explicitly that certain “lease agreement[s]” entered into by the
Postal Service shall be covered by prevailing wages established under section
276a.14 Similarly, 40 U.S.C. §§ 801-851, authorizing the lease of the Union Sta
tion Building by the Federal Government, specifically provide that alterations to
the leased facility shall be subject to the prevailing wage requirements of the
Davis-Bacon Act. 40 U.S.C. § 808. Additionally, 42 U.S.C. § 1437j also specif
ically lists “contract[s] f or . . . lease” as being subject to those requirements. That
Congress in these statutes felt called upon to specify that leases were to be cov
ered by the Davis-Bacon Act indicates not only that Congress knows how to in
sure that leases are covered by the Davis-Bacon Act in those few situations where
it so chooses, but also that section 276a(a) by itself does not include leases.15
12 We note that the various regulations cited in the Salem letter are not inconsistent with this conclusion. R eg
ulations promulgated under the Davis-Bacon Act that purport to apply the Act to “nonconstruction contracts," 48
C.F.R. § 22.402(b), do not embrace lease agreements. Similarly, 29 C.F.R. § 4.116(c)(2), promulgated under the
Service Contract Act and dealing with application of the Davis-Bacon Act to contracts for services, does not apply
here. 29 C F.R. § 5 2(k) is merely an interpretation o f “public building” and “public work” as those phrases appear
in the Act, and makes no reference'to leases. Moreover, the regulation itself provides that those terms include only
construction work “earned on directly by authonty o f or with funds o f a Federal agency.” It seems plain that even
if the regulation applied to leases, the lease by the government of a privately constructed and owned facility does
not constitute construction work earned on directly by authonty o f a Federal agency, or with the funds of a Fed
eral agency.
In any event, any interpretation o f these regulations as extending to leases would result in an impermissible
conflict between the regulations and the plain language and intent o f the statute itself, for the reasons discussed
above. See also Chevron U S A v Natural Resources Defense Council. Inc., 467 U.S. 837, 842-43 (1984)
13 The Department o f Labor states with respect to this decision that “[i]t is the position of the Department that
the Comptroller General lacks the authority to issue opinions regarding the proper application o f the Davis-Bacon
Act.” Salem Letter at 9 n.7. The Comptroller General’s decision, however, was issued in response to a request from
the Department o f Labor. Moreover, whatever the merits o f the Department’s challenge to the Comptroller G en
eral’s authority, we refer to the Comptroller General’s opinion not as binding precedent but rather as additional
confirmation for our own conclusions.
14 When Congress amended 39 U.S.C. § 410(d) to make the Davis-Bacon Act applicable to certain Postal Ser
vice leases. Congress acknowledged that that application was an extension of Davis-Bacon coverage. H.R. Rep.
No. 1104, 91st Cong., 2d Sess. 27 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3675
95
Conclusion
In light of the language and legislative history of the Davis-Bacon Act, the dis
tinction that Congress has drawn between leases and contracts for construction
in numerous statutes, including the statute governing the VA’s leasing authority,
and several opinions o f the Attorney General and Comptroller General, we con
clude that the coverage of the Davis-Bacon Act does not extend to leases. The
mere fact that a lessor undertakes construction in order to fulfill its lease obliga
tions is insufficient to convert a lease into a “contract. . . for construction” within
the meaning of the Act.
C h a r l e s J. C o o p e r
Assistant Attorney General
Office of Legal Counsel
15
Pending legislation in Congress also provides some minor support to the conclusion that the Davis-Bacon Act
does not apply to leases. The “ Davis-Bacon Amendments o f 1987” would amend current 40 U.S.C § 276a to provide
that “a contract for construction . . . includes a contract for the lease o f a facility which is to be constructed. . . if con
struction . .. is required for fulfillment of the contract.” Although it is quite true that “[t]he views of members of a later
C ongress . .are entitled to little if any weight” in interpreting a statute, Teamsters v United States, 431 U.S. 324,354
n.39 (1977), it is nonetheless the case that in enacting a statute. Congress is presumed to intend to change existing law,
rather than to com m it a m eaningless act.
The Department o f Labor suggests that “there is no indication that Congress has ever dealt with this issue
[of coverage o f leases by the Davis-Bacon A ct],” because Congress has not, for example, “pass[ed] an amendment
providing that leases are not subject to the A ct.” Salem Letter at 10. Congress, however, need not pass such nega
tive am endm ents to make its intent clear: the very words o f the statute that Congress did choose to pass are suffi
cient to make it clear that the Act does not co v er leases
96 |
|
Write a legal research memo on the following topic. | April 11, 1977
77-20
MEMORANDUM OPINION FOR THE
COMMISSIONER OF IMMIGRATION AND
NATURALIZATION
Section 212(a)(27) of the Immigration and
Nationality Act—Exclusion of Certain Aliens—
Rhodesia
This is in response to your request for our opinion concerning the
scope of Section 212(a)(27) of the Immigration and Nationality Act, 8
U.S.C. § 1182(a)(27). That provision makes ineligible for visas and ex
cludes from admission into the United States:
Aliens who the consular officer or the Attorney General knows or
has reason to believe seek to enter the United States solely, princi
pally, or incidentally to engage in activities which would be preju
dicial to the public interest, or endanger the welfare, safety, or
security of the United States.
In the fall of 1975, six Southern Rhodesian aliens sought to enter the
United States to attend a conference o f the International Federation of
Agricultural Producers in Washington, D.C. The six apparently would
have been traveling on British passports. The Department of State
identified the six aliens as officials of the National Farmers’ Union of
Southern Rhodesia, an organization o f private farmers that seeks to
promote export sales of agricultural commodities grown in Southern
Rhodesia and cooperates closely with the existing government of that
country. The Department o f State determined that, in attending the
meeting of the International Federation of Agricultural Producers, the
aliens would have sought to promote the foreign sale of agricultural
commodities grown in Southern Rhodesia. We understand that the six
Rhodesian aliens were excluded from the United States under Section
212(a)(27) on the basis of the State Departm ent’s determination.
The legal validity of the exclusion was subsequently questioned by a
Member o f Congress, who took the position that Section 212(a)(27)
applies only to subversives. Because of renewed interest in the scope of
Section 212(a)(27) and the continuing existence of United Nations sanc64
tions against Southern Rhodesia, we believe it is useful to convey our
opinion on the subject at this time and to do so with some reference to
the Rhodesian situation.
It is our opinion that potentially serious adverse foreign policy conse
quences may properly be taken into account in determining whether an
alien is ineligible for a visa and hence inadmissible into the United
States. We therefore agree that given the findings of the Department of
State, the aliens who sought to attend the conference in 1975 were
inadmissible under Section 212(a)(27). We also are of the opinion that
otherwise innocuous activities in the United States may give rise to
inadmissibility under that provision in certain circumstances.
I
As we understand the policies and practices of the National Farmers’
Union, the entry of officials of that organization into the United States
to attend the conference and their activities at the conference would
have violated sections 3(b) and 5(b) of the United Nations Security
Council Resolution 253 of May 29, 1968. Section 3(b) thereof provides
that Member States “shall prevent . . . [a]ny activities by their nation
als or in their territories which would promote or are calculated to
promote the export of any commodities or products from Southern
Rhodesia . . . .” Section 5(b) directs Member States to “ [t]ake all
possible measures to prevent the entry into their territories of persons
whom they have reason to believe to be ordinarily resident in Southern
Rhodesia and whom they have reason to believe to have furthered or
encouraged, or to be likely to further or encourage, the unlawful
actions of the illegal regime in Southern Rhodesia . . . . ” 1
Congress has authorized the President to issue orders, rules, and
regulations to provide for the domestic enforcement of United Nations
sanctions, and has established criminal penalties for persons subject to
the jurisdiction of the United States who violate such orders, rules, and
regulations. See 22 U.S.C. § 287c. Section 1(b) of Executive Order No.
11419, 3 C FR 737 (1966-1970 Compilation), which was issued to imple
ment Security Council Resolution 253, prohibits any person subject to
the jurisdiction of the United States from engaging in activities that
would promote the export of any commodities or products originating
in Southern Rhodesia. Thus, the representatives of the National Farm
ers’ Union would have committed a criminal offense if, as the D epart
1 Section 5(a) o f Resolution 253 directs all M em ber States to prevent the entry into
their territories, save on exceptional hum anitarian grounds, o f any person traveling on a
Southern R hodesian passport. Section 5(a) is not im plicated in the present situation
because the R hodesian nationals w ere traveling on British passports. W e have been
inform ed that it has been the policy o f the D epartm ent o f State from the beginning that
the regim e does not constitute “com petent a u thority" for the issuance o f passports w ithin
the m eaning o f § 101(a)(30) o f the Im m igration and N ationality Act, and that travel
docum ents issued by the regime therefore do not m eet the requirem ents for en try
contained in § 101(a)(26). A s a result, there is no need to rely on § 212(a)(27) in excluding
aliens traveling on Rhodesian passports.
65
ment of State predicted, they had sought to promote the export of
Rhodesian agricultural products while they were attending the confer
ence. It would seem that activities that are prohibited by a Security
Council Resolution, an Executive order issued to conform this Nation’s
foreign policy to that Resolution, and a criminal statute designed to
enforce such Executive orders, must surely be regarded as “activities
which would be prejudicial to the public interest, or endanger the
welfare, safety, or security o f the United States” within the meaning of
Section 212(a)(27). But we do not believe that the Resolution, the
Executive order, and the attendant criminal sanctions are essential to
our conclusion that the Rhodesian nationals were properly excluded
under Section 212(a)(27).
Executive O rder No. 11419 does not speak directly to the require
ment in Security Council Resolution 253 that Member States prevent
the entry of Rhodesian residents who there is reason to believe have
furthered or encouraged o r would be likely to further or encourage
“ the unlawful actions” of the present regime in Southern Rhodesia.
This omission from the Executive order was deliberate. The Depart
m ent of State and this Department took the position that no additional
authorization was needed in order to implement this aspect of the
Security Council Resolution because the Rhodesian aliens in question
w ould be excluded from entry under the Immigration and Nationality
Act. A memorandum prepared by this Office in 1968 and forwarded to
the W hite House with the proposed order stated:
Certain other requirements of the Security Council Resolution
have been omitted from the proposed order on the basis that they
can be put into effect on the part of the United States by the
responsible agencies under existing authority. Thus, the require
ments to exclude from M ember States persons traveling on Rhode
sian passports[2] and to “take all possible measures” to exclude
certain persons ordinarily residing in Southern Rhodesia are to be
implemented by the Departm ents of State and Justice in accord
ance with the Immigration and Nationality Act.
T he letter of transmittal from the Justice Department’s Office of Legal
Counsel to the President w as to the same effect.3 Therefore, this D e
partment, the Department o f State, and the President fully expected
that the Immigration and Nationality A ct would, of its own force,
prevent the entry of Rhodesian aliens who might engage in activities in
this country that would further and encourage the unlawful actions of
the regime in Southern Rhodesia and thereby adversely affect the
3 See footnote 1.
3 T h e function o f reviewing E xecutive orders as to form and legality has been delegat
ed by the A tto rn ey G eneral to the O ffice o f L egal Counsel. 28 C F R § 0.25(b).
66
Nation’s foreign relations.4 Section 212(a)(27) was not specifically men
tioned in the various letters and memorandums written in 1968, but its
grounds for exclusion are the only ones contained in Section 212(a)(27)
that could have been thought to be applicable to the Rhodesian situa
tion.
The conclusion reached by the Administration in 1968 finds support
in the text of Section 212(a)(27), its legislative history, and administra
tive interpretation. Its language is clearly not limited in its application
to aliens posing a threat to internal security, as has been suggested.
Activities by aliens that could have potentially serious adverse effects
on the Nation’s foreign policy can quite reasonably be characterized
either as “prejudicial to the public interest” or likely to “endanger
the . . . security of the United States” within the meaning of the
provision.5
It is true that the elements of legislative history relating directly to
the passage of the Immigration and Nationality Act in 1952 can be read
as limiting application of Section 212(a)(27) to internal security cases.
For example, the House and Senate reports describe the provision in
identical language, indicating that it and subparagraphs (28) and (29)
merely “incorporate the provisions of Section 1 of the Act o f October
16, 1918, as amended by Section 22 of the Subversive Activities Con
trol Act of 1950, 64 Stat. 987, relating to the exclusion of subversives.”
S. Rep. No. 1137, 82d Cong., 2d Sess. 10 (1952); H. Rep. No. 1365, 82d
Cong., 2d Sess. 49 (1952). However, because the language o f Section
212(a)(27) was taken almost verbatim' from §22 of the Subversive
Activities Control Act of 1950, 64 Stat. 987, 1006,6 it is necessary to
consult as well the legislative history of that earlier Act, which clearly
sustains the current position of the Service and the State Department.
While Congress’ immediate focus in creating additional categories of
excludable aliens in 1950 was also directed to persons who could be
characterized as “subversives,” see, e.g„ S. Rep. No. 2230, 81st Cong.,
4 It w ould seem from the account in the text that in 1968 the A dm inistration was also
o f the view that § 212(a)(27) w ould operate to bar the admission o f aliens w h o had in the
past furthered o r encouraged the actions o f the illegal regim e in Southern Rhodesia,
regardless o f the nature o f the specific activities in w hich they proposed to engage w hile
in the country. W e believe that there is considerable support for this view, see Part II,
infra, but there w as no need to rely upon it in excluding the aliens in view o f the specific
activities in w hich they intended to engage after entering the country.
5 T he term “national security” is often used to include considerations of b oth national
defense and foreign policy. See, e.g., E xecutive O rder N o. 11652, § 1, 3 C F R §§678, 679
(1971-1975 Com pilation). T he phrase “security of the United States” may be construed in
a similar fashion.
• T he only difference betw een the tw o provisions is that the relevant portion o f § 22 o f
the 1950 A ct did not contain the reference in Section 212(a)(27) to the “security” o f the
United States.
67
2d Sess. 16-28 (1950),7 §22 o f the Subversive Activities Control Act of
1950 as passed swept much m ore broadly. Congress’ choice of language
is instructive, particularly its use of the phrase “prejudicial to the public
interest.” That phrase had a well-settled administrative interpretation in
1950. Under the Act of May 22, 1918, 40 Stat. 559, as amended by the
A ct of June 21, 1941, 55 Stat. 252, the President was authorized to
impose additional restrictions on the entry of persons into the United
States during times of war or national emergency. In Proclamation
2523, 3 C FR 270 (1938-1943 Compilation), issued November 14, 1941,
the President found such additional restrictions to be necessary and
declared that an alien would not be permitted to enter if his entry
would be “prejudicial to the interests o f the United States,” as provided
in regulations to be promulgated by the Secretary of State in consulta
tion with the Attorney General. Under the regulations that were pro
mulgated, no entry permit could be issued to any alien “if the permitissuing authority [had] reason to believe that the entry of the alien
would be prejudicial to the interests of the United States.” 8 CFR
§ 175.52(a) (1949 ed.) See, generally, K nauff v. Shaughnessy, 338 U.S.
537, 540-41 (1950); Shaughnessy v. Mezei, 345 U.S. 206, 210-11, and n. 7
(1953). The 1949 Aliens and Nationality regulations then listed 11
categories of inadmissible aliens, one of which categories is highly
relevant here:
§ 175.53 Classes of aliens whose entry is deemed to be prejudicial to
the public interest. The entry of an alien w ho is within one of the
following categories shall be deemed to be prejudicial to the inter
ests of the United States . . .
0
$
$
*
$
$
$
(b) Any alien who is a member of, affiliated with, or may be
active in the United States in connection with or on behalf of, a
political organization associated with or carrying out policies of
any foreign government opposed to the measures adopted by the
Government of the United States in the public interest, or in the
interest of national defense, or in the interest of the common
defense of the countries of the Western Hemisphere, or in the
prosecution o f the war.
The proclamation and regulations were still in effect in 1950. K nauff v.
Shaughnessy, supra, 338 U.S. at 546. Thus, when the predecessor to
Section 212(a)(27) was adopted, aliens who were expected to be active
in the United States on behalf of organizations that supported countries
having foreign policy conflicts with the United States, were included
among those who were inadmissible on the ground that their entry
7 T h at rep o rt recom m ended passage of S. 1832, w hich was lim ited in purpose to
am ending the A c t o f O ctober 16, 1918, to provide, inter alia, for the exclusion o f those
connected w ith Com m unist organizations. T he substance o f S. 1832 was added by the
Senate to th e House-passed version o f the Subversive A ctivities C ontrol A c t of 1950, and
the H ouse later agreed to the addition. See H. R ep. No. 3112, 81st Cong., 2d Sess., at 54
(1950).
68
would be “prejudicial to the public interest” or “prejudicial to the
interests of the United States.”
The prohibition in Section 212(a)(27) against the entry of aliens who
there is reason to believe would engage in activities that would be
“prejudicial to the public interest” appears to be a direct descendant of
the Presidential proclamation and regulations. “The chief difference
. . . is that the operation of this new legislation is not limited to time of
war or national emergency. Its inhibitions must be enforced at all times
as part of our permanent legislative pattern.” C. Gordon, “The Immi
gration Process and National Security,” 24 Temp. L.Q. 302, 306 (1951).
The Senate Report that first proposed what later became § 22 of the
Subversive Activities Control Act of 1950 (the predecessor of Section
212(a)(27)), discussed Proclamation 2523 and 8 C FR § 175.53 as part of
the body of immigration law on which Congress was building. S. Rep.
No. 2230, 81st Cong., 2d Sess. 22 (1950). The report did not expressly
refer to subsection (b), quoted above, or any other subsection of 8 C FR
175.53. But neither did it express disapproval of the broad sweep of
immigration law then in effect, of which the regulations were a part, or
indicate an intention to narrow them. The tenor of the legislative
history is precisely to the contrary.8
Against this background, it is entirely reasonable to infer that, in
enacting Section 212(a)(27), Congress contemplated that foreign policy
considerations could play a role in determining whether an alien’s
activities in the United States would be “prejudicial to the public
interest.” 8
* F o r exam ple, tw o Senate reports recom m ending the am endm ent finally enacted in
§ 22 o f the Subversive A ctivities C ontrol A ct o f 1950 described the provision as follows:
Section 1(1) of the A ct o f O ctober 16, 1918, as am ended by the bill, is an
adm ixture o f existing law and the new provisions o f the bill. U nder existing law,
am ong the excludable aliens are certain aliens w ho seek to enter the United States
w hose e n try w ould be prejudicial to the public interest o r w ould endanger the safety
o f the U nited States. T h e com m ittee has broadened this class of excludable aliens to
include those aliens w ho seek to enter the United States to engage in activities w hich
w ould endanger the welfare o f the Unites States.
S. Rep. No. 2230, 81st Cong., 2d Sess. 5 (1950); S. Rep. No. 2369, 81st Cong., 2d Sess. 10
(1950).
Then-existing statutory law only prohibited the entry o f aliens w ho there w as reason to
believe w ould engage in activities that w ould endanger the safety of the U nited States.
See S. Rep. No. 2230, supra, at 28. T he reference in the Senate report to the prohibition
“[ujnder existing law ” against entries that w ould be “prejudicial to the public interest”
must therefore have been to Proclam ation 2523 and 8 C F R § 175.53. T he passages from
the Senate reports express a purpose to retain and codify the substance o f these nonstatutory restrictions.
• T h e Im m igration and N aturalization Service analysis o f §212(a)(27), w hen the Im m i
gration and N ationality A ct o f 1952 w as still in its draft stage, inform ed the C ongress that
provisions sim ilar to § 2 1 2(a)(27) already appeared in the A ct of May 22, 1918 as
am ended, and Proclam ation 2523. U.S. Im m igration and N aturalization Service, R eport
on S. 716, A Bill to Revise the L aw s Relating to Im m igration, N aturalization and
N ationality, at p. 212-24. T h e Service did not mention the regulations in its analysis, but
the reference to the proclam ation supports the conclusion that §212(a)(27) m ay be
interpreted in light o f the grounds for exclusion specified in the regulations im plem enting
the proclam ation.
69
The administrative interpretation by the Departments of State and
Justice has been consistent with this reading of the legislative history.
We are informed that over a number o f years, the Department of State
has applied Section 212(a)(27) in two different types of cases: Cases
involving a security threat in the narrow sense, such as the entry of
saboteurs or persons involved in intelligence missions against the United
States, and cases involving potentially far-reaching adverse effects on
United States foreign policy. Exclusion of the Rhodesian aliens was
therefore in keeping with the latter aspect of the State Department’s
previous application of the section.
The interpretation by the Board of Immigration Appeals is not to the
contrary. For example, in M atter o f M -, 5 I&N Dec. 248, 252 (1953),
the Board stated:
The Senate and House Committees which recommended the pas
sage of the bill . . . considered the section as one relating to
subversives (p. 10, S. Rept. No. 1137, 82d Cong., 2d Sess.; p. 49, H.
Rep. No. 1365, 82d Cong., 2d Sess.). However it is clear that the
language o f the section is broad enough to include others than subver
sives. [Emphasis added.]
See also, M atter o f McDonald and Brewster, Int. Dec. #2353 (March 13,
1975), at pp. 3-4. No doubt it was with such an interpretation of
Section 212(a)(27) in mind that the Departments of State and Justice
concluded in 1968 that Rhodesian aliens who would be likely to further
or encourage the unlawful regime in Southern Rhodesia, could be
excluded under the Immigration and Nationality Act without additional
authorization in Executive O rder No. 11419.
It is our opinion that the language of Section 212(a)(27), its legislative
history, and administrative interpretation all support your conclusion
that the six aliens who sought to attend an agricultural conference in
the United States were inadmissible under that section.
II
A question has arisen in the course of our review of Section
212(a)(27) as to whether that provision would operate to exclude an
alien whose mere entry into or presence in the United States would be
“prejudicial to the public interest” or “endanger the . . . security of the
United States,” perhaps for foreign policy reasons. As mentioned in
footnote 4, the Administration in 1968 apparently assumed that to be
the case in choosing to rely on Section 212(a)(27) to prevent the entry
of Rhodesian aliens who had in the past furthered or encouraged the
unlawful actions of the illegal regime in Southern Rhodesia. See Secu
rity Council Resolution 253, § 5(b). The exclusion of such aliens pre
sumably was intended to be predicated not on the nature of any specific
activities in which they would engage while here, but on the serious
adverse foreign policy consequences of allowing them to be present in
violation of Security Council Resolution 253. We believe that the
70
conclusion reached in 1968 was based on a reasonable administrative
interpretation of Section 212(a)(27).
It is true that Section 212(a)(27) does not expressly provide that an
alien whose entry would be prejudicial to the public interest or endan
ger national security is inadmissible; it speaks instead of the nature of
the activities in which the alien seeks to engage after entering the
United States. Nevertheless, we believe that the circumstances sur
rounding the alien’s entry are in some cases quite relevant to the
assessment of the foreign relations impact of the alien’s subsequent
activities in this country.
Whether or not an alien is inadmissible under Section 212(a)(27)
depends on all the facts and circumstances, including foreign policy
factors over which the individual alien may have no control. Thus,
activities that might be wholly innocuous if engaged in by one alien,
might fairly be regarded as “prejudicial to the public interest” if en
gaged in by another, even if the individual alien did not have a specific
intent to cause any harm or disturbance while in the United States.
Section 5(b) of Security Council Resolution 253, to which this coun
try is committed, imposes a duty on Member States to prohibit the
entry for any purpose of all Rhodesian aliens who have furthered or
encouraged the unlawful actions of the Rhodesian regime. As a result,
all of the activities of such persons in the United States, however
harmless they would be if engaged in by other aliens, might have
serious foreign policy consequences simply because the Rhodesians
would have entered the country in violation of the resolution.10 As a
practical matter, then, Rhodesian aliens covered by the Security Coun
cil Resolution are inadmissible because their entry or presence in the
United States would be prejudicial to the public interest or endanger
national security, even though the language of the statute speaks in
terms of activities of aliens in the United States.11
The legislative history supports this interpretation of the statute. For
example, the Presidential proclamation and regulations on which Sec
tion 212(a)(27) was based were written in terms of an alien whose entry
would be prejudicial to the United States or to the public interest, see.
Proclamation 2523, supra; 8 CFR § 175.52(a) and 175.53 (1949), supra,
as did the two Senate Reports that first proposed the provision in 1950.
10 A lternatively, Rhodesian aliens required to be excluded under the Security Council
Resolution could be considered to be inadmissible under §212(a)(27) on the ground that
their presence in the U nited States w ould be an “activity” that w ould be prejudicial to the
public interest or endanger the national security.
" A n argum ent against the interpretation w e have advanced in the text has been
suggested, based on the hypothetical example o f a m ilitary dictator, a presum ed persona
non grata in this country, w ho m ight wish to enter the United States to visit his dying
m other o r to receive m edical attention. W e agree that § 212(a)(27) w ould ordinarily not
prevent such an entry. But w e reach that conclusion on the ground that such otherw ise
harmless activities in this country w ould not usually cause a foreign policy em barrassm ent
o f sufficient m agnitude to be regarded as prejudicial to the public interest simply because
a m ilitary dictator w as involved, not because § 212(a)(27) is w holly inapplicable in such a
setting
71
See footnote 8. In fact, 8 C F R § 175.53(b), quoted earlier, provided that
an entry would be regarded as prejudicial to the public interest if the
alien “is a member of, affiliated with, or may be active in the United
States in connection with or on behalf of, a political organization
associated with or carrying out policies of any foreign government
opposed to the measures adopted by the Government of the United
States in the public interest . .
[Emphasis added.] This phrase would
have barred the members o f the National Farmers’ Union of Southern
Rhodesia, as the Department of State has described that organization,
regardless of the nature of their intended activities in the United States.
The Departm ent of State has suggested that some memorandums and
correspondence from 1959 to 1962 relating to the efforts of a certain
alien to enter the United States may demonstrate an administrative
interpretation that an alien could not be excluded solely on the ground
that the circumstances surrounding his or her entry render all subse
quent activities “prejudicial to the public interest” or a danger to the
security of the United States. We do not believe that memorandums
and correspondence in question furnish a sound basis for rejecting our
interpretation of the statute.
Some of the materials do indicate that an alien may not be excluded
under Section 212(a)(27) solely on the ground that his native country
has stated that it would regard his admission as an unfriendly act.
Several letters also state that the foreign reaction to an alien’s entry is
not “directly pertinent” to his eligibility for a visa. But despite these
statements, both factors appear to have played a decisive role in the
State D epartm ent’s handling of cases over the years. Moreover, while
the emphasis was on the particular alien’s intended activities in the
United States, a number of the memorandums and letters state that it
was the State Department’s view that the individual’s “entry,” “admis
sion,” or “coming” to the United States would be prejudicial to the
public interest, thereby suggesting that it is permissible to consider the
ramifications of the entry itself. Because of these inconsistencies, we
decline to rely on the materials made available to us by the Department
of State as establishing an administrative interpretation that an alien
cannot be excluded on the ground that his entry or mere presence
would be prejudicial to the public interest or endanger the security of
the United States.
The Service has informed us that it has nothing in its files, other than
published opinions of the Board of Immigration Appeals, that might
shed light on whether an alien may be excluded under Section
212(a)(27) on the ground that his entry or presence in the United States
would be prejudicial to the public interest. We have reviewed the
published opinions that discuss Section 212(a)(27), including those al
ready cited, but we do not find them to be expecially illuminating on
the precise question presented here. All involved charges that the alien
would engage in specific activities after entering the United States that
72
would be prejudicial to the public interest; there was thus no need to
discuss the foreign policy consequences of the alien’s mere entry or
presence.12
We agree with what we understand to be the position of the Depart
ment of State that under our analysis, only circumstances of an unusual
nature could permit a determination that the entry of an alien into the
United States would have such serious adverse foreign policy conse
quences that his mere presence and otherwise innocuous activities in
this country would be prejudicial to the public interest or endanger
national security.13 But in our view, the entry of Rhodesian aliens who
have furthered or encouraged the “unlawful activities” of the Rhode
sian government presents such a case. It is our opinion now, as it was
in 1968, that Section 212(a)(27) bars their entry.
We also agree with your conclusion that whether an alien is barred
by Section 212(a)(27) should be determined on a case-by-case basis.
When a Southern Rhodesian alien is involved, it will be necessary to
examine the nature of his intended activities in the United States—as in
the case of the six members of the National Farmers’ Union who were
expected to promote export sales of agricultural commodities grown in
12 F or exam ple, in Matter o f M-, 8 I&N D ec 24 (1958), the B oard held th at a 73-yearold form er Rum anian industrialist, w ho had previously lived in the United States for 11
years w ithout incident but w ho was alleged to have been a Nazi sym pathizer and
Com munist sym pathizer in Rum ania before com ing to the United States, was not inadm is
sible under § 212(a)(27). T here was no suggestion, as th ere has been here, th at the alien's
m ere entry o r presence in the United States m ight have had serious adverse foreign
policy consequences. T he Board did appear to be o f the view that his expected activities
after reentering the U nited States w ould be determ inative, id. at 29-30, but it nevertheless
undertook an exhaustive review o f the alien’s past affiliations and activities before c o n
cluding that he was admissible. A nd the Board was especially influenced by a determ ina
tion in a prior proceeding in 1951 that the alien “w as not w ithin the classes o f aliens
specified in form er 8 C F R § 175 53, that is, aliens w hose entry w ould be deem ed to be
prejudicial to the interests o f the United States." Id. at 30. [Em phasis added.]
13 See the follow ing portion o f a letter dated January 14, 1977, from the A dm inistrator
o f the Bureau o f Security and C onsular Affairs, to this Office:
W hen an alien’s activities are in and o f them selves entirely innocuous— for example,
spending a few days or w eeks o f private relaxation at a resort area—it w ould then be
necessary to dem onstrate that the alien’s background, notoriety, our g overnm ent’s
policies, attitudes and comm itm ents, and other factors w ere such that the spectacle o f
the alien’s being given permission by the United States G overnm ent to engage in
such otherw ise innocuous activities w ould or reasonably could be considered to be
prejudicial to the public interest or to endanger the safety o r security o f the United
States. It w ould be the D epartm ent’s view that such a situation w ould necessarily
involve circum stances o f an unusual nature.
73
Southern Rhodesia when they attended a conference in the United
States—or to determine w hether the particular individual had in the
past furthered and encouraged the “ unlawful actions” of the regime to
some significant degree.14
John M. H
armon
Acting Assistant Attorney General
Office o f Legal Counsel
“ N o t all Southern Rhodesians co v ered by Security C ouncil R esolution 253 are inad
missible un d er § 212(a)(27) on the g ro u n d that their mere presence in the United States is
an activ ity prejudicial to the public interest. A liens traveling on R hodesian passports, see
R esolution § 5(a), are inadmissible under §212(a)(27) o f the A ct. See note 1, supra. |
|
Write a legal research memo on the following topic. | Disclosure of Grand Jury Matters to the President and
Other Officials
T h e A tto rn e y G en eral m ay d isclo se g ra n d ju ry m aterial c o v e re d b y R ule 6 (e ) o f the F e d e ra l R u le s o f
C rim in a l P ro ce d u re to th e P resid e n t an d m e m b e rs o f th e N a tio n a l S e c u rity C o u n cil w h e re su ch d is
clo su re is fo r the p u rp o se o f a ssistin g the A tto rn e y G e n e ra l in h e r e n fo rc e m e n t o f fe d e ra l c rim in a l
law . A lth o u g h u n d e r th o se c irc u m sta n c e s su ch d is c lo su re m ay be m a d e w ith o u t p rio r ju d ic ia l a p
p ro v a l, th e n am es o f th o se re c eiv in g the g ra n d ju ry m a te ria l m u st b e s u b m itte d to the c o u rt th a t im
p a n e le d th e gran d j u ry in q u e stio n
T h e re a re a ls o c irc u m sta n c e s w h ere th e P re s id e n t’s c o n stitu tio n a l re sp o n sib ilitie s m ay p ro v id e ju s tif i
c atio n fo r th e A tto rn e y G e n eral to d isc lo se g ra n d ju ry m a tte rs to the P resid e n t in d e p e n d e n t o f the
p ro v is io n s o f R ule 6 (e). S u ch c irc u m sta n c e s m ig h t arise, fo r e x a m p le , w h e re the A tto rn e y G e n eral
le a rn s th ro u g h gran d ju ry p ro c e ed in g s o f a g ra v e th reat o f te rro rism , im p lic a tin g the P re s id e n t’s re
s p o n sib ilitie s un d er A rtic le II o f th e C o n stitu tio n .
Septem ber 21, 1993
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
This memorandum responds to your request for our legal opinion on the ques
tion of whether, and under what circumstances or conditions, the Attorney General
may disclose grand jury material covered by Rule 6(e) of the Federal Rules of
Criminal Procedure in briefings presented to the President and other members of
the National Security Council (“NSC”).
We conclude that the Attorney General may disclose Rule 6(e) m aterials to the
President or to other NSC members where such disclosure is for the purpose of
assisting the Attorney General in her enforcement of federal criminal law. Disclo
sures satisfying this “criminal law enforcement purpose” standard may be made
without prior court approval or a showing o f particularized need, but the names of
those who received the information must be supplied to the district court that em
paneled the grand jury. Fed. R. Crim. P. 6(e)(3)(A), (B). Subject to obtaining
prior court approval based on a showing of particularized need, the Attorney G en
eral may also make such disclosures “[for] uses related fairly directly to some
identifiable litigation, pending or anticipated.” United States v. Baggot, 463 U.S.
476, 480 (1983); see also Fed. R. Crim. P. 6(e)(3)(C)(i). These court-approveddisclosures may be made for the purpose of gaining assistance in civil as well as
criminal litigation. We do not believe that any of the 6(e) exceptions would apply
to disclosures made to the President or NSC officials for general policymaking
purposes, as opposed to obtaining the assistance o f those officials for law enforce
ment purposes.
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Opinions o f th e O ffice o f Legal C ounsel
W e also believe, however, that the President’s ultimate responsibility to super
vise the executive branch, and in particular his duty to “take Care that the Laws be
faithfully executed,” U.S. Const, art. II, § 3, may sometimes provide a constitu
tional justification for the Attorney General to disclose grand jury matters to the
President independent o f the Rule 6(e) exceptions. Disclosures of this nature
would be supported by basic separation of powers principles where, for instance,
the President has a special need for such information in order to exercise necessary
supervision over the Attorney G eneral’s law enforcement functions in matters of
unusual national significance. Inasmuch as the courts have not directly addressed
the extent o f the President’s Article II power in this particular context, any disclo
sures o f grand jury material made on the basis of that power alone should be un
dertaken with caution. Judicial sanction for such disclosures might be obtained by
invoking the court’s inherent supervisory authority to approve disclosures o f grand
jury m aterials not otherw ise covered by one of the Rule 6(e) exceptions in appro
priate circum stances.
I. Disclosures under Rule 6(e)
Rule 6(e)(2) of the Federal Rules of Criminal Procedure establishes a “General
Rule of Secrecy” providing that certain persons, including attorneys for the Gov
ernm ent1, “shall not disclose matters occurring before the grand jury, except as
otherwise provided for in these rules.” See United States v. John Doe, Inc. I, 481
U.S. 102, 107 (1987). Under this rule, no attorney for the Department of Justice
may disclose “matters occurring before the grand ju ry ” to any other person, unless
one o f the rule’s enum erated exceptions applies. The specified exceptions are set
forth under subparagraph (3) of Rule 6(e) and may be summarized as follows:
(1) D isclosure to an attorney for the government for use in the performance of
that attorney’s duties. (Exception (A)(i));
(2) D isclosure to such government personnel as are deemed necessary to assist
an attorney for the government in the performance of his duty to enforce federal
criminal law. (Exception (A)(ii));
(3) D isclosure directed by a court preliminary to or in connection with a judicial
proceeding. (Exception (C)(i));
, (4) D isclosure at the request o f a defendant and approved by a court “upon a
showing that grounds may exist for a motion to dismiss the indictment because of
matters occurring before the grand ju ry .” (Exception (C)(ii));
(5) D isclosures made by an attorney for the government to another federal grand
jury. (Exception (C)(iii)); and
(6) D isclosures to state or local law enforcem ent officials permitted by the court
at the request o f any attorney for the governm ent for purposes of aiding prosecu
1 For p u rp o ses o f R ule 6 (e), the Attorney G eneral is an “attorney for the governm ent ” Fed R C n m P.
54(c); see U n ite d S ta te s v B a tes, 627 F.2d 3 4 9 , 351 (D C . C ir. 1980).
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D isclosure o f G rand Jury M ullers to the P resident and O ther O fficials
tion of violations of state or local law that may be brought forth before the grand
jury. (Exception (C)(iv)).
A. Subsection (A): Self-executing Exceptions
Rule 6(e)(3)(A) sets forth the exceptions to nondisclosure of grand jury matters
which may be exercised without prior judicial approval or a showing of particular
ized need. It provides as follows:
(A) Disclosure otherwise prohibited by this rule of matters oc
curring before the grand jury, other than its deliberations and the
vote of any grand juror, may be made to —
(i) an attorney for the government for use in the performance of
such attorney’s duty; and
(ii) such government personnel (including personnel of a state or
subdivision o f a state) as are deemed necessary by an attorney for
the government to assist an attorney fo r the government in the p er
formance o f such attorney’s duty to enforce federal criminal law.
Id. (emphasis added).
The (A)(i) exception clearly would not apply to disclosures to the President or
members of the NSC.2 However, the (A)(n) “government personnel” exception
could apply to such disclosures in circumstances where they are made for the pur
pose of obtaining the assistance of the President or NSC members in enforcing
federal criminal law.
Although the (A)(ii) exception was primarily designed to allow disclosures to
lesser-ranking officials or agents assisting a prosecutor in a particular case, there is
no persuasive reason why the Attorney General cannot make such disclosures to
the President or to other senior Administration officials (who do constitute
“government personnel”) for purposes o f obtaining their assistance in carrying out
federal criminal law enforcement responsibilities. One plausible example o f such a
situation might be the grand jury investigating the terrorist attack on the W orld
Trade Center. In such a case, it is possible that the Attorney G eneral’s direction
and supervision of the case could be facilitated by discussing developments
(including developments brought forth before the grand jury) with the President
and NSC members such as the Secretary o f State. However, disclosure of such
2
A lthough the President and some m em bers o f the N SC are attorneys, they are not ’‘attorneys for the
g overnm ent” in the sense in w hich that term is used in R ule 6(e)
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O pinions o f th e O ffice o f L egal C ounsel
grand jury m aterials could not be m ade under the (A)(ii) exception for mere pur
poses o f general policymaking.
W hile we find no case authority specifically addressing (A)(ii) disclosures to the
President or senior government officials at the Cabinet level, we believe the lan
guage o f the subsection, its legislative history, and judicial opinions interpreting it
are com patible with such disclosures under the limitations noted.
The text of the (A)(ii) exception on its face allows for disclosures to the Presi
dent or to NSC officials in circumstances where the Attorney General (in her ca
pacity as “an attorney for the government”) deem s such disclosures necessary to
obtain the assistance of such officials in the performance of her duties to enforce
federal criminal law. In this regard, there is no persuasive reason why the term
“governm ent personnel” as used in subparagraph (A)(ii) should be narrowly con
strued to exclude the President or C abinet-level officials.
The (A)(ii) “governm ent personnel” exception was enacted in 1977. Act of July
30, 1977, Pub. L. No. 95-78, § 2(a), 91 Stat. 319, 319. The Senate Report on the
1977 am endm ent explained its origins and purpose as follows:
The Rule as redrafted is designed to accommodate the belief . . .
that Federal prosecutors should be able, without the time-consuming
requirem ent of prior judicial interposition, to make such disclosures
o f grand jury information to other government personnel as they
deem necessary to facilitate the performance o f their duties relating
to criminal law enforcement.
S. Rep. No. 95-354, at 8 (1977), reprinted in 1977 U.S.C.C.A.N. 527, 531 (“ 1977
Senate R eport”) (em phasis added). The R eport’s use o f the permissive phrase “as
they deem necessary” strongly supports the view that Congress intended federal
prosecutors to have broad leeway in deciding what government personnel should
have access to grand jury materials for purposes o f facilitating enforcement func
tions.
Assessing this legislative history of the (A)(ii) exception in In re Perlin, 589
F.2d 260 (7th Cir. 1978), the Seventh Circuit stated:
[T]he history o f the am endm ents of rule 6 ( e ) . . . clearly indicates
the continuing Congressional support for inter-agency cooperation
and the active participation of agency personnel, including agency
attorneys, in grand jury proceedings.
Id. at 267.
The Supreme C o u rt’s opinion in United States v. Sells Engineering, Inc., 463
U.S. 418 (1983), provides further insight regarding the intended scope of the
(A )(ii) exception. Sells held that attorneys in the Civil Division of the Department
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D isclosure o f G rand Jury M ailers to the P resident an d O ther O fficials
of Justice could not obtain automatic direct disclosure of grand jury materials from
Department prosecutors under the (A)(i) exception where the purpose of the dis
closure was for use in civil suits as opposed to criminal law enforcement. Under
those circumstances, the Court held that the Civil Division attorneys must instead
apply for court-approved disclosure under the (C)(i) exception applicable to m at
ters related to both civil and criminal judicial proceedings. In the course of its
opinion, however, the Court emphasized the sharp distinction between the auto
matic subsection (A) exceptions applicable to criminal law enforcement and the
more restrictive, court-approved subsection (C) exceptions applicable in the civil
context. Referring to materials in the 1977 Senate Report, quoted above, the Court
said that they
reflectf] the distinction the Senate Committee had in mind: “Federal
prosecutors ” are given a free hand concerning use o f grand jury
materials, a t least pursuant to their “duties relating to criminal law
enforcement"-, but disclosure of “grand jury-developed evidence for
civil law enforcement purposes” requires a (C)(i) court order.
Id. at 441-42 (emphasis added).
Other opinions also suggest a relatively expansive interpretation of the
“government personnel” exemption. In United States v. Cook, 794 F.2d 561 (10th
Cir.), cert, denied, 479 U.S. 889 (1986), the court upheld applicability of the
(A)(ii) exception to disclosures to two state police officers who were deputized as
Special Deputy U.S. M arshals to assist in an investigation of illegal drug activities.
The court stressed that the officers “were needed to aid in the investigation and that
the disclosures were necessary to effective aid” and held that they should be
“included within even the most restrictive definition” o f the government personnel
exemption. Id. at 565; see also United States v. Kilpatrick, 821 F.2d 1456, 1471
(10th Cir. 1987), aff’d sub nom. Bank o f Nova Scotia v. United States, 487 U.S.
250 (1988) (“Federal employees assisting the prosecutor in the investigation and
prosecution of federal criminal violations are permitted access to grand jury mate
rials without prior court permission. However, such support personnel may not use
the material except for purposes of assisting Government attorneys to enforce fed
eral criminal laws.”); United States v. Claiborne, 765 F.2d 784, 795 (9th Cir.
1985), cert, denied, 475 U.S. 1120 (1986) (holding that (A)(ii) authorizes disclo
sure to federal officials who assist the prosecution in collecting evidence for a
case).
These cases demonstrate that the category of “government personnel” to whom
disclosures may be made should not be narrowly construed. We therefore see no
reason to conclude that the President and other officials o f the NSC could not
qualify as “government personnel” for purposes of this exemption. Rather, the key
factor in determining the applicability of this exemption to disclosure = of the kind
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Opinions o f th e O ffice o f L egal C ounsel
proposed is the extent to which the disclosure is limited to the purpose of obtaining
the assistance o f the President and other officials in the Attorney General’s crimi
nal law enforcem ent activities. See Sells, 463 U.S. at 442. If disclosures are con
fined to that purpose, they should qualify for coverage under the (A)(ii) exception.
If the Attorney General does rely upon the (A)(ii) exception to disclose grand
jury m aterial w ithout prior court approval in this context, a list naming all the offi
cials to whom such disclosures are m ade must be submitted to the district court that
em paneled the grand jury. Fed. R. Crim. P. 6(e)(3)(B). While the rule does not
explicitly require subm ission of the list of nam es before the disclosure is made, it
has been held that subm ission of the names should ordinarily be made prior to dis
closure of the m aterials. United States v. Hogan, 489 F. Supp. 1035, 1038 (W.D.
W ash. 1980) (citing the 1977 Senate Report at 8, where it was stated, “[a]lthough
not expressly required by the rule, the Com m ittee contemplates that the names of
such personnel will generally be furnished to the court before disclosure is made to
them ”). W e believe that, when practicable, the list of names should be submitted
prior to the disclosures.
B. Subsection (B): E xceptions Requiring Court Approval
Subsection 6(e)(3)(C) o f the rule sets forth four additional exceptions from its
general ban on disclosure of grand jury materials. The only one of these excep
tions relevant to the question posed is the (C)(i) exception, which provides:
(C) D isclosure otherwise prohibited by this rule of matters occur
ring before the grand jury m ay also be made —
(i) when so directed by a court preliminarily to or in con
nection with ajudicial proceeding;
This exception has been narrowly interpreted by the Supreme Court. In United
States v. Baggot, 463 U.S. at 480, the Court held that the (C)(i) exception did not
provide a basis for disclosing grand jury material to agents of the Internal Revenue
Service (“IRS”) for purposes of conducting an audit to determine the erstwhile
grand jury target’s civil tax liability. The Court first noted that disclosure under
(C)(i) can only be justified where there is a “particularized need” for access to the
materials and where that need is related to a judicial proceeding. The Court then
elaborated upon the latter prerequisite:
It reflects a judgm ent that not every beneficial purpose, or even
every valid governmental purpose, is an appropriate reason for
breaching grand jury secrecy. Rather, the Rule contemplates only
uses related fairly directly to some identifiable litigation, pending or
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D isclosure o f G rand Jury M atters to the P resident a n d O ther O fficials
anticipated . . . . If the primary purpose of disclosure is not to assist
in preparation or conduct of a judicial proceeding, disclosure under
(C)(i) is not permitted.
Id.
The Baggot C ourt’s restrictive interpretation confines the (C)(i) exception to
disclosures that are closely and directly related to some identifiable litigation.
However, to the extent that disclosures of the kind described by the Attorney Gen
eral could satisfy that standard, there is no apparent reason why this exception
would not extend to such disclosures. The primary practical value of the (C)(i)
exception in this context is that it permits disclosures that are related to civil ju d i
cial proceedings as well as criminal.
Prior judicial approval for (C)(i) disclosures must be obtained by filing a peti
tion with the district court where the grand jury convened. Fed. R. Crim . P.
6(e)(3)(D). When the government is the petitioner, ex parte hearings are author
ized. Id. If the court approves the petition, the court specifies the manner, time,
and conditions of the disclosure. Id. 6(e)(3)(C).
II. Disclosures to President under Article II
Apart from the enumerated exceptions from Rule 6(e)’s prohibition against dis
closure of grand jury material, we believe that the Attorney G eneral’s disclosures
of such materials to the President could in some circumstances be authorized on
broader constitutional grounds. As the repository of all executive power in the
national government, the President is charged with the duty to “take Care that the
Laws be faithfully executed.” U.S. Const., art. II, §§ 1,3. Accordingly, there may
be circumstances in which his constitutional responsibilities entitle the President to
obtain disclosure of grand jury information that has already been made available to
the Attorney General, even where that disclosure might not be specifically author
ized by one o f the exceptions under Rule 6(e).
In a brief memorandum prepared to provide responses to W atergate-related
press inquiries in 1973, this Office opined that it “is not altogether clear” whether
the President may obtain access to the transcript of a federal grand jury investiga
tion.3 The memorandum first advised that the restrictive language of Rule 6(e)
“seemingly precludes the disclosure o f [matters occurring before the grand jury] to
the President because he is not a member of the group specifically authorized to
obtain this information.” Id. at 1. This aspect of the memorandum may be attrib
uted to the fact that the (A)(ii) exception for “government personnel” had not yet
been incorporated in the rule at the time the opinion was written. However, the
3
M em orandum fo r H orace W ebb, A cting D irector, Public Inform ation O ffice, from Robert G. D ixon,
A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. Q uestions fr o m the Press on th e W atergate In v e s
tigation (A pr. 30, 1973)
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Opinions o f the O ffice o f L egal C ounsel
memorandum went on to state, “it can be argued that the President by virtue of his
responsibility in administering the executive branch is authorized to obtain the
transcripts of testimony before a grand jury.” Id. Stressing that all executive
power is vested in the President, and his particular obligation to take care that the
laws be faithfully executed, U.S. Const, art. II, §§ 1 ,3 , the memorandum stated:
[T]hat pow er which is vested in the Attorney General to supervise
all litigation empowers the President to supervise the litigation and
to perform any functions incidental thereto because the power o f the
Attorney General is a residue o f the m ore general power vested in
the President by the Constitution. See also 1 Op. A.G. 453 (1855)
(the heads o f all Departments are subject to the direction of the
President).
Id. at 2. The memorandum added that its opinion on this question was “purely
hypothetical” because the President had ordered that no transcripts o f testimony
before the W atergate grand jury were to be sent to the W hite House. Id.
A m em orandum opinion prepared for the President by Attorney General Griffin
Bell in 1977 provides additional pertinent insight regarding the President’s consti
tutional authority in working with the Attorney General. Proposals Regarding an
Independent Attorney General, 1 O p. O.L.C. 75 (1977). That opinion expressed
“serious doubts” as to the constitutionality of certain proposed legislation provid
ing that the Attorney General should be appointed for a definite term and remov
able from office only for cause or m alfeasance. The opinion placed great stress on
the President’s constitutional responsibility as C hief Executive to supervise the law
enforcem ent functions o f the Attorney General, stating:
Indeed, the President must be held accountable for the actions o f the
executive branch; to accomplish this he must be free to establish
policy and define priorities. Because laws are not self-executing,
their enforcem ent obviously cannot be separated from policy con
siderations. The Constitution contem plates that the Attorney Gen
eral should be subject to policy direction from the President. As
stated by the Supreme Court: “The Attorney General is . . . the
hand o f the President in taking care that the laws of the United
States . . . be faithfully executed.” Ponzi v. Fessenden, 258 U.S.
254, 262 (1922). Removing the Attorney General from the Presi
d en t’s control would make him unaccountable to the President, who
is constitutionally responsible for his actions.
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D isclosure o f G rand Jury M atters to the P resident a n d O ther Officials
Id. at 76; see also M yers v. United States, 272 U.S. 52, 133 (1926) (stressing that
“[e]ach head of a department is and must be the President’s alter ego in the matters
of that department where the President is required by law to exercise authority”).
The foregoing Attorney G eneral’s opinion focused on the President’s supervi
sory authority over the Attorney General in the context of the removal power. The
constitutional principles it invoked are nevertheless pertinent to the President’s
ability to obtain information needed to discharge his responsibilities relative to the
Attorney General’s functions and to “take care that the laws are faithfully exe
cuted.” In some circumstances, we believe that the President’s Article II responsi
bilities in this area may independently justify the Attorney G eneral’s disclosure to
him of pertinent grand jury information. A prime example of such circumstances
might be a grand jury investigation of major international terrorist activity in the
United States, involving a threat to domestic peace and national security. In such a
case, the President should be able to share grand jury information legitimately pos
sessed by the Attorney General in order to aid the President’s handling o f the over
all law enforcement crisis. Similarly, presidential access to such grand jury
information would also appear justified under the removal power, see M yers, in a
case where, for example, the integrity or loyalty of a presidential appointee holding
an important and sensitive post was implicated in the grand jury investigation.
Although we find no opinions directly addressing this issue, several cases sug
gest that the constitutional duties of the respective branches may provide inde
pendent support for their access to grand jury information. In M atter o f Grand
Jury Subpoena o f Rochon, 873 F.2d 170, 174 (7th Cir. 1989), the court observed
as follows in reversing a district court order disqualifying the Attorney General
from participating in a grand jury investigation on alleged conflict o f interest
grounds:
[A] federal district court order prohibiting the Attorney General of
the United States from participating in a grand jury investigation is
no small matter, even if the investigation could continue in his ab
sence. Since initiating a criminal case by presenting evidence be
fore the grand jury is ‘“ an executive function within the exclusive
prerogative of the Attorney G eneral,” ’ United States v. Chanen, 549
F.2d 1306, 1312-13 (9th Cir.) (quoting In re Persico, 522 F.2d 41,
54-55 (2d Cir. 1975)), cert, denied, 434 U.S. 825, 98 S. Ct. 72, 54
L.Ed.2d 83 (1977), such an order raises sharp separation-of-powers
concerns. As the Ninth Circuit has stated, although the ‘“ grand jury
is subject to a supervisory power in the courts, aimed at preventing
abuses o f its processes or authority,’” id. at 1313 (quoting 1 W right,
Federal Practice and Procedure § 101, at p. 151 (1969)), “the separation-of-powers principle imposes significant limits on it.”
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O pinions o f the O ffice o f L egal C ounsel
Id. (quoting United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985)).
Two low er court decisions of note have upheld congressional access to grand
jury m aterials in aid of that branch’s constitutional power o f impeachment. In
Grand Jury Proceedings o f Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75
(S.D. Fla.), a ff’d, 833 F.2d 1438 (1 1th Cir. 1987), the court held that the House
Judiciary C om m ittee was entitled to receive the record of grand jury proceedings in
furtherance o f its im peachm ent investigation of Judge Alcee Hastings. Although
the com m ittee’s access to the materials was separately justified on the basis of Fed.
R. Crim. P. 6(e)(3)(C)(i), the court held that the disclosure was also justified on the
basis of, inter alia, the Impeachment Clause. U.S. Const, art. I, § 2; see also In re
Report and Recommendation of June 5, 1972 G rand Jury’, 370 F. Supp. 1219
(D.D.C.), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir.
1974) (district cou rt’s decision granting the W atergate grand ju ry ’s request that its
report on the matters it investigated be submitted to the House Judiciary Com m it
tee, upheld by court o f appeals in denying m andam us relief).
These decisions should be read with some caution because the disclosures of the
grand jury m aterials at issue were directly related to impeachment proceedings —
which have been viewed as within the coverage o f the Rule 6(e)(3)(C)(i) exception
— and were undertaken only after obtaining prior judicial approval. Nonetheless,
they dem onstrate the courts’ willingness to recognize an independent constitutional
basis for disclosures o f grand jury inform ation outside the provisions o f Rule 6(e).
Thus, if congressional access to grand jury m aterials may be independently justi
fied on the basis o f its Article I pow er, it would be anomalous to contend that
presidential access to such materials could not be justified on the basis of the
President’s Article II powers.
In the absence o f judicial precedent on this point, however, any disclosure of
grand jury m atter to the President on this basis should be cautiously undertaken
and reserved for matters o f clear executive prerogative in areas where the Rule
6(e)(3)(A )(ii) exception could not be used. Because such disclosures would be
based on the P resident’s inherent constitutional powers rather than Rule 6(e), the
rule’s various procedural requirements would not be applicable. Nonetheless, the
risk o f constitutional confrontation could be minimized by seeking the approval of
the district court that impaneled the grand jury, invoking the court’s inherent
authority to disclose grand jury m aterials for reasons other than those specified in
Rule 6(e).
A federal court’s “inherent” pow er to authorize disclosure of grand jury matters
outside the param eters o f Rule 6(e) was recognized by the Eleventh Circuit in In re
Petition, 735 F.2d 1261, 1268 (11th Cir.), cert, denied, 469 U.S. 884 (1984). At
issue was w hether the Judicial Council of the Eleventh Circuit could have access to
records of a federal grand jury in connection with the Council’s investigation of
Judge A lcee H astings under the Judicial C ouncils Reform and Disability Act, 28
U.S.C. § 372. The court recognized that none o f the Rule 6(e) exceptions applied
68
D isclosure o f Grand Ju ry M atters to the P resident a n d O ther O fficials
to the request, although it noted that the investigation in question was “very simi
lar” to the “judicial proceedings” covered by the Rule 6(e)(3)(C)(i) exception.
Nonetheless, the Eleventh Circuit affirmed the district court’s holding that Rule
6(e) did not preclude it “from fashioning an alternate method for disclosure under
its general supervisory authority over grand jury proceedings and records.” 735
F.2d at 1267-68.4 As the court explained the inherent power doctrine:
[I]t has been authoritatively said that [Rule 6(e)] is not the true
source of the district court’s power with respect to grand jury rec
ords but rather is a codification of standards pertaining to the scope
of the power entrusted to the discretion of the district court.
Id. at 1268. After citing examples of how the courts have influenced the develop
ment of Rule 6(e) through the exercise of their “inherent power” over grand jury
materials, the court stated:
These examples from the history o f Rule 6(e) indicate that the ex
ceptions permitting disclosure were not intended to ossify the law,
but rather are subject to developm ent by the courts in conformance
with the rule’s general rule o f secrecy.
Id. at 1269. The court concluded that “it is certain that a court’s power to order
disclosure of grand jury records is not strictly confined to instances spelled out in
the rule,” id. at 1268, but it stressed that the courts can only order disclosure out
side the rule in “exceptional circumstances consonant with the rule’s policy and
spirit.” Id. at 1269.
Although the Eleventh Circuit’s “inherent power” doctrine has not been widely
cited by the courts in published opinions, it does provide one recognized frame
work for seeking judicial approval of disclosures of grand jury material to the
President based on constitutional authority rather than on Rule 6(e).
W ALTER DELLINGER
Acting Assistant Attorney General
Office o f Legal Counsel
4 T he Eleventh C irc u it's holding on this issue has been criticized in one d istrict court decision In M atter
o f E lectronic S u rveillance, 596 F. Supp 991, 1001 (E D M ich 1984), the court asserted that the “ Eleventh
C irc u it's reliance on the inherent pow ers d o ctrin e is su sp ect.’” In support o f this position, the d istrict court
c ontend ed that the Suprem e C o u rt's decision in U nited S ta te s v. Baggot 463 U S. 4 76 (1983) had im plicitly
rejected extra-R ule 6(e) disclosures because the trial court in B aggot had found that disclosure w as author
ized un d er the inherent pow ers doctrine, b u t the Suprem e C o u rt had held against disclosure b ecau se the
standards o f Rule 6 (e )(3 )(C )(l) had not been satisfied. W e do not read the Baggot decision as taking any
position, one w ay or the other, on the inherent pow ers d o ctrin e because, as the C ourt noted, certiorari there
was lim ited to the narrow question o f w hether an IRS civil tax audit is ‘‘p re lim in a ry ] to or in connection
w ith a ju d icial proceeding ’ under the (C )(i) e x cep tio n Id at 478 (alteration in original)
69 |
|
Write a legal research memo on the following topic. | Appointment of a Federal Judge to the
United Nations Delegation
If this were a matter of first impression, appointing a federal judge to be a representative of the United
States to the General Assembly of the United Nations would be inconsistent with the constitutional
doctrines of separation of powers and independence of the judiciary. However, because of the
longstanding practice of appointing federal judges to temporary office in the Executive Branch, and
the absence of any explicit constitutional text, it cannot be maintained that such an appointment
would be unconstitutional.
August 5, 1976
MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL
TO THE PRESIDENT
This is in response to your inquiry relating to the appointment of a judge of the
U.S. Court of Appeals1 to be a representative of the United States to the General
Assembly of the United Nations.
Section 2(c) of the United Nations Participation Act of 1945, Pub. L. No. 79264, § 2(c), 59 Stat. 619, codified at 22 U.S.C. § 287(c) (1976), provides that the
President shall appoint by and with the advice and consent of the Senate not to
exceed five representatives of the United States to attend a specified session or
sessions of the General Assembly of the United Nations. Pursuant to section 3 of
the Act, 22 U.S.C. § 287a (1976), those representatives “act in accordance with the
instructions of the President transmitted by the Secretary of State.”
Even though the Constitution does not contain for judges any express prohibition from simultaneous service in the Executive Branch similar to that established
for congressmen under Article I, Section 6, Clause 2, I would nonetheless advise,
if this were a matter of first impression, that an appointment of the sort suggested
would be inconsistent with the constitutional doctrines of separation of powers and
independence of the judiciary. However, in addition to the absence of any explicit
prohibition, there is a constitutional practice of appointing federal judges to
temporary office in the Executive Branch which goes back to the diplomatic
service rendered by Chief Justices John Jay and Ellsworth during the administrations of Presidents Washington and John Adams. The last instance was the
appointment of District Judge Boldt to the position of Chairman of the Pay Board
in 1971.2 Because of this longstanding practice, and the absence of any explicit
1
We have been informally advised that the judge in question is in active service.
For other instances, see, e.g., International Military Tribunal, 40 Op. Att’y Gen. 423 (1945);
Nominations of Hon. Marvin Jones and Hon. John Caskie Collet, S. Exec. Rep. No. 80-7 (1947),
reprinted in Independence of Judges: Should They Be Used for Non-Judicial Work?, 33 A.B.A.J. 792
(1947); Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 704 & n. (1956) (“Mason”).
2
393
Supplemental Opinions of the Office of Legal Counsel in Volume 1
constitutional text, I think it cannot be maintained that such an appointment would
be unconstitutional.
During this century, however, it has been asserted with increasing frequency
that, while the practice of appointing judges to temporary positions in the Executive Branch may have been justified by the conditions prevailing during the early
years of the Republic, “the propriety of the practice should be examined anew if
the integrity of the judiciary in American life is to be preserved.” S. Exec. Rep.
No. 80-7, supra note 2, at 2. That report cites the following undesirable aspects of
such appointments:
(1) Reward may be conferred or expected in the form of elevation
to a higher judicial post.
(2) The judicial and executive functions may be improperly
merged.
(3) The absence of the judge from his regular duties increases the
work load of the other judges of the court, if any, and may result in
an impairment of judicial efficiency in the disposition of cases.
(4) Nonjudicial activities may produce dissension or criticism and
may be destructive of the prestige and respect of the Federal judiciary.
(5) A judge, upon resumption of his regular duties, may be called
upon to justify or defend his activities under an Executive commission.
Id. at 6 (footnotes omitted).3
In 1958, Chief Justice Warren, in a letter addressed to Congressman Keating,
commented adversely on a proposal to have a justice of the Supreme Court serve
on a commission to determine presidential disability:
MY DEAR MR. CONGRESSMAN: During the time the subject of inability of a President to discharge the duties of his office has been
under discussion, the members of the Court have discussed generally, but without reference to any particular bill, the proposal that a
member or members of the Court be included in the membership of a
Commission to determine the fact of Presidential inability to act.
3
For Chief Justice Stone’s rejection of President Franklin D. Roosevelt’s offer to serve on a commission to study the rubber supply during World War II, and for his attitude on Justice Jackson’s
service on the Nuremberg Tribunal, see Mason, supra note 2, at 709–20.
394
Appointment of a Federal Judge to the United Nations Delegation
It has been the belief of all of us that because of the separation of
powers in our Government, the nature of the judicial process, the
possibility of a controversy of this character coming to the Court,
and the danger of disqualification which might result in lack of a
quorum, it would be inadvisable for any member of the Court to
serve on such a Commission.
I realize that Congress is confronted with a very difficult problem,
and if it were only a matter of personal willingness to serve that anyone in the Government, if requested to do so, should make himself
available for service. However, I do believe that the reasons above
mentioned for nonparticipation of the Court are insurmountable.4
This trend culminated in 1973 in the approval by the Judicial Conference of the
United States of Canon 5(G) of the Code of Judicial Conduct of United States
Judges:
Extra-judicial appointments. A judge should not accept appointment
to a governmental committee, commission, or other position that is
concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality
on ceremonial occasions or in connection with historical, educational, and cultural activities.
Commentary: Valuable services have been rendered in the past to the
states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of
conferring these assignments on judges must be reassessed, however,
in light of the demands on judicial manpower created by today’s
crowded dockets and the need to protect the courts from involvement
in extra-judicial matters that may prove to be controversial. Judges
should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary.
Since the duties of the United States Representative to the General Assembly of
the United States are not of a historical, educational, or cultural nature, Canon
5(G) precludes a federal judge on active duty from accepting that position. It is far
4
Reprinted in Presidential Inability: Hearings Before the Subcomm. on Constitutional Amendments
of the S. Comm. on the Judiciary, 85th Cong., 2d Sess. at 14 (1958). Nevertheless, Chief Justice Warren
accepted the position of Chairman of the Commission to investigate the assassination of President
Kennedy.
395
Supplemental Opinions of the Office of Legal Counsel in Volume 1
from clear what sanctions are available for violation of the Judicial Conference’s
Canons. Some judges have openly refused to comply with those portions which
relate to required financial disclosure—with apparent impunity except for
publication of their names by (I believe) the Administrative Office of the United
States Courts. Nonetheless, it does seem inadvisable to place the President in the
position of prompting action which is in violation of the Canons.
Finally, I wish to recall the fact that the Executive Branch has taken a rather
firm stand of late on various matters bearing upon the principle of separation of
powers. I refer in particular to our opposition to disapproval of executive action by
one-house or concurrent resolutions, and congressional participation in the
appointment of executive officers. It would invite attack to combine such a pristine
view of separation vis-à-vis the Congress with a latitudinarian stance insofar as the
courts are concerned.
ANTONIN SCALIA
Assistant Attorney General
Office of Legal Counsel
396 |
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Write a legal research memo on the following topic. | Service Credit for Retirement Annuities of
USPS Employees When USPS Has Not
Made Required Contributions
The Office of Personnel Management may not address the United States Postal Service’s
failure to make statutorily required retirement contributions by denying its employees
accrued service credit under the Federal Employees’ Retirement System during their
periods of qualifying federal employment.
November 1, 2011
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF PERSONNEL MANAGEMENT
AND
THE GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT
UNITED STATES POSTAL SERVICE
On June 22, 2011, the United States Postal Service (“USPS” or “Postal
Service”) notified the Office of Personnel Management (“OPM”) that,
because of its financial difficulties, the Postal Service, as a cash conservation measure, was suspending its employer contributions to the Civil
Service Retirement and Disability Fund (“the Fund”) on behalf of those
postal employees covered by the Federal Employees’ Retirement System
Act (“FERS”), 5 U.S.C. §§ 8401–8479 (2006 & Supp. IV 2010). In light
of that suspension, OPM requested an opinion from our Office regarding
(1) whether, and to what extent, OPM has discretion to offset the Postal
Service’s obligation to make employer retirement contributions against a
“surplus” the Postal Service asserts that it has accumulated in the Fund;
and (2) whether postal employees are entitled to receive service credit, for
purposes of determining their eligibility for retirement and calculating the
amount of their retirement annuity, for periods of employment during
which the Postal Service has not made its required employer contributions. 1 The Postal Service, an independent agency, joined OPM in the
request for an opinion and agreed to be bound by our decision. 2
See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal
Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (July
14, 2011) (“OPM Memo”). OPM enclosed with its submission an undated paper it had
received from USPS, with the heading “Effect of Suspension of Agency Contribution to
1
181
35 Op. O.L.C. 181 (2011)
In its submission to the Office of Legal Counsel (“OLC”), the Postal
Service indicated that, despite earlier disagreement, it now “does not
contest OPM’s position that the Postal Service is still obligated by the
statute to make its employer contribution, despite the existence of the
surplus.” USPS Memo at 14; see also id. at 4. The Postal Service, however, also specifically stated that it considers the question “whether the
[Postal Service’s] Board [of Governors] was justified in its decision to
suspend the employer contribution in order to conserve cash so as to avoid
a shutdown in mail service” to be outside “the scope of [OLC’s] review.”
Id. at 3 n.2. Thus, we do not address (i) whether OPM could offset the
Postal Service’s required contributions against any surplus it may have in
the Fund; (ii) whether the Postal Service’s apparent statutory violation
may be excused; or (iii) what other avenues of recourse OPM may have
against the Postal Service for its failure to make the statutorily required
contributions. Instead, this opinion addresses only the question whether,
under the relevant provisions of the FERS statute, postal employees are
entitled to receive service credit for periods during which the Postal
Service has not made the required employer contributions to the Fund.
The Postal Service argues that its employees should receive such credit.
Id. at 2–14. OPM disagrees, maintaining that employees cannot be credited with service for periods in which no employer contributions have been
made into the Fund. OPM Memo at 5–9. For the reasons that follow, we
agree with the Postal Service that OPM may not address the Postal Service’s failure to make statutorily required contributions by denying its
employees accrued service credit under FERS during their periods of
qualifying federal employment.
I.
In 1986, Congress enacted the Federal Employees’ Retirement System
Act of 1986, Pub. L. No. 99-335, 100 Stat. 514 (codified as amended at
FERS on Employees” (“USPS Paper”). OPM has agreed provisionally to provide service
credit to postal employees who may retire while the issue is pending before our Office.
OPM Memo at 2.
2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal
Counsel, from Mary Anne Gibbons, General Counsel and Executive Vice President,
United States Postal Service (Aug. 12, 2011) (“USPS Memo”).
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5 U.S.C. §§ 8401–8479 and scattered U.S.C. sections), a system of retirement and other benefits for federal employees that will gradually
supersede the Civil Service Retirement System (“CSRS”), which has
been in effect since 1920. See Pub. L. No. 66-215, 41 Stat. 614 (1920)
(codified as amended at 5 U.S.C. §§ 8331–8351 (2006 & Supp. 2010)).
In enacting FERS, Congress set out, among other things, “to establish a
Federal employees’ retirement plan which is coordinated with title II of
the Social Security Act”; “to ensure a fully funded and financially sound
retirement benefits plan for Federal employees”; and “to assist in building a quality career work force in the Federal Government.” Pub. L. No.
99-335, § 100A(1), (2), & (5), 100 Stat. at 516 (codified at 5 U.S.C.
§ 8401 note (2006)). 3 With certain exceptions, the Act became effective
on January 1, 1987. Id. § 702, 100 Stat. at 631 (codified at 5 U.S.C.
§ 8401 note). Since then, most newly hired federal employees who are
covered by Social Security have also been covered by FERS.
FERS is a three-tiered retirement system that consists of Social Security, a basic annuity, and a Thrift Savings Plan (“TSP”). See 5 U.S.C.
§ 8403 (2006) (except as otherwise provided, benefits payable under
FERS are in addition to benefits payable under the Social Security Act);
id. §§ 8410–8425 (2006 & Supp. IV 2010) (basic annuity); id. §§ 8431–
8440f (2006 & Supp. IV 2010) (TSP). 4 The Postal Service and its employees fall within FERS coverage. 39 U.S.C. § 1005(d) (2006 & Supp.
III 2009). The dispute between OPM and the Postal Service concerns the
basic annuity.
Under FERS, an “employee,” as defined in 5 U.S.C. § 8401(11)
(2006), must complete at least five years of creditable civilian service
under 5 U.S.C. § 8411 to be eligible for the annuity. 5 U.S.C. § 8410
From Congress’s enactment of the Social Security Act in 1935, Pub. L. No. 74-271,
49 Stat. 620 (1935), until 1983, federal employees were excluded from Social Security
coverage. In 1983, the Social Security Act was amended to cover newly hired federal
employees. Pub. L. No. 98-21, § 101, 97 Stat. 65, 67–70 (1983) (codified at 42 U.S.C.
§ 410). That expansion of Social Security was a major impetus behind the adoption of
FERS, the new retirement system for federal employees, in 1986. See generally S. Rep.
No. 99-166, at 1–2 (1985) (providing background on the CSRS and amendment of the
Social Security Act to cover federal employees).
4 The TSP is a tax-deferred savings plan for federal employees in which employee contributions are matched in part by employer agency contributions.
3
183
35 Op. O.L.C. 181 (2011)
(2006). As a general matter, creditable service includes “employment as
an employee . . . after December 31, 1986.” Id. § 8411(b)(1). With certain exceptions, the annuity of a retiring employee is 1 percent of that
individual’s average pay (the highest average pay in effect over any three
consecutive years of service) multiplied by that individual’s “total [years
of] service.” Id. §§ 8415(a), 8401(3) (defining “average pay”). The
statute establishes different potential retirement ages for employees
depending on the number of years of service completed. Id. § 8412 (2006
& Supp. IV 2010). For example, an employee who is separated from
service after becoming 62 years old and completing five years of service
is entitled to an annuity. Id. § 8412(c). “[S]ervice,” in turn, “means
service which is creditable under section 8411.” Id. § 8401(26). As
these provisions make clear, the determination whether service is creditable under the statute has important ramifications for an employee’s
eligibility to receive a basic annuity, the applicable retirement age, and
the calculation of the amount of the annuity. 5
The FERS basic annuity is funded through a combination of employee
deductions and employer agency contributions to the Civil Service Retirement and Disability Fund. Id. §§ 8422, 8423, 8401(6) (2006 & Supp.
IV 2010). Under FERS, the employing agency is required to deduct and
withhold from each employee’s basic pay a percentage that is equal to 7
percent of basic pay (with a different percentage applicable to Members
of Congress and certain categories of employees) less the Old Age,
Survivors, and Disability Insurance (“OASDI”) tax rate in effect, which
is now 6.2 percent. Id. § 8422(a), (c) (2006 & Supp. IV 2010); 26 U.S.C.
§ 3101(a) (2006). Accordingly, the employer is required by the statute to
deduct 0.8 percent of most employees’ basic pay for contribution to the
Fund.
The employing agency’s own contribution to the Fund is much larger
and is based on the “normal-cost percentage,” which is “the entry-age
normal cost of the provisions of [FERS] which relate to the Fund,” as
computed by OPM “in accordance with generally accepted actuarial
Creditable service is also important to other facets of the retirement system. For example, an employee is not entitled to retain the employer’s contributions to the TSP and
earnings attributable to such contributions before completing specific periods of service.
See 5 U.S.C. § 8432(g)(2) (2006).
5
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Service Credit for Retirement Annuities of USPS Employees
practice and standards” and “expressed as a level percentage of aggregate
basic pay.” 5 U.S.C. § 8401(23) (defining “normal-cost percentage”); see
id. § 8423(a) (2006 & Supp. IV 2010). 6 Under the statute, “each employing agency having any employees or Members subject to section 8422(a)
shall contribute to the Fund an amount” that is the product of the applicable normal-cost percentage and the aggregate amount of basic pay payable
by the agency for the period involved. Id. § 8423(a)(1). In determining the
normal-cost percentage to be applied, the employee deductions required
by section 8422 must be taken into account. Id. § 8423(a)(2). 7 Thus, for
6
“Entry age normal cost” is
generally understood as the percentage of every paycheck that should be invested, over
the total career of each employee in a group of new entrants, to pay fully for all benefits received by that group, including all eligible survivors. Normal cost is formally defined as the present value of future benefits divided by the present value of future compensation. These values are expressed as a percentage of payroll, and provide a
consistent measure of relative pension costs over time.
S. Rep. No. 99-166, at 35 (1985). OPM publishes the “normal cost percentages” for
particular categories of employees in the Federal Register. At the time the Postal Service
suspended its employer contributions to the Fund, the government-wide normal cost
percentage for most employees was 12.5 percent. Federal Employees’ Retirement System;
Normal Cost Percentages, 75 Fed. Reg. 35,098 (June 21, 2010). For the first pay period
commencing on or after October 1, 2011, the normal cost percentage for most employees
rose to 12.7 percent. Federal Employees’ Retirement System; Normal Cost Percentages,
76 Fed. Reg. 32,242, 32,243 (June 3, 2011).
7 Section 8422(a) requires that “[t]he employing agency shall deduct and withhold
from basic pay of each employee . . . a percentage of basic pay.” 5 U.S.C. § 8422(a)(1).
Thus, so long as the individual is an “employee,” see id. § 8401(11), and is not otherwise
excluded from coverage under the statute, see id. § 8402 (2006), the individual is “subject
to section 8422(a),” and the employing agency is required to make contributions to the
Fund under section 8423. There is no dispute here that the Postal Service’s employees for
whom the employer contributions have been withheld are “employees” for purposes of
FERS. As a general matter, the FERS definition of “employee” refers to the definition of
“employee” for CSRS benefits under chapter 83, in 5 U.S.C. § 8331(1) (2006). Section
8331(1), in turn, defines the term by reference to 5 U.S.C. § 2105. Under section 2105(a),
an “employee” is an individual who is “appointed in the civil service” by a federal
official; “engaged in the performance of a Federal function”; and “subject to the supervision” of a federal official. 5 U.S.C. § 2105(a) (2006); see Taylor v. OPM, 82 M.S.P.R.
237, 241 (M.S.P.B. 1999). Employees of the Postal Service, who are generally covered by
the retirement statutes by virtue of 39 U.S.C. § 1005(d), must still meet the definition of
“employee” to be covered by FERS. See Taylor, 82 M.S.P.R. at 241. An “employee” for
purposes of FERS must also be covered by title II of the Social Security Act. 5 U.S.C.
§ 8401(11).
185
35 Op. O.L.C. 181 (2011)
most employees, employing agencies contribute to the Fund an amount
equal to 11.9 percent of basic pay—the aggregate normal cost of 12.7
percent minus the 0.8 percent employee deduction—which is more than
93 percent of the normal cost. OPM, which has authority to prescribe
regulations under the statute, id. § 8461(g) (2006), has construed FERS to
require the employing agency to “remit in full the total amount of normal
cost (which includes both employee deductions and Government contributions), so that payment is received by the Fund on the day of payment to
the employee of the basic pay from which the employee deductions were
made.” 5 C.F.R. § 841.504(h) (2011); see also id. § 841.413 (2011). 8
II.
The dispute between OPM and the Postal Service was precipitated by
the Postal Service’s decision, in light of its current financial crisis, to
conserve cash by suspending its employer contributions for the basic
annuity, effective June 24, 2011, for those postal employees covered by
FERS. OPM Memo at 1; USPS Memo at 2. The Postal Service is continuing to withhold employee deductions from basic pay; it also continues to
make its automatic and matching contributions to the TSP accounts of
FERS employees and to remit those contributions, along with employee
TSP contributions. USPS Memo at 2. OPM does not dispute that the
Postal Service and its employees continue to satisfy all the requirements
of the statute except the agency’s obligation to make employer contributions to the Fund for the basic annuity. The question we must address is
8 FERS further requires OPM to compute the amount of the “supplemental liability” of
the Fund as of the close of each fiscal year, both with respect to current or former employees of the Postal Service and other individuals. 5 U.S.C. § 8423(b)(1). The “supplemental liability” is the estimated excess of the actuarial present value of all future benefits
payable from the Fund based on the service of current or former employees or Members
of Congress over the sum of the actuarial present value of employee deductions, employer
contributions, and the Fund balance. Id. § 8401(27). The amount of any supplemental
liability must be amortized in 30 equal annual installments, with interest. Id. § 8423(b)(2).
At the end of each fiscal year, OPM must notify the Postmaster General of the amount of
the required installment computed with respect to current or former postal employees and
the Secretary of the Treasury of the amount computed with respect to other individuals.
Id. § 8423(b)(3). Upon receiving such notifications, the Postal Service is required to pay,
and the Secretary of the Treasury is required to credit, to the Fund the amounts specified.
Id. § 8423(b)(4).
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Service Credit for Retirement Annuities of USPS Employees
thus narrow: whether postal employees are entitled to service credit for
retirement purposes for the periods in which the Postal Service has suspended its employer contributions under 5 U.S.C. § 8423, but in all other
respects has complied with the FERS statute.
OPM states that its “longstanding interpretation of the statute,” as codified in its regulations, provides that “in order for an employee to be covered under FERS, an agency must make the periodic contributions to the
Retirement Fund that are required by law.” OPM Memo at 2. OPM does
not claim that FERS expressly provides that employer contributions are a
necessary precondition for employee coverage or that employees shall not
receive service credit for periods in which their employing agencies fail to
make employer contributions. Instead, OPM points out that section 8423
of FERS mandates that USPS must make contributions to the Fund on
behalf of employees covered by FERS. See 5 U.S.C. § 8423(a)(1) (“[e]ach
employing agency having any employees . . . subject to section 8422(a)
shall contribute to the Fund” an amount that is based on the normal-cost
percentage set by OPM) (emphasis added)). And while section 8423 does
not expressly make the mandatory employer contributions a precondition
to employee eligibility, in OPM’s view, the relevant OPM regulation
does:
To be covered under FERS, an individual must:
(a) Be an employee, Member, or specifically covered by another
provision of law;
(b) Be covered by social security;
(c) Have retirement deductions withheld from pay and have agency contributions made; and
(d) Be paid based on units of time.
Except as provided in § 842.104 and as excluded by § 842.105, an
employee or Member is covered by FERS.
5 C.F.R. § 842.103 (2011) (emphasis added); see also id. § 842.304(a)
(2011) (providing, with exceptions not relevant here, that “an employee
. . . is entitled to credit for all purposes under FERS for a period of civilian service with the Government or the U.S. Postal Service—[p]erformed
after December 31, 1986, which is covered service under subpart A of this
part,” a reference back to section 842.103) (emphasis added).
187
35 Op. O.L.C. 181 (2011)
As OPM explains, section 842.103 “merges the various statutory requirements applicable to FERS into one regulatory provision that determines whether an individual is covered by FERS.” OPM Memo at 5.
OPM’s basic claim is thus that, “while there is no single provision in the
statute which states that each of these requirements is essential to ‘coverage,’ when read as a whole, it was clearly reasonable for OPM to make
coverage dependent upon compliance with all of the statutory requirements.” Id. at 6. In OPM’s view, section 842.103 makes “clear” that “to
be ‘covered by FERS’ an individual must not only have deductions withheld from their pay—their employing agency must make the necessary
contributions” as well. Id. at 5–6.
On its face, section 842.103 is not as free from ambiguity as OPM suggests. In particular, the last sentence in the provision states that “[e]xcept
as provided in § 842.104 and as excluded by § 842.105, an employee or
Member is covered by FERS,” 5 C.F.R. § 842.103, language that appears
to define coverage under FERS without making employer contributions a
prerequisite. We do not think that the ambiguity in this language can be
resolved by examining OPM’s practice because there does not appear to
be any relevant practice: OPM has pointed us to no instance of an agency
refusing to remit the contributions it is statutorily required to pay under
CSRS or FERS. Cf. OPM Memo at 9 (stating that no agency has failed to
make employer contributions under CSRS). Nonetheless, we assume that
OPM’s interpretation of its own regulation is entitled to deference, and
thus that section 842.103 has the meaning OPM suggests. See Talk Am.,
Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011).
In addition to relying on the statutory text and its regulation, OPM also
finds support for its view in Congress’s purpose. OPM notes that “Congress created FERS as a fully funded pension system,” intending that “the
Fund would be placed on a firm financial footing by requiring agencies to
pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. In
light of Congress’s “‘interest in sound fiscal and accounting management,’” id. at 7 (quoting S. Rep. No. 99-166, at 29 (1985)), OPM contends
that it is “highly unlikely that Congress would have provided that employees would be considered ‘covered’ by FERS and credited for their
service if their employing agencies did not make the requisite contribution
to the Fund.” Id.
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Service Credit for Retirement Annuities of USPS Employees
The Postal Service, for its part, does not deny that FERS requires it to
make its employer contributions, USPS Memo at 4, 14, or that Congress
intended that FERS be placed on a sound financial footing, id. But it
points out that Congress chose to further this goal by requiring all employers to contribute to the Fund, not by depriving employees of service
credit in the highly unusual situation in which an agency fails to make its
required payments. Id. at 2–3. The Postal Service contends that under the
statute, “creditable service is generated so long as employees are performing the required service for the Federal government and are contributing
the required amounts to their pension, without regard to whether the
employing agency cannot or does not make its employer contribution.” Id.
at 2. None of the key statutory provisions, in the Postal Service’s view,
“indicate[s] that creditable service under FERS is dependent on the employer contribution.” Id. at 6. The Postal Service emphasizes that in
enacting the basic annuity, Congress “intended to provide clearly defined
and reliable benefits to employees”—a purpose that would be “vitiated by
OPM’s interpretation, which would predicate the level of employee benefits on the funding decisions of agency officials.” Id. at 3; see also id. at
12. Accordingly, the Postal Service argues that OPM’s interpretation of
FERS, as embodied in its regulations, is at odds with the statute or, at
least, unreasonable, id. at 5, and that OPM cannot enforce the Postal
Service’s statutory obligation to contribute by denying service credit to its
employees.
We assume that OPM’s authority to implement FERS by regulation,
5 U.S.C. § 8461(g), would entitle it, in appropriate circumstances, to
deference in its construction of FERS pursuant to Chevron, U.S.A., Inc. v.
Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). However,
OPM’s construction of the statute is entitled to deference only “if the
statute is silent or ambiguous with respect to the specific issue” at hand.
Id. at 843. If, on the other hand, “Congress has directly spoken to the
precise question at issue,” and in so doing made its intent clear, “that is
the end of the matter.” Id. at 842. And here, for the reasons set forth
below, we conclude that FERS makes clear that postal employees who
otherwise qualify for retirement benefits under FERS are both covered by
and accrue service credit under the statute notwithstanding the Postal
Service’s failure to make its employer contributions pursuant to 5 U.S.C.
§ 8423. Thus, OPM’s interpretation of FERS—that OPM can address the
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Postal Service’s failure to remit the required contributions by depriving
employees of accrued service credit—is foreclosed by the statute.
III.
A.
“We begin with the text of the statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1331 (2011). Section 8410 of
FERS, which governs eligibility, provides: “Notwithstanding any other
provision of this chapter, an employee or Member must complete at least
5 years of civilian service creditable under section 8411 in order to be
eligible for an annuity under this subchapter.” 5 U.S.C. § 8410. Central to
resolving this controversy is section 8411, which governs creditable
service. It provides that “[t]he total service of an employee . . . is the full
years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.” Id. § 8411(a)(1). Section 8411 further specifies, in relevant part, that for purposes of FERS, “creditable service of an
employee . . . includes . . . employment as an employee . . . after December 31, 1986.” Id. § 8411(b), (b)(1). These provisions are not vague or
unclear. They indicate plainly the category of employees who are eligible
for FERS benefits, and Congress’s broad, but not unbounded, definition
of “creditable service” for FERS purposes.
Section 8401(11) excludes certain categories of individuals from the
definition of “employee,” and section 8402 excludes certain categories of
individuals from coverage under FERS. Id. §§ 8401(11), 8402. But these
exclusions are irrelevant to the present dispute. As USPS points out, OPM
does not argue that “the non-payment of the employer contribution means
that Postal Service employees are no longer ‘employees’ under the FERS
statute or that they now fall within one of the exceptions in 5 U.S.C.
§ 8402 by virtue of such non-payment.” USPS Memo at 6. And the postal
employees potentially affected by their employer’s non-payment of its
contributions are still engaged in “employment.” The plain language of
FERS, then, supports the view that employees earn creditable service so
long as they are employed as “employee[s]” after December 31, 1986,
5 U.S.C. § 8411(b)(1), regardless of whether their employer has suspended its contributions to the Fund.
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To be sure, as noted earlier, OPM acknowledges that FERS’s definition
of “creditable service” does not mention employer contributions. Its
argument is that a correct determination of what counts as “creditable
service” under FERS does not depend on the wording of section
8411(b)(1) alone, but also on the overall statutory plan—in particular, on
the fact that another provision of FERS clearly requires employer contributions as part of the overall FERS scheme.
We agree that section 8423 of FERS requires employers to make contributions to the Fund. We further agree that “[i]nterpretation of a word or
phrase depends upon reading the whole statutory text, considering the
purpose and context of the statute.” Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006). However, the mere fact that employer contributions are a
mandatory part of the overall FERS scheme does not indicate that OPM is
authorized to suspend or eliminate the accrual of employees’ service
credit as a remedy for an employer’s failure to make such contributions.
Cf. Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S.
238, 247 (2000) (ERISA’s “‘comprehensive and reticulated’ scheme
warrants a cautious approach to inferring remedies not expressly authorized by the text” (citations and internal quotation marks omitted)). As
noted above, the specific statutory provision that addresses creditable
service says nothing that suggests that an employee’s accrual of credit
depends on the fact or extent of employer contributions. Section 8423 of
FERS likewise fails to mandate, or even suggest, that a lapse in an employing agency’s contributions should result in a denial of service credit
to that agency’s employees.
Certainly, as OPM states, section 8423 reflects Congress’s goal that
“the Fund . . . be placed on a firm financial footing by requiring agencies
to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. But
it does so not by stipulating that employees will earn service credit (and
therefore future benefits) only if their employers make all required contributions, but rather by imposing on agency employers a legal obligation to
make the required contributions. OPM itself has suggested no reason to
think that in practice this statutory mechanism has proven ineffective in
serving Congress’s goal. Cf. OPM Memo at 9 (“no agency has ever defaulted on its obligation to make the required contributions” under CSRS).
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Moreover, the text of the FERS statute suggests that Congress considered the question of statutory mechanisms to address funding shortfalls
and enacted a mechanism to deal with one kind of shortfall, without
indicating that the suspension of employee service credit might be used as
a solution to that or any other funding deficiency. Specifically, the statute
provides that, in the event that OPM determines, on an annual review, that
an agency’s employer contributions do not in fact satisfy the statute’s
funding goals, OPM must notify the Postmaster General (or the Secretary
of the Treasury, as applicable) of any “supplemental liability” and the
amount of the required installment payments, amortized over 30 years.
5 U.S.C. § 8423(b); see supra note 8. The Postal Service must then pay
the amount specified in the notification to address the funding shortfall.
5 U.S.C. § 8423(b)(4)(B). The existence of this supplemental liability
process does not affirmatively authorize the Postal Service to avoid making its employer contributions as they come due in favor of amortizing
such payments over 30 years. But the existence of a supplemental liability
remedy for at least one type of funding shortfall shows that Congress was
aware of the possibility that the employer contributions remitted under
section 8423 might in some circumstances fail to result in agency funding
of the full costs of employee benefits. Congress chose nonetheless to
provide expressly for only one response to such a possibility. In light of
that awareness, the omission of any other mechanism for addressing this
or other kinds of shortfalls, such as denying service credit to employees
when their employer defaults on its contributions, suggests that “the
statute fails to mention [other responses] ‘by deliberate choice, not inadvertence.’” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1076 (2011) (citation omitted).
In sum, none of the most clearly relevant provisions of the statute suggests that either employee eligibility or creditable service under FERS
depends upon the extent of the employer’s contributions to the Fund. As
OPM insists, and the Postal Service effectively concedes, the plain language of FERS’s key provisions specifies that agency employers must
contribute to the Fund the normal cost of their covered employees’ basic
pay. At the same time, these provisions fail to link an agency’s failure to
comply with this requirement to the affected employees’ eligibility for an
annuity or accrual of creditable service. Instead, they appear on their face
to provide that an employee is entitled to service credit so long as he or
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she is employed as an “employee” after December 31, 1986. See 5 U.S.C.
§ 8411(a) & (b). Given the harsh penalty federal employees would suffer
if they were denied FERS coverage or service credit for periods of employment during which their agency employers failed to make the required contributions to the Fund—an action over which the employees
have no control—the absence of any reference in FERS’s key provisions
to OPM’s authority to impose that particular remedy for an agency’s
noncompliance strongly suggests that Congress did not intend such authority to exist. As we discuss next, we do not think any of OPM’s additional arguments in support of this authority are persuasive.
B.
OPM offers several other arguments that, in its view, show that the
FERS statute requires employer contributions as a condition of employees’ coverage and accrual of creditable service under FERS. First, OPM
relies heavily on the Postal Service’s concession that, to receive service
credit under FERS, an employee must have deductions withheld from his
or her wages, even though, in the Postal Service’s view, the employing
agency’s contributions are not required for that purpose. OPM Memo at 7;
see USPS Memo at 5–10. OPM insists that these two propositions cannot
be reconciled because it is illogical to distinguish between the employee’s
deduction and the employer’s contribution—both of which are statutorily
required and neither of which is expressly linked by the statutory text to
accrual of service credit—for purposes of determining whether an employee accrues creditable service for periods when employee deductions
or employer contributions have not been made. OPM Memo at 7.
We need not resolve this issue. As a practical matter, the Postal Service
has continued to withhold from its employees’ basic pay the deductions
required under 5 U.S.C. § 8422—including the employee deductions—
and to deposit the deductions into the Fund. USPS Memo at 2. If fulfillment of the Postal Service’s obligations under section 8422 is a necessary
condition to postal employees receiving credit under FERS, that condition
is being met. Furthermore, although OPM and the Postal Service agree
that a failure to make these employee deductions would affect employees’
ability to earn creditable service, we are unsure that they are correct. In
our view, this issue is difficult, particularly in the context of a scheme in
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35 Op. O.L.C. 181 (2011)
which it is the agency’s legal obligation to effectuate the employee deduction. See 5 U.S.C. § 8422(a). In fact, the answer to the question may well
depend on the reason that employee deductions have not been made. 9 In
any event, even if employee deductions constitute a prerequisite to the
accrual of service credit under FERS—one that does not appear in the
FERS eligibility or accrual provisions themselves—that would not necessarily mean that employer contributions likewise would be a prerequisite
for the accrual of such credit, because the significance and treatment of
employee deductions and employer contributions within the statutory
scheme are different. Each argument for linking employee service credit
to separate requirements in the statute would have to be considered on its
own terms.
Both OPM and the Postal Service cite different subsections of section
8411—some requiring employee deductions as a condition of receiving
creditable service and a couple requiring employee deductions and em-
For example, if the employer failed to make the employee deduction because the affected employee was not subject to deductions under 5 U.S.C. § 8422, the employee’s
eligibility for coverage and ability to accrue creditable service under FERS might be
implicated. Cf. Tomboc v. OPM, 355 Fed. Appx. 422, 424 (Fed. Cir. 2009) (noting that
“[w]hile the absence of deductions” under the CSRA “is an indication” regarding whether
a position is covered, “it is not necessarily dispositive”). Alternatively, if the employer
failed to make the employee deductions because of an agency error, the error may be
corrected, see 5 C.F.R. § 841.505 (2011); and, in any event, an agency error would not
necessarily affect the employee’s entitlement to coverage. Cf. Noveloso v. OPM, 45
M.S.P.R. 321, 324 n.2 (M.S.P.B. 1990) (noting, in addressing CSRS coverage, that “[i]f
no deductions were withheld because of agency error, or because it was not determined
until after the fact that such service should have been covered, the employment will still
constitute covered service”); accord Staffney v. OPM, 54 M.S.P.R. 99, 102–03 (M.S.P.B.
1992) (same, under CSRS coverage); In re Kaltakji, 1 M.S.P.R. 63, 64 (M.S.P.B. 1978)
(same). But see 5 U.S.C. § 8339(i) (2006) (providing, for purposes of computing a CSRS
annuity, that the total service of an employee “shall not include any period of civilian
service . . . for which retirement deductions or deposits [under section 8334] have not
been made” unless the employee makes a deposit under section 8334(c) or (d)(1) or no
deposit is required for such service as specified under section 8334(g) or another statute).
And, for the same reasons that an agency error may not affect the employee’s entitlement
to coverage, a willful agency refusal to make the required employee deductions likewise
may not affect that entitlement. For the reasons stated in the text, however, we need not
decide the circumstances, if any, in which an employing agency’s failure to make the
employee deductions and deposit them into the Fund would affect an employee’s coverage and accrual of service under FERS.
9
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Service Credit for Retirement Annuities of USPS Employees
ployer contributions—to support their respective positions. On the one
hand, OPM contends that, where Congress intended to permit service
credit to be afforded even if no contributions were made by the agency, it
did so explicitly. It cites as an example section 8411(b)(3), which permits
employees to receive service credit for periods of employment during
which no employing agency contributions or employee deductions were
paid into the Fund for certain service performed prior to January 1, 1989.
OPM Memo at 8 n.5. In such instances, the employee must make a deposit
into the Fund of 1.3 percent of his or her basic pay, with interest, for that
period of service. Id. (citing 5 U.S.C. § 8411(f)(2)). 10 However, no employing agency contribution is required for that period. Id. 11 The Postal
10
Section 8411(b)(3), with the introductory language in section 8411(b), provides:
For the purpose of this chapter, creditable service of an employee or Member includes[,] except as provided in subsection (f) or (h), any civilian service (performed before January 1, 1989, other than any service under paragraph (1) or (2))
which, but for the amendments made by subsections (a)(4) and (b) of section 202
of the Federal Employees’ Retirement System Act of 1986, would be creditable
under subchapter III of chapter 83 of this title (determined without regard to any
deposit or redeposit requirement under such subchapter, any requirement that the
individual become subject to such subchapter after performing the service involved, or any requirement that the individual give notice in writing to the official by whom such individual is paid of such individual’s desire to become subject to such subchapter)[.]
5 U.S.C. § 8411(b), (b)(3). Section 8411(f)(2) prohibits an employee from receiving
“credit under this chapter for any service described in subsection (b)(3) for which retirement deductions under subchapter III of chapter 83 have not been made, unless such
employee or Member deposits an amount equal to 1.3 percent of basic pay for such
service, with interest.” Id. § 8411(f)(2). Section 8411(f)(1) requires an employee who has
received a refund of CSRS retirement deductions for service described in subsections
(b)(2) or (b)(3) to “deposit[] an amount equal to 1.3 percent of basic pay for such service,
with interest,” as a condition of receiving credit for such service. Id. § 8411(f)(1).
The Senate Committee on Governmental Affairs released a Committee Print in October 1986, four months after the enactment of FERS, that set out a detailed section-bysection analysis of the statute. The committee print explains that section 8411(b)(3)
“provides that creditable service includes . . . service before January 1, 1989, which was
either non-covered or was not vested under CSRS in which case a contribution must be
made under subsection (f).” S. Comm. on Governmental Affairs, 99th Cong., Supplemental Information Regarding the Federal Employees’ Retirement System Act of 1986,
at 7 (Comm. Print 1986) (“FERS Comm. Print”).
11 Section 8411(b)(3) is not unique in requiring employees who had not contributed to
the Fund (sometimes because they had been covered by other retirement systems) but who
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35 Op. O.L.C. 181 (2011)
Service, on the other hand, cites two instances in which the statute expressly requires the payment of an employer contribution to render certain
service creditable, arguing that there would have been no reason for
Congress to have explicitly required an employer contribution if accrual
of service credit is invariably conditioned on an agency’s having made
employer contributions to the Fund. USPS Memo at 8 (citing 5 U.S.C.
§ 8411(e), (g) (the latter of these added in subsequent amendments to
FERS)). 12
seek service credit within the FERS system, to make payments to the Fund equal to the
amounts that would have been deducted as FERS employee contributions for that period
of service—without any mention of the necessity of an employer contribution. See, e.g.,
5 U.S.C. § 8411(b)(4) & (5) (the latter of these added in subsequent amendments to
FERS); USPS Paper at 6. In still other instances, Congress treated service for which
deductions were not paid to the Fund as creditable with no requirement of any kind of
employee or employer deposit. See 5 U.S.C. § 8411(c)(1)(A) (military service performed
before January 1, 1957); id. § 8411(d) (certain periods of leave without pay); USPS Paper
at 7.
12 Section 8411(e) provides:
Credit shall be allowed for periods of approved leave without pay granted an employee
to serve as a full-time officer or employee of an organization composed primarily of
employees . . . , subject to the employee arranging to pay, through the employee’s employing agency, within 60 days after commencement of such leave without pay,
amounts equal to the retirement deductions and agency contributions which would be
applicable under sections 8422(a) and 8423(a), respectively, if the employee were in
pay status. If the election and all payments provided by this subsection are not made,
the employee may not receive credit for the periods of leave without pay, notwithstanding the third sentence of subsection (d).
5 U.S.C. § 8411(e) (emphasis added). Section 8411(g), in turn, provides that “[a]ny
employee who—
“(1) served in a position in which the employee was excluded from coverage under this subchapter because the employee was covered under a retirement system
established under section 10 of the Federal Reserve Act; and
“(2) transferred without a break in service to a position to which the employee
was appointed by the President, with the advice and consent of the Senate, and in
which position the employee is subject to this subchapter,
“shall be treated for all purposes of this subchapter as if any service that would have been
creditable under the retirement system established under section 10 of the Federal Reserve
Act was service performed while subject to this subchapter if any employee and employer
deductions, contributions or rights with respect to the employee’s service are transferred
from such retirement system to the Fund.” Id. § 8411(g) (emphasis added).
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Service Credit for Retirement Annuities of USPS Employees
None of these examples, in our view, supports either inference. As the
Postal Service observes, section 8411 sets forth a variety of rules regarding when certain types of service that fall outside the scope of section
8411(b)(1) (the service at issue here) nonetheless may be credited for
FERS purposes. Id. Congress’s varying responses to divergent coverage
and employee deduction scenarios do not shed light on what it intended as
a general matter for employees otherwise covered by FERS. With respect
to section 8411(b)(3), for example, Congress’s decision to allow the
accrual of service credit for employees in a transitional period during the
early implementation of FERS and to address the absence of retirement
deductions by requiring that the employee deposit an amount compensating for those missing employee deductions, 5 U.S.C. § 8411(f)(2), suggests, at most, that Congress viewed employee deductions as more significant to coverage requirements than employer contributions. By the same
token, that Congress required employer contributions to be made as a
condition of receiving service credit in the examples cited by the Postal
Service, id. § 8411(e), (g), shows little more than that Congress chose to
impose that additional requirement in those instances and explicitly provided for employer contributions to make the requirement clear. 13
For similar reasons, we do not find Congress’s treatment of reemployed annuitants
in 5 U.S.C. § 8468, on which the Postal Service relies, see USPS Memo at 6–7, particularly illuminating. In language added to that section after the enactment of FERS, the statute
provides that, with certain exceptions, if the annuitant becomes reemployed, “deductions
for the Fund shall be withheld from the annuitant’s pay under section 8422(a) and contributions under section 8423 shall be made.” 5 U.S.C. § 8468(a) (2006). The Postal Service
makes much of the fact that a subsequent subsection provides that if an annuitant “subject
to deductions under the second sentence of subsection (a)” serves for at least 5 years, the
annuitant may elect to have his or her rights redetermined under FERS. Id.
§ 8468(b)(2)(A) (emphasis added). The Postal Service finds it significant that this subsection mentions “deductions” and not employer “contributions.” But an employee subject to
“deductions” under the second sentence of section 8468(a) would also be subject to
“contributions,” and so there was no need for Congress to repeat the full phrase in section
8468(b)(2)(A) to indicate the employees to whom it was referring. Moreover, contrary to
the Postal Service’s assertion that Congress made clear that reemployed annuitants earn
service credit “so long as ‘deductions’ are being made from their basic pay,” USPS Memo
at 7, Congress merely referred to reemployed annuitants who were “subject to deductions,” without regard to whether the deductions were actually “being made.” See
5 U.S.C. § 8468(b)(2)(A). More importantly, however, we believe again that Congress’s
policy determination about the coverage of reemployed annuitants tells us little about
13
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35 Op. O.L.C. 181 (2011)
What these examples reveal is that, even where there was no other statutory commitment to treat service as creditable under FERS or where
employees were covered under other federal retirement systems, Congress
sometimes extended FERS service credit in exchange for the payment of
specified employee deductions—or the payment of employer contributions, or the relinquishment of service credit under other retirement systems, or without imposing any conditions—to serve some other policy
goal, such as increased portability of retirement benefits. See Pub. L. No.
99-335, § 100A(3), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note)
(one purpose of FERS was “to enhance portability of retirement assets
earned as an employee of the Federal Government”). In our view, the
discrete scenarios addressed in section 8411 provide little assistance, one
way or another, in the assessment whether Congress intended to authorize
OPM to deny service credit to employees otherwise subject to the FERS
retirement plan for periods of employment under that plan if agencies
violated the statutory requirement that they make employer contributions
to the Fund.
Finally, as noted above, OPM argues that, in light of Congress’s creation of FERS as a “fully funded pension system,” OPM Memo at 6, and
its purpose to ensure “sound fiscal and accounting management,” id. at 7
(citing S. Rep. No. 99-166, at 29), “it is highly unlikely that Congress
would have provided that employees be considered ‘covered’ by FERS
and credited for their service if their employing agencies did not make the
requisite contribution[s] to the Fund.” Id. But, of course, Congress did
require employing agencies to make specified contributions to the Fund,
and the Postal Service is legally obligated to do so. See supra pp. 184–
186, 191. The question here is only whether Congress intended that the
remedy for the Postal Service’s failure to meet its obligations would be to
deny employees the service credit that the statute contemplates they will
earn.
We agree with OPM that Congress was concerned with the fiscal management of the Fund. But “ensur[ing] a fully funded and financially sound
retirement benefits plan for Federal employees,” Pub. L. No. 99-335,
§ 100A(2), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note), was only
whether Congress intended generally to condition coverage and accrual of service credit
for FERS employees on the agency’s deposit of its employer contributions into the Fund.
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Service Credit for Retirement Annuities of USPS Employees
one of several congressional purposes in enacting FERS. Among other
things, Congress also enacted FERS to establish a new retirement plan “to
assist in building a quality career work force in the Federal Government.”
Id. § 100A(5). That goal could well be subverted if Congress were to
create a retirement system in which employees’ retirement benefits could
be diminished or stripped away by their agencies’ failure to pay the statutorily required contributions into the Fund. Even recognizing that a fully
funded pension system was an important congressional objective, “no
legislation pursues its purposes at all costs. Deciding what competing
values will or will not be sacrificed to the achievement of a particular
object is the very essence of legislative choice—and it frustrates rather
than effectuates legislative intent simplistically to assume that whatever
furthers the statute’s primary objective must be the law.” Rodriguez v.
United States, 480 U.S. 522, 525–26 (1987).
Further, although we do not “resort to legislative history to cloud a
statutory text that is clear,” Ratzlaf v. United States, 510 U.S. 135, 147–48
(1994), we believe that, to the extent that the legislative history of FERS
is illuminating, it undermines, rather than supports, the view that Congress intended to deny employees eligibility and creditable service under
FERS for periods of employment in which their employing agencies fail
to make their required employer contributions to the Fund.
The legislative history makes clear that Congress intended the basic
annuity in FERS to operate as a defined benefit plan. See, e.g., S. Rep.
No. 99-166, at 6, 9, 30, 42; FERS Comm. Print at 7. Such a plan consists
of “a general pool of assets” out of which an employee, “upon retirement,
is entitled to a fixed periodic payment.” Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 439 (1999) (citation omitted). “A defined benefit plan
promises a participant a specific amount of pension benefits at retirement
determined under a formula based on years of participation in the plan,
and in most nonbargained plans, based on an average of compensation.”
Stephen R. Bruce, Pension Claims: Rights and Obligations 17–18 (1988)
(“Bruce”); see also James E. Burk, Pension Plan Management Manual:
Administration and Investment ¶ 1.01[8], at 1-8 (1987) (“Burk”) (benefits
in a defined benefits plan determined “by a formula that is generally
related to service and compensation”); H.R. Comm. on Post Office and
Civil Serv., 98th Cong., Designating a Retirement System for Federal
Workers Covered by Social Security 6 (Comm. Print 1984) (prepared by
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35 Op. O.L.C. 181 (2011)
the Congressional Research Service) (“CRS Comm. Print”) (“A defined
benefit plan determines benefit amount by a formula. Upon reaching the
terms specified in the definition of eligibility (usually a combination of
age and years of service), the worker receives the benefit computed from
the application of the formula to the employee’s years of service and
salary.”). 14
The FERS basic annuity follows this model. FERS promises participants a specific level of benefits by application of a formula that is generally dependent on the employee’s average pay and total service,
5 U.S.C. § 8415(a), and that bases the employing agencies’ contributions
on the “normal-cost percentage” of benefits, id. § 8423(a), which is
actuarially computed by OPM. Id. § 8401(23); cf. Burk ¶ 2.01, at 2-4
(employer’s contribution in a defined benefit plan is actuarially computed). The benefit formula in a defined benefit plan “is geared to providing
a specific retirement benefit rather than based on the rate of contributions
made by the employer to the pension fund.” Burk ¶ 2.01, at 2-5. A pension plan covered by the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. §§ 1001–1461 (2006 & Supp. III 2009), for
example, “is liable for benefits without regard to whether the employer
has made required contributions.” ABA Section of Labor and Employment Law, Employment Benefits Law 279 (1991). Thus, it was well
established by the time Congress enacted FERS, see USPS Memo at 9,
that a multiemployer pension plan covered by ERISA, which is analogous in many respects to the multi-agency approach of FERS, must
award credit based on the service performed for a participating employer
regardless of whether the employer made the required contributions for
such service. As the Supreme Court recognized a year before the enactment of FERS:
By contrast, under a “defined contribution plan,” the promise is that “certain contributions will be made and credited to an employee’s individual account. Contribution rates
are fixed, usually as a percentage of the employee’s earnings. Such plans do not guarantee
an employee any fixed level of benefits at retirement. An employee’s benefit will vary,
depending on the amount of the contributions and the interest and capital appreciation
accumulated on them.” Burk ¶ 1.02[8], at 1-8 –1-9; see also Hughes, 525 U.S. at 439;
Bruce at 18. “Under defined contribution plans, employers know exactly what the pension
obligation is and the benefits are fully funded at the time of the contribution. Employees
bear the risk of variable market performance[.]” CRS Comm. Print at 6–7.
14
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Service Credit for Retirement Annuities of USPS Employees
The consistent view of the Secretary of Labor is that, under ERISA’s
minimum participation, vesting, and benefit accrual standards for
pension plans . . . a pension plan covered by ERISA must award
credit “solely on the basis of service performed for a participating
employer, regardless [of] whether that employer is required to contribute for such service or has made or defaulted on his required contributions.” In the Secretary’s judgment, “[a]ny plan term or Trustees’ resolution to the contrary is . . . unlawful and unenforceable.”
Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472
U.S. 559, 567 n.7 (1985) (citations omitted). 15
Given this backdrop, it would be reasonable to expect some indication
in the text of FERS, or at least in its legislative history, if Congress had
intended to depart from these principles and make accrual of employee
15 Accord Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc.,
870 F.2d 1148, 1151 (7th Cir. 1988) (“Multi-employer plans are defined-contribution in,
defined-benefits out. Once they promise a level of benefits to employees, they must pay
even if the contributions they expected to receive do not materialize[.]”); Bruce at 135–
36 (“[H]ours of service for use in determining [years of work] are determined solely on
the basis of hours of work, or hours for which payment is due the employee from the
employer, without reference to the delinquency or nondelinquency of the employer’s
contributions to the [multiemployer] plan.”). As the Supreme Court noted, the longstanding position of the Secretary of Labor at the time of the enactment of FERS was that
ERISA required that credit for hours worked “must be given solely on the basis of
service performed for a participating employer, regardless whether that employer is
required to contribute for such service or has made or defaulted on his required contributions. Any plan term or Trustees resolution to the contrary is, in our judgment, unlawful
and unenforceable.” Dep’t of Labor Advisory Op. No. 76–89 (Aug. 31, 1976); accord
Dep’t of Labor Advisory Op. No. 78-28A (Dec. 5, 1978); Dep’t of Labor Advisory Op.
78-21A (Oct. 16, 1978); Dep’t of Labor Advisory Op. No. 78-20A (Oct. 6, 1978); see
also Rules and Regulations for Minimum Standards for Employee Pension Benefit Plans,
41 Fed. Reg. 56,462, 56,464 (Dec. 28, 1976) (explaining, with respect to 29 C.F.R.
§ 2530.200b-2, regarding accrual of hours of service, that employee hours “must be
credited to an employee regardless of whether contributions are required to be made to
the plan on account of such hours or whether such contributions, even though required,
have not in fact been made”). Before the passage of FERS, the IRS had also issued a
Revenue Ruling explaining that a multiemployer plan that did not credit all years of
service because of an employer’s failure to make the required contributions failed to
meet the requirements of “a qualified pension plan” that it provide “definitely determinable benefits” to its employees and violated the minimum participation and vesting
standards of the Internal Revenue Code. Rev. Ruling 85-130, 1985-2 C.B. 137.
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35 Op. O.L.C. 181 (2011)
benefits contingent on employer contributions. Instead, the legislative
history underlines that Congress intended to establish a new retirement
plan for federal employees that would “provid[e] employees with financial security through a retirement program that compares favorably with
those found in the private sector.” S. Rep. No. 99-166, at 38. 16 It is unlikely, in light of this goal, that Congress would have incorporated into FERS
an arrangement that would have been unlawful in the private sector without saying so.
Finally, OPM argues that construing FERS to give employees an entitlement to service credit without the employer’s contribution “would be
inconsistent with the Director’s fiduciary responsibilities to the Fund.”
OPM Memo at 7. But, as set forth above, OPM is obligated under the
statute to award service credit to employees who satisfy the statutory
conditions set forth, see supra Part III.A, and to “pay all benefits that are
payable under subchapter II, IV, V, or VI of this chapter from the Fund.”
5 U.S.C. § 8461(a). As we read the statute, OPM is required to pay those
benefits without regard to whether the employing agency—here, the
Postal Service—has made its employer contributions to the Fund. The
Director’s fiduciary obligations thus include awarding service credit and
paying benefits in accordance with the statute, and he would not violate
those obligations by doing so.
16 See also, e.g., 132 Cong. Rec. 11,912 (1986) (statement of Rep. Myers) (conference
report includes “many of the concepts that a great many of the better private retirement
programs have”); id. at 11,909 (1986) (statement of Rep. Ford) (Congress had an opportunity “to create a new pension system with the best features found in the private sector”);
id. at 11,304 (1986) (statement of Sen. Gore) (“The retirement system which we have
developed employs a three-tier design that combines Social Security with a defined
benefit tier that focuses on providing a reliable base pension benefit[.]”); id. at 11,303
(1986) (statement of Sen. Glenn) (FERS “provides Government employees with a threepart program which is comparable to plans widely used in private industry” and “one that
helps to recruit and maintain an excellent and skilled work force”); id. at 11,301 (1986)
(statement of Sen. Stevens) (praising the new retirement plan as “a top notch, economical
retirement system for the Federal workforce which is on part with the best in the private
sector,” providing “solid retirement benefits” and “offering financial security to Federal
retirees”); S. Rep. No. 99-166, at 4 (emphasizing that “the Federal Government must have
the ability to attract and retain highly qualified individuals in all occupations” and that
“[a]n attractive, flexible retirement plan can assist the government in meeting these
objectives . . . to build a career workforce” and “to assist in recruiting midcareer employees”).
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IV.
“If, upon examination of ‘the particular statutory language at issue, as
well as the language and design of the statute as a whole,’ . . . it is clear
that [the agency’s] interpretation is incorrect, then we need look no further[.]” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 645 (1990) (quoting
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). In our view,
FERS has “directly spoken to the precise question at issue,” Chevron, 467
U.S. at 842, and OPM may not address the Postal Service’s failure to
make the employer contributions required by FERS by denying postal
employees coverage or creditable service under FERS. We do not address
the propriety of any other action OPM might take to address the Postal
Service’s failure to make the required contributions to the Fund.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
203 |
|
Write a legal research memo on the following topic. | Service Credit for Retirement Annuities of
USPS Employees When USPS Has Not
Made Required Contributions
The Office of Personnel Management may not address the United States Postal Service’s
failure to make statutorily required retirement contributions by denying its employees
accrued service credit under the Federal Employees’ Retirement System during their
periods of qualifying federal employment.
November 1, 2011
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF PERSONNEL MANAGEMENT
AND
THE GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT
UNITED STATES POSTAL SERVICE
On June 22, 2011, the United States Postal Service (“USPS” or “Postal
Service”) notified the Office of Personnel Management (“OPM”) that,
because of its financial difficulties, the Postal Service, as a cash conservation measure, was suspending its employer contributions to the Civil
Service Retirement and Disability Fund (“the Fund”) on behalf of those
postal employees covered by the Federal Employees’ Retirement System
Act (“FERS”), 5 U.S.C. §§ 8401–8479 (2006 & Supp. IV 2010). In light
of that suspension, OPM requested an opinion from our Office regarding
(1) whether, and to what extent, OPM has discretion to offset the Postal
Service’s obligation to make employer retirement contributions against a
“surplus” the Postal Service asserts that it has accumulated in the Fund;
and (2) whether postal employees are entitled to receive service credit, for
purposes of determining their eligibility for retirement and calculating the
amount of their retirement annuity, for periods of employment during
which the Postal Service has not made its required employer contributions. 1 The Postal Service, an independent agency, joined OPM in the
request for an opinion and agreed to be bound by our decision. 2
See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal
Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (July
14, 2011) (“OPM Memo”). OPM enclosed with its submission an undated paper it had
received from USPS, with the heading “Effect of Suspension of Agency Contribution to
1
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35 Op. O.L.C. 181 (2011)
In its submission to the Office of Legal Counsel (“OLC”), the Postal
Service indicated that, despite earlier disagreement, it now “does not
contest OPM’s position that the Postal Service is still obligated by the
statute to make its employer contribution, despite the existence of the
surplus.” USPS Memo at 14; see also id. at 4. The Postal Service, however, also specifically stated that it considers the question “whether the
[Postal Service’s] Board [of Governors] was justified in its decision to
suspend the employer contribution in order to conserve cash so as to avoid
a shutdown in mail service” to be outside “the scope of [OLC’s] review.”
Id. at 3 n.2. Thus, we do not address (i) whether OPM could offset the
Postal Service’s required contributions against any surplus it may have in
the Fund; (ii) whether the Postal Service’s apparent statutory violation
may be excused; or (iii) what other avenues of recourse OPM may have
against the Postal Service for its failure to make the statutorily required
contributions. Instead, this opinion addresses only the question whether,
under the relevant provisions of the FERS statute, postal employees are
entitled to receive service credit for periods during which the Postal
Service has not made the required employer contributions to the Fund.
The Postal Service argues that its employees should receive such credit.
Id. at 2–14. OPM disagrees, maintaining that employees cannot be credited with service for periods in which no employer contributions have been
made into the Fund. OPM Memo at 5–9. For the reasons that follow, we
agree with the Postal Service that OPM may not address the Postal Service’s failure to make statutorily required contributions by denying its
employees accrued service credit under FERS during their periods of
qualifying federal employment.
I.
In 1986, Congress enacted the Federal Employees’ Retirement System
Act of 1986, Pub. L. No. 99-335, 100 Stat. 514 (codified as amended at
FERS on Employees” (“USPS Paper”). OPM has agreed provisionally to provide service
credit to postal employees who may retire while the issue is pending before our Office.
OPM Memo at 2.
2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal
Counsel, from Mary Anne Gibbons, General Counsel and Executive Vice President,
United States Postal Service (Aug. 12, 2011) (“USPS Memo”).
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5 U.S.C. §§ 8401–8479 and scattered U.S.C. sections), a system of retirement and other benefits for federal employees that will gradually
supersede the Civil Service Retirement System (“CSRS”), which has
been in effect since 1920. See Pub. L. No. 66-215, 41 Stat. 614 (1920)
(codified as amended at 5 U.S.C. §§ 8331–8351 (2006 & Supp. 2010)).
In enacting FERS, Congress set out, among other things, “to establish a
Federal employees’ retirement plan which is coordinated with title II of
the Social Security Act”; “to ensure a fully funded and financially sound
retirement benefits plan for Federal employees”; and “to assist in building a quality career work force in the Federal Government.” Pub. L. No.
99-335, § 100A(1), (2), & (5), 100 Stat. at 516 (codified at 5 U.S.C.
§ 8401 note (2006)). 3 With certain exceptions, the Act became effective
on January 1, 1987. Id. § 702, 100 Stat. at 631 (codified at 5 U.S.C.
§ 8401 note). Since then, most newly hired federal employees who are
covered by Social Security have also been covered by FERS.
FERS is a three-tiered retirement system that consists of Social Security, a basic annuity, and a Thrift Savings Plan (“TSP”). See 5 U.S.C.
§ 8403 (2006) (except as otherwise provided, benefits payable under
FERS are in addition to benefits payable under the Social Security Act);
id. §§ 8410–8425 (2006 & Supp. IV 2010) (basic annuity); id. §§ 8431–
8440f (2006 & Supp. IV 2010) (TSP). 4 The Postal Service and its employees fall within FERS coverage. 39 U.S.C. § 1005(d) (2006 & Supp.
III 2009). The dispute between OPM and the Postal Service concerns the
basic annuity.
Under FERS, an “employee,” as defined in 5 U.S.C. § 8401(11)
(2006), must complete at least five years of creditable civilian service
under 5 U.S.C. § 8411 to be eligible for the annuity. 5 U.S.C. § 8410
From Congress’s enactment of the Social Security Act in 1935, Pub. L. No. 74-271,
49 Stat. 620 (1935), until 1983, federal employees were excluded from Social Security
coverage. In 1983, the Social Security Act was amended to cover newly hired federal
employees. Pub. L. No. 98-21, § 101, 97 Stat. 65, 67–70 (1983) (codified at 42 U.S.C.
§ 410). That expansion of Social Security was a major impetus behind the adoption of
FERS, the new retirement system for federal employees, in 1986. See generally S. Rep.
No. 99-166, at 1–2 (1985) (providing background on the CSRS and amendment of the
Social Security Act to cover federal employees).
4 The TSP is a tax-deferred savings plan for federal employees in which employee contributions are matched in part by employer agency contributions.
3
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35 Op. O.L.C. 181 (2011)
(2006). As a general matter, creditable service includes “employment as
an employee . . . after December 31, 1986.” Id. § 8411(b)(1). With certain exceptions, the annuity of a retiring employee is 1 percent of that
individual’s average pay (the highest average pay in effect over any three
consecutive years of service) multiplied by that individual’s “total [years
of] service.” Id. §§ 8415(a), 8401(3) (defining “average pay”). The
statute establishes different potential retirement ages for employees
depending on the number of years of service completed. Id. § 8412 (2006
& Supp. IV 2010). For example, an employee who is separated from
service after becoming 62 years old and completing five years of service
is entitled to an annuity. Id. § 8412(c). “[S]ervice,” in turn, “means
service which is creditable under section 8411.” Id. § 8401(26). As
these provisions make clear, the determination whether service is creditable under the statute has important ramifications for an employee’s
eligibility to receive a basic annuity, the applicable retirement age, and
the calculation of the amount of the annuity. 5
The FERS basic annuity is funded through a combination of employee
deductions and employer agency contributions to the Civil Service Retirement and Disability Fund. Id. §§ 8422, 8423, 8401(6) (2006 & Supp.
IV 2010). Under FERS, the employing agency is required to deduct and
withhold from each employee’s basic pay a percentage that is equal to 7
percent of basic pay (with a different percentage applicable to Members
of Congress and certain categories of employees) less the Old Age,
Survivors, and Disability Insurance (“OASDI”) tax rate in effect, which
is now 6.2 percent. Id. § 8422(a), (c) (2006 & Supp. IV 2010); 26 U.S.C.
§ 3101(a) (2006). Accordingly, the employer is required by the statute to
deduct 0.8 percent of most employees’ basic pay for contribution to the
Fund.
The employing agency’s own contribution to the Fund is much larger
and is based on the “normal-cost percentage,” which is “the entry-age
normal cost of the provisions of [FERS] which relate to the Fund,” as
computed by OPM “in accordance with generally accepted actuarial
Creditable service is also important to other facets of the retirement system. For example, an employee is not entitled to retain the employer’s contributions to the TSP and
earnings attributable to such contributions before completing specific periods of service.
See 5 U.S.C. § 8432(g)(2) (2006).
5
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practice and standards” and “expressed as a level percentage of aggregate
basic pay.” 5 U.S.C. § 8401(23) (defining “normal-cost percentage”); see
id. § 8423(a) (2006 & Supp. IV 2010). 6 Under the statute, “each employing agency having any employees or Members subject to section 8422(a)
shall contribute to the Fund an amount” that is the product of the applicable normal-cost percentage and the aggregate amount of basic pay payable
by the agency for the period involved. Id. § 8423(a)(1). In determining the
normal-cost percentage to be applied, the employee deductions required
by section 8422 must be taken into account. Id. § 8423(a)(2). 7 Thus, for
6
“Entry age normal cost” is
generally understood as the percentage of every paycheck that should be invested, over
the total career of each employee in a group of new entrants, to pay fully for all benefits received by that group, including all eligible survivors. Normal cost is formally defined as the present value of future benefits divided by the present value of future compensation. These values are expressed as a percentage of payroll, and provide a
consistent measure of relative pension costs over time.
S. Rep. No. 99-166, at 35 (1985). OPM publishes the “normal cost percentages” for
particular categories of employees in the Federal Register. At the time the Postal Service
suspended its employer contributions to the Fund, the government-wide normal cost
percentage for most employees was 12.5 percent. Federal Employees’ Retirement System;
Normal Cost Percentages, 75 Fed. Reg. 35,098 (June 21, 2010). For the first pay period
commencing on or after October 1, 2011, the normal cost percentage for most employees
rose to 12.7 percent. Federal Employees’ Retirement System; Normal Cost Percentages,
76 Fed. Reg. 32,242, 32,243 (June 3, 2011).
7 Section 8422(a) requires that “[t]he employing agency shall deduct and withhold
from basic pay of each employee . . . a percentage of basic pay.” 5 U.S.C. § 8422(a)(1).
Thus, so long as the individual is an “employee,” see id. § 8401(11), and is not otherwise
excluded from coverage under the statute, see id. § 8402 (2006), the individual is “subject
to section 8422(a),” and the employing agency is required to make contributions to the
Fund under section 8423. There is no dispute here that the Postal Service’s employees for
whom the employer contributions have been withheld are “employees” for purposes of
FERS. As a general matter, the FERS definition of “employee” refers to the definition of
“employee” for CSRS benefits under chapter 83, in 5 U.S.C. § 8331(1) (2006). Section
8331(1), in turn, defines the term by reference to 5 U.S.C. § 2105. Under section 2105(a),
an “employee” is an individual who is “appointed in the civil service” by a federal
official; “engaged in the performance of a Federal function”; and “subject to the supervision” of a federal official. 5 U.S.C. § 2105(a) (2006); see Taylor v. OPM, 82 M.S.P.R.
237, 241 (M.S.P.B. 1999). Employees of the Postal Service, who are generally covered by
the retirement statutes by virtue of 39 U.S.C. § 1005(d), must still meet the definition of
“employee” to be covered by FERS. See Taylor, 82 M.S.P.R. at 241. An “employee” for
purposes of FERS must also be covered by title II of the Social Security Act. 5 U.S.C.
§ 8401(11).
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35 Op. O.L.C. 181 (2011)
most employees, employing agencies contribute to the Fund an amount
equal to 11.9 percent of basic pay—the aggregate normal cost of 12.7
percent minus the 0.8 percent employee deduction—which is more than
93 percent of the normal cost. OPM, which has authority to prescribe
regulations under the statute, id. § 8461(g) (2006), has construed FERS to
require the employing agency to “remit in full the total amount of normal
cost (which includes both employee deductions and Government contributions), so that payment is received by the Fund on the day of payment to
the employee of the basic pay from which the employee deductions were
made.” 5 C.F.R. § 841.504(h) (2011); see also id. § 841.413 (2011). 8
II.
The dispute between OPM and the Postal Service was precipitated by
the Postal Service’s decision, in light of its current financial crisis, to
conserve cash by suspending its employer contributions for the basic
annuity, effective June 24, 2011, for those postal employees covered by
FERS. OPM Memo at 1; USPS Memo at 2. The Postal Service is continuing to withhold employee deductions from basic pay; it also continues to
make its automatic and matching contributions to the TSP accounts of
FERS employees and to remit those contributions, along with employee
TSP contributions. USPS Memo at 2. OPM does not dispute that the
Postal Service and its employees continue to satisfy all the requirements
of the statute except the agency’s obligation to make employer contributions to the Fund for the basic annuity. The question we must address is
8 FERS further requires OPM to compute the amount of the “supplemental liability” of
the Fund as of the close of each fiscal year, both with respect to current or former employees of the Postal Service and other individuals. 5 U.S.C. § 8423(b)(1). The “supplemental liability” is the estimated excess of the actuarial present value of all future benefits
payable from the Fund based on the service of current or former employees or Members
of Congress over the sum of the actuarial present value of employee deductions, employer
contributions, and the Fund balance. Id. § 8401(27). The amount of any supplemental
liability must be amortized in 30 equal annual installments, with interest. Id. § 8423(b)(2).
At the end of each fiscal year, OPM must notify the Postmaster General of the amount of
the required installment computed with respect to current or former postal employees and
the Secretary of the Treasury of the amount computed with respect to other individuals.
Id. § 8423(b)(3). Upon receiving such notifications, the Postal Service is required to pay,
and the Secretary of the Treasury is required to credit, to the Fund the amounts specified.
Id. § 8423(b)(4).
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thus narrow: whether postal employees are entitled to service credit for
retirement purposes for the periods in which the Postal Service has suspended its employer contributions under 5 U.S.C. § 8423, but in all other
respects has complied with the FERS statute.
OPM states that its “longstanding interpretation of the statute,” as codified in its regulations, provides that “in order for an employee to be covered under FERS, an agency must make the periodic contributions to the
Retirement Fund that are required by law.” OPM Memo at 2. OPM does
not claim that FERS expressly provides that employer contributions are a
necessary precondition for employee coverage or that employees shall not
receive service credit for periods in which their employing agencies fail to
make employer contributions. Instead, OPM points out that section 8423
of FERS mandates that USPS must make contributions to the Fund on
behalf of employees covered by FERS. See 5 U.S.C. § 8423(a)(1) (“[e]ach
employing agency having any employees . . . subject to section 8422(a)
shall contribute to the Fund” an amount that is based on the normal-cost
percentage set by OPM) (emphasis added)). And while section 8423 does
not expressly make the mandatory employer contributions a precondition
to employee eligibility, in OPM’s view, the relevant OPM regulation
does:
To be covered under FERS, an individual must:
(a) Be an employee, Member, or specifically covered by another
provision of law;
(b) Be covered by social security;
(c) Have retirement deductions withheld from pay and have agency contributions made; and
(d) Be paid based on units of time.
Except as provided in § 842.104 and as excluded by § 842.105, an
employee or Member is covered by FERS.
5 C.F.R. § 842.103 (2011) (emphasis added); see also id. § 842.304(a)
(2011) (providing, with exceptions not relevant here, that “an employee
. . . is entitled to credit for all purposes under FERS for a period of civilian service with the Government or the U.S. Postal Service—[p]erformed
after December 31, 1986, which is covered service under subpart A of this
part,” a reference back to section 842.103) (emphasis added).
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35 Op. O.L.C. 181 (2011)
As OPM explains, section 842.103 “merges the various statutory requirements applicable to FERS into one regulatory provision that determines whether an individual is covered by FERS.” OPM Memo at 5.
OPM’s basic claim is thus that, “while there is no single provision in the
statute which states that each of these requirements is essential to ‘coverage,’ when read as a whole, it was clearly reasonable for OPM to make
coverage dependent upon compliance with all of the statutory requirements.” Id. at 6. In OPM’s view, section 842.103 makes “clear” that “to
be ‘covered by FERS’ an individual must not only have deductions withheld from their pay—their employing agency must make the necessary
contributions” as well. Id. at 5–6.
On its face, section 842.103 is not as free from ambiguity as OPM suggests. In particular, the last sentence in the provision states that “[e]xcept
as provided in § 842.104 and as excluded by § 842.105, an employee or
Member is covered by FERS,” 5 C.F.R. § 842.103, language that appears
to define coverage under FERS without making employer contributions a
prerequisite. We do not think that the ambiguity in this language can be
resolved by examining OPM’s practice because there does not appear to
be any relevant practice: OPM has pointed us to no instance of an agency
refusing to remit the contributions it is statutorily required to pay under
CSRS or FERS. Cf. OPM Memo at 9 (stating that no agency has failed to
make employer contributions under CSRS). Nonetheless, we assume that
OPM’s interpretation of its own regulation is entitled to deference, and
thus that section 842.103 has the meaning OPM suggests. See Talk Am.,
Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011).
In addition to relying on the statutory text and its regulation, OPM also
finds support for its view in Congress’s purpose. OPM notes that “Congress created FERS as a fully funded pension system,” intending that “the
Fund would be placed on a firm financial footing by requiring agencies to
pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. In
light of Congress’s “‘interest in sound fiscal and accounting management,’” id. at 7 (quoting S. Rep. No. 99-166, at 29 (1985)), OPM contends
that it is “highly unlikely that Congress would have provided that employees would be considered ‘covered’ by FERS and credited for their
service if their employing agencies did not make the requisite contribution
to the Fund.” Id.
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Service Credit for Retirement Annuities of USPS Employees
The Postal Service, for its part, does not deny that FERS requires it to
make its employer contributions, USPS Memo at 4, 14, or that Congress
intended that FERS be placed on a sound financial footing, id. But it
points out that Congress chose to further this goal by requiring all employers to contribute to the Fund, not by depriving employees of service
credit in the highly unusual situation in which an agency fails to make its
required payments. Id. at 2–3. The Postal Service contends that under the
statute, “creditable service is generated so long as employees are performing the required service for the Federal government and are contributing
the required amounts to their pension, without regard to whether the
employing agency cannot or does not make its employer contribution.” Id.
at 2. None of the key statutory provisions, in the Postal Service’s view,
“indicate[s] that creditable service under FERS is dependent on the employer contribution.” Id. at 6. The Postal Service emphasizes that in
enacting the basic annuity, Congress “intended to provide clearly defined
and reliable benefits to employees”—a purpose that would be “vitiated by
OPM’s interpretation, which would predicate the level of employee benefits on the funding decisions of agency officials.” Id. at 3; see also id. at
12. Accordingly, the Postal Service argues that OPM’s interpretation of
FERS, as embodied in its regulations, is at odds with the statute or, at
least, unreasonable, id. at 5, and that OPM cannot enforce the Postal
Service’s statutory obligation to contribute by denying service credit to its
employees.
We assume that OPM’s authority to implement FERS by regulation,
5 U.S.C. § 8461(g), would entitle it, in appropriate circumstances, to
deference in its construction of FERS pursuant to Chevron, U.S.A., Inc. v.
Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). However,
OPM’s construction of the statute is entitled to deference only “if the
statute is silent or ambiguous with respect to the specific issue” at hand.
Id. at 843. If, on the other hand, “Congress has directly spoken to the
precise question at issue,” and in so doing made its intent clear, “that is
the end of the matter.” Id. at 842. And here, for the reasons set forth
below, we conclude that FERS makes clear that postal employees who
otherwise qualify for retirement benefits under FERS are both covered by
and accrue service credit under the statute notwithstanding the Postal
Service’s failure to make its employer contributions pursuant to 5 U.S.C.
§ 8423. Thus, OPM’s interpretation of FERS—that OPM can address the
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35 Op. O.L.C. 181 (2011)
Postal Service’s failure to remit the required contributions by depriving
employees of accrued service credit—is foreclosed by the statute.
III.
A.
“We begin with the text of the statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1331 (2011). Section 8410 of
FERS, which governs eligibility, provides: “Notwithstanding any other
provision of this chapter, an employee or Member must complete at least
5 years of civilian service creditable under section 8411 in order to be
eligible for an annuity under this subchapter.” 5 U.S.C. § 8410. Central to
resolving this controversy is section 8411, which governs creditable
service. It provides that “[t]he total service of an employee . . . is the full
years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.” Id. § 8411(a)(1). Section 8411 further specifies, in relevant part, that for purposes of FERS, “creditable service of an
employee . . . includes . . . employment as an employee . . . after December 31, 1986.” Id. § 8411(b), (b)(1). These provisions are not vague or
unclear. They indicate plainly the category of employees who are eligible
for FERS benefits, and Congress’s broad, but not unbounded, definition
of “creditable service” for FERS purposes.
Section 8401(11) excludes certain categories of individuals from the
definition of “employee,” and section 8402 excludes certain categories of
individuals from coverage under FERS. Id. §§ 8401(11), 8402. But these
exclusions are irrelevant to the present dispute. As USPS points out, OPM
does not argue that “the non-payment of the employer contribution means
that Postal Service employees are no longer ‘employees’ under the FERS
statute or that they now fall within one of the exceptions in 5 U.S.C.
§ 8402 by virtue of such non-payment.” USPS Memo at 6. And the postal
employees potentially affected by their employer’s non-payment of its
contributions are still engaged in “employment.” The plain language of
FERS, then, supports the view that employees earn creditable service so
long as they are employed as “employee[s]” after December 31, 1986,
5 U.S.C. § 8411(b)(1), regardless of whether their employer has suspended its contributions to the Fund.
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To be sure, as noted earlier, OPM acknowledges that FERS’s definition
of “creditable service” does not mention employer contributions. Its
argument is that a correct determination of what counts as “creditable
service” under FERS does not depend on the wording of section
8411(b)(1) alone, but also on the overall statutory plan—in particular, on
the fact that another provision of FERS clearly requires employer contributions as part of the overall FERS scheme.
We agree that section 8423 of FERS requires employers to make contributions to the Fund. We further agree that “[i]nterpretation of a word or
phrase depends upon reading the whole statutory text, considering the
purpose and context of the statute.” Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006). However, the mere fact that employer contributions are a
mandatory part of the overall FERS scheme does not indicate that OPM is
authorized to suspend or eliminate the accrual of employees’ service
credit as a remedy for an employer’s failure to make such contributions.
Cf. Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S.
238, 247 (2000) (ERISA’s “‘comprehensive and reticulated’ scheme
warrants a cautious approach to inferring remedies not expressly authorized by the text” (citations and internal quotation marks omitted)). As
noted above, the specific statutory provision that addresses creditable
service says nothing that suggests that an employee’s accrual of credit
depends on the fact or extent of employer contributions. Section 8423 of
FERS likewise fails to mandate, or even suggest, that a lapse in an employing agency’s contributions should result in a denial of service credit
to that agency’s employees.
Certainly, as OPM states, section 8423 reflects Congress’s goal that
“the Fund . . . be placed on a firm financial footing by requiring agencies
to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. But
it does so not by stipulating that employees will earn service credit (and
therefore future benefits) only if their employers make all required contributions, but rather by imposing on agency employers a legal obligation to
make the required contributions. OPM itself has suggested no reason to
think that in practice this statutory mechanism has proven ineffective in
serving Congress’s goal. Cf. OPM Memo at 9 (“no agency has ever defaulted on its obligation to make the required contributions” under CSRS).
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35 Op. O.L.C. 181 (2011)
Moreover, the text of the FERS statute suggests that Congress considered the question of statutory mechanisms to address funding shortfalls
and enacted a mechanism to deal with one kind of shortfall, without
indicating that the suspension of employee service credit might be used as
a solution to that or any other funding deficiency. Specifically, the statute
provides that, in the event that OPM determines, on an annual review, that
an agency’s employer contributions do not in fact satisfy the statute’s
funding goals, OPM must notify the Postmaster General (or the Secretary
of the Treasury, as applicable) of any “supplemental liability” and the
amount of the required installment payments, amortized over 30 years.
5 U.S.C. § 8423(b); see supra note 8. The Postal Service must then pay
the amount specified in the notification to address the funding shortfall.
5 U.S.C. § 8423(b)(4)(B). The existence of this supplemental liability
process does not affirmatively authorize the Postal Service to avoid making its employer contributions as they come due in favor of amortizing
such payments over 30 years. But the existence of a supplemental liability
remedy for at least one type of funding shortfall shows that Congress was
aware of the possibility that the employer contributions remitted under
section 8423 might in some circumstances fail to result in agency funding
of the full costs of employee benefits. Congress chose nonetheless to
provide expressly for only one response to such a possibility. In light of
that awareness, the omission of any other mechanism for addressing this
or other kinds of shortfalls, such as denying service credit to employees
when their employer defaults on its contributions, suggests that “the
statute fails to mention [other responses] ‘by deliberate choice, not inadvertence.’” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1076 (2011) (citation omitted).
In sum, none of the most clearly relevant provisions of the statute suggests that either employee eligibility or creditable service under FERS
depends upon the extent of the employer’s contributions to the Fund. As
OPM insists, and the Postal Service effectively concedes, the plain language of FERS’s key provisions specifies that agency employers must
contribute to the Fund the normal cost of their covered employees’ basic
pay. At the same time, these provisions fail to link an agency’s failure to
comply with this requirement to the affected employees’ eligibility for an
annuity or accrual of creditable service. Instead, they appear on their face
to provide that an employee is entitled to service credit so long as he or
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she is employed as an “employee” after December 31, 1986. See 5 U.S.C.
§ 8411(a) & (b). Given the harsh penalty federal employees would suffer
if they were denied FERS coverage or service credit for periods of employment during which their agency employers failed to make the required contributions to the Fund—an action over which the employees
have no control—the absence of any reference in FERS’s key provisions
to OPM’s authority to impose that particular remedy for an agency’s
noncompliance strongly suggests that Congress did not intend such authority to exist. As we discuss next, we do not think any of OPM’s additional arguments in support of this authority are persuasive.
B.
OPM offers several other arguments that, in its view, show that the
FERS statute requires employer contributions as a condition of employees’ coverage and accrual of creditable service under FERS. First, OPM
relies heavily on the Postal Service’s concession that, to receive service
credit under FERS, an employee must have deductions withheld from his
or her wages, even though, in the Postal Service’s view, the employing
agency’s contributions are not required for that purpose. OPM Memo at 7;
see USPS Memo at 5–10. OPM insists that these two propositions cannot
be reconciled because it is illogical to distinguish between the employee’s
deduction and the employer’s contribution—both of which are statutorily
required and neither of which is expressly linked by the statutory text to
accrual of service credit—for purposes of determining whether an employee accrues creditable service for periods when employee deductions
or employer contributions have not been made. OPM Memo at 7.
We need not resolve this issue. As a practical matter, the Postal Service
has continued to withhold from its employees’ basic pay the deductions
required under 5 U.S.C. § 8422—including the employee deductions—
and to deposit the deductions into the Fund. USPS Memo at 2. If fulfillment of the Postal Service’s obligations under section 8422 is a necessary
condition to postal employees receiving credit under FERS, that condition
is being met. Furthermore, although OPM and the Postal Service agree
that a failure to make these employee deductions would affect employees’
ability to earn creditable service, we are unsure that they are correct. In
our view, this issue is difficult, particularly in the context of a scheme in
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35 Op. O.L.C. 181 (2011)
which it is the agency’s legal obligation to effectuate the employee deduction. See 5 U.S.C. § 8422(a). In fact, the answer to the question may well
depend on the reason that employee deductions have not been made. 9 In
any event, even if employee deductions constitute a prerequisite to the
accrual of service credit under FERS—one that does not appear in the
FERS eligibility or accrual provisions themselves—that would not necessarily mean that employer contributions likewise would be a prerequisite
for the accrual of such credit, because the significance and treatment of
employee deductions and employer contributions within the statutory
scheme are different. Each argument for linking employee service credit
to separate requirements in the statute would have to be considered on its
own terms.
Both OPM and the Postal Service cite different subsections of section
8411—some requiring employee deductions as a condition of receiving
creditable service and a couple requiring employee deductions and em-
For example, if the employer failed to make the employee deduction because the affected employee was not subject to deductions under 5 U.S.C. § 8422, the employee’s
eligibility for coverage and ability to accrue creditable service under FERS might be
implicated. Cf. Tomboc v. OPM, 355 Fed. Appx. 422, 424 (Fed. Cir. 2009) (noting that
“[w]hile the absence of deductions” under the CSRA “is an indication” regarding whether
a position is covered, “it is not necessarily dispositive”). Alternatively, if the employer
failed to make the employee deductions because of an agency error, the error may be
corrected, see 5 C.F.R. § 841.505 (2011); and, in any event, an agency error would not
necessarily affect the employee’s entitlement to coverage. Cf. Noveloso v. OPM, 45
M.S.P.R. 321, 324 n.2 (M.S.P.B. 1990) (noting, in addressing CSRS coverage, that “[i]f
no deductions were withheld because of agency error, or because it was not determined
until after the fact that such service should have been covered, the employment will still
constitute covered service”); accord Staffney v. OPM, 54 M.S.P.R. 99, 102–03 (M.S.P.B.
1992) (same, under CSRS coverage); In re Kaltakji, 1 M.S.P.R. 63, 64 (M.S.P.B. 1978)
(same). But see 5 U.S.C. § 8339(i) (2006) (providing, for purposes of computing a CSRS
annuity, that the total service of an employee “shall not include any period of civilian
service . . . for which retirement deductions or deposits [under section 8334] have not
been made” unless the employee makes a deposit under section 8334(c) or (d)(1) or no
deposit is required for such service as specified under section 8334(g) or another statute).
And, for the same reasons that an agency error may not affect the employee’s entitlement
to coverage, a willful agency refusal to make the required employee deductions likewise
may not affect that entitlement. For the reasons stated in the text, however, we need not
decide the circumstances, if any, in which an employing agency’s failure to make the
employee deductions and deposit them into the Fund would affect an employee’s coverage and accrual of service under FERS.
9
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Service Credit for Retirement Annuities of USPS Employees
ployer contributions—to support their respective positions. On the one
hand, OPM contends that, where Congress intended to permit service
credit to be afforded even if no contributions were made by the agency, it
did so explicitly. It cites as an example section 8411(b)(3), which permits
employees to receive service credit for periods of employment during
which no employing agency contributions or employee deductions were
paid into the Fund for certain service performed prior to January 1, 1989.
OPM Memo at 8 n.5. In such instances, the employee must make a deposit
into the Fund of 1.3 percent of his or her basic pay, with interest, for that
period of service. Id. (citing 5 U.S.C. § 8411(f)(2)). 10 However, no employing agency contribution is required for that period. Id. 11 The Postal
10
Section 8411(b)(3), with the introductory language in section 8411(b), provides:
For the purpose of this chapter, creditable service of an employee or Member includes[,] except as provided in subsection (f) or (h), any civilian service (performed before January 1, 1989, other than any service under paragraph (1) or (2))
which, but for the amendments made by subsections (a)(4) and (b) of section 202
of the Federal Employees’ Retirement System Act of 1986, would be creditable
under subchapter III of chapter 83 of this title (determined without regard to any
deposit or redeposit requirement under such subchapter, any requirement that the
individual become subject to such subchapter after performing the service involved, or any requirement that the individual give notice in writing to the official by whom such individual is paid of such individual’s desire to become subject to such subchapter)[.]
5 U.S.C. § 8411(b), (b)(3). Section 8411(f)(2) prohibits an employee from receiving
“credit under this chapter for any service described in subsection (b)(3) for which retirement deductions under subchapter III of chapter 83 have not been made, unless such
employee or Member deposits an amount equal to 1.3 percent of basic pay for such
service, with interest.” Id. § 8411(f)(2). Section 8411(f)(1) requires an employee who has
received a refund of CSRS retirement deductions for service described in subsections
(b)(2) or (b)(3) to “deposit[] an amount equal to 1.3 percent of basic pay for such service,
with interest,” as a condition of receiving credit for such service. Id. § 8411(f)(1).
The Senate Committee on Governmental Affairs released a Committee Print in October 1986, four months after the enactment of FERS, that set out a detailed section-bysection analysis of the statute. The committee print explains that section 8411(b)(3)
“provides that creditable service includes . . . service before January 1, 1989, which was
either non-covered or was not vested under CSRS in which case a contribution must be
made under subsection (f).” S. Comm. on Governmental Affairs, 99th Cong., Supplemental Information Regarding the Federal Employees’ Retirement System Act of 1986,
at 7 (Comm. Print 1986) (“FERS Comm. Print”).
11 Section 8411(b)(3) is not unique in requiring employees who had not contributed to
the Fund (sometimes because they had been covered by other retirement systems) but who
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35 Op. O.L.C. 181 (2011)
Service, on the other hand, cites two instances in which the statute expressly requires the payment of an employer contribution to render certain
service creditable, arguing that there would have been no reason for
Congress to have explicitly required an employer contribution if accrual
of service credit is invariably conditioned on an agency’s having made
employer contributions to the Fund. USPS Memo at 8 (citing 5 U.S.C.
§ 8411(e), (g) (the latter of these added in subsequent amendments to
FERS)). 12
seek service credit within the FERS system, to make payments to the Fund equal to the
amounts that would have been deducted as FERS employee contributions for that period
of service—without any mention of the necessity of an employer contribution. See, e.g.,
5 U.S.C. § 8411(b)(4) & (5) (the latter of these added in subsequent amendments to
FERS); USPS Paper at 6. In still other instances, Congress treated service for which
deductions were not paid to the Fund as creditable with no requirement of any kind of
employee or employer deposit. See 5 U.S.C. § 8411(c)(1)(A) (military service performed
before January 1, 1957); id. § 8411(d) (certain periods of leave without pay); USPS Paper
at 7.
12 Section 8411(e) provides:
Credit shall be allowed for periods of approved leave without pay granted an employee
to serve as a full-time officer or employee of an organization composed primarily of
employees . . . , subject to the employee arranging to pay, through the employee’s employing agency, within 60 days after commencement of such leave without pay,
amounts equal to the retirement deductions and agency contributions which would be
applicable under sections 8422(a) and 8423(a), respectively, if the employee were in
pay status. If the election and all payments provided by this subsection are not made,
the employee may not receive credit for the periods of leave without pay, notwithstanding the third sentence of subsection (d).
5 U.S.C. § 8411(e) (emphasis added). Section 8411(g), in turn, provides that “[a]ny
employee who—
“(1) served in a position in which the employee was excluded from coverage under this subchapter because the employee was covered under a retirement system
established under section 10 of the Federal Reserve Act; and
“(2) transferred without a break in service to a position to which the employee
was appointed by the President, with the advice and consent of the Senate, and in
which position the employee is subject to this subchapter,
“shall be treated for all purposes of this subchapter as if any service that would have been
creditable under the retirement system established under section 10 of the Federal Reserve
Act was service performed while subject to this subchapter if any employee and employer
deductions, contributions or rights with respect to the employee’s service are transferred
from such retirement system to the Fund.” Id. § 8411(g) (emphasis added).
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Service Credit for Retirement Annuities of USPS Employees
None of these examples, in our view, supports either inference. As the
Postal Service observes, section 8411 sets forth a variety of rules regarding when certain types of service that fall outside the scope of section
8411(b)(1) (the service at issue here) nonetheless may be credited for
FERS purposes. Id. Congress’s varying responses to divergent coverage
and employee deduction scenarios do not shed light on what it intended as
a general matter for employees otherwise covered by FERS. With respect
to section 8411(b)(3), for example, Congress’s decision to allow the
accrual of service credit for employees in a transitional period during the
early implementation of FERS and to address the absence of retirement
deductions by requiring that the employee deposit an amount compensating for those missing employee deductions, 5 U.S.C. § 8411(f)(2), suggests, at most, that Congress viewed employee deductions as more significant to coverage requirements than employer contributions. By the same
token, that Congress required employer contributions to be made as a
condition of receiving service credit in the examples cited by the Postal
Service, id. § 8411(e), (g), shows little more than that Congress chose to
impose that additional requirement in those instances and explicitly provided for employer contributions to make the requirement clear. 13
For similar reasons, we do not find Congress’s treatment of reemployed annuitants
in 5 U.S.C. § 8468, on which the Postal Service relies, see USPS Memo at 6–7, particularly illuminating. In language added to that section after the enactment of FERS, the statute
provides that, with certain exceptions, if the annuitant becomes reemployed, “deductions
for the Fund shall be withheld from the annuitant’s pay under section 8422(a) and contributions under section 8423 shall be made.” 5 U.S.C. § 8468(a) (2006). The Postal Service
makes much of the fact that a subsequent subsection provides that if an annuitant “subject
to deductions under the second sentence of subsection (a)” serves for at least 5 years, the
annuitant may elect to have his or her rights redetermined under FERS. Id.
§ 8468(b)(2)(A) (emphasis added). The Postal Service finds it significant that this subsection mentions “deductions” and not employer “contributions.” But an employee subject to
“deductions” under the second sentence of section 8468(a) would also be subject to
“contributions,” and so there was no need for Congress to repeat the full phrase in section
8468(b)(2)(A) to indicate the employees to whom it was referring. Moreover, contrary to
the Postal Service’s assertion that Congress made clear that reemployed annuitants earn
service credit “so long as ‘deductions’ are being made from their basic pay,” USPS Memo
at 7, Congress merely referred to reemployed annuitants who were “subject to deductions,” without regard to whether the deductions were actually “being made.” See
5 U.S.C. § 8468(b)(2)(A). More importantly, however, we believe again that Congress’s
policy determination about the coverage of reemployed annuitants tells us little about
13
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35 Op. O.L.C. 181 (2011)
What these examples reveal is that, even where there was no other statutory commitment to treat service as creditable under FERS or where
employees were covered under other federal retirement systems, Congress
sometimes extended FERS service credit in exchange for the payment of
specified employee deductions—or the payment of employer contributions, or the relinquishment of service credit under other retirement systems, or without imposing any conditions—to serve some other policy
goal, such as increased portability of retirement benefits. See Pub. L. No.
99-335, § 100A(3), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note)
(one purpose of FERS was “to enhance portability of retirement assets
earned as an employee of the Federal Government”). In our view, the
discrete scenarios addressed in section 8411 provide little assistance, one
way or another, in the assessment whether Congress intended to authorize
OPM to deny service credit to employees otherwise subject to the FERS
retirement plan for periods of employment under that plan if agencies
violated the statutory requirement that they make employer contributions
to the Fund.
Finally, as noted above, OPM argues that, in light of Congress’s creation of FERS as a “fully funded pension system,” OPM Memo at 6, and
its purpose to ensure “sound fiscal and accounting management,” id. at 7
(citing S. Rep. No. 99-166, at 29), “it is highly unlikely that Congress
would have provided that employees be considered ‘covered’ by FERS
and credited for their service if their employing agencies did not make the
requisite contribution[s] to the Fund.” Id. But, of course, Congress did
require employing agencies to make specified contributions to the Fund,
and the Postal Service is legally obligated to do so. See supra pp. 184–
186, 191. The question here is only whether Congress intended that the
remedy for the Postal Service’s failure to meet its obligations would be to
deny employees the service credit that the statute contemplates they will
earn.
We agree with OPM that Congress was concerned with the fiscal management of the Fund. But “ensur[ing] a fully funded and financially sound
retirement benefits plan for Federal employees,” Pub. L. No. 99-335,
§ 100A(2), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note), was only
whether Congress intended generally to condition coverage and accrual of service credit
for FERS employees on the agency’s deposit of its employer contributions into the Fund.
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one of several congressional purposes in enacting FERS. Among other
things, Congress also enacted FERS to establish a new retirement plan “to
assist in building a quality career work force in the Federal Government.”
Id. § 100A(5). That goal could well be subverted if Congress were to
create a retirement system in which employees’ retirement benefits could
be diminished or stripped away by their agencies’ failure to pay the statutorily required contributions into the Fund. Even recognizing that a fully
funded pension system was an important congressional objective, “no
legislation pursues its purposes at all costs. Deciding what competing
values will or will not be sacrificed to the achievement of a particular
object is the very essence of legislative choice—and it frustrates rather
than effectuates legislative intent simplistically to assume that whatever
furthers the statute’s primary objective must be the law.” Rodriguez v.
United States, 480 U.S. 522, 525–26 (1987).
Further, although we do not “resort to legislative history to cloud a
statutory text that is clear,” Ratzlaf v. United States, 510 U.S. 135, 147–48
(1994), we believe that, to the extent that the legislative history of FERS
is illuminating, it undermines, rather than supports, the view that Congress intended to deny employees eligibility and creditable service under
FERS for periods of employment in which their employing agencies fail
to make their required employer contributions to the Fund.
The legislative history makes clear that Congress intended the basic
annuity in FERS to operate as a defined benefit plan. See, e.g., S. Rep.
No. 99-166, at 6, 9, 30, 42; FERS Comm. Print at 7. Such a plan consists
of “a general pool of assets” out of which an employee, “upon retirement,
is entitled to a fixed periodic payment.” Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 439 (1999) (citation omitted). “A defined benefit plan
promises a participant a specific amount of pension benefits at retirement
determined under a formula based on years of participation in the plan,
and in most nonbargained plans, based on an average of compensation.”
Stephen R. Bruce, Pension Claims: Rights and Obligations 17–18 (1988)
(“Bruce”); see also James E. Burk, Pension Plan Management Manual:
Administration and Investment ¶ 1.01[8], at 1-8 (1987) (“Burk”) (benefits
in a defined benefits plan determined “by a formula that is generally
related to service and compensation”); H.R. Comm. on Post Office and
Civil Serv., 98th Cong., Designating a Retirement System for Federal
Workers Covered by Social Security 6 (Comm. Print 1984) (prepared by
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35 Op. O.L.C. 181 (2011)
the Congressional Research Service) (“CRS Comm. Print”) (“A defined
benefit plan determines benefit amount by a formula. Upon reaching the
terms specified in the definition of eligibility (usually a combination of
age and years of service), the worker receives the benefit computed from
the application of the formula to the employee’s years of service and
salary.”). 14
The FERS basic annuity follows this model. FERS promises participants a specific level of benefits by application of a formula that is generally dependent on the employee’s average pay and total service,
5 U.S.C. § 8415(a), and that bases the employing agencies’ contributions
on the “normal-cost percentage” of benefits, id. § 8423(a), which is
actuarially computed by OPM. Id. § 8401(23); cf. Burk ¶ 2.01, at 2-4
(employer’s contribution in a defined benefit plan is actuarially computed). The benefit formula in a defined benefit plan “is geared to providing
a specific retirement benefit rather than based on the rate of contributions
made by the employer to the pension fund.” Burk ¶ 2.01, at 2-5. A pension plan covered by the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. §§ 1001–1461 (2006 & Supp. III 2009), for
example, “is liable for benefits without regard to whether the employer
has made required contributions.” ABA Section of Labor and Employment Law, Employment Benefits Law 279 (1991). Thus, it was well
established by the time Congress enacted FERS, see USPS Memo at 9,
that a multiemployer pension plan covered by ERISA, which is analogous in many respects to the multi-agency approach of FERS, must
award credit based on the service performed for a participating employer
regardless of whether the employer made the required contributions for
such service. As the Supreme Court recognized a year before the enactment of FERS:
By contrast, under a “defined contribution plan,” the promise is that “certain contributions will be made and credited to an employee’s individual account. Contribution rates
are fixed, usually as a percentage of the employee’s earnings. Such plans do not guarantee
an employee any fixed level of benefits at retirement. An employee’s benefit will vary,
depending on the amount of the contributions and the interest and capital appreciation
accumulated on them.” Burk ¶ 1.02[8], at 1-8 –1-9; see also Hughes, 525 U.S. at 439;
Bruce at 18. “Under defined contribution plans, employers know exactly what the pension
obligation is and the benefits are fully funded at the time of the contribution. Employees
bear the risk of variable market performance[.]” CRS Comm. Print at 6–7.
14
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Service Credit for Retirement Annuities of USPS Employees
The consistent view of the Secretary of Labor is that, under ERISA’s
minimum participation, vesting, and benefit accrual standards for
pension plans . . . a pension plan covered by ERISA must award
credit “solely on the basis of service performed for a participating
employer, regardless [of] whether that employer is required to contribute for such service or has made or defaulted on his required contributions.” In the Secretary’s judgment, “[a]ny plan term or Trustees’ resolution to the contrary is . . . unlawful and unenforceable.”
Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472
U.S. 559, 567 n.7 (1985) (citations omitted). 15
Given this backdrop, it would be reasonable to expect some indication
in the text of FERS, or at least in its legislative history, if Congress had
intended to depart from these principles and make accrual of employee
15 Accord Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc.,
870 F.2d 1148, 1151 (7th Cir. 1988) (“Multi-employer plans are defined-contribution in,
defined-benefits out. Once they promise a level of benefits to employees, they must pay
even if the contributions they expected to receive do not materialize[.]”); Bruce at 135–
36 (“[H]ours of service for use in determining [years of work] are determined solely on
the basis of hours of work, or hours for which payment is due the employee from the
employer, without reference to the delinquency or nondelinquency of the employer’s
contributions to the [multiemployer] plan.”). As the Supreme Court noted, the longstanding position of the Secretary of Labor at the time of the enactment of FERS was that
ERISA required that credit for hours worked “must be given solely on the basis of
service performed for a participating employer, regardless whether that employer is
required to contribute for such service or has made or defaulted on his required contributions. Any plan term or Trustees resolution to the contrary is, in our judgment, unlawful
and unenforceable.” Dep’t of Labor Advisory Op. No. 76–89 (Aug. 31, 1976); accord
Dep’t of Labor Advisory Op. No. 78-28A (Dec. 5, 1978); Dep’t of Labor Advisory Op.
78-21A (Oct. 16, 1978); Dep’t of Labor Advisory Op. No. 78-20A (Oct. 6, 1978); see
also Rules and Regulations for Minimum Standards for Employee Pension Benefit Plans,
41 Fed. Reg. 56,462, 56,464 (Dec. 28, 1976) (explaining, with respect to 29 C.F.R.
§ 2530.200b-2, regarding accrual of hours of service, that employee hours “must be
credited to an employee regardless of whether contributions are required to be made to
the plan on account of such hours or whether such contributions, even though required,
have not in fact been made”). Before the passage of FERS, the IRS had also issued a
Revenue Ruling explaining that a multiemployer plan that did not credit all years of
service because of an employer’s failure to make the required contributions failed to
meet the requirements of “a qualified pension plan” that it provide “definitely determinable benefits” to its employees and violated the minimum participation and vesting
standards of the Internal Revenue Code. Rev. Ruling 85-130, 1985-2 C.B. 137.
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35 Op. O.L.C. 181 (2011)
benefits contingent on employer contributions. Instead, the legislative
history underlines that Congress intended to establish a new retirement
plan for federal employees that would “provid[e] employees with financial security through a retirement program that compares favorably with
those found in the private sector.” S. Rep. No. 99-166, at 38. 16 It is unlikely, in light of this goal, that Congress would have incorporated into FERS
an arrangement that would have been unlawful in the private sector without saying so.
Finally, OPM argues that construing FERS to give employees an entitlement to service credit without the employer’s contribution “would be
inconsistent with the Director’s fiduciary responsibilities to the Fund.”
OPM Memo at 7. But, as set forth above, OPM is obligated under the
statute to award service credit to employees who satisfy the statutory
conditions set forth, see supra Part III.A, and to “pay all benefits that are
payable under subchapter II, IV, V, or VI of this chapter from the Fund.”
5 U.S.C. § 8461(a). As we read the statute, OPM is required to pay those
benefits without regard to whether the employing agency—here, the
Postal Service—has made its employer contributions to the Fund. The
Director’s fiduciary obligations thus include awarding service credit and
paying benefits in accordance with the statute, and he would not violate
those obligations by doing so.
16 See also, e.g., 132 Cong. Rec. 11,912 (1986) (statement of Rep. Myers) (conference
report includes “many of the concepts that a great many of the better private retirement
programs have”); id. at 11,909 (1986) (statement of Rep. Ford) (Congress had an opportunity “to create a new pension system with the best features found in the private sector”);
id. at 11,304 (1986) (statement of Sen. Gore) (“The retirement system which we have
developed employs a three-tier design that combines Social Security with a defined
benefit tier that focuses on providing a reliable base pension benefit[.]”); id. at 11,303
(1986) (statement of Sen. Glenn) (FERS “provides Government employees with a threepart program which is comparable to plans widely used in private industry” and “one that
helps to recruit and maintain an excellent and skilled work force”); id. at 11,301 (1986)
(statement of Sen. Stevens) (praising the new retirement plan as “a top notch, economical
retirement system for the Federal workforce which is on part with the best in the private
sector,” providing “solid retirement benefits” and “offering financial security to Federal
retirees”); S. Rep. No. 99-166, at 4 (emphasizing that “the Federal Government must have
the ability to attract and retain highly qualified individuals in all occupations” and that
“[a]n attractive, flexible retirement plan can assist the government in meeting these
objectives . . . to build a career workforce” and “to assist in recruiting midcareer employees”).
202
Service Credit for Retirement Annuities of USPS Employees
IV.
“If, upon examination of ‘the particular statutory language at issue, as
well as the language and design of the statute as a whole,’ . . . it is clear
that [the agency’s] interpretation is incorrect, then we need look no further[.]” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 645 (1990) (quoting
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). In our view,
FERS has “directly spoken to the precise question at issue,” Chevron, 467
U.S. at 842, and OPM may not address the Postal Service’s failure to
make the employer contributions required by FERS by denying postal
employees coverage or creditable service under FERS. We do not address
the propriety of any other action OPM might take to address the Postal
Service’s failure to make the required contributions to the Fund.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
203 |
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Write a legal research memo on the following topic. | Immigration Laws and Iranian Students
T h e P resid en t has a u th o rity u n d er th e Im m ig ratio n and N atio n ality A c t (IN A ) to lim it or
h alt e n try o f Iran ian n ationals in to th e U nited S tates. H e also has av ailab le to him
u n d er th at sta tu te a n u m b er o f o p tio n s by w h ic h he m ay re g u la te th e c o n d itio n s u n d er
w h ich Iran ian n atio n als a lre a d y p resen t in th e c o u n tr y rem ain h e re o r d ep art.
W h ile th e m a tte r is n o t free from d o u b t, a reaso n ab le read in g o f § 241(a)(7) o f th e IN A
w o u ld allo w th e A tto rn e y G e n e ra l to tak e in to a c c o u n t ad v e rse foreign p o licy c o n s e
q u en ces in d e te rm in in g w h e th e r an alien ’s c o n tin u e d p resen c e in th e U n ited S tates is
p reju d icial to th e p u b lic in terest, so as to re n d e r him o r h e r d e p o rta b le . H o w e v e r, it
w o u ld be c o n stitu tio n a lly in a p p ro p ria te to identify m em bers o f th e class o f d e p o rta b le
p erso n s in term s o f th eir exercise o f F irst A m en d m en t rights.
B oth th e IN A an d th e C o n stitu tio n re q u ire th a t all p erso n s be g iv e n a h e arin g an d an
o p p o rtu n ity fo r ju d ic ia l rev iew b e fo re being d e p o rte d ; h o w e v e r, n e ith e r th e IN A no r
th e C o n stitu tio n w o u ld p re c lu d e th e A tto rn e y G e n e ra l o r C o n g re ss from tak in g actio n
d ire c te d so lely at Iran ian nationals, p a rtic u la rly in lig h t o f th e serio u s national se cu rity
an d foreign p o licy in terests at sta k e in th e p resen t crisis.
N ovem ber 11, 1979
M EM 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
This memorandum has been prepared by this Office and the Immi
gration and Naturalization Service (IN S) G eneral C ounsel’s office. It
addresses the statutory provisions regarding entry and deportation o f
aliens as they pertain to Iranian nationals in the United States. It also
examines the constitutional authority o f Congress to enact legislation
affecting Iranians residing in, or attem pting to enter, this country. W e
conclude: (1) that the President presently possesses the authority to halt
entry o f Iranians into the United States; (2) that, w hile the m atter is
largely unprecedented and would raise nonfrivolous constitutional ques
tions, the A ttorney G eneral may be able to prom ulgate standards w hich
w hich w ould render deportable aliens whose presence in this country is
prejudicial to the public interest and threatens the conduct o f foreign
affairs; (3) that the immigration laws and the Constitution require that
all persons receive a hearing and judicial review before being deported;
(4) that it is therefore unlikely that deportations could be effected with
sufficient immediacy to have an impact on the present crisis in Tehran;
(5) that the A ttorney G eneral could require all Iranian nonim migrant
students to dem onstrate to the IN S that they are “ in status” (i.e., not
deportable); (6) that regulations and statutes directed solely at Iranian
133
nationals would not violate the Constitution; and (7) that Congress has
the authority to bar from entering and to deport Iranians.
I. Population of Iranians
Iranian nationals in the United States may fall into four categories:
(1) lawful perm anent residents; (2) nonimmigrants; (3) parolees; and (4)
aliens in the United States in violation o f law.
Law ful perm anent residents as defined in § 101(a)(20) of the Im m igra
tion and Nationality A ct (IN A o r A ct), 8 U.S.C. § 1101(a)(20), are
aliens w ho have entered legally with im migrant visas or who have
adjusted status while in the United States. A lawful perm anent resident
may remain in the United States indefinitely unless he commits miscon
duct covered by the deportation grounds set forth in § 241(a) o f the
Act, 8 U.S.C. § 1251(a).
Nonim m igrants are aliens within one o f the tw elve categories speci
fied in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15). Generally,
nonim m igrants are adm itted for a particular purpose for a period of
time, and under such conditions as the A ttorney G eneral may specify.
§ 214(a) o f the IN A , 8 U.S.C. § 1184(a). As o f August 30, 1979 there
w ere approxim ately 130,000 nonim m igrants from Iran in the United
States. O f these, approxim ately 50,000 w ere nonim migrant students as
defined in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15).
A few Iranians may be in the United States as parolees who were
allowed to enter tem porarily for em ergency reasons or for reasons
deemed strictly in the public interest in accordance with the authority
o f the A ttorney G eneral under § 212(d)(5) o f the A ct, 8 U.S.C.
§ 1182(d)(5). Parolees are not considered to have been “adm itted” to
the United States and may be ordered to depart in an exclusion pro
ceeding rather than a deportation proceeding.
Iranians w ho entered the country illegally o r w ho have failed to
maintain nonim migrant status would be considered to be here in viola
tion o f law and w ould be prim a facie deportable.
II. Present Policy Toward Iranians
As a result o f discussions between the State D epartm ent and the
Justice D epartm ent following the fall o f the Shah, IN S has instituted a
practice o f granting “extended voluntary departure” to Iranians in the
United States w ho may be out o f status but w ho have expressed an
unwillingness to return to Ira n .1 An alien granted extended voluntary
departure is effectively perm itted to stay in this country for an undeter
mined period o f time. In addition, INS has deferred inspection of
potentially excludable Iranians w ho claim political asylum. On the basis
'Ira n ia n s w ho have been co n v icted o f crim es w ithin the U nited States are not included in this
policy.
134
of representations made by the State D epartm ent, the foregoing policies
have been extended until June 1, 1980. Therefore, no Iranians are
currently being deported from the United States against their will.
Iranians who have been allowed to remain under these policies may be
granted work authorization by the INS. A t present, approxim ately
4,400 Iranians have been granted extended voluntary departure under
the INS policy.
T he original rationale for the policy o f not enforcing departure was
that the State D epartm ent was unsure about conditions in Iran follow
ing the fall o f the Shah’s governm ent. By not taking a position with
respect to involuntary return o f Iranians, the State D epartm ent believed
that it would have an opportunity to allow the situation in Iran to
stabilize. In addition, claims for asylum w ere not determ ined because it
was believed that statem ents regarding the likelihood o f persecution in
Iran may have had an adverse im pact on the establishment o f diplo
matic relations w ith the new Iranian governm ent.
It should also be noted that since January 1, 1979, all nonimmigrant
students, including Iranians, have been eligible for “duration o f status”
under INS regulations. 8 C .F.R . § 214.2(0(2) (1979). A student adm itted
for “duration o f status” has no date specified for the expiration o f his
stay, but may remain for so long as he continues to be a full-time
student in good standing at his school.
III. Statutory Entry and Deportation Procedures
T he IN A provides elaborate procedures regarding entry and expul
sion o f aliens. As discussed below, several o f the procedures are consti
tutionally required.
A. Entry
Immigrants may be adm itted into the United States if they possess a
valid visa and are not otherw ise excludable under §212 o f the IN A , 8
U.S.C. §1182. Section 212 lists 33 grounds for exclusion including
insanity, drug addiction, pauperism, conviction o f a crim e involving
moral turpitude, prostitution, false procurem ent o f docum entation or
fraud, advocacy o f anarchism and communism, or engaging in subver
sive activities. Nonim m igrants (e.g., students, visitors, consular officials,
foreign press) are adm itted upon conditions and for such time as estab
lished by regulations by the A ttorney General. § 214 o f the IN A , 8
U.S.C. § 1184.
Aliens seeking entry are inspected by immigration officers w ho may
detain for further inquiry aliens “ w ho may not appear . . . to be clearly
and beyond a doubt entitled” to enter. § 235(b) o f the IN A , 8 U.S.C.
§ 1225(b). Such further inquiry occurs before a special inquiry officer
(immigration judge), w ho is authorized to administer oaths, present and
receive evidence, examine and cross-examine the alien or witnesses.
135
T he alien is entitled to representation by counsel, and a com plete
record o f the proceedings must be kept. §§ 235, 236, 292 o f the IN A , 8
U.S.C. §§ 1225, 1226, 1362. A decision excluding an alien may be
appealed to the Board o f Imm igration Appeals, an independent quasi
judicial appellate body created by the A ttorney G eneral within the
D epartm ent o f Justice. 8 C .F.R . §3.1. Board decisions in exclusion
cases are reviewable in federal district court by habeas corpus.
T he IN A gives the President authority to “suspend the entry o f all
aliens or any class o f aliens as immigrant o r nonimmigrants, o r impose
on the entry o f aliens any restrictions he may deem to be appropriate”
upon a finding that entry “w ould be detrim ental to the interests o f the
United States.” § 2 12(0 o f the IN A , 8 U.S.C. §1182(0- See also
§ 215(a)(1) o f the IN A , 8 U.S.C. § 1185(a)(1), as am ended by Pub. L.
No. 95-426, § 707, 92 Stat. 992 (1978).
B. Deportation
T he IN A specifies 19 grounds for deportation o f aliens. These in
clude excludability at time o f entry, conviction o f a crim e involving
m oral turpitude, advocacy o f anarchism o r communism, involvem ent in
narcotic use or sale, and failure to maintain status o r to com ply with
any condition o f status. A deportable alien may be arrested upon a
w arrant o f the A ttorney G eneral and held in custody o r released on
bond. M ost deportation cases are initiated by the issuance o f an order
to show cause w ithout the issuance o f a w arrant o f arrest. A t the
ensuing deportation proceeding, conducted by a special inquiry officer,
the alien is entitled to notice o f the charges against him and o f the time
and place o f the proceedings, to counsel, and to an opportunity to
examine the evidence against him, present evidence in his ow n behalf
and cross examine governm ent witnesses. § 242 of the IN A , 8 U.S.C.
§ 1252. T h e G overnm ent has the burden o f proving deportability by
clear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S.
276 (1966). T he decision o f the special inquiry officer is appealable to
the Board o f Im m igration Appeals (BIA). Thereafter, judicial review is
available in the court o f appeals. § 106(a) o f the A ct, 8 U.S.C.
§ 1105 (a). A ny alien held in custody under an order o f deportation
may also obtain judicial review through habeas corpus proceedings.
M ost o f the statutory provisions establishing hearing rights are consti
tutionally required. Since at least 1903, it has been recognized that the
D ue Process Clause o f the Constitution applies to deportation proceed
ings. T h e Japanese Im m igrant Case, 189 U.S. 86, 100-02 (1903). Wong
Yang Sung v. M cGrath, 339 U.S. 33, 49-51 (1950); Kwong H ai Chew v.
Colding, 344 U.S. 590, 596-98 (1953). W hile C ongress may have plenary
authority to determ ine w hat classes o f aliens must leave the United
States, see below, deportable aliens may not be expelled w ithout a
136
hearing. H ow ever, the provision o f a right o f appeal to the BIA and
then to a federal court o f appeals is not constitutionally required.
C. Claim s fo r Asylum
An alien in either exclusion or deportation proceedings may apply
for asylum under INS regulation if he claims that he would be perse
cuted in his home country on the basis o f race, religion, nationality,
political opinions, o r membership in a particular social group. 8 C.F.R.
§ 105 (1979). See also § 243(h) o f the A ct, 8 U.S.C. § 1253(h).
IV. Grounds for Deportation and Exclusion Under Current Law
A. Deportation
1. Lawful permanent resident aliens
Potential grounds for deportation o f Iranian nationals presently in the
United States are contained in tw o subsections of the IN A . § 241(a)(4)
and (7) o f the IN A , 8 U.S.C. § 1251(a)(4), (7). Section 241(a)(4) pro
vides for the deportation o f an alien w ho within 5 years after entry into
the United States is convicted o f a crim e involving moral turpitude and
is sentenced to a year or m ore in prison, o r who is convicted o f tw o
crimes involving moral turpitude at any time after entry. This section
would become operative, for example, if an Iranian national is con
victed o f com m itting a crim e o f violence in this country.
Section 241(a)(7), 8 U.S.C. § 1251(a)(7), provides for the deportation
of an alien w ho has engaged in, or has the purpose o f engaging in,
activities described in §212(a)(27) of the IN A , 8 U.S.C. § 1182(a)(27).
Section 212(a)(27) renders excludable any alien w ho the A ttorney G en
eral has reason to believe seeks to enter the United States to engage in
activities “which would be prejudicial to the public interest, o r endan
ger the welfare, safety, or security o f the United States.” T he BIA has
indicated, in dicta, that § 212(a)(27) “is broad enough to apply to others
than subversives.” M atter o f M cD onald and Brewster, 15 I&N Dec. 203,
205 (BIA 1975) (refusing to bar entry o f persons carrying six marijuana
cigarettes).2 In that decision, the Board interpreted §212(a)(27) to bar
entry o f persons w ho seek to engage in activities “inimicable to the
internal security o f the United States.” Id. This Office has opined that
this section would authorize the exclusion o f six Rhodesian officials
seeking to enter the United States to attend an agricultural convention;
such entry was arguably deemed prejudicial to this nation’s conduct o f
foreign affairs.
'S e e In the M atter o f M., 5 I&N D ec. 248 (BIA 1953) (refusing to bar entry o f pacifist under
§ (a)(27)).
137
T he scope o f § 241(a)(7) is unclear. T he leading treatise states that
the section’s “expansive and undefined pow er has not yet been invoked
in any actual case.” 1A G ordon & Rosenfield, Im m igration Law and
P rocedure § 4 .10c, at p. 4-93 (1979). A reasonable reading of the
section, supported by its legislative history, w ould allow the A ttorney
G eneral to take into account serious adverse foreign policy conse
quences in determ ining w hether an alien’s stay here is prejudicial to the
public interest. A rguably, the A ttorney G eneral, perhaps upon advice
from the Secretary o f State, could determ ine that the presence of
particular Iranian nationals severely injures the ability o f this country to
conduct foreign policy and threatens the m aintenance o f public order.
T he question is not free from doubt, how ever. A lthough this Office has
opined heretofore that a broad reading o f this statute is w arranted, a
substantial argum ent can be made that the “public interest” ground for
deporting aliens was intended by C ongress to give the A ttorney G en
eral the pow er to deport only w here the conduct o f the alien is inimical
to the public interest, rather than w here his presence is thought prejudi
cial to the United States. If that reading o f the statute is co rrec t,3 then
the operation o f this provision w ould require a determ ination of the
type o f activity that is cause for deportation. We have serious doubt
w hether the identification o f the class o f deportable persons could be
made to turn on their exercise o f First A m endm ent rights. Thus it
w ould probably not be constitutionally appropriate to identify for de
portation all those aliens w ho have participated in m arches or dem on
strations advocating the death o r extradition o f the Shah. Cf. Harisiades
v. Shaughnessy, 342 U.S. 580, 592 (1952); Dennis v. United States, .341
U.S. 494, 502 (1951); In the M atter o f M., supra, 5 I&N Dec. at 252. In
short, while this section appears to give the A ttorney General wide
discretion in determ ining w ho may remain in the United States, it may
be difficult to establish appropriate guidelines for its implementation.
2. Nonim m igrants
A nonim migrant is subject to the same grounds o f deportation under
§ 241(a)(4) and (7) as discussed above. In addition, a nonim m igrant who
has remained beyond the length o f his authorized stay may be deported
as an overstay under § 241(a)(2) o f the Act. H ow ever, as noted above,
since January 1, 1979, all nonim m igrant students, including Iranians,
have been adm itted w ithout a specified departure date and may remain
as long as they continue to be students in good standing with their
schools.
Exam ples o f violations o f status are w orking w ithout authorization or
perform ing other activities w hich are inherently inconsistent with the
3 T h e Suprem e C o u rt has held th at dep o rtatio n provisions should be strictly construed. Fong Haw
Tan v. Phelan. 333 U.S. 6, 10 (1948).
138
purpose for admission. H ow ever, the Board of Im m igration Appeals
has held that the test for students under § 2 4 1(a)(9) is w hether the
student’s actions have meaningfully interrupted his studies. M atter o f
M urat-Kahn 14 I&N Dec. 465 (BIA 1973). This view has been endorsed
by at least one appellate court. M ashi v. INS, 585 F.2d 1309 (5th Cir.
1978). Therefore, under current law the mere fact of arrest, even when
followed by incarceration, does not autom atically term inate a student’s
status.
3. Illegal entrants
An Iranian w ho entered the United States with an im proper visa or
without inspection would be deportable under §§ 241(a)(1) or (2).
B. Exclusion
Assuming that an Iranian seeking to enter the United States as an
immigrant o r a nonim migrant had a proper visa, the relevant exclusion
grounds would be §§ 212(a)(27) and (29), 8 U.S.C. § 1182(a)(27), (29).
Section 212(a)(27) relates to aliens seeking to enter the United States
solely, principally, or incidentally to engage in activities which would
be prejudicial to the public interest, or endanger the welfare, safety, or
security o f the United States. This statutory language may have broad
applicability as discussed above. Section 212(a)(29)(A) covers certain
subversive activities and would be narrow er in scope than §212(a)(27).
V. Executive Branch Options Under Present Statutory Authority
A. Procedural Options
1. D eportation
Nonim m igrants w ho are out o f status are deportable. H ow ever, expe
ditious deportation o f these persons may not presently be possible
because of practical problems in identifying and locating them. Even if
out-of-status persons are found, deportation proceedings, and subse
quent BIA and judicial review, take on the average 1 year.4 Since a
deportation hearing is constitutionally required, and judicial review is
provided by statute, it will be difficult to expedite proceedings. The
BIA, which is created by regulation, could be eliminated, although
such action could sacrifice uniformity of and control over deportation
proceedings. The A ttorney General could order increased investigation
o f the status o f Iranian nonimmigrants and order the IN S and B IA to
assign priority to deportation proceedings against such aliens. It should
4 T he IN S estim ates that this involves tw o m onths at the IN S district office, four m onths at the
BIA, and six m onths in the court o f appeals.
139
be recognized, how ever, that the Constitution and the IN A prevent any
sum m ary deportation o f Iranian nationals.
2. E ntry
T he IN A gives the President broad authority to prescribe regulations
conditioning or limiting entry o f aliens, o r any class o f aliens. §§ 212(f),
215 o f the IN A , 8 U.S.C. §§ 1182(f), 1185. In addition to substantive
limits on entry, discussed below, these provisions could authorize the
President to establish special screening procedures for Iranian nationals
to probe their reasons for entry and activities they plan to undertake in
the United States. Such regulations must meet the test o f “reasonable
ness” ; presumably they could be justified if the President has inform a
tion that Iranian terrorists o r other persons intending to undertake
violent action in this country are seeking entry.
B. Substantive Options
1. Entering aliens
a. Change conditions o f stay. U nder the authority o f § 214(a), the INS
published proposed regulations in August, 1979, w hich would make
conviction for commission o f a violent crim e for w hich a sentence of
one year o r m ore could be imposed a violation o f nonim m igrant status.
In addition, the proposed regulations w ould make the provision of
truthful inform ation to the IN S a condition o f a nonim m igrant’s stay in
the United States. These regulations could be put into effect by some
time in Decem ber, 1979. T he IN S expects that student groups will
challenge these regulations on the ground that they add deportation
grounds not provided by Congress.
b. Presidential order under §§ 212(f) and 215(a). U nder §§212(0 and
215(a) o f the A ct, the President could declare that the admission of
Iranians o r certain classes o f Iranians w ould be detrim ental to the
interests o f the United States. Such a restriction would have to meet
the test o f reasonableness. G iven the present uncertainty o f the situation
in Iran, the possible internal problem s and violence w hich could be
caused by Iranians dem onstrating in the United States, and the diffi
culty in providing security for Iranians in the United States, such an
order w ould probably be sustainable.
2. Aliens in the U nited States
U nder §214 o f the A ct, the A ttorney G eneral could prom ulgate a
regulation requiring all nonim m igrant students to appear at INS offices
140
and dem onstrate they have maintained status.5 T he justification for such
a regulation could be the necessity o f securing an accurate count of
nonimmigrant students in the United States and reexamining their
period o f stay in light o f recent events. It may be difficult to justify the
inclusion o f nonim migrant students other than Iranians. It should be
noted that such action would be likely to overburden INS offices since
there are several hundred thousand nonim migrant students in the
United States. Furtherm ore, locating and prosecuting persons w ho do
not appear would be difficult and resource-consuming.
A m ore limited option would be to require only Iranian nonim mi
grant students to appear at IN S offices. Such a regulation could be
justified upon information that substantial numbers o f Iranian students
are out o f status. H ow ever, it would produce the same practical prob
lems as the broader regulation (there are 50,000 nonim m igrant Iranian
students).
3. Restrictions on departure
U nder §215 the President could restrict the departure o f Iranians
from the United States. H ow ever, this would seem to serve no useful
purpose under the present circumstances.
C. Equal Protection and Iranians
Several o f the options outlined above single out Iranian nationals for
special treatm ent— i.e., a bar on entry o f Iranians, special screening
procedures, requirem ents that Iranian nonim migrants report to IN S
district offices. A rguably, new requirem ents based on national origin
raise equal protection concerns.
It is not likely that a court would invalidate any o f the proposed
actions on the ground that they violated the Fifth A m endm ent.6 While
the States may not discriminate on the basis o f alienage w ithout dem on
strating a compelling State interest, see Graham v. Richardson, 403 U.S.
365 (1971), and aliens in the United States are protected by the due
process guarantee o f the Fifth Am endm ent, Wong Yang Sung v.
McGrath, 339 U.S. 33, 48-51 (1950), the federal governm ent has plenary
pow er to legislate on immigration matters. T he Suprem e C ourt has
recognized that Congress may deny entry to, or require deportation of,
aliens on grounds w hich w ould be impermissible if applied to A m erican
citizens. See The Chinese Exclusion Case, 130 U.S. 581 (1889); Galvan v.
Press, 347 U.S. 522 (1954); Oliver v. IN S, 517 F.2d 426, 428 (2d Cir.
5 T h e "g o o d cause” exception to the A dm inistrative P rocedure A ct w ould have to be invoked to
permit prom ulgation o f the regulation w ithout notice and com m ent. 5 U.S.C. § SS3.
6 Federal regulation o f im m igration is tested by the Fifth A m endm ent, w hich essentially inco rp o
rates the F o u rteen th A m endm ent’s guarantee o f equal protection. See H am pton v. Mow Sun Wong. 426
U.S. 88, 99-101 (1976); Bolling v. Sharpe, 347 U.S. 497 (1954).
141
1975) (per curiam), cert, denied, 423 U.S. 1056 (1976). C ongress’ plenary
pow er is based on the fact that entry and deportation classifications are
“vitally and intricately interw oven w ith contem poraneous policies in
regard to the conduct o f foreign relations, the w ar pow er, and the
m aintenance of a republican form o f governm ent. Such m atters are so
exclusively entrusted to the political branches o f governm ent as to be
largely immune from judicial inquiry or interference.” Harisiades v.
Shaughnessy, 342 U.S. at 588-89. See Fong Yue Ting v. United States,
149 U.S. 698 (1893); H itai v. INS, 343 F.2d 466 (2d Cir.), cert, denied,
382 U.S. 816 (1965).
Some cases suggest in dicta that judicial review may be available to
overturn classifications for w hich no rational basis can be found— e.g.,
deportation on the grounds o f religion. Fiallo v. Bell, 430 U.S. 787, 793,
n.5 (1977); Oliver v. INS, supra, 517 F.2d at 428. But such review
would clearly be limited to w hether the lines draw n by Congress or the
E xecutive branch are rational and not w holly arbitrary. See Francis v.
INS, 532 F.2d 268 (2d Cir. 1976); N oel v. Chapman, 508 F.2d 1023,
1028 (2d Cir.), cert, denied, 423 U.S. 824 (1975).
U nder this standard, we believe that the options outlined above
w ould be constitutional. G iven the present crisis, the activities o f many
Iranian nonim m igrant students, and the serious national security and
foreign policy interests at stake, it is unlikely that a court would set
aside otherw ise legitim ate policies directed solely at Iranian nationals.
N or do we believe that any new regulations w ould be set aside if
challenged as an instance o f unconstitutional “selective enforcem ent.”
First, we assume that usual processing o f aliens for entry and deporta
tion w ould continue. Second, courts have traditionally recognized
broad prosecutorial discretion in the enforcem ent o f the law. While
some cases have stated in dicta that a policy o f prosecutions based on
an unjustifiable and arbitrary standard such as race or religion may be
unconstitutional, e.g., Oyler v. Boles, 368 U.S. 448, 456 (1962), we
believe that heightened enforcem ent efforts aimed at out-of-status Ira
nian nonim migrants would not be so arbitrary as to deny such persons
due process. W e believe that the President could make appropriate
statem ents justifying such policies based on the international crisis, and
upon a finding that many Iranian students (w ho constitute the largest
foreign student group in the United States) may be out o f status. See
United States v. Sacco, 438 F.2d 264, 271 (9th Cir.), cert, denied, 400
U.S. 903 (1970).7
’ W hile w e know o f no case on point, w e believe that any prosecutions undertaken to stifle the
exercise o f First A m endm ent rights by Iranian students might face a serious constitutional challenge.
Cf. Lennon v. fN S . 527 F.2d 187, 195 (2d Cir. 1975).
142
VI. The Power of Congress
The preceding sections have discussed the authority o f the President
and the A ttorney G eneral under existing statutes. This section addresses
the constitutional limitations on congressional authority to regulate
entry and deportation o f aliens.
It is well-established that “over no conceivable subject is the legisla
tive pow er of Congress more com plete than it is o v er” the regulation
of immigration. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting
Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). The
Supreme C ourt has consistently upheld the plenary pow er of Congress
to make rules for the admission and deportation of aliens as inherent in
the concept o f national sovereignty. The Chinese Exclusion Cases, supra;
the Japanese Im m igrant Case, supra; Ekiu v. United States, 142 U.S. 651,
659 (1892). In recent years the Supreme C ourt has steadfastly refused to
reconsider its earlier cases or to develop substantive limits on C ongress’
pow er to exclude and deport. See Fiallo v. Bell, 430 U.S. at 792-93;
Kleindienst v. Mandel, 408 U.S. at 766; Galvan v. Press, 347 U.S. at 531 —
32 (“ [T]hat the formulation o f . . . policies [regarding entry and depor
tation] is entrusted exclusively to Congress has become about as firmly
imbedded in the legislative and judicial tissues of our body politic as
any aspect o f our governm ent.”)
T he Supreme C ourt has also made clear that C ongress may deport
persons for prior conduct w hich did not render them deportable at the
time they so acted. T he retroactivity o f such legislation does not violate
the Due Process Clause or constitute an ex post facto law. Lehmann v.
Carson, 353 U.S. 685 (1957); Galvan v. Press, supra; N g Fung Ho v.
White, 259 U.S. 276, 280 (1922). As stated most broadly by the Court:
T he basis for the deportation o f presently undesirable
aliens resident in the United States is not questioned and
requires no reexamination. W hen legally adm itted, they
have com e at the N ation’s invitation, as visitors or perm a
nent residents, to share with us the opportunities and
satisfactions o f our land. As such visitors and foreign
nationals they are entitled in their persons and effects to
the protection o f our laws. So long, how ever, as aliens fail
to obtain and maintain citizenship by naturalization, they
remain subject to the plenary pow er o f C ongress to expel
them under the sovereign right to determ ine what
noncitizens shall be perm itted to remain within our
borders.
Changes in w orld politics and in our internal econom y
bring legislative adjustm ents affecting the rights o f various
classes o f aliens to admission and deportation . . . . Since
“ [i]t is thoroughly established that Congress has pow er to
143
o rd er the deportation o f aliens whose presence in the
country it deems hurtful,” the fact that petitioners, and
respondent . . . , w ere made deportable after entry is
immaterial. T hey are deported for w hat they are now, not
for w hat they were. O therw ise, when an alien once le
gally becam e a denizen o f this country he could not be
deported for any reason o f w hich he had not been fore
w arned at the time o f entry. M ankind is not vouchsafed
sufficient foresight to justify requiring a country to permit
its continuous occupation in peace or w ar by legally ad
m itted aliens, even though they never violate the laws in
effect at their entry. T he protection o f citizenship is open
to those w ho qualify for its privileges. T he lack of a
clause in the C onstitution specifically em pow ering such
action has never been held to render Congress impotent
to deal as a sovereign w ith resident aliens.
Carlson v. London, 342 U.S. 534-37 (1952) (footnotes om itted) (quoting
Bugajewitz v. Adams, 228 U.S. 585, 591 (1913)).
Thus, Congress possesses alm ost unlimited pow er in establishing sub
stantive regulations defining categories o f aliens w ho may enter and
w ho must leave the United States. C ongress clearly has the pow er to
bar all Iranians from entering the United States and could order all
Iranian nationals out o f the country. O f course, such legislation raises
serious policy issues: many Iranian nationals in this country may be
loyal to the United States or the Shah and may be well-integrated
members o f A m erican society w ith jobs and families. Furtherm ore,
some Iranians may face persecution in Iran and thus w ould apply for
asylum here.
N or do w e believe, as discussed above, that legislation directed solely
at Iranians would offend the Fifth Am endm ent, as long as there was a
rational basis for such legislation.8
A ccordingly, C ongress could constitutionally adopt, for example,
legislation:
(1) barring entry o f Iranians; an d /o r
(2) deporting all Iranian nonim m igrant students.
8[W ]hether im m igration law s h ave been cru d e and cruel, w hether they may have
reflected xenophobia in general o r anti-Semitism o r anti-C atholicism , the responsibility
belongs to Congress. C o u rts d o en fo rce the requirem ents imposed by C ongress upon
officials in adm inistering im m igration laws, e.g., Kwock Jan Fat v. White, 253 U.S. 454,
and the requirem ent o f D ue Process may entail certain procedural observances. E.g.,
N g Fung H o v. White, 259 U.S. 276. But the underlying policies o f w hat classes o f
aliens shall be allow ed to en ter and w hat classes o f aliens shall be allow ed to stay, are
for C ongress exclusively to determ ine even though such determ ination may be deem ed
to offend A m erican traditions and may, as has been the case, jeopardize peace.
Harisiades v. Shaughnessy, 342 U.S. at 597 (F ran k fu rter, J., concurring).
144
It must be noted, how ever, that while Congress has broad substantive
pow er to define categories o f admissible and deportable persons, its
pow er to eliminate procedural protections is substantially limited by the
D ue Process Clause o f the Constitution. As discussed above, the Su
preme C ourt held consistently since the turn of the century that aliens
may not be deported w ithout a prior hearing. R ecent decisions enlarg
ing due process rights probably guarantee an alien (1) adequate notice
o f the hearing, (2) the right to present evidence and cross-examine
witnesses, (3) representation by counsel, and (4) an unbiased
decisionmaker. And while Congress may eliminate or limit the scope o f
review of deportation proceedings in the courts o f appeals, it is unlikely
that it could deprive aliens o f the right to file habeas corpus petitions
asserting deprivations o f due process and other constitutional rights.
U.S. Const, art. I, § 9, cl. 2. See 2 G ordon and Rosenfield, supra, § 8.6a
(1979). Thus, while Congress could order that all Iranian
nonimmigration students leave the United States, it could not deprive
such aliens of a hearing to dem onstrate that they do not come within
the proscribed category. Japanese Immigration Case, supra.
Congress may be able to expedite expulsion o f deportable aliens, such
as out-of-status students, by providing for additional im migration offi
cers and judges w ho could help locate and process such persons.
H ow ever, the requirem ent o f a hearing and the availability o f habeas
corpus review w ould prohibit any summary proceedings and render
unlikely, as a practical matter, any immediate gain in the speed of
enforcement o f the existing law.
VII. Conclusion
T here exists a rather broad range o f actions that could be taken both
by the Executive Branch and by the Congress in this area. Necessarily,
however, any action would have to be carefully scrutinized based upon
the facts in existence at the time o f any proposed action and the
strength of the national security and foreign affairs interests. Because of
the sensitive and im portant First Am endm ent, equal protection and due
process considerations likely to be im plicated by any action taken by
the governm ent, and given the high- likelihood o f litigation, w e urge
that any proposal be given careful and thorough consideration.
Jo
hn
M.
H
arm on
Assistant Attorney General
Office o f L egal Counsel
145 |
|
Write a legal research memo on the following topic. | Authority of the President to Restrict Munitions Imports Under
the Arms Export Control Act
Restricting the import o f certain classes o f Russian firearms and ammunition that are deemed an unac
ceptable risk to public safety is a legitimate use o f the President’s authority under the Arms Export
Control Act to restrict the import of munitions in furtherance of United States foreign policy.
February 9, 1996
M e m o r a n d u m O p in io n
and
fo r th e
L e g a l A d v is o r
S p e c ia l A s s is t a n t
to th e
to th e
P r e s id e n t
N a t io n a l S e c u r it y C o u n c il
This letter addresses and explains the basis for the oral advice that we provided
in early April 1995 regarding the President’s authority under the Arms Export
Control Act, 22 U.S.C. §§2751-2799aa-2, (“ AECA” ) to restrict the import of
certain munitions from the Russian Federation in furtherance of United States for
eign policy. The question arises in connection with the Administration’s plan, as
part of a general program of eliminating Cold War restrictions on trade and eco
nomic cooperation with Russia, to take steps to remove Russia from the Inter
national Traffic in Arms Regulations (“ ITAR” ) list, which provides that it is
the policy of the United States to deny licenses for the import of defense articles
originating in certain countries, including Russia. 27 C.F.R. §47.52 (1995). Rus
sia’s presence on the ITAR list means American businesses are not granted li
censes necessary to import Russian munitions. Once Russia is off the ITAR list,
there would be no general prohibition on gun imports from Russia. We understand
that the issue concerns the negotiation of voluntary export restraints with Russia
to ensure that, once Russia is removed from the ITAR list, munitions imports
from Russia would not jeopardize public safety.1 The question has been raised
whether the President possesses authority under the AECA to limit the import
of munitions from Russia. We have concluded that restricting the import of Rus
sian munitions to certain classes of firearms and ammunition is a legitimate use
of the President’s authority under the AECA to restrict the import of munitions
in furtherance of United States foreign policy.
Section 38 of the AECA authorizes the President to control the import and
the export of defense articles and defense services “ [i]n furtherance of world
peace and the security and foreign policy of the United States.” 22 U.S.C.
§ 2778(a)(1). Section 38 further authorizes the President “ to designate those items
which shall be considered as defense articles and defense services for the purposes
of this section and to promulgate regulations for the import and export of such
articles and services.” Id. The Act generally requires a license as a condition
1 W e understand th a t the issue m ay also have been raised w hether voluntary restrain t ag reem en ts restrictin g im ports
o f R u ssian m unitions vio late the G eneral A greem ent on T ariffs and T rade o r W orld T rad e O rg an iza tio n ru les. W e
have taken no position on that issue.
49
Opinions o f the A ttorney General in Volume 20
of exporting or importing any defense articles so designated by the President.
22 U.S.C. §2778(b)(l)(B)(2).
By Executive Order 11958, as amended, the President has delegated his author
ity under section 38 to the Secretaries of State, Treasury, and Defense. Exec.
Order. No. 11958, 3 C.F.R. 79 (1978), reprinted as amended in 22 U.S.C. §2751
note (1996). The delegation grants the Secretary of the Treasury primary responsi
bility for issuing and administering permanent import controls of defense articles
and services, and grants the Secretary of State primary responsibility for issuing
and administering regulations relating to the rest of section 38, including export
restrictions. The Secretary of the Treasury’s authority over imports is subject to
the qualification that the Secretary “ shall be guided by the views of the Secretary
of State on matters affecting world peace, and the external security and foreign
policy of the United States.” Id. § 1(1)(2), 3 C.F.R. at 81, reprinted as amended
in 22 U.S.C. §2751 note. We understand that, pursuant to this qualification, it
has been the consistent practice of the Secretary of the Treasury to defer to the
Secretary of State’s views on these matters.
Pursuant to the delegation of authority, the Departments of State and Treasury
issued regulations to implement the Act. See International Traffic in Arms Regula
tions, 22 C.F.R. pts. 120-130 (1995) (State Department regulations); Importation
of Arms, Ammunition and Implements of War, 27 C.F.R. pt. 47 (1995) (Treasury
Department regulations). The designation of defense articles subject to import re
strictions is set forth in the U.S. Munitions Import List at 27 C.F.R. §47.21 and
includes categories for firearms and ammunition.
We understand that one part of the Administration’s trade negotiation with Rus
sia involves the possible importation into the United States from Russia of arms
for sporting and hunting purposes. The Administration intends to continue to pre
vent imports of certain classes of weapons that are deemed to pose an unaccept
able risk to public safety. In our view, the AECA would authorize imposition
of controls on such imports.
As previously stated, section 38 authorizes the President to control the import
of defense articles “ [i]n furtherance of world peace and the security and foreign
policy of the United States.” 22 U.S.C. §2778(a)(l). The Federal Circuit recently
affirmed the President’s authority under the AECA to prohibit the import of arms
in furtherance of foreign policy objectives. B -W est Imports, Inc. v. United States,
75 F.3d 633 (Fed. Cir. 1996). We understand that the Administration’s objective
in removing Russia from the ITAR list is to improve American-Russian trade
relations, remove Cold War restrictions to economic cooperation, and expand eco
nomic opportunities for both countries. These objectives reflect significant United
States foreign policy goals. Thus, there can be no doubt that the bilateral trade
reform contemplated by the Administration is designed to further the foreign pol
icy of the United States. Accordingly, the contemplated import controls fall
squarely within the statutory authorization of section 38.
50
Authority o f the President to Restrict Munitions Imports Under the Arms Export Control A ct
We note that it could be argued that protecting public safety — the reason for
limiting the importation of munitions into the United States— is a domestic, not
a foreign policy concern. Even assuming that protecting public safety is viewed
as exclusively a domestic issue, we do not believe this calls into question the
President’s authority under section 38 (as delegated to the Secretaries of Treasury
and State) to control import of munitions. United States foreign policy usually
includes as one component the promotion of domestic goals or the avoidance of
a negative impact on domestic concerns in the process of pursuing a foreign policy
objective. Taking into account the domestic effects of foreign policy does not
change the fact that it is foreign policy that is being set. See, e.g., M issouri v.
Holland, 252 U.S. 416 (1920) (President possesses authority to promote foreign
policy through treaty power even where object affected is a local concern). Indeed,
it would be artificial as well as practically impossible to separate the two. So,
for example, in committing American troops to a peacekeeping action, the Presi
dent may consider domestic concerns in defining the purpose and length of time
of American involvement. Similarly, in the present context, existing controls on
imports — which were imposed in furtherance of foreign policy— are being re
laxed— again in furtherance of foreign policy. The extent to which the United
States is willing to ease trade restrictions in pursuance of its foreign policy objec
tives is limited to ensure that it does not jeopardize public safety.
Courts, in affirming the broad grant of authority to the President under the
AECA to control the export and import of firearms on foreign policy grounds,
have advised that “ statutes granting the President authority to act in matters touch
ing on foreign affairs are to be broadly construed: ’’
In the external sector of the national life, Congress does not ordi
narily bind the President’s hands so tightly that he cannot respond
promptly to changing conditions or the fluctuating demands of for
eign policy. Accordingly, when Congress uses far-reaching words
in delegating authority to the President in the area of foreign rela
tions, courts must assume, unless there is a specific contrary show
ing elsewhere in the statute or in the legislative history, that the
legislators contemplate that the President may and will make full
use of that power in any manner not inconsistent with the provi
sions or purposes of the Act. In a statute dealing with foreign af
fairs, a grant to the President which is expansive to the reader’s
eye should not be hemmed in or “ cabined, cribbed, confined” by
anxious judicial blinders.
B-W est Imports, Inc. v. United States, 75 F.3d at 636 (quoting South Puerto R ico
Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct. Cl. 1964));
see also Samora v. United States, 406 F.2d 1095 (5th Cir. 1969). Finally, as the
51
Opinions o f the Attorney General in Volume 20
court noted in South P uerto Rico Sugar Co. in sustaining the President’s discretion
to impose conditions on imports, Presidents acting under broad statutory grants
of authority have “ imposed and lifted embargoes, prohibited and allowed exports,
suspended and resumed commercial intercourse with foreign countries” thereby
reflecting “ the historical authority of the President in the fields of foreign com
merce and of importation into the country.” 334 F.2d at 633, 634. The court
specifically cautioned that “ [i]t would be difficult, and probably unwise, to sepa
rate an executive choice in [the area of international economic relations] from
the ‘important, complicated, delicate and manifold problems’ facing the President
in the ‘vast external realm.’ ” Id. at 630 (quoting United States v. Curtiss-Wright
E xport C orp., 299 U.S. 304, 319 (1936)). In determining how far to open United
States markets to Russian arms manufacturers, the President is faced with just
such a delicate confluence of factors that requires that United States foreign policy
integrate international commercial policy with domestic policy concerns.
For these reasons, we conclude that restricting the import of Russian munitions
to certain classes of firearms and ammunition is a legitimate use of the President’s
authority under the AECA as delegated to the Secretaries of Treasury and State.
WALTER DELLINGER
A ssistant Attorney General
Office o f Legal Counsel
52 |
|
Write a legal research memo on the following topic. | (Slip Opinion)
Executive Branch Participation in the
Cyberspace Solarium Commission
In our tripartite constitutional structure, any commission performing federal functions
must reside within a single one of the three branches of government.
The Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity,
because congressional appointees compose the majority of the Commission’s membership, the Commission exercises the investigative authorities of a congressional committee, and the Commission’s ultimate mission is to advise Congress.
The Executive Branch officials serving on the Commission should act with one unified
voice, subject to executive supervision, in advising the Commission and should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission.
October 9, 2020
MEMORANDUM OPINION FOR THE LEGAL ADVISOR
NATIONAL SECURITY COUNCIL
The John S. McCain National Defense Authorization Act for Fiscal
Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018) (“FY 2019
NDAA”), created the Cyberspace Solarium Commission (“Commission”)
to “develop a consensus on a strategic approach to defending the United
States . . . against cyber attacks.” Id. § 1652(a)(1), 132 Stat. at 2140–41.
The fourteen-member Commission consisted of representatives from both
the Legislative Branch and the Executive Branch: four senior Executive
Branch officers who served ex officio and ten appointees from Congress.
Id. § 1652(b)(1)(A), 132 Stat. at 2141. The Commission was required to
provide a report to Congress with recommendations related to the proper
“core objectives” for cyber defense and to “various strategic options to
defend the United States.” 1 Id. § 1652(f )(1)–(2), (k)(1), 132 Stat. at 2142,
2146. The Director of National Intelligence (“DNI”), Secretary of Defense, and Secretary of Homeland Security were then required to provide
their assessment of the report within 60 days of receiving it. Id. § 1652(l),
132 Stat. at 2146.
1 The Commission publicly released the report on March 11, 2020, but was not required by statute to formally submit the report to Congress until April 30. See Cyberspace
Solarium Commission, Final Report (Mar. 2020), https://www.solarium.gov/report.
1
44 Op. O.L.C. __ (Oct. 9, 2020)
The structure of the Commission raised a number of questions under
the constitutional separation of powers, which bore upon whether and how
the Executive Branch members of the Commission could participate in its
work. This memorandum memorializes this Office’s oral advice provided
to the Executive Branch members of the Commission, regarding the
organization of the Commission’s operations, votes by Executive Branch
officials about the Commission’s business, and the Executive Branch
contributions to the Commission’s final report.
Commissions with members appointed by both the Legislative and Executive Branches have been established on many prior occasions, but the
Executive Branch has long recognized that such “hybrid” commissions
present constitutional concerns. 2 Although these commissions may lawfully exercise advisory functions, where they exercise the authority of the
government, they must do so within the confines of the Constitution’s
tripartite structure and reside in one branch. Here, congressional appointees composed the majority of the Commission’s membership, the Commission exercised the investigative authorities of a congressional committee, and the Commission’s ultimate mission was to advise Congress. The
Commission thus was properly viewed as a Legislative Branch entity.
2
See, e.g., Statement on Signing the Bill Establishing a Commission on the Bicentennial of the United States Constitution (Sept. 29, 1983), 2 Pub. Papers of Pres. Ronald
Reagan 1390 (1983) (“[B]ecause of the constitutional impediments contained in the
doctrine of the separation of powers, I understand” that the Chief Justice and the congressional members of the bicentennial commission “will be able to participate only in
ceremonial or advisory functions of the Commission, and not in matters involving the
administration of the act.”); Constitutionality of Resolution Establishing United States
New York World’s Fair Commission, 39 Op. Att’y Gen. 61, 62 (1937) (Cummings, Att’y
Gen.) (objecting to a congressional commissioner that would plan and appoint commissioners for the New York World’s Fair as “amount[ing] to an unconstitutional invasion
of the province of the Executive”); Participation of Members of Congress in the Ronald
Reagan Centennial Commission, 33 Op. O.L.C. 193, 195 (2009) (“Ronald Reagan
Commission”) (identifying constitutional concerns with commissions with members
from multiple branches engaging in responsibilities that “extend beyond providing advice
or recommendations . . . or participating in ceremonial activities”); Memorandum for the
Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: Congressional Incursions into Areas of Executive Responsibility at 3–4 (Oct.
31, 1984) (“Congressional Incursions”) (describing the Department’s repeated “strong[]”
opposition to congressional creation of commissions with legislative and executive branch
appointees as “inconsistent with the tripartite system of government established by the
Framers of our Constitution” (internal quotation marks omitted)).
2
Executive Branch Participation in the Cyberspace Solarium Commission
We recognized that the Commission, as a Legislative Branch entity,
could benefit from participation of its Executive Branch members, but we
advised that those members should carry out their advisory functions not
as free agents, but as executive officers subject to supervision by their
departments, and ultimately, the President. Because the Commission’s
Executive Branch members represent the interests of the Executive
Branch in performing their work, we advised that they should not provide
independent statements in assessing the Commission’s work and that the
commission members should not vote individually on the Commission’s
final report or any of its subpoenas. The Commission’s report and its
subpoenas were the official actions of a Legislative Branch entity. While
the Executive Branch members could, in principle, have adopted and
advanced common positions on those actions, the Commission’s procedures and the need to release its report promptly made it impracticable for
them to do so. We therefore advised the Executive Branch officials not to
vote, consistent with their accountability to the Executive Branch.
We further construed statutory provisions providing for the Executive
Branch to provide staff and office space to the Commission to be discretionary, rather than mandatory, because the separation of powers imposes
constraints upon Congress’s ability to enlist the Executive’s staff and
physical resources. Finally, we advised that the Commission’s Executive
Branch members and staff were obliged to preserve Executive Branch
confidentiality interests. We explained that they should evaluate requests
for information in light of the accommodation principles at play when
congressional committees request information and support from the
Executive Branch, and in light of any executive privilege concerns, particularly given the classified nature of some of the Commission’s work,
see FY 2019 NDAA § 1652(g)(3)(C), 132 Stat. at 2144. See, e.g., United
States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (requiring each branch to “seek optimal accommodation through a realistic
evaluation of [their respective] needs . . . in the particular fact situation”).
Such obligations, however, do not mean that the Executive Branch officers could not accommodate the Commission’s legitimate interests in that
regard, consistent with the assistance regularly provided by the Executive
Branch to Congress.
3
44 Op. O.L.C. __ (Oct. 9, 2020)
I.
The FY 2019 NDAA established the Cyberspace Solarium Commission
to gather evidence and prepare a report recommending a long-term strategy for defense against cyber attacks. Id. § 1652(a)(1), (f )(1)–(7), (k)(1),
132 Stat. at 2141–43, 2146. The Commission was modeled on President
Dwight D. Eisenhower’s Cold War-era “Project Solarium,” which gathered three task forces of experts from public and private life to study
strategies for guarding against a potential stockpiling of atomic weapons
by the Soviet Union. 3
Congress directed the Cyberspace Solarium Commission “[t]o define
the core objectives and priorities” of a national cyber-defense strategy,
“weigh the costs and benefits of various strategic options,” “evaluate the
effectiveness of the current national cyber policy,” and “consider possible
structures and authorities that need to be established, revised, or augmented within the Federal Government” to successfully guard against cyber
attacks. FY 2019 NDAA § 1652(f ), 132 Stat. at 2142–43. By statute, the
Commission’s fourteen members included the Principal Deputy DNI, the
Deputy Secretary of Homeland Security, the Deputy Secretary of Defense,
the Director of the Federal Bureau of Investigation, and ten congressional
appointees who could be members of Congress. Id. § 1652(a)(1)–(2),
(b)(1), 132 Stat. at 2141. On some prior occasions, Congress at least
purported to specify whether a hybrid commission of this sort should be
considered legislative or executive. 4 But it did not do so here.
See 164 Cong. Rec. S3927 (daily ed. June 13, 2018) (statement of Sen. Sasse, who
had originally proposed an amendment to the FY2018 NDAA that would have created the
Cyberspace Solarium Commission, see 163 Cong. Rec. S5674 (daily ed. Sept. 13, 2017));
see also Memorandum of Discussion at the 144th Meeting of the National Security
Council, Wednesday, May 13, 1953, in Dep’t of State Pub. No. 9347, 15 Foreign Relations of the United States, 1952–1954 (Korea) 1012, 1016 (1984) (describing statement of
President Eisenhower explaining the objectives of Project Solarium). President Eisenhower named the project after the White House solarium, where the idea was conceived. See
William B. Pickett, Introduction: The Solarium Exercise of June 1953, in George F.
Kennan and the Origins of Eisenhower’s New Look: An Oral History of Project Solarium
3 (William B. Pickett ed., 2004).
4 See, e.g., FY 2019 NDAA § 1051(a)(1)–(4), (b), 132 Stat. at 1962–63 (establishing
an advisory commission “in the executive branch” with legislative and executive appointees to produce reports and recommendations on the national security uses of artificial
intelligence and machine learning); Evidence-Based Policymaking Commission Act of
3
4
Executive Branch Participation in the Cyberspace Solarium Commission
To carry out its mission, the Commission was authorized to exercise
investigative functions. The Commission was able to hold hearings, take
testimony, receive evidence, and issue subpoenas requiring witness
testimony and document production. Id. § 1652(g)(1)(A), 132 Stat. at
2143; see also id. § 1652(g)(1)(B), 132 Stat. at 2143. The statutes governing contempt of Congress were made applicable to failures to comply
with the Commission’s subpoenas. Id. § 1652(g)(1)(C), 132 Stat. at
2143. Separately, executive agencies were instructed, “to the extent
authorized by law, [to] furnish such information, suggestions, estimates,
and statistics” as are required for the Commission to carry out its duties.
See id. § 1652(g)(3)(A)–(B), 132 Stat. at 2143–44; see also, e.g., id.
§ 1652(g)(1)(A), 132 Stat. at 2143 (authorizing the Commission, “for
the purpose of carrying out the provisions of this section,” to require by
subpoena testimony, books, records, correspondence, and documents as
the Commission or “designated subcommittee or designated member
considers necessary”). In addition, the statute specified that the Secretary of Defense “shall” provide the Commission with nonreimbursable
administrative services, funds, staff, and facilities, id. § 1652(g)(4)(A),
132 Stat. at 2144, and that the DNI and the heads of other executive
agencies “may” give the Commission administrative services and staff,
id. § 1652(g)(4)(B), (C), 132 Stat. at 2144. See also id. § 1652(h)(1)(B),
132 Stat. at 2144 (authorizing the detailing of federal staff to the Commission).
The Commission was required to memorialize its recommendations in a
“final report” to the congressional defense, intelligence, and homeland
security committees, as well as to the Secretary of Defense, the Secretary
of Homeland Security, and the DNI. Id. § 1652(k)(1), 132 Stat. at 2146.
Within 60 days of receiving the report, the Secretaries and the DNI were
each to “submit to the congressional intelligence committees and the
2016, Pub. L. No. 114-140, §§ 2, 3(a), 4, 130 Stat. 317, 317–18 (2016) (establishing an
advisory commission “in the executive branch” with legislative and executive appointees
to produce recommendations for amending federal agency data infrastructure, database
security, and statistical protocols); see also Matthew E. Glassman & Jacob R. Straus,
Cong. Research Serv., R40076, Congressional Commissions: Overview, Structure, and
Legislative Considerations 10 (2017) (“In some instances, the establishment clause will
identify the commission as ‘established in the legislative branch.’”).
5
44 Op. O.L.C. __ (Oct. 9, 2020)
congressional defense committees an assessment” of the report, including
“such comments” as each of the three officials “considers appropriate.”
Id. § 1652(l), 132 Stat. at 2146. The original deadline for the report was
September 1, 2019, see id. § 1652(k)(1), 132 Stat. at 2146, but Congress
extended the deadline to April 30, 2020. National Defense Authorization
Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1639, 133 Stat. 1198,
1750 (2019). On March 11, 2020, the Commission made the report available to the public, in anticipation of its formal submission to Congress in
April. See Cyberspace Solarium Commission, Final Report (Mar. 2020),
https://www.solarium.gov (last visited Oct. 9, 2020). The Commission
was to terminate within 120 days of the report’s formal submission to the
congressional defense and intelligence committees. See FY 2019 NDAA
§ 1652(k)(2)(A), 132 Stat. at 2146. During that 120-day period, the Commission was able to wind down its activities and provide testimony to
Congress on its report. Id. § 1652(k)(2)(B), 132 Stat. at 2146.
II.
A truly hybrid commission with Executive and Legislative Branch appointees creates separation of powers concerns because it lacks accountability to any single branch of government. As the Supreme Court has
recognized, “[t]he Constitution sought to divide the delegated powers of
the new federal government into three defined categories, legislative,
executive and judicial, to assure, as nearly as possible, that each Branch
of government would confine itself to its assigned responsibility.” INS v.
Chadha, 462 U.S. 919, 951 (1983); see also, e.g., Martin v. Hunter’s
Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (“The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments.”); Hayburn’s Case,
2 U.S. (2 Dall.) 408, 410 n.* (1792) (reporting the decision of the Circuit
Court for the District of New York, including Chief Justice Jay and Justice Cushing, which had observed “[t]hat by the Constitution of the United
States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose,
encroachments on either” (emphasis added)). In our tripartite constitutional structure, any commission performing federal functions must reside
within a single one of the three branches of government.
6
Executive Branch Participation in the Cyberspace Solarium Commission
A.
This Office has long expressed constitutional concerns about hybrid
commissions, which occupy a “no-man’s land between . . . two branches,”
with commission members who risk being unaccountable to either of the
political branches. Memorandum for John R. Bolton, Assistant Attorney
General, Office of Legislative and Intergovernmental Affairs, from Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Re: H.R. 3345, 99th Cong. 1st Sess., at 2 (Apr. 9, 1986); see also
Congressional Incursions at 3–4 (describing such commissions as “inconsistent with the tripartite system of government established by the Framers of our Constitution” and detailing the Department’s repeated
“strong[]” opposition to congressional creation of hybrid commissions
(internal quotation marks omitted)). 5
The problems with hybrid commissions are two-fold. First, an entity
with members representing two branches is not fully accountable to any
governmental authority. The constitutional separation of powers is designed to diffuse power among different federal actors to better protect
liberty. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986) (recognizing that the “purpose of separating and dividing the powers of government” was to “‘diffus[e] power the better to secure liberty’” (alteration in
original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J., concurring))). But “[t]he diffusion of power
carries with it a diffusion of accountability.” Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 497 (2010). To ensure that the
government remains responsive to the people, the constitutional separation of powers “requires that each branch maintain its separate identity,
and that functions and responsibilities be clearly assigned among the
separate branches, so that each can be held accountable for its actions.”
Memorandum for William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, from Ralph W. Tarr, Acting Assistant Attor5 See, e.g., Statement on Signing a Bill Establishing a National Commission on Agricultural Trade and Export Policy (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan
1211, 1211–12 (1984) (urging that the commission “be composed either entirely of
members selected by the legislative branch, if it is to serve primarily legislative functions,
or entirely of members appointed by the President, if it is to serve the executive branch”);
Statement on Signing the Patent Law Amendments Act of 1984 (Nov. 9, 1984), 2 Pub.
Papers of Ronald Reagan 1816, 1817 (1984) (same).
7
44 Op. O.L.C. __ (Oct. 9, 2020)
ney General, Office of Legal Counsel, Re: S. 519, 99th Cong. 1st Sess.,
the “Federal Employee Anti-Sex Discrimination in Compensation Act of
1985” at 2 (July 2, 1985).
“The creation of a Commission that is not clearly legislative, judicial,
or executive, tends to erode” this foundational restraint. Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248,
251 (1989) (“Common Legislative Encroachments”) (internal quotation
marks omitted). When a blended executive-legislative body ultimately
reports to neither political branch, the public is left unable to determine
where the blame for “a pernicious measure . . . ought really to fall.” See
Free Enter. Fund, 561 U.S. at 498 (internal quotation marks omitted)
(quoting The Federalist No. 70, at 476 (Alexander Hamilton) (J. Cooke
ed. 1961)). And “[w]hen citizens cannot readily identify the source of
legislation or regulation that affects their lives, Government officials can
wield power without owning up to the consequences.” Dep’t of Transp. v.
Ass’n of Am. R.Rs., 575 U.S. 43, 57 (2015) (Alito, J., concurring). Because a branchless entity would undermine the accountability that the
separation of powers demands, the Constitution requires that every entity
exercising the authority of the federal government be accountable to a
single branch.
Second, once the nature of a hybrid commission is determined, that
constitutional location determines the roles that its executive and legislative members may play. To the extent that a commission exercises executive powers, for instance, agents of the Legislative Branch may not participate, even in an advisory capacity. See, e.g., Metro. Wash. Airports Auth.
v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276
(1991) (“If the power is executive, the Constitution does not permit an
agent of Congress to exercise it.”); Buckley v. Valeo, 424 U.S. 1, 139
(1976) (per curiam) (holding that congressional appointees may “perform
duties only in aid of those functions that Congress may carry out by itself,
or in an area sufficiently removed from the administration and enforcement of the public law”); FEC v. NRA Political Victory Fund, 6 F.3d 821,
827 (D.C. Cir. 1993) (observing that even in a purely advisory role, the
presence of ex officio congressional agents on an Executive Branch
commission violated the separation of powers); see also The Constitutional Separation of Powers Between the President and Congress, 20 Op.
O.L.C. 124, 160 n.95 (1996) (“Separation of Powers”) (“[D]esignating a
member of Congress to serve on a commission with any executive func8
Executive Branch Participation in the Cyberspace Solarium Commission
tions, even in what was expressly labeled a ceremonial or advisory role,
may render the delegation of significant governmental authority to the
commission unconstitutional as a violation of the anti-aggrandizement
principle.” (citing NRA Political Victory Fund, 6 F.3d at 827)); Common
Legislative Encroachments, 13 Op. O.L.C. at 251–52.
At the same time, if a commission is an arm of the Legislative Branch,
then Executive Branch members may participate in an advisory role but,
in that capacity, they do not cease to be subject to the supervision of the
President. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.
2183, 2197 (2020) (“The entire ‘executive Power’ belongs to the President alone,” and “lesser [executive] officers must remain accountable to
the President, whose authority they wield.”); see also, 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, 31 (2008) (“Direct Reporting Requirement”) (“[S]tatutes
that interfere with the President’s ability to supervise, directly or through
subordinate officials, the Executive Branch’s communications with Congress raise serious constitutional concerns.”). As discussed below, the
structure of the Cyberspace Solarium Commission presented a number of
concerns about the roles Executive Branch members may play in the
Commission, in light of its constitutional location.
Thus, the threshold question in evaluating the structure of a hybrid
commission is determining the branch in which the entity resides. This
approach finds consistent support in our precedents. In Status of the
Commission on Railroad Retirement Reform for Purposes of the Applicability of Ethics Laws, 13 Op. O.L.C. 285 (1989) (“Railroad Retirement
Reform Commission”), we considered the Railroad Retirement Reform
Commission, whose members were appointed variously by the President,
congressional leaders, and the Comptroller General (an agent of Congress). Id. at 286. The commission was charged with submitting a report
to Congress and to the President with legislative recommendations about
the railroad retirement system. Id. In view of the statute’s dual-reporting
requirement, the Commission was “vested with ‘[o]bligations to two
branches,’” but the “presence of such dual obligations” did not prevent its
“characterization . . . as part of one branch.” Id. at 287 n.5 (quoting Bowsher, 478 U.S. at 746 (Stevens, J., concurring in the judgment)). The
commission’s obligation to report to Congress “without any prior review”
by the Executive Branch would raise “serious constitutional questions,” if
9
44 Op. O.L.C. __ (Oct. 9, 2020)
the commission fell within the Executive Branch. See id. at 287–88. We
thus construed the statute’s dual-reporting requirement “as contemplating
that the Commission’s report would be prepared principally for Congress’
benefit” and concluded that the commission should be deemed to fall
outside the Executive Branch for purposes of laws governing conflicts of
interest and financial disclosure. See id. at 289–90.
We reached a similar conclusion with respect to the National Gambling
Impact Study Commission, an advisory commission with six members
appointed by Congress and three by the President. Applicability of 18
U.S.C. § 208 to National Gambling Impact Study Commission, 23 Op.
O.L.C. 29, 29 (1999) (“National Gambling Impact Study Commission”).
We emphasized that the commission performed only “informationgathering and advisory functions, which need not be performed by the
executive branch.” Id. at 30 n.2. And we concluded that, because a majority of the commissioners were congressionally appointed and the commission operated like a congressional committee, it was “part of the
legislative branch.” See id. at 30 n.2, 35.
In yet another opinion, we considered the location of the Native Hawaiians Study Commission in order to determine whether the Hatch Act
applied to its chairman. See Applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission, 6 Op. O.L.C. 292, 294
(1982) (“Native Hawaiians Study Commission”). The commission there
consisted solely of presidential appointees, but it had been initially funded
by Senate appropriations and had been “established to advise Congress
rather than the President.” Id. We recognized that “a commission may
have dual responsibilities—as in this case, advisory to Congress, factfinding and reporting to the President—without necessarily losing its
character as an executive entity.” Id. While finding that the structure
presented a “difficult question,” we concluded “that the circumstances
viewed as a whole point[ed] to the Commission as an entity within the
Executive Branch.” Id. at 295.
Finally, on several occasions, this Office has considered the status of
commemorative commissions, which have “representatives of multiple
branches participating in ceremonial events,” but which also must exercise executive authority in the course of administering the events in question. Ronald Reagan Commission, 33 Op. O.L.C. at 195. Those commissions have included members from the Legislative and Judicial Branches,
10
Executive Branch Participation in the Cyberspace Solarium Commission
and in light of “ample historical precedent,” we have accepted that “[i]t is
not unconstitutional for such commissions to perform advisory functions.”
Id. at *2 & n.1. But to the extent that these commissions perform executive functions—like “exercising operational control over a statutorily
prescribed national commemoration”—then the participation of nonexecutive agents must end. Id. at *3.
Thus, in 1984, we advised that the Commission on the Bicentennial of
the Constitution, whose members included the Chief Justice and congressional leaders, should establish an “executive committee composed of all
non-advisory members of the Commission . . . legally responsible for
discharging the purely executive functions of the Commission” to accommodate separation of powers concerns. Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984)
(“Bicentennial Commission”). In 2010, we took the same course in advising that the Reagan Centennial Commission—a majority of which comprised members of Congress—could carry out the executive functions of
planning and developing commemorative activities to honor President
Reagan only by establishing a separate executive committee consisting
solely of the Executive Branch members of the commission. See Memorandum for Robert F. Bauer, Counsel to the President, from Martin S.
Lederman, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: Administration of the Ronald Reagan Centennial Commission at 3–4
(May 7, 2010) (“Lederman Memo”). Following the approach of Bicentennial Commission, 8 Op. O.L.C. at 207, we construed the statute itself as
“limit[ing] the exercise of the purely executive functions of the Commission to the five presidentially appointed commissioners” who would
constitute the executive committee. Lederman Memo at 3 (internal quotation marks and citation omitted). With this executive committee in place,
we advised that the full commission, with its majority of congressional
appointees, was “limited to giving advice.” Ronald Reagan Commission,
33 Op. O.L.C. at 200. In so doing, we essentially divided the Reagan
Centennial Commission into two entities—one executive (consisting
solely of Executive Branch representatives) and one advisory (consisting
of both Executive Branch and Legislative Branch representatives). We
therefore resolved the separation of powers concerns presented by such a
ceremonial commission by cabining the functions of the full commission
in a manner consistent with its implicit location in the Legislative Branch.
See also Administration of the John F. Kennedy Centennial Commission,
11
44 Op. O.L.C. __ (Oct. 9, 2020)
41 Op. O.L.C. __, at *1 (Jan. 10, 2017) (recommending that the John F.
Kennedy Centennial Commission adopt the same “structure used to carry
out the functions of the Ronald Reagan Centennial Commission”).
Previous practice therefore buttresses our conclusion: Every seemingly
hybrid commission still must be situated in one and only one branch of
our tripartite constitutional structure. 6
B.
We turn then to the Cyberspace Solarium Commission. Generally,
“[t]he status within the government of an office created by statute is a
matter of statutory interpretation.” Railroad Retirement Reform Commission, 13 Op. O.L.C. at 285. But constitutional constraints prevent Congress from assigning purely executive duties to a legislative entity. See
Buckley, 424 U.S. at 138–39. Because the FY 2019 NDAA did not specify
where the Commission would reside, we consider the statutory context,
the method of appointment of its members, and the powers that it exercises. Here, the relevant statutory indicia suggested that the Commission was
located within the Legislative Branch.
6
See also Statement on Signing the National Defense Authorization Act for Fiscal
Year 2020, 2019 Daily Comp. Pres. Doc. No. 880, at 3 (Dec. 20, 2019) (observing with
respect to a number of provisions that “establish[ed], reauthorize[d] or add[ed] to the
authorities of hybrid commissions or boards,” including the Cyberspace Solarium
Commission, that commissions with Legislative Branch and Executive Branch appointees “separate from the executive branch” are simply “legislative branch entities”);
Statement on Signing the John S. McCain National Defense Authorization Act for Fiscal
Year 2019, 2018 Daily Comp. Pres. Doc. No. 533, at 2 (Aug. 13, 2018) (“FY 2019
NDAA Signing Statement”) (“While I welcome the creation of this commission, these
legislative branch appointees preclude it, under the separation of powers, from being
located in the executive branch. My Administration accordingly will treat the commission as an independent entity, separate from the executive branch.”); Statement on
Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 Daily Comp.
Pres. Doc. No. 863, at 3 (Dec. 23, 2016) (“Because the commission contains legislative
branch appointees, it cannot be located in the executive branch consistent with the
separation of powers.”); Statement on Signing the Alyce Spotted Bear and Walter
Soboleff Commission on Native Children Act, 2016 Daily Comp. Pres. Doc. No. 695, at 1
(Oct. 14, 2016) (“While I welcome the creation of this Commission, it cannot be located
in the executive branch consistent with the separation of powers because it includes
legislative branch appointees[.]”).
12
Executive Branch Participation in the Cyberspace Solarium Commission
Multiple factors supported this determination. First, the Commission’s
membership structure suggested that it was located in the Legislative
Branch, because “the majority of the Commissioners were congressionally
appointed,” National Gambling Impact Study Commission, 23 Op. O.L.C.
at 30 n.2; see also FY 2019 NDAA § 1652(b), 132 Stat. at 2141. The
presence of members of Congress on the Commission counseled strongly
against treating it as an Executive Branch entity. See NRA Political Victory Fund, 6 F.3d at 827 (holding that two congressional agents could not
serve, even as non-voting members, on the eight-member Federal Election
Commission). Members of Congress may neither serve as officers of the
United States, see U.S. Const. art. I, § 6, cl. 2, nor appoint such officers,
see id. art. II, § 2, cl. 2. But even for commissions whose members lack
the authority of officers of the United States—either because the Legislative Branch appointees perform only advisory roles or the commission
itself lacks significant authority under the laws of the United States—
locating a commission in the Executive Branch if Congress appoints a
majority of the members would raise concerns of congressional aggrandizement and the blurring of the separation of powers. See, e.g., Separation of Powers, 20 Op. O.L.C. at 160 n.95. The fact that members of
Congress appoint a majority of the members of the Commission thus
counseled strongly in favor of the conclusion that it is a Legislative
Branch entity.
Second, the nature of the Commission’s powers supported this conclusion. The Commission’s principal duty was to prepare a report that “define[d] the core objectives and priorities” of national cyber policy and
“consider[ed] possible structures and authorities that need to be established, revised, or augmented within the Federal Government” to defend
the United States from cyber-attacks. FY 2019 NDAA § 1652(f )(1), (7),
132 Stat. at 2142–43. The Commission authored and submitted the report
to Congress without any review from the Executive Branch, other than the
four Executive Branch commissioners, who made up a minority of the
Commission’s fourteen members. Id. § 1652(k)(1), 132 Stat. at 2146. The
procedure for publication and assessment of the Commission’s report also
suggested that the report was prepared “principally for Congress’ benefit,” see Railroad Retirement Reform Commission, 13 Op. O.L.C. at 289.
While the FY 2019 NDAA required submission of the Commission’s final
report to several Executive Branch officials in addition to multiple congressional committees, see FY 2019 NDAA § 1652(k)(1), 132 Stat. at
13
44 Op. O.L.C. __ (Oct. 9, 2020)
2146, the executive officials were provided with the report merely to
facilitate their own further responses to Congress. See id. § 1652(l), 132
Stat. at 2146. Both sets of recommendations—the Commission’s report,
and the analysis of the executive officials required to respond—were
therefore ultimately for Congress’s consideration. And any testimony or
briefing on the Commission’s report was also to be provided to Congress,
see id. § 1652(k)(2)(B), 132 Stat. at 2146, again indicating that its recommendations were directed toward the Legislative Branch. In this way,
the Commission was designed to “function[] much as a congressional
committee does when conducting an investigation or drafting a legislative
proposal based on the information it has gathered.” National Gambling
Impact Study Commission, 23 Op. O.L.C. at 35.
The Commission exercised no purely executive powers. Indeed, the
Commission was expressly given the subpoena power of an agent of
Congress; the FY 2019 NDAA authorized the Commission to issue subpoenas and provided that any actions in contempt of its subpoenas should
be governed by the statutory procedures applicable to contempt of Congress, 2 U.S.C. §§ 192–194. FY 2019 NDAA § 1652(g)(1)(C). We have
previously advised that “[i]f Congress intends [a] Commission to be part
of the Executive Branch,” then we would expect it to exercise the kind of
civil enforcement power given to executive agencies, rather than the
contempt powers of Congress. See Proposed Commission on Deregulation
of International Ocean Shipping, 7 Op. O.L.C. 202, 204 (1983). The
nature of the Commission’s subpoena powers further confirmed that it
was a legislative entity.
Finally, the FY 2019 NDAA exempted the Commission from the Federal Advisory Committee Act (“FACA”) and Freedom of Information Act
(“FOIA”) requirements that typically apply to Executive Branch advisory
commissions. FY 2019 NDAA § 1652(m), 132 Stat. at 2146. Ordinarily,
“any committee” established by statute “in the interest of obtaining advice
or recommendations for the President or one or more agencies or officers
of the Federal Government” is subject to FACA. 5 U.S.C. app. § 3(2).
FOIA likewise applies to most executive agencies. 5 U.S.C. § 552; id.
§ 551(1). Congress’s choice to exempt the Commission from these requirements, while not dispositive, bore upon the interpretive question.
Notably, in the very same act in which it created the Commission, Congress expressly located another advisory commission “in the executive
branch” without excepting it from FACA and FOIA requirements. FY
14
Executive Branch Participation in the Cyberspace Solarium Commission
2019 NDAA § 1051(a) (National Security Commission on Artificial
Intelligence). That contrast provided an additional indication of the Commission’s location in the Legislative Branch.
For the reasons set forth above, we concluded, and advised, that the
Commission should be viewed as a Legislative Branch entity.
III.
Our conclusion that the Commission was a Legislative Branch entity
had separation of powers implications for the service of its Executive
Branch members. 7 We advised that the Executive Branch officials serving
on the Commission should act with one unified voice, subject to executive
supervision, in advising the Commission. Although robust participation
on a commission through the provision of advice, information, and staff
and office resources is perfectly appropriate when that work promotes
comity and is consistent with the interests of the Executive Branch, we
advised that individual executive members should not participate in
formal acts of the legislative commission, such as individualized voting or
signing the Commission’s final report; that they must preserve Executive
Branch confidentiality interests when advising the Commission; and that
they should comply with commission requests to share Executive Branch
resources, outside of the statutory process, only to the extent that the
provision of resources would be consistent with Executive Branch interests.
The appointment by Congress of executive branch officers to a legislative entity presents a different constitutional question from when Congress vests the President with the
power to appoint officials to serve on legislative commissions. See, e.g., Removal of
Members of the Commission on Federal Laws for the Northern Mariana Islands, 7 Op.
O.L.C. 95, 102 (1983) (noting that, “[e]ven if we grant that the Commission is an arm of
Congress,” the President could still remove its members at will if Congress chose to vest
appointment power in the President). Here, we addressed the separation of powers
concerns that arose when a statute directed presidential appointees with pre-existing
executive branch ties to serve ex officio in a position within the Legislative Branch. We
did not disturb the long-standing historical practice of the President’s appointing individuals to offices serving the entire Legislative Branch. See, e.g., Constitutionality of Bill
Creating an Office of Congressional Legal Counsel, 1 Op. O.L.C. Supp. 384, 389 (1976);
see also 31 U.S.C. § 703(a)(1) (“The Comptroller General and Deputy Comptroller
General are appointed by the President, by and with the advice and consent of the Senate.”); 2 U.S.C. § 1801(a)(1) (“The Architect of the Capitol shall be appointed by the
President by and with the advice and consent of the Senate for a term of 10 years.”).
7
15
44 Op. O.L.C. __ (Oct. 9, 2020)
The Executive Branch officers did not serve on the Commission as
independent actors, but as representatives of one Executive Branch,
which is subject to ultimate supervision by the President. See U.S.
Const. art. II, § 1, cl. 1 (vesting the President with “[t]he executive
Power” (emphasis added)); id. art. II, § 3 (charging the President with
the duty to “take Care that the laws be faithfully executed”); see also,
e.g., Seila Law, 140 S. Ct. at 2197 (“The entire ‘executive Power’ belongs to the President alone”); Myers v. United States, 272 U.S. 52, 135
(1926) (highlighting that the President “may properly supervise and
guide” subordinate officers “in order to secure . . . unitary and uniform
execution of the laws”); 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.”); Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring) (“[The
Founders] sought to encourage energetic, vigorous, decisive, and speedy
execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the
other branches, the Constitution divides among many.”); Direct Reporting Requirement, 32 Op. O.L.C. at 31 (“[S]tatutes that interfere with the
President’s ability to supervise, directly or through subordinate officials, the Executive Branch’s communications with Congress raise
serious constitutional concerns.”). Therefore, in serving on a Legislative
Branch entity, Executive Branch members on the Commission remained
agents of the Executive Branch.
We addressed a somewhat analogous situation in connection with the
detail of Executive Branch law enforcement agents to congressional
committees. There, we observed that when executive officials work for a
congressional committee, “[t]he pertinent issue . . . is whether the President’s ability to supervise his subordinates in the performance of their
executive branch functions is unconstitutionally impaired.” Detail of Law
Enforcement Agents to Congressional Committees, 12 Op. O.L.C. 184,
186 (1988) (“Detail of Law Enforcement Agents”). And we warned that
congressional details potentially place executive officials “in the difficult
position of serving two masters with conflicting interests—the legislative
and executive branches.” Id. at 184. To counteract these concerns, we
advised that the Executive Branch members on detail could perform “only
non-law enforcement, advisory functions,” and even while performing
those functions, they should “faithfully defend the interests of the execu16
Executive Branch Participation in the Cyberspace Solarium Commission
tive branch” and preserve the confidentiality of Executive Branch information. See id. at 187–88.
So too here. In practice, the principle that Executive Branch officials
must advance Executive Branch interests limited their participation in the
Commission’s work in several ways. First, the Executive Branch officials
charged with assessing the Commission’s final report were advised do so
collectively, or at least in coordination with each other, rather than
providing independent assessments in their separate capacities. And
because members of the Commission were expected to cast their votes
individually, we advised that the Executive Branch members should not
vote on the final report or on commission decisions to issue subpoenas in
the Commission’s investigative capacity. Although the Executive Branch
members could theoretically have adopted and advanced common positions with respect to matters on which they were expected to vote, the
need for the Commission to release its report promptly made it impracticable for them to engage in the kinds of consultations necessary to do so.
This limitation, however, did not necessarily preclude Executive
Branch members from robust participation in the formulation of the
report. Just as Executive Branch officials may perform “advisory or
research” functions while on detail to a congressional committee, Detail
of Law Enforcement Agents, 12 Op. O.L.C. at 186, they could advise and
provide information, expertise, and substantial resources to the Commission. But such input had to be consistent with the Executive Branch’s
understanding of its own interests. And any contributions to, and assessments of, the Commission’s report had to be subject to the supervision of
others in the Executive Branch. Cf. Separation of Powers, 20 Op. O.L.C.
at 174–75 (objecting to requirements that reports be simultaneously
submitted to the Executive and Legislative Branches, because such requirements “increase congressional leverage on the President and other
officials of the executive branch” and thus potentially “interfer[e] with the
President’s fulfillment of his obligations under the Take Care Clause”).
We therefore advised that the Executive Branch members could serve an
advisory role and articulate a uniform position on the Commission’s
work, but they should not formally vote or sign the legislative commission’s final report. We further advised that the Executive Branch officers
assigned the statutory role of providing assessments of the Commission’s
report to Congress, see FY 2019 NDAA § 1652(l), 132 Stat. at 2146, did
not act in their individual capacities, but rather remained subject to the
17
44 Op. O.L.C. __ (Oct. 9, 2020)
ordinary mechanisms by which the President supervises and coordinates
the position of the Executive Branch.
In addition, we advised that all Executive Branch members and staff
should maintain the confidentiality of Executive Branch information when
sharing their information and expertise with the Commission. Executive
agencies should treat a legislative commission’s requests for confidential
Executive Branch information in the same way that the Executive Branch
generally responds to requests for information from Congress. Like a
congressional committee, the Commission was empowered to obtain the
information necessary for its work through hearings, voluntary requests,
and subpoenas. See id. § 1652(g)(1)(A)–(C), 132 Stat. at 2143. Executive
agencies should similarly seek to accommodate legitimate requests consistent with the established accommodation process. See, e.g., Am. Tel. &
Tel. Co., 567 F.2d at 127 (requiring each branch to “seek optimal accommodation through a realistic evaluation of [their respective] needs . . . in
the particular fact situation”); Attempted Exclusion of Agency Counsel
from Congressional Depositions, 43 Op. O.L.C. __, at *19 (May 23,
2019) (describing “the constitutional balance” of providing Congress with
information essential to oversight while preserving Executive Branch
constitutional prerogatives); Authority of the Department of Health and
Human Services to Pay for Private Counsel to Represent an Employee
Before Congressional Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18,
2017); Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989); see also Trump v. Mazars USA,
LLP, 140 S. Ct. 2019, 2031 (2020) (referring to this practice with approval and noting ruefully that “Congress and the President [had] maintained
this tradition of negotiation and compromise—without the involvement of
this Court—until the present dispute”). And while the Commission may
have had a legitimate need to obtain classified or sensitive national security information for its work, its requests needed to be measured like any
other Legislative Branch request for sensitive information, and they
remained subject to the President’s ultimate control over such information. See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988).
Finally, Executive Branch entities were advised that they should treat
the FY 2019 NDAA’s provisions requiring them to provide administrative
assistance to the Commission (in the form of resources such as office
space, computer facilities, and staff ) as discretionary. Congress, of
course, may appropriate funds to itself for the performance of its duties
18
Executive Branch Participation in the Cyberspace Solarium Commission
and the support of its agents. The anti-aggrandizement principle of the
separation of powers, however, prohibits a congressional body from using
any means other than the enactment of legislation to order the Executive
Branch to execute legislation. See Bowsher, 478 U.S. at 733 (“[O]nce
Congress makes it choice in enacting legislation, its participation ends.”).
As a Legislative Branch entity, the Commission could not be given the
power to compel Executive Branch departments to provide office space,
administrative support, and supplies on a nonreimbursable basis, see FY
2019 NDAA § 1652(g)(4), 132 Stat. at 2144. 8 See, e.g., Letter for Heidi
Heitkamp & Lisa Murkowski, U.S. Senate, from Stephen E. Boyd, Assistant Attorney General, Office of Legislative Affairs, Re: Implementation
of the Alyce Spotted Bear and Walter Soboleff Commission on Native
Children at 2 (Aug. 10, 2018) (“In order to avoid a constitutional issue,
the Department will treat as permissive the directives to provide administrative support and detailees[.]”). Accordingly, we advised that the Executive Branch should provide the Commission with Executive Branch resources—such as office space, access to computer networks, and e-mail
addresses—only if it concluded that providing access to a resource would
sufficiently advance Executive Branch interests to outweigh any potential
risks from the resulting commingling of executive and legislative resources.
More specifically, we advised that the sharing of Executive Branch
computer networks or the use of Executive Branch e-mail addresses to
conduct commission business should be done in a manner that would not
8 Several of the FY 2019 NDAA provisions providing for commission support used
the mandatory “shall,” rather than the discretionary “may.” See, e.g., FY 2019 NDAA
§ 1652(g)(3)(B), 132 Stat. at 2144 (providing that executive entities “shall, to the extent
authorized by law, furnish” information to the Commission (emphasis added)); id.
§ 1652(g)(4)(A), 132 Stat. at 2144 (“The Secretary of Defense shall provide to the
commission, on a nonreimbursable basis, such administrative services, funds, staff,
facilities, and other support services as are necessary for the performance of the Commission’s duties[.]” (emphases added)); id. § 1652(g)(4)(D), 132 Stat. at 2144 (“The Commission shall receive the full and timely cooperation of any official, department, or
agency of the United States Government whose assistance is necessary, as jointly determined by the [Commission] co-chairs[.]” (emphases added)). But these provisions nonetheless authorized officials to exercise some judgment in determining whether certain
resources would be made available, based on an analysis of whether the support was
“necessary” or “authorized by law.” To the extent that those provisions denied such
discretion, they were required to yield to constitutional separation of powers principles.
19
44 Op. O.L.C. __ (Oct. 9, 2020)
suggest an Executive Branch imprimatur. And if administrative assistance
was to take the form of detailing personnel to the Commission, executive
agencies were encouraged to consider whether the Executive Branch
benefits to be gained by the personnel’s service to the Commission would
be sufficiently significant to outweigh any potential confidentiality or
accountability considerations raised by their service to a legislative entity.
See Detail of Law Enforcement Agents, 12 Op. O.L.C. at 185 (providing
that, in detailing law enforcement agents to congressional committees on
a voluntary basis, the Department should consider “whether the benefits
to be gained by the law enforcement agencies are sufficiently extraordinary to outweigh the separation of powers and ethical concerns raised by
the detail”).
IV.
For the reasons set forth above, we concluded that the Commission had
to be located within one branch of the tripartite federal constitutional
structure. In addition, we advised that the statutory structure and context
indicated that the Commission was most appropriately viewed as a Legislative Branch entity. Accordingly, as a constitutional matter, the Executive Branch members of the Commission were limited in the ways they
could participate in the Commission’s work; they were required to perform their commission responsibilities as Executive Branch representatives, consistent with the Executive Branch’s confidentiality and policy
interests.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
20 |
|
Write a legal research memo on the following topic. | Novem ber 3, 1977
77-62
MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Richard Helms’ Eligibility Under 5 U.S.C. § 8314 To
Receive an Annuity or Retired Pay
This memorandum opinion is to confirm our oral opinion that Rich
ard Helms, former Director of the Central Intelligence Agency (CIA)
and an ambassador, will not be barred by 5 U.S.C. § 8314 from receiv
ing an annuity or retired pay on the basis of his Federal service by
virtue of his plea o f nolo contendere to tw o counts of violating 2 U.S.C.
§192 in connection with appearances before the Senate Foreign Rela
tions Committee on February 7 and M arch 6, 1973.
Based on staff discussions and our reading of the relevant transcripts,
our understanding of the circumstances surrounding Mr. Helms’ testi
mony is as follows:
He appeared before the committee in open session on February. 5,
1973, in connection with the committee’s consideration of his nomina
tion as Ambassador to Iran. He was then requested to appear in execu
tive session on February 7 so that the committee could question him in
three areas: recently published allegations that the CIA had provided
training to local police forces; CIA involvement with the Watergate
affair;* and CIA relations w ith multinational corporations, particularly
regarding the International Telephone & Telegraph Corporation (ITT)
and the 1970 election that brought Salvador Allende to power in Chile.
A t the February 7 hearing, Mr. Helms was asked questions relating,
inter alia, to domestic activities of the CIA, the relationship of W ater
gate defendants to the CIA, the Agency’s Domestic Contact Service,
and the C IA ’s relationship to other Government agencies. However,
the charge of a violation of 2 U.S.C. § 192 in connection wih the
February 7 hearing stems from Mr. Helms’ refusal to answer questions
relating to his knowledge of the C IA ’s attempts in September and
October of 1970 to foment a coup in Chile, his knowledge of the C IA ’s
financing o f groups working against Allende’s accession to the Presi
dency of Chile, and his knowledge of the CIA’s efforts to influence the
252
actions of certain U.S. multinational corporations to create economic
pressures in order to decrease the likelihood of Allende’s accession.
The March 6 hearing was held in large part for the benefit of the
committee’s Subcommittee on Multinational Corporations, which was
studying the relationship of multinational corporations to the foreign
policy of the United States, although Chairman Fulbright indicated that
much of the questioning would be of interest to members of the full
committee as well. Mr. Helms’ testimony related primarily to CIA
activities in connection with the 1970 Chilean election, including: con
tacts between CIA and ITT officials; the nature of U.S. policy in 1970
regarding the election; whether fomenting a coup or applying economic
pressures through private companies would have been consistent with
U.S. policy relating to Chile; whether the Forty Committee had author
ized certain activities to influence the outcome of the election; and
generally whether the CIA had taken measures to prevent Allende’s
election.1 Mr. Helms is charged with failing accurately and fully to
answer (and thereby refusing to answer) questions relating to his
knowledge of these matters.
Section 8314(a) of Title 5, United States Code, provides that a Feder
al annuity or retired pay may not be paid to an individual (or his
survivor or beneficiary) who:
refused or refuses, or knowingly and willfully failed or fails, to
appear, testify, or produce a book, paper, record, or other docu
ment, relating to his service as an employee, before a Federal
grand jury, court of the United States, court-martial, or congres
sional committee, in a proceeding concerning—
(1) his past or present relationship with a foreign govern
ment; or
(2) a matter involving or relating to an interference with or
endangerment of, or involving or relating to a plan or attempt
to interfere with or endanger, the national security or defense
of the United States.
In our opinion, the ineligibility imposed by this section is inapplicable
to Mr. Helms’ refusal to testify at the 1973 hearings.
I
Although its language is a bit ambiguous, we believe that § 8314 is on
its face inapplicable in the present situation. Neither committee hearing
could reasonably be characterized as a proceeding concerning Mr.
Helms’ “past or present relationship with a foreign government.” Fairly
read, the quoted phrase seemingly refers to disloyal or subversive
relationships with foreign governments, not contacts that may arise in
the course of the individual’s official duties. See Part II and III, infra.
We are unaware of any suggestions that a purpose of either the Febru
1 There were also several questions relating to Cuba and certain other CIA operations,
but the Chilean election was the major topic o f discussion at the March 6 hearing.
253
ary 7 or the M arch 6 hearing was to examine Mr. Helms’ loyalty to the
United States or any subversive relationships he may have had with
foreign governments.
The second type of proceeding mentioned in §8314 is that concern
ing an “interference with o r endangerment of . . . the national security
or defense of the United States.” Read broadly, the quoted phrase
could conceivably be read to cover the present situation. The question
ing of Mr. Helms did relate to the national security and defense of the
United States in a general way; intelligence and other operations of the
CIA inevitably pertain to national security and defense. Moreover, the
primary focus of the questioning, especially during the March 6 hear
ing, concerned an important element of U.S. foreign policy, i.e., the
Nation’s interest and involvement in the Chilean election, and the
participation of IT T and other U.S. corporations in the formulation and
implementation of that policy. In other contexts, the phrase “national
security” has been interpreted to encompass ordinary foreign policy
considerations as well as the national defense. See, e.g., Executive Order
11652, §1 (classification Executive order). Finally, the committee’s
overall concern with the effect o f multinational corporations on U.S.
foreign policy could be thought to relate to adverse effects on national
security or defense in a broad sense, if such corporations were found to
have an overall weakening effect on the Nation’s position. Thus, it
could be argued that the hearings related to a possible “interference
with . . . the national security” to the extent that the committee sought
to determine whether IT T unduly altered U.S. policy in Chile from
what it might otherwise have been or whether the CIA ignored or
transgressed and thereby “interfered” with U.S. policy regarding Chile.
However, we believe that this would be a strained reading of § 8314
in the present setting. When the term “interference” is read in conjunc
tion with the word “endangerment,” it would seem that § 8314(a)(2),
like § 8314(a)(1), should be read to refer to activities of a disloyal or
subversive nature, and ones that may have a relatively imminent and
readily discernible adverse impact on officially established policy. A c
cordingly, those provisions effectively complement one another. The
first refers to proceedings in which the individual’s own loyalty is in
question, and the second refers to actions or plans involving other
people (and perhaps the individual as well) or of which the individual
has knowledge.
Thus, subsection (a)(2) would not on its face appear to apply to the
two hearings at which Mr. Helms testified, which involved an inquiry
into the nature and implementation o f U.S. foreign policy in a given
instance and the influence of private persons in formulating the policy,
without any apparent suggestion of disloyalty on the part of Mr. Helms
or others or of possible attempts to subvert U.S. policy.
254
II
This somewhat limited interpretation of 5 U.S.C. § 8314 is reinforced
by reference to other sections of the entire subchapter of Title 5, of
which § 8314 is a part. Under 5 U.S.C. § 8312, an individual is ineligible
to receive a pension or annuity if he has been convicted of certain
enumerated offenses. The listed offenses all pertain to espionage, sabo
tage, treason, subversion, or disloyalty.2
In addition, pension and retirement disability is also imposed if the
individual is convicted of perjury in falsely denying the commission of
any of the offenses just mentioned or in falsely testifying with respect
to his service as a Government officer or employee in connection with
a matter involving “an interference with or endangerment of, or involv
ing or relating to a plan or attempt to interfere with or endanger, the
national security or defense of the United States.” 5 U.S.C.
§ 8312(b)(3).3 The existence of these two provisions in the perjury
subsection strongly suggests that false testimony regarding “interfer
ence” or “endangerment” involving others must also pertain to activi
ties or plans that are tinged with disloyalty or subversion. This reading
of the perjury provisions is entirely consistent with our interpretation of
the comparable refusal-to-testify provisions in § 8314.
Finally, § 8313 imposes pension and annuity ineligibility if the indi
vidual is under indictment for any of the offenses named in § 8312, and,
with knowledge of the indictment, remains outside of the United States
for more than 1 year.
As can be seen, 5 U.S.C. §§ 8312-8314 reflect a comprehensive effort
to deny a pension or annuity to a Federal official who commits acts or
offenses that endanger the national security or hinder the Government’s
ability to learn about such acts or offenses committed by the individual
or by others. In view of Congress’ careful specification in § 8312 of
only those criminal offenses that involve espionage, sabotage, treason,
subversion, or disloyalty, we believe that the sanctions in § 8314 for
refusals to testify must apply only where the proceedings involved
relate to activities of a similar nature engaged in by the individual
himself or by others. As mentioned above, neither of Mr. Helms’
appearances involved an inquiry into such activities.
Ill
Whatever remaining doubt there may be as to the proper scope of
§ 8314 is, in our view, dispelled by reference to the legislative history
of the section. The predecessor to the present § 8314 was first enacted
2 The offenses include gathering and transmitting defense information to injure the
United States or to aid a foreign nation; sabotage; treason; advocating overthrow of the
Government; activities affecting the morale, loyalty, or operation of the armed services;,
service against the United States; violations of the Atomic Energy Act with intent to
injure the United States or to aid a foreign nation; and communication o f classified
information. § 8314(b) (1)—(2).
5 The quoted phrase is identical to that in § 8314(a)(2).
255
as § 2(a) of P.L. 83-769, 68 Stat. 1142, popularly known as the “Hiss
A ct.” The principal purpose of the Act was to prevent Alger Hiss from
receiving retirement benefits when he reached age 62. Hiss v. Hampton,
338 F. Supp. 1141, 1149-53 (D.D.C. 1972) (three-judge court). In 1954,
Mr. Hiss was about to be released from confinement following his
conviction for perjury in connection with a grand jury investigation of
his possible violation of espionage and other laws arising from his
alleged transmission of confidential State Department documents to a
Communist agent. The documents involved were “of such a nature that
even at the comparatively late day of their disclosure some could not
for security reasons safely be made public . . . .” Id. at 1147, quoting
United States v. Hiss, 185 F. 2d 822, 828 (2d Cir. 1950). There was
widespread public outcry at the possibility that Mr. Hiss might receive
an annuity and Congress responded by passing P.L. 83-769.4 Thus, it is
clear that the predecessor o f the present § 8314 was part of an Act the
primary purpose of which was to bar the payment of an annuity to a
person convicted of perjury in connection with an inquiry into alleged
activities of a distinctly disloyal nature. Our intepretation of the lan
guage of § 8314 is therefore consistent with Congress’ original purpose.
However, Public Law 83-769, as enacted in 1954, swept more broad
ly than was necessary to accomplish this relatively limited purpose. The
original A ct also provided for the denial of annuities to persons who
committed any other offense related to the performance of their official
duties. This resulted in the denial of valuable benefits to persons con
victed o f relatively minor offenses, such as petty theft. See, e.g., H.R.
Rep. No. 541, 87th Cong., 1st Sess., 1 (1959); S. Rep. No. 862, 87th
Cong., 1st Sess., 1-3. To correct this perceived injustice, Congress in
1961 greatly restricted the coverage of Public Law 83-769 to eliminate
the additional ineligibility sanction imposed on those who had commit
ted offenses that had no bearing on loyalty or national security. P.L.
87-299, 75 Stat. 646. See, Hiss v. Hampton, 338 F. Supp., at 1152. It was
at that time that Congress limited the specific offenses that give rise to
ineligibility under §8312 to those involving espionage, sabotage, sub
version, disloyalty, and the like, as discussed earlier in this memoran
dum. These changes were specifically designed to limit the application
of the overall A ct to situations within the original primary purpose of
the Act, Le., to reach A lger Hiss and those in a comparable position.
Hiss v. Hampton, supra, at 1151-53. See, generally S. Rep. No. 862, 87th
Cong., 1st Sess., 1-3, 11 (1961); H.R. Rep. No. 541, 87th Cong., 1st
Sess., 1-2 (1961); S. Rep. No. 1544, 86th Cong., 2d Sess., 1-2 (1960); S.
Rep. No. 144, 86th Cong., 1st Sess., 2, 7 (1959); H.R. Rep. No. 258,
,86th Cong., 1st Sess., 3 (1959); Hearings on H.R. 4601 and Related Bills
4 Congress’ purpose of denying an annuity to Mr. Hiss was ultimately thwarted. The
court held in Hiss v. Hampton th at the denial o f an annuity was intended as a penalty and
that the law was therefore unconstitutional ex post facto legislation as applied to Mr. Hiss.
256
before the House Committee on Post Office and Civil Service, 86th
Cong., 1st Sess. 2 (1959); 105 Cong. Rec. 5831-33 (1959).
This clear expression of congressional intent, and the specific crimi
nal offenses identified by Congress in narrowing the Act in order to be
consistent with its original intent, lend strong support to our interpreta
tion that § 8314 reaches only refusals to testify in proceedings relating
to the employee’s loyalty or immediate threats to the national security
of a subversive nature. Indeed, the relevant committee reports describe
the present § 8314(a) as prohibiting annuities or retired pay:
to persons refusing, on grounds of self-incrimination, to testify or
produce documents, in proceedings relating to loyalty, or with
respect to their relations with foreign governments. This continues
present law, except as to offenses not involving loyalty. S. Rep. No.
862, at 7; H.R. Rep. No. 541, at 5. [Emphasis added.]5
See, also H.R. Rep. No. 541, at 2-3; Hiss v. Hampton, supra, at 1153
(referring to the 1961 Act as restoring benefits to those who committed
“non-treasonous” offenses); Garrott v. United States, 340 F. 2d 615, 620
(Ct. Cl. 1965) (referring to § 2 of the 1961 Act, which included the
present § 8314, as covering “subversive acts and associations”).
In our view, the legislative history clearly confirms that §8314 is
intended to apply only where the proceeding in which the individual
refuses to testify concerns the individual’s own loyalty or his knowl
edge of activities or plans that pose a serious threat to national secu
rity—and principally a breach of security, such as that involved in the
Hiss case. As such, it is inapplicable in the present situation involving
Mr. Helms.
Finally, it should be noted that §8314 is penal in nature, Hiss v.
Hampton, supra, at 1153, and penal statutes are traditionally construed
narrowly. The Comptroller General applied this principle o f narrow
construction to the original Hiss Act, concluding that there is no reason
why the A ct should be interpreted to apply where it does not expressly
do so. 41 Comp. Gen. 62, 65 (1961); 35 Comp. Gen. 302, 303 (1955).
Thus, there is no reason in the present situation to extend §8314
beyond its evident primary purpose in order to reach the present case.
John M. H armon
Assistant Attorney General
Office o f Legal Counsel
“ These committee reports provide some basis for arguing that §8314 applies only
where the refusal to testify is based on Fifth Amendment grounds, as was true with § 2(a)
of the 1954 act. In view of our conclusion here, there is no need to address this issue.
257 |
|
Write a legal research memo on the following topic. | Novem ber 3, 1977
77-62
MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Richard Helms’ Eligibility Under 5 U.S.C. § 8314 To
Receive an Annuity or Retired Pay
This memorandum opinion is to confirm our oral opinion that Rich
ard Helms, former Director of the Central Intelligence Agency (CIA)
and an ambassador, will not be barred by 5 U.S.C. § 8314 from receiv
ing an annuity or retired pay on the basis of his Federal service by
virtue of his plea o f nolo contendere to tw o counts of violating 2 U.S.C.
§192 in connection with appearances before the Senate Foreign Rela
tions Committee on February 7 and M arch 6, 1973.
Based on staff discussions and our reading of the relevant transcripts,
our understanding of the circumstances surrounding Mr. Helms’ testi
mony is as follows:
He appeared before the committee in open session on February. 5,
1973, in connection with the committee’s consideration of his nomina
tion as Ambassador to Iran. He was then requested to appear in execu
tive session on February 7 so that the committee could question him in
three areas: recently published allegations that the CIA had provided
training to local police forces; CIA involvement with the Watergate
affair;* and CIA relations w ith multinational corporations, particularly
regarding the International Telephone & Telegraph Corporation (ITT)
and the 1970 election that brought Salvador Allende to power in Chile.
A t the February 7 hearing, Mr. Helms was asked questions relating,
inter alia, to domestic activities of the CIA, the relationship of W ater
gate defendants to the CIA, the Agency’s Domestic Contact Service,
and the C IA ’s relationship to other Government agencies. However,
the charge of a violation of 2 U.S.C. § 192 in connection wih the
February 7 hearing stems from Mr. Helms’ refusal to answer questions
relating to his knowledge of the C IA ’s attempts in September and
October of 1970 to foment a coup in Chile, his knowledge of the C IA ’s
financing o f groups working against Allende’s accession to the Presi
dency of Chile, and his knowledge of the CIA’s efforts to influence the
252
actions of certain U.S. multinational corporations to create economic
pressures in order to decrease the likelihood of Allende’s accession.
The March 6 hearing was held in large part for the benefit of the
committee’s Subcommittee on Multinational Corporations, which was
studying the relationship of multinational corporations to the foreign
policy of the United States, although Chairman Fulbright indicated that
much of the questioning would be of interest to members of the full
committee as well. Mr. Helms’ testimony related primarily to CIA
activities in connection with the 1970 Chilean election, including: con
tacts between CIA and ITT officials; the nature of U.S. policy in 1970
regarding the election; whether fomenting a coup or applying economic
pressures through private companies would have been consistent with
U.S. policy relating to Chile; whether the Forty Committee had author
ized certain activities to influence the outcome of the election; and
generally whether the CIA had taken measures to prevent Allende’s
election.1 Mr. Helms is charged with failing accurately and fully to
answer (and thereby refusing to answer) questions relating to his
knowledge of these matters.
Section 8314(a) of Title 5, United States Code, provides that a Feder
al annuity or retired pay may not be paid to an individual (or his
survivor or beneficiary) who:
refused or refuses, or knowingly and willfully failed or fails, to
appear, testify, or produce a book, paper, record, or other docu
ment, relating to his service as an employee, before a Federal
grand jury, court of the United States, court-martial, or congres
sional committee, in a proceeding concerning—
(1) his past or present relationship with a foreign govern
ment; or
(2) a matter involving or relating to an interference with or
endangerment of, or involving or relating to a plan or attempt
to interfere with or endanger, the national security or defense
of the United States.
In our opinion, the ineligibility imposed by this section is inapplicable
to Mr. Helms’ refusal to testify at the 1973 hearings.
I
Although its language is a bit ambiguous, we believe that § 8314 is on
its face inapplicable in the present situation. Neither committee hearing
could reasonably be characterized as a proceeding concerning Mr.
Helms’ “past or present relationship with a foreign government.” Fairly
read, the quoted phrase seemingly refers to disloyal or subversive
relationships with foreign governments, not contacts that may arise in
the course of the individual’s official duties. See Part II and III, infra.
We are unaware of any suggestions that a purpose of either the Febru
1 There were also several questions relating to Cuba and certain other CIA operations,
but the Chilean election was the major topic o f discussion at the March 6 hearing.
253
ary 7 or the M arch 6 hearing was to examine Mr. Helms’ loyalty to the
United States or any subversive relationships he may have had with
foreign governments.
The second type of proceeding mentioned in §8314 is that concern
ing an “interference with o r endangerment of . . . the national security
or defense of the United States.” Read broadly, the quoted phrase
could conceivably be read to cover the present situation. The question
ing of Mr. Helms did relate to the national security and defense of the
United States in a general way; intelligence and other operations of the
CIA inevitably pertain to national security and defense. Moreover, the
primary focus of the questioning, especially during the March 6 hear
ing, concerned an important element of U.S. foreign policy, i.e., the
Nation’s interest and involvement in the Chilean election, and the
participation of IT T and other U.S. corporations in the formulation and
implementation of that policy. In other contexts, the phrase “national
security” has been interpreted to encompass ordinary foreign policy
considerations as well as the national defense. See, e.g., Executive Order
11652, §1 (classification Executive order). Finally, the committee’s
overall concern with the effect o f multinational corporations on U.S.
foreign policy could be thought to relate to adverse effects on national
security or defense in a broad sense, if such corporations were found to
have an overall weakening effect on the Nation’s position. Thus, it
could be argued that the hearings related to a possible “interference
with . . . the national security” to the extent that the committee sought
to determine whether IT T unduly altered U.S. policy in Chile from
what it might otherwise have been or whether the CIA ignored or
transgressed and thereby “interfered” with U.S. policy regarding Chile.
However, we believe that this would be a strained reading of § 8314
in the present setting. When the term “interference” is read in conjunc
tion with the word “endangerment,” it would seem that § 8314(a)(2),
like § 8314(a)(1), should be read to refer to activities of a disloyal or
subversive nature, and ones that may have a relatively imminent and
readily discernible adverse impact on officially established policy. A c
cordingly, those provisions effectively complement one another. The
first refers to proceedings in which the individual’s own loyalty is in
question, and the second refers to actions or plans involving other
people (and perhaps the individual as well) or of which the individual
has knowledge.
Thus, subsection (a)(2) would not on its face appear to apply to the
two hearings at which Mr. Helms testified, which involved an inquiry
into the nature and implementation o f U.S. foreign policy in a given
instance and the influence of private persons in formulating the policy,
without any apparent suggestion of disloyalty on the part of Mr. Helms
or others or of possible attempts to subvert U.S. policy.
254
II
This somewhat limited interpretation of 5 U.S.C. § 8314 is reinforced
by reference to other sections of the entire subchapter of Title 5, of
which § 8314 is a part. Under 5 U.S.C. § 8312, an individual is ineligible
to receive a pension or annuity if he has been convicted of certain
enumerated offenses. The listed offenses all pertain to espionage, sabo
tage, treason, subversion, or disloyalty.2
In addition, pension and retirement disability is also imposed if the
individual is convicted of perjury in falsely denying the commission of
any of the offenses just mentioned or in falsely testifying with respect
to his service as a Government officer or employee in connection with
a matter involving “an interference with or endangerment of, or involv
ing or relating to a plan or attempt to interfere with or endanger, the
national security or defense of the United States.” 5 U.S.C.
§ 8312(b)(3).3 The existence of these two provisions in the perjury
subsection strongly suggests that false testimony regarding “interfer
ence” or “endangerment” involving others must also pertain to activi
ties or plans that are tinged with disloyalty or subversion. This reading
of the perjury provisions is entirely consistent with our interpretation of
the comparable refusal-to-testify provisions in § 8314.
Finally, § 8313 imposes pension and annuity ineligibility if the indi
vidual is under indictment for any of the offenses named in § 8312, and,
with knowledge of the indictment, remains outside of the United States
for more than 1 year.
As can be seen, 5 U.S.C. §§ 8312-8314 reflect a comprehensive effort
to deny a pension or annuity to a Federal official who commits acts or
offenses that endanger the national security or hinder the Government’s
ability to learn about such acts or offenses committed by the individual
or by others. In view of Congress’ careful specification in § 8312 of
only those criminal offenses that involve espionage, sabotage, treason,
subversion, or disloyalty, we believe that the sanctions in § 8314 for
refusals to testify must apply only where the proceedings involved
relate to activities of a similar nature engaged in by the individual
himself or by others. As mentioned above, neither of Mr. Helms’
appearances involved an inquiry into such activities.
Ill
Whatever remaining doubt there may be as to the proper scope of
§ 8314 is, in our view, dispelled by reference to the legislative history
of the section. The predecessor to the present § 8314 was first enacted
2 The offenses include gathering and transmitting defense information to injure the
United States or to aid a foreign nation; sabotage; treason; advocating overthrow of the
Government; activities affecting the morale, loyalty, or operation of the armed services;,
service against the United States; violations of the Atomic Energy Act with intent to
injure the United States or to aid a foreign nation; and communication o f classified
information. § 8314(b) (1)—(2).
5 The quoted phrase is identical to that in § 8314(a)(2).
255
as § 2(a) of P.L. 83-769, 68 Stat. 1142, popularly known as the “Hiss
A ct.” The principal purpose of the Act was to prevent Alger Hiss from
receiving retirement benefits when he reached age 62. Hiss v. Hampton,
338 F. Supp. 1141, 1149-53 (D.D.C. 1972) (three-judge court). In 1954,
Mr. Hiss was about to be released from confinement following his
conviction for perjury in connection with a grand jury investigation of
his possible violation of espionage and other laws arising from his
alleged transmission of confidential State Department documents to a
Communist agent. The documents involved were “of such a nature that
even at the comparatively late day of their disclosure some could not
for security reasons safely be made public . . . .” Id. at 1147, quoting
United States v. Hiss, 185 F. 2d 822, 828 (2d Cir. 1950). There was
widespread public outcry at the possibility that Mr. Hiss might receive
an annuity and Congress responded by passing P.L. 83-769.4 Thus, it is
clear that the predecessor o f the present § 8314 was part of an Act the
primary purpose of which was to bar the payment of an annuity to a
person convicted of perjury in connection with an inquiry into alleged
activities of a distinctly disloyal nature. Our intepretation of the lan
guage of § 8314 is therefore consistent with Congress’ original purpose.
However, Public Law 83-769, as enacted in 1954, swept more broad
ly than was necessary to accomplish this relatively limited purpose. The
original A ct also provided for the denial of annuities to persons who
committed any other offense related to the performance of their official
duties. This resulted in the denial of valuable benefits to persons con
victed o f relatively minor offenses, such as petty theft. See, e.g., H.R.
Rep. No. 541, 87th Cong., 1st Sess., 1 (1959); S. Rep. No. 862, 87th
Cong., 1st Sess., 1-3. To correct this perceived injustice, Congress in
1961 greatly restricted the coverage of Public Law 83-769 to eliminate
the additional ineligibility sanction imposed on those who had commit
ted offenses that had no bearing on loyalty or national security. P.L.
87-299, 75 Stat. 646. See, Hiss v. Hampton, 338 F. Supp., at 1152. It was
at that time that Congress limited the specific offenses that give rise to
ineligibility under §8312 to those involving espionage, sabotage, sub
version, disloyalty, and the like, as discussed earlier in this memoran
dum. These changes were specifically designed to limit the application
of the overall A ct to situations within the original primary purpose of
the Act, Le., to reach A lger Hiss and those in a comparable position.
Hiss v. Hampton, supra, at 1151-53. See, generally S. Rep. No. 862, 87th
Cong., 1st Sess., 1-3, 11 (1961); H.R. Rep. No. 541, 87th Cong., 1st
Sess., 1-2 (1961); S. Rep. No. 1544, 86th Cong., 2d Sess., 1-2 (1960); S.
Rep. No. 144, 86th Cong., 1st Sess., 2, 7 (1959); H.R. Rep. No. 258,
,86th Cong., 1st Sess., 3 (1959); Hearings on H.R. 4601 and Related Bills
4 Congress’ purpose of denying an annuity to Mr. Hiss was ultimately thwarted. The
court held in Hiss v. Hampton th at the denial o f an annuity was intended as a penalty and
that the law was therefore unconstitutional ex post facto legislation as applied to Mr. Hiss.
256
before the House Committee on Post Office and Civil Service, 86th
Cong., 1st Sess. 2 (1959); 105 Cong. Rec. 5831-33 (1959).
This clear expression of congressional intent, and the specific crimi
nal offenses identified by Congress in narrowing the Act in order to be
consistent with its original intent, lend strong support to our interpreta
tion that § 8314 reaches only refusals to testify in proceedings relating
to the employee’s loyalty or immediate threats to the national security
of a subversive nature. Indeed, the relevant committee reports describe
the present § 8314(a) as prohibiting annuities or retired pay:
to persons refusing, on grounds of self-incrimination, to testify or
produce documents, in proceedings relating to loyalty, or with
respect to their relations with foreign governments. This continues
present law, except as to offenses not involving loyalty. S. Rep. No.
862, at 7; H.R. Rep. No. 541, at 5. [Emphasis added.]5
See, also H.R. Rep. No. 541, at 2-3; Hiss v. Hampton, supra, at 1153
(referring to the 1961 Act as restoring benefits to those who committed
“non-treasonous” offenses); Garrott v. United States, 340 F. 2d 615, 620
(Ct. Cl. 1965) (referring to § 2 of the 1961 Act, which included the
present § 8314, as covering “subversive acts and associations”).
In our view, the legislative history clearly confirms that §8314 is
intended to apply only where the proceeding in which the individual
refuses to testify concerns the individual’s own loyalty or his knowl
edge of activities or plans that pose a serious threat to national secu
rity—and principally a breach of security, such as that involved in the
Hiss case. As such, it is inapplicable in the present situation involving
Mr. Helms.
Finally, it should be noted that §8314 is penal in nature, Hiss v.
Hampton, supra, at 1153, and penal statutes are traditionally construed
narrowly. The Comptroller General applied this principle o f narrow
construction to the original Hiss Act, concluding that there is no reason
why the A ct should be interpreted to apply where it does not expressly
do so. 41 Comp. Gen. 62, 65 (1961); 35 Comp. Gen. 302, 303 (1955).
Thus, there is no reason in the present situation to extend §8314
beyond its evident primary purpose in order to reach the present case.
John M. H armon
Assistant Attorney General
Office o f Legal Counsel
“ These committee reports provide some basis for arguing that §8314 applies only
where the refusal to testify is based on Fifth Amendment grounds, as was true with § 2(a)
of the 1954 act. In view of our conclusion here, there is no need to address this issue.
257 |
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Write a legal research memo on the following topic. | Legal Obligations of the United States Under
Article 33 of the Refugee Convention
A rtic le 33 o f th e 1951 U nited Nations C onvention R elating to the Status o f R efugees d o es not
im p o se any d o m estic legal obligations on the U n ited S tates w ith respect to individuals inter
d icted o u tsid e its territory as part o f an effort to control m ass illegal m igration to the U nited
S tates.
December 12, 1991
M e m o r a n d u m O p i n i o n f o r t h e L e g a l A d v is e r
D e p a r t m e n t o f S ta te
We have reviewed your letter opinion dated December 11, 1991, in which
you conclude that Article 33 o f the 1951 United Nations Convention Relat
ing to the Status of Refugees (“Refugee Convention”) does not impose any
dom estic legal obligations on the United States with respect to individuals
interdicted outside its territory as part of an effort to control mass illegal
migration to the United States. Letter for Timothy E. Flanigan, Acting As
sistant Attorney General, Office o f Legal Counsel, from Edwin D. Williamson
(Dec. 11, 1991) (“Williamson Letter”). For the reasons outlined in your
letter and for the additional reasons discussed below, we concur in your
conclusion.*
The United States adheres to Articles 2 through 34 of the Refugee Con
vention by virtue o f the Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6223 (“the Protocol”), to which the United States acceded on
November 1, 1968. The official English version of Article 33 provides in part:
No Contracting State shall expel or return (“refouler”) a refu
gee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular so
cial group or political opinion.
19 U.S.T. at 6276. Article 33 thus imposes an obligation on the contracting
* E d ito r's Note: Subsequent to the date o f this opinion, the Supreme Court reached the same conclu
sion as this opinion in Sale v. Haitian Centers Council, Inc.t 509 U.S. 155 (1993).
86
parties not to “expel or return (“refouler”)” refugees under certain circumstances.
The word “expel” in Article 33 clearly refers to the treatment to be af
forded potential refugees found within a state’s territory. Paragraph 1 also
uses the word “return,” followed by the French term “refouler.” As you note
in your letter, the history behind the insertion of “refouler” in the Convention
demonstrates that the representatives of the nations that negotiated the Con
vention intended that the English word “return" not be construed so as to
make the treaty applicable to persons outside the territory of a contracting
state. W illiam son Letter at 3-5.' Because both “expel” and “return
(“refouler”)” refer only to the treatment to be afforded individuals found
within the territory of a contracting state, the Refugee Convention and the
Protocol do not impose any legal obligation with respect to individuals in
terdicted outside the United States.
The Supreme Court, in its review of the legislative history of the United
States’ accession to the Protocol, has also observed that the United States
acceded to Article 33 based upon the view that Article 33 could be imple
mented through the then-existing section 243(h) of the Immigration and
Nationality Act, 8 U.S.C. § 1253(h) (1976 ed.), and that section 243(h) ap
plied only to deportation of refugees already in the United States. See INS v.
Stevie, 467 U.S. 407, 415, 417-18 (1984). The legislative history of the
Refugee Act o f 1980, Pub. L. No. 96-212, 94 Stat. 102, supports this view of
Article 33: the House Committee Report states that the Refugee Convention
was intended to “insure fair and humane treatment for refugees within the
territory o f the contracting s t a t e s H.R. Rep. No. 608, 96th Cong., 1st
Sess. 17 (1979) (emphasis added).
Judge Edwards in Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.
Cir. 1987), concluded uneqivocally — and with specific reference to the
Haitian interdiction program at issue here — that “Article 33 in and of itself
provides no rights to aliens outside a host country’s borders.” Id. at 840
(Edwards, J., dissenting in part and concurring in part). The other two
judges on the panel decided that the plaintiff lacked standing to challenge
the interdiction program and decided the case on that ground, a decision
from which Judge Edwards dissented. Neither of the judges in the majority,
however, expressed any disagreement with or reservations about Judge Edwards’
analysis of the underlying merits issues, including his discussion of Article 33
and his conclusion that it provides no rights to aliens outside a state’s borders.
We note, moreover, as an independent ground for our conclusion, that the
Protocol by which the United States adhered to the Convention is not self
executing for domestic law purposes. Accordingly, the Protocol itself does
not create rights or duties that can be enforced by a court.
1 Your Department has also formally communicated to Congress its view that Article 33 extends only to
persons who have gained entry into a territory of a contracting state. Haitian Detention and Interdiction:
Hearing Before the Subcomm. on Immigration, Refugees, and International Law o f the House Comm, on
the Judiciary, 101st Cong., 1st Sess 36-43 (1989) (statement o f Alan J. Kreczko, Deputy Legal Adviser,
Department of State).
87
Under the Supremacy Clause of the Constitution, treaties made pursuant to
the Constitution’s procedures are part of the “supreme Law of the Land
U.S. Const, art. VI, cl. 2. Some treaties, however, merely impose obliga
tions under international law that the United States, as a contracting party,
m ust perform particular acts, without themselves creating any obligations
under dom estic law. In such cases the international obligation must be
“executed” through domestic legislation before the obligation becomes ef
fectively the law o f the land. Thus, in Foster v. Neilson, 27 U.S. (2 Pet.)
253, 314 (1829), C hief Justice Marshall recognized that not all treaties are
self-executing:
[A treaty] is, consequently, to be regarded in courts of justice
as equivalent to an act o f the legislature, whenever it operates
o f itself without the aid of any legislative provision. But
when the terms of the stipulation import a contract, when
either of the parties engages to perform a particular act, the
treaty addresses itself to the political, not the judicial depart
ment; and the legislature must execute the contract before it
can become a rule for the Court.
See a lso Memorandum for Michael J. Matheson, Deputy Legal Adviser, De
partment of State, from Ralph W. Tarr, Acting Assistant Attorney General,
Office o f Legal Counsel at 4-5 (Mar. 19, 1985) (“Tarr Memorandum”).
W hether a treaty is self-executing is controlled by the intent of the United
States as a contracting party. S ee British Caledonian Airways Ltd. v. Bond,
665 F.2d 1153, 1160 (D.C. Cir. 1981); United States v. Postal, 589 F.2d 862,
876 (5th Cir.), cert, denied, 444 U.S. 832 (1979); Diggs v. Richardson, 555
F.2d 848, 851 (D.C. Cir. 1976). “The parties’ intent may be apparent from
the language of the treaty, or, if the language is ambiguous, it may be di
vined from the circumstances surrounding the treaty’s promulgation.” Postal,
589 F.2d at 876.
The language of the Protocol by which the United States adhered to the
Refugee Convention demonstrates that the United States did not intend that
the Convention, as adhered to, would be self-executing. In particular, Ar
ticle III o f the Protocol provides that the signatories are to communicate to
the United Nations the “laws and regulations which they may adopt to en
sure the application of the present Protocol.” 19 U.S.T. at 6226. Cf. Postal,
589 F.2d at 876-77 (treaties that “expressly provide for legislative execu
tio n ” are “uniform ly declared executory” and therefore require further
legislative action to bring the treaty into effect). Moreover, such a provision
would have been unnecessary if the Refugee Convention were self-executing. Cf. Protocol, art. VI(b), 19 U.S.T. at 6227 (any signatory with federal
form o f government obligated to bring the articles of Refugee convention to
88
the notice of the constituent states if those articles come within the states’
exclusive legislative jurisdictions). Thus, the Protocol by its own terms plainly
contemplates the need for implementing legislation by its signatories.
Furthermore, the understanding of the President and the Senate in adopt
ing the Protocol was that the United States’ obligations under the Refugee
Convention, pursuant to the Protocol, would not be self-executing. Specifi
cally, the President and Senate clearly believed that pre-existing domestic
law governing refugees — which applied only to persons already in the
United States — would suffice to implement the Refugee Convention and the
Protocol.2 See also Stevie, 467 U.S. at 417-18. We also note that the Sec
ond Circuit, the only circuit court to address the question directly has
concluded that the Protocol is not self-executing. Bertraud v. Sava, 684 F.2d
204, 218-19 (2d Cir. 1982).
Because the Protocol is not self-executing, its provisions cannot be en
forced by a private right of action in a U nited States court.3 It is
well-established that individuals may directly seek enforcement of a treaty’s
provisions only when “the treaty . . . expressly or impliedly provides a
private right of action.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774,
808 (D.C. Cir. 1984) (Bork, J., concurring), cert, denied, 470 U.S. 1003
(1985). See also H ead Money Cases, 112 U.S. 580, 598-99 (1884); Frolova
v. Union o f Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985) (“if
not implemented by appropriate legislation [treaties] do not provide the ba
sis for a private lawsuit unless they are intended to be self-executing”);
Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.
1979); Linder v. Calero Portocarrero, 747 F. Supp. 1452, 1462-63 (S.D. Fla.
1990); Haitian Refugee Cent. Inc. v. Gracey, 600 F. Supp. 1396, 1405-06
(D.D.C. 1985), a ff’d on other grounds, 809 F.2d 794 (D.C. Cir. 1987).
A one-page opinion of this Office, and one sentence in another Office of
Legal Counsel opinion, might be read to suggest that refugees interdicted on
the high seas enjoy certain rights under the Protocol adopting the Refugee
Convention. See Proposed Interdiction o f Haitian Flag Vessels, 5 Op. O.L.C.
242, 248 (1981) (“Individuals who claim that they will be persecuted . . .
must be given an opportunity to substantiate their claims [under Article
33].”); Memorandum for the Associate Attorney General from Larry L. Simms,
Deputy Assistant Attorney Genera], Office of Legal Counsel (Aug. 5, 1981)
(“Those who claim to be refugees must be given a chance to substantiate
2 See, e.g., S. Exec. Doc K, 90th Cong., 2d Sess. III (1968) (message from Pres. Johnson) (“most
refugees in this country already enjoy the protection and rights which the Protocol seeks to secure for
refugees in all countries”); id. at VIII (report of secretary of State Rusk) (“[Article 33] is com parable to
Section 243(h) of the Immigration and Nationality A c t. .. and it can be implemented within the adm in
istrative discretion provided by existing regulations” ) (emphasis added); S. Exec. Rep. No. 14, 90th
Cong., 2d Sess. 4 (1968) (testimony o f Laurence A. Dawson, State Dept, official) (“refugees in the
United States have long enjoyed the protection and the rights which the protocol calls for").
’ O f course, even were the Protocol deemed to be self-executing, the Protocol would need to be exam
ined to see if it conferred any legally enforceable rights upon individuals interdicted outside the terri
tory o f the U nited States. See also Tarr Memorandum at 4 n.5. We have already concluded above that
the Protocol does not confer any legally enforceable rights upon such individuals.
89
their claims [under Article 33].” ). Among other things, those memoranda did
not address whether the Protocol adopting the Refugee Convention is self
executing. To the extent that those memoranda could be read to suggest that
Article 33, as adopted by the Protocol, imposes a judicially enforceable obli
gation on the United States with respect to individuals interdicted beyond its
territorial boundaries, those memoranda are incorrect.
TIMOTHY E. FLANIGAN
Acting Assistant Attorney General
Office o f Legal Counsel
90 |
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Write a legal research memo on the following topic. | Recovery of Interest on Advance Payments
to State Grantees and Subgrantees
Section 203 of the Intergovernm ental Cooperation Act exem pts both the states and their subgrantees
from accountability for interest earned on federal grant funds pending their disbursem ent, and
such interest may thus not be recovered by the federal governm ent.
February 5, 1982
M EM ORANDUM OPINION FOR THE COUNSEL TO THE DIRECTOR,
OFFICE OF MANAGEMENT AND BUDGET
This memorandum responds to your request that this Office advise you
whether the federal government may recover interest actually accrued by state
grantees and subgrantees on advance payments of grant funds. Section 203 o f the
Intergovernmental Cooperation Act of 1968,42 U .S.C . § 4213 (1976), provides
that “ [s]tates shall not be held accountable for interest earned on grant-in-aid
funds, pending their disbursement for program purposes.” On the basis of this
provision, prior opinions of the Office of Legal Counsel, and three recent
decisions of the Com ptroller General interpreting that provision, we conclude
that the federal government may not recover interest earned by state grantees and
subgrantees on advances of federal grant-in-aid funds.
I.
Section 203 of the Intergovernmental Cooperation Act of 1968, 42 U .S .C .
§ 4213, which directs the scheduling of transfers of federal grant-in-aid funds to
states, provides that transfers of grant funds be made as near as possible to the
time of disbursem ent by the states, and exempts states1 from accountability for
interest earned on these funds pending their disbursement. Section 203 provides:
Scheduling of Federal transfers to the States
Heads of Federal departments and agencies responsible for ad
ministering grant-in-aid programs shall schedule the transfer of
grant-in-aid funds consistent with program purposes and applica-
1 D ecisions of the C om ptroller G eneral have in the past required recipients o f federal g rants to return to the
Treasury any interest earned on such grants prior to their use, unless C ongress has specifically precluded su ch a
requirem ent. See 42 Com p. G en 289 (1962) and cases cited therein.
127
ble Treasury regulations, so as to m inim ize the time elapsing
between the transfer of such funds from the United States Treas
ury and the disbursement thereof by a State, whether such dis
bursem ent occurs prior to or subsequent to such transfer of funds.
. . . States shall not be held accountable for interest earned on
g ra n t-in -a id funds, p en din g their disbursem ent fo r program
purposes.
42 U .S .C . § 4213 (emphasis added).
You have questioned the applicability of the exemption contained in § 203 to
interest actually earned by state grantees in view of the A ct’s mandate that federal
grant-in-aid funds not be transferred from the Treasury until such funds are ready
for use by the state grantees, the effect of which would minimize the amount of
interest accrued by the states. In addition, it is your position that even if § 203
does provide an exemption for interest earned by state grantees, the exemption
does not extend to local governmental units which are secondary recipients of
federal grant funds funnelled through the states.
N otw ithstanding the Act’s purpose to discourage the transfer of federal grant
funds to states in advance of the grantees’ program needs, we cannot ignore the
clear language o f the A ct which exempts states from accountability for interest in
the event that interest is earned prior to states’ disbursement of funds. Dec.
Comp. G en. B - l 96794 (Feb. 2 4 ,1 9 8 1 ); 5 9 Comp. Gen. 218 (1980); Dec. Comp.
Gen. B -171019 (Oct. 16, 1973); Rehnquist, Office of Legal Counsel, “ Recov
ery o f Interest on Excessive C ash Balances of LEAA Funds Held by States and
Cities” (Nov. 15, 1971 ).2 Moreover, while the question can be raised whether
2 In his 1971 o p in io n , then Assistant A ttorney G eneral R ehnquist gave a clear and concise account o f the
exem ption provision co n tain ed in § 203 o f th e Act:
O u r reading o f the legislative h isto ry concerning § 203 and the bro ad er objectives o f the
Intergovernm ental Cooperation Act o f 1968 as w ell, leads us to [conclude] that Congress exem pted
th e States from the burden o f accounting for interest on g rant funds to facilitate the new authorities for
co m m ingling F ederal funds in the g en e ra l accounts of th e States and the new Treasury techniques
such as the letter o f cred it and sight d ra ft procedures w h ich im plem ented the A ct. We do not read
these, however, as support for the view that Congress intended to impose penalties on those States
which accum ulated interest on deposited or invested funds and to require a forfeiture o f that interest
O n the contrary, the [S enate and H ouse] reports em phasize the expectation that very little interest
accum ulation is expected. It is clear to u s that this is because an im portant objective o f the legislation
is to require the Federal G overnm ent to im pose such oversight controls as w ill result in a scheduling
o f funds to the S tates and so prevent a n y long periods o f d isu se of funds w ith resulting buildups and
accum ulation o f w indfalls.
An overall legislative objective is clearly assistance to the States from the Federal Government. In
its very title the A ct is described as a m easure to “ achieve the fullest cooperation * * * to im prove the
adm inistration o f grants-in-aid to the States ” For these purposes, am ong others, the States were
relieved o f a n u m b e r o f the duties w hich theretofore had b u rden ed the adm inistration o f the grant-inaid pro g ram s, such as the requirem ents for m aintaining funds in separate banks and the requirem ent
o f accounting for any interest earned o n deposits or investm ents
We w ould agree . . . that Congress never intended to p erm it a State “ to abuse agency and Treasury
regulations by draw ing excessive am o u n ts o f cash for investm ent p ending disbursem ent and still be
relieved o f having to account for th e interest earned on th e in v estm en t.'’ T he legislative history
indicates that C ongress d id not intend that to happen because the Federal G overnm ent was expected
to prevent it from happening by sp acin g the disbursem ent funds on the basis o f need.
Perhaps the most persuasive argument against a plan to hold a State accountable fo r interest
earned is the categorical provision in § 203 stating “States shall not be held accountable fo r interest
earned on grant-in-aid funds, pending their disbursement fo r program purposes .” We do not fin d a
C ontinued
128
this exemption applies to local governmental units which are subgrantees of the
states, both this Office and the Com ptroller General have examined this issue,
and neither has read § 203 to permit the federal government to recover interest
earned by local governmental units receiving federal funds as subgrants from the
states. See Dec. Comp. G en. B-196794 (Feb. 24, 1981); 59 Comp. Gen. 218
(1980); Dec. Comp. Gen. B—171019 (Oct. 16, 1973); Ulman, Office of Legal
Counsel, “ Issue Raised by Conflicting Opinions Concerning Interest Earned on
Grant Funds by Local Governments” (Mar. 12, 1974); Office of Legal Counsel,
Internal Action M emorandum (Feb. 19, 1974). But see Rehnquist, Office of
Legal Counsel (Nov. 15, 1971), supra.
II.
This Office first considered the applicability of the § 203 exemption to
subgrantees of states receiving federal grant-in-aid funds in a 1971 opinion
issued by Assistant Attorney General Rehnquist to the Administrator of the Law
Enforcement Assistance Administration (LEAA). See Rehnquist, Office of Legal
Counsel (Nov. 15, 1971), supra. In that opinion Assistant Attorney General
Rehnquist noted that § 203 of the Act speaks only of relief to “ States,” a term
which is defined in Section 102 of the Act as
any of the several States of the United States, the District of
Colum bia, Puerto Rico, any territory or possession of the United
States, or any agency or instrumentality of a State, but does not
include the governments of the political subdivisions c f the State.
42 U .S.C . § 4201(2) (emphasis added). Because local governmental units are
not encom passed by this definition, he concluded that local governmental units
receiving federal funds as subgrantees of the states were not exempt from the
general requirement that interest earned on federal funds be returned to the
United States Treasury:
[D]espite the Congressional intention to discontinue “ future ap
plication” of the interest accountability “ principle” (H. Rept.
No. 1845, 90th C ong., Aug. 2, 1968) the specific mention of the
States in § 203 without any express legislative relief to the cities
and other local units leaves unchanged the general rule calling for
continued accountability by the latter, whether funds are received
directly or by subgrant from a State. Although we are not aware of
any reason for the distinction in § 203 between “ States” and
“ political subdivisions,” it nevertheless exists, and accordingly
contradiction to that clear statement in the Act nor in its legislative history
R ehnquist opinion at 5 - 6 (em phasis added) Because this Office has continued to m aintain the view s expressed in
A ssistant A ttorney G eneral R ehnquist's 1971 opin io n , w hich are also consistent w ith subsequent decisions b y the
C o m p troller G eneral, we do not find it necessary to re-analyze in this opinion the applicability o f § 203 to state
grantees
129
we thin k that as a m atter of law the distinction must be
m aintained.
Rehnquist opinion at 7.
In strictly construing the term “ State” in the Act without reference to the A ct’s
legislative history, the Rehnquist opinion failed to distinguish local governmental
units which receive grant-in-aid funds directly from the federal government from
those which are secondary recipients of federal grant funds, receiving federal
funds as subgrantees of the states. In view o f the A ct’s purpose to assist the states
by facilitating the transfers o f federal grant funds, as well as by relieving the
states of various administrative and accounting duties, we believe that this
distinction is critical to the A ct’s implementation. As subsequent decisions of this
Office3 and the Comptroller G eneral have m ade clear, a requirement that local
governm ental units receiving federal grant funds as subgrantees of the states be
held accountable for interest earned on these funds would necessarily require
state grantees, in contravention of § 203, to be responsible for ascertaining and
securing the interest earned by their local subgrantees. In the case of direct
federal grants to local governmental units, however, state grant administrative
m achinery is in no way implicated— in these cases, o f course, local grantees are
directly accountable to the federal government for interest earned on federal
grant funds prior to their use. S ee Dec. Comp. Gen. B-196794 (Feb. 24, 1981);
59 Comp. G en. 218 (Jan. 17, 1980); U lm an, Office of Legal Counsel, “ Issue
R aised by Conflicting Opinions Concerning Interest Earned on Grant Funds by
Local G overnm ents” (Mar. 12, 1974); Dec. Comp. Gen. B -171019 (Oct. 16,
1973).
In 1973, the Com ptroller G eneral considered the issue of interest accountabil
ity by subgrantees o f the states and concluded that “ political subdivisions
receiving Federal grants-in-aid through State governments are entitled to retain
moneys received as interest earned on such Federal funds.” Dec. Comp. Gen.
B -1 7 1 0 1 9 at 1 (O ct. 16, 1973). In reaching this conclusion, the Comptroller
G eneral noted that neither the language nor the legislative history of § 203 of the
Intergovernm ental Cooperation A ct differentiates between grants which the
states will disburse themselves and grants involving funds which the states will
subgrant to local governm ents.4 The Com ptroller General stated:
1
See U lm a n , O ffice of Legal Counsel, “ Is su e Raised by C onflicting O p inions C oncerning Interest E arned on
G ran t R inds by L ocal G o v ern m en ts’' (Mar 12, 1974) O n Mar. 12, 1974, A cting A ssistant A ttorney G eneral U lm an
responded to a request by LEA A to resolve th e differences betw een the 1971 R ehnquist opinion an d a 1973 decision
by th e C o m p tro lle r G eneral w hich concluded that local governm ental u nits receiving federal grant funds as
sub g ran ts from th e states w ere perm itted to re ta in the interest ea rn e d on those funds. In his letter, U lman deferred to
the ju d g m e n t o f th e C o m p tro lle r G eneral reg ard in g the proper interpretation o f § 203, noting that " th e m atter .
involve[d] th e disp o sitio n o f funds in the settlem ent o f a public accoun t, a m atter w ithin [the C o m ptroller G en eral’s]
official ju risd ic tio n .
” U lm a n , Office of L e g al C ounsel, supra at 3 See also Office o f Legal C o unsel. Internal
A ction M em o ra n d u m (F eb 19. 1974) (discussing issues to be addressed in the Mar. 12, 1974, letter to LE A A )
4 T h e C o m p tro lle r G eneral referred to a F eb . 19, 1969, m em orandum from the A ssistant G eneral C ounsel for
E d ucation, D ep artm en t o f H ealth , Education a n d W elfare (H E W ) to the A ssistant C om m issioner for A dm inistra
tio n . H EW , w hich also co n c lu d ed that the interpretation of § 203 that is m ost co n sisten t w ith the Intergovernm ental
C o o p era tio n A c t’s p urposes and legislative h isto ry requires that all federal g rant funds transferred to states be
ex em p t from in terest accountability, without reg ard to w hether the funds are further subgranted by the states:
(T he la nguage o f § 203] quite literally instructs us not to hold a S tate agency accountable for
interest earn ed on g ran t funds pending their disbursement. T h ere is n o exception to this instruction
C ontinued
130
Thus, it seems clear to us that States are not to be held accountable
for interest earned on any grant-in-aid funds pending their dis
bursem ent, whether or not the States intend, or are required by the
terms of the grant, to subgrant these funds. To hold otherwise
would, of course, require the States to assume the burden of
accounting for the presumably relatively small amounts of inter
est which would be earned on these funds in contravention of the
legislative intent behind the last sentence in section 203.
Id. at 8.
This analysis of § 203 was reaffirmed by the Comptroller General in 1980,
with respect to /ton-governmental subgrantees of state recipients of federal
grants. See 59 Comp. Gen. 218 (Jan. 17, 1980). The Com ptroller General
concluded that “ the same rationale that justifies exempting governmental sub
grantees from rem itting to the Federal grantor agency interest earned on Federal
grant funds received from the States, applies equally to non-governmental sub
grantees.” Id.
Again in 1981, the Comptroller General reiterated his interpretation of § 203
as permitting subgrantees of federal grants to retain the interest earned on funds
received by them through the states. See Dec. Comp. Gen. B -196794 (Feb. 24,
1981). The Com ptroller G eneral’s 1981 decision was prompted by a request from
the Office of M anagement and Budget (OMB) to reconsider the current reading
of § 203 in light of the difficulties that it poses for sound cash management by the
various federal grantor agencies. OMB was, and continues to be, concerned that
§ 203 provides an incentive to states and their subgrantees to draw on their grant
funds prematurely to accrue “ free” interest, and thereby frustrate the mandate of
Treasury C ircular 10755 against excessive cash withdrawals. While the Com p
for funds that ea rn interest pending their disbursem ent by a local educational agency, o r any o ther
agency
To depart from this plain reading o f § 203 w ould require som e clear indication o f a d ifferent
legislative intent in its enactm ent. N o such indication is apparent. O n the contrary, as th e floor
m anager o f the H ouse bill, M r R euss, pointed out—
T he first substantive title— title II— calls for im proved adm inistration o f grants-in-aid to
the States * * * In addition it w ould relieve the States from u nnecessary and outm oded
accounting procedures now in effect and the m aintenance o f separate bank accounts w hile
protecting the n g h t of the executive branch and the C om ptroller G eneral to audit those
accounts
R elief from “ unnecessary * * * accounting procedures” is consistent w ith suspension o f the rule
requiring the S tates to account for interest earned on grant funds, regardless o f w hat agency o f the
State may be in possession of those funds at the tim e that such interest accrues. The effect c f excluding
political subdivisions from the term 'State' must be understood merely to withhold interest fo r -
giveness in programs in which a local educational agency is directly accountable to the Federal
Government.
D ec C om p G en B -1 7 1 0 1 9 (O ct. 16, 1973) (em phasis added)
5 Treasury C ircular 1075 requires th a t1
Cash advances to a recipient organization shall be lim ited to the m inim um am ounts needed and shall
be tim ed to be in accord only w ith the actual, im m ediate cash requirem ents o f the recipient
organization in carry in g out the purpose of the approved program or project T h e tim ing an d am ount
o f cash advances shall be as close as is adm inistratively feasible to the actual disbursem ents by the
recipient organization for direct program costs and the proportionate share o f any allow able indirect
costs
3 1 C .F R § 205 4 ( 1 9 7 8 ) See also S. R ep N o 29, 96th C ong , 2d S ess (1980) o n the S upplem ental A p p ro p n aC o n n n u ed
131
troller G eneral was sympathetic to the concerns expressed by OMB and indicated
that § 203 is being reassessed in light of administrative changes that have taken
place since the legislation was passed in 1968, he nevertheless concluded that
[a]s long as section 203 rem ains in e f f e c t. . . we see no basis for
changing our ruling even if this is an obstacle to better cash
m anagem ent. However, we should point out that our decision
does not preclude agencies from com plying with the three steps
m entioned by the Senate Com m ittee on Appropriations, includ
ing “ [in itiatin g immediate recovery action whenever recipients
are found to have drawn excess cash, in violation of Treasury
C ircular 1075.” S. Rep. No. 9 6 -8 2 9 , 96th C ong., 2d Sess. 14
(1980). T hus, the agencies should monitor their grantees draw of
cash and recover any excess.
Id. at 2.
O ur own reading of § 203 of the Intergovernmental Cooperation Act o f 1968,
in light o f its legislative history, supports the foregoing analyses of the Comp
troller G eneral. W hile we are m indful of the position taken by this Office in the
1971 Rehnquist opinion, we believe that the A ct’s legislative history, and the
accom panying statem ents of the A ct’s purposes, cannot support the narrow
interpretation of “ State” accorded § 203 by that opinion. To exempt state
grantees from the interest accountability requirement while requiring that they
m onitor and collect interest accrued by their .jwbgrantees would reimpose the
very adm inistrative and accounting burdens of which the Act was intended to
relieve the states.6 Although the Rehnquist opinion did not appear to contemplate
such a result, it nevertheless seem ed com pelled by its narrow reading of “ States”
to distinguish federal grant funds which are disbursed by the states for state
program m ing needs from those funds which are disbursed by the states to their
political subdivisions for local program m ing needs. In view of the A ct’s overall
legislative objective of assisting the states by improving the administration of
grants-in-aid— including the facilitation of grant fund transfers, and relieving
states o f the burdens of maintaining grant funds in separate bank accounts and
accounting for interest earned o n deposits or investments— it would make little
sense to im pose upon states th e far m ore difficult task of accounting for the
tions and R escission B ill, 1980, directing all federal agencies to “ take im m ediate steps to assure com pliance w ith
Treasury C ircu lar 1075“ b y
(1) Review ing th e p erio d ic reports filed by recipients to ascertain w hether they are draw ing and
holding cash in ex cess o f their cu rren t needs,
(2) A uditing a sufficient number of recip ien t accounts to determ ine w h eth er they are filing accurate
reports on cash m han d ; and
(3) Initiating immediate recovery action whenever recipients arefo u n d to have drawn excess cash, in
violation o f Treasury Circular 1075.
S. R ep N o. 829 at 14 (em phasis added).
6 O f co u rse, th is burden w ould not be im p o se d on the states in cases w h ere federal grant funds are transferred
directly from the federal g ran to r agencies to lo c al governm ental units, w ith o u t being funnelled through the states.
A ll prior o p inions of th e C o m p tro lle r G eneral an d the Office of Legal C o u n sel, including the R ehnquist op in io n , are
in agreem ent that in such ca ses, the local g ra n t recipients are responsible d irectly to the federal grantor agency, and
are not ex em p t from in terest accountability b y operation o f § 203.
132
interest earnings of their subgrantees when the states themselves are exempt from
accountability for their own earnings. Thus, we believe that, consistent with the
purposes of the Act, § 203 is properly interpreted to exempt interest accountabil
ity on all federal grant-in-aid funds that are transferred to the states, regardless of
whether such funds are disbursed by the states for their own programming needs
or subgranted to local governmental units.
While we are sympathetic to the cash management concerns expressed by
OMB, we believe that the Act clearly places the responsibility for implementing
sound fiscal policies with respect to federal grant funds with the federal grantor
agencies. Section 203 requires the heads of federal departments and agencies
who are responsible for administering grant-in-aid funds to schedule the fund
transfers in a m anner that is “ consistent with program purposes and applicable
Treasury regulations, so as to minimize the tim e elapsing between the transfer of
such funds from the United States Treasury and the disbursement thereof by a
State. . . .” 42 U .S .C . § 4213.
T h e o d o r e B. O l s o n
Assistant Attorney General
Office of Legal Counsel
133 |
|
Write a legal research memo on the following topic. | Obligation of Revolving Funds Requiring
Reimbursement from Time-Limited
Funds Under the Anti-Deficiency Act
The Anti-Deficiency Act prohibits an agency from awarding a severable services contract
that lasts longer than one year and obligates revolving funds that must be reimbursed
with time-limited funds.
The Anti-Deficiency Act violation caused by awarding such a contract is not undone by
subsequently modifying the contract’s term so as not to exceed one year.
October 21, 2013
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
GENERAL SERVICES ADMINISTRATION *
The Anti-Deficiency Act prohibits “officer[s] or employee[s] of the
United States Government” from “involv[ing] . . . [the] government in a
contract or obligation for the payment of money before an appropriation
is made unless authorized by law.” 31 U.S.C. § 1341 (2006). You have
asked whether an agency violates the Anti-Deficiency Act (codified at
31 U.S.C. §§ 1341–1342, 1349–1351, 1511–1519) (“ADA” or “Act”)
when it awards a severable services contract with a performance period
that exceeds one year and the contract obligates revolving funds that an
agency has a legal obligation to reimburse with time-limited funds. 1 If
we conclude that such an action violates the ADA, you have also asked
whether an agency can cure the violation by modifying the contract so
that the performance period lasts only one year.
In federal appropriations law, services are considered “severable” if
they are continuing and confer a benefit each time they are rendered.
Section 3902(a) of title 41 of the U.S. Code allows a contract for severa* Editor’s Note: This is a revised version of an opinion issued on July 8, 2013. See
infra note 7.
1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,
from Kris E. Durmer, General Counsel, General Services Administration (Aug. 29, 2012)
(“GSA Letter”). In preparing this opinion, we also considered views provided by the
Department of Homeland Security. See Letter for Virginia A. Seitz, Assistant Attorney
General, Office of Legal Counsel, from Audrey J. Anderson, Deputy General Counsel,
Department of Homeland Security (Nov. 29, 2012) (“DHS Letter”).
78
Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds
ble services that obligates time-limited funds to extend beyond the period
of availability of those funds, provided that the total length of the contract
for such services does not exceed one year. 41 U.S.C. § 3902(a) (2006 &
Supp. V 2012). By contrast, a contract that obligates only revolving funds
would not generally be subject to this one-year limit. 31 U.S.C. § 1502(a).
Thus, to resolve your first question, we must consider whether the statutory rule that contracts for severable services be limited to one year applies
to contracts that obligate revolving funds in circumstances where an
agency must reimburse those revolving funds with time-limited funds that
are unavailable for obligation beyond a one-year period. In our view, it
does. In such a case, the contract has the effect of obligating those timelimited funds for reimbursement in advance of an appropriation and thus
violates the Anti-Deficiency Act. Id. § 1341.
We also conclude that an agency cannot cure an ADA violation of this
type by subsequently shortening the contract’s performance period. We
recognize that an agency can cure the type of ADA violation that occurs
when an expenditure is charged to the wrong account, so long as funds
were legally available at the time of obligation. In the example you have
described, however, no funds were legally available at the time of obligation to reimburse payments on a greater-than-one-year contract. In circumstances such as these, the violation can be limited but not cured.
I.
We begin by noting that the practice of this Office is to address only
general legal questions having prospective application. We thus set forth
and analyze the following information, such as the agreement between the
Department of Homeland Security (“DHS”) and the General Services
Administration (“GSA”) and the subsequent contractual arrangements and
findings of GSA’s Office of the Inspector General, solely for illustrative
purposes and to provide relevant context. We describe these contractual
arrangements as they have been presented to us and do not make any
factual findings or determinations regarding these specific contracts.
GSA entered into a series of contractual arrangements that have led to
your questions. In the American Recovery and Reinvestment Act of
2009 (“Recovery Act”), Congress designated $200 million for DHS to
use in “planning, design, construction costs, site security, information
technology infrastructure, fixtures, and related costs to consolidate the
79
37 Op. O.L.C. 78 (2013)
Department of Homeland Security headquarters.” Pub. L. No. 111-5,
div. A, tit. VI, 123 Stat. 115, 162 (2009). To implement DHS’s plan for
a new, consolidated headquarters, DHS and GSA’s Northern Capital
Region Public Buildings Service (“GSA-PBS”) entered into an agreement “provid[ing] GSA access to $198.9 million” of DHS’s Recovery
Act funds to pay for various elements of the consolidation project (hereinafter “DHS-GSA Agreement”). See GSA Letter att. 1, at 2. 2 The Recovery Act provided that DHS’s funds were time-limited; after September 30, 2010, they would expire and no longer be available for obligation. See id. at 1; see also Recovery Act div. A, § 1603, 123 Stat. at 302.
As part of the consolidation project, GSA-PBS sought to secure two
contracts for severable services, which would ultimately be funded with
the time-limited Recovery Act funds that GSA-PBS had authority to
obligate. GSA Letter at 1–2. As noted, severable services are services that
are continuing in nature, and from which a benefit is received each time
the service is rendered, such as the maintenance of landscaping or repair
work. 3 Severable services contracts funded with time-limited funds are in
certain respects governed by rules different from those applicable to other
types of contractual arrangements.
For example, government contracts are generally governed by the “bona fide needs rule,” but there is a limited exception to that rule for severable services contracts. The bona fide needs rule provides that an agency
generally may obligate appropriations that Congress makes available for a
limited period of time only to pay for “bona fide needs” incurred during
that period of availability. See 31 U.S.C. § 1502(a); 1 General Accounting
Office, Principles of Federal Appropriations Law 5-11 (3d ed. 2004)
(“Federal Appropriations Law”). For a service such as routine landscapThe DHS-GSA Agreement indicated that GSA would use the money to obtain nonseverable services, GSA Letter att. 1, at 1, but all agree that GSA ultimately entered into
contracts to obtain severable services under the Agreement. We have not considered and
do not address whether the DHS-GSA Agreement’s original characterization of the money
as restricted to contracts for nonseverable services was erroneous or what the consequences of any such error would be.
3 In contrast, nonseverable, or entire, services are those for which the entire benefit
is received at the time the service is completed, such as building construction or other
projects that yield a final product. All agree that the relevant contracts here (between
GSA’s agent—the Federal Acquisition Services component of GSA’s Northern Capital
Region—and the third party contractors) were for severable services.
2
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Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds
ing work, for example, the need arises when grass needs to be cut or
hedges need to be trimmed; thus, an agency ordinarily could not enter into
a contract for cutting or trimming that would occur after current funds
cease to be available. Under a statutory exception, however, agencies may
obligate time-limited appropriations for “contract[s] for the procurement
of severable services for a period that begins in one fiscal year and ends in
the next fiscal year if (without regard to any option to extend the period of
the contract) the contract period does not exceed one year.” 41 U.S.C.
§ 3902. In other words, an agency could use Fiscal Year (“FY”) 2013
funds, available for obligation only during FY 2013, to enter into a landscaping contract that lasted into FY 2014, so long as the total contractual
period did not exceed one year.
To obtain the severable services contracts, GSA-PBS entered into an
agreement with the Federal Acquisition Services component of GSA’s
Northern Capital Region (“GSA-FAS”). GSA Letter att. 2. The agreement specified that GSA-FAS, acting on behalf of GSA-PBS, would
acquire technology services from a contractor. Id. §§ B.2, B.6. GSA-FAS
would pay the contractor’s charges upfront with money from the Acquisition Services Fund, a fund established by statute that GSA uses to procure services on behalf of other federal agencies. Id. §§ A.7, B.8, B.13;
see 40 U.S.C. § 321(c). The Acquisition Services Fund is a revolving
fund, meaning that it is both a receipt account and an expenditure account,
such that collected receipts are available for expenditure without the need
for further appropriations from Congress and without fiscal year limitation. 3 Federal Appropriations Law at 12-87, 12-88 (3d ed. 2008). The
statute governing the use of the Acquisition Services Fund requires agencies for which GSA expends money from the fund either to pay into the
fund in advance or to “prompt[ly] reimburse” the fund for expenditures
made on their behalf. 40 U.S.C. § 321(d)(3). Consistent with this statutory
requirement, the agreement between GSA-PBS and GSA-FAS provided
that GSA-FAS would pay the contractor’s charges from the Acquisition
Services Fund, and then GSA-PBS would reimburse GSA-FAS from the
Recovery Act funds DHS had set aside for GSA-PBS’s use. GSA Letter
att. 2, §§ B.8, B.12. The agreement made GSA-PBS “responsible for
prompt payment of all billings” for reimbursement, set forth criteria for
determining when billings would become delinquent, and established
that delinquency in reimbursement could result in certain consequences
81
37 Op. O.L.C. 78 (2013)
for GSA-PBS. Id. § A.7. The agreement also stated that “[GSA-FAS’s]
acceptance of this document creates an obligation on the part of [GSAPBS].” Id. § B.18.
Under the authority of its agreement with GSA-PBS, GSA-FAS awarded two task orders for severable services on September 30, 2010, the last
day that Recovery Act funds were available for obligation. See GSA
Letter at 2. At least one of the task orders indicated that the performance
period would extend from September 30, 2010 to November 2011, longer
than the one-year period permitted by the statute that allows agencies to
use time-limited funds for severable services contracts crossing fiscal
years. 4 Id. Midway through the contract, in the summer of 2011, GSAFAS modified the task orders so that the performance periods of both task
orders ended on September 29, 2011, within a year after they began. Id.
GSA’s Office of the Inspector General conducted a limited scope audit
of both task orders and concluded, among other things, that the initial task
orders violated both the bona fide needs rule and the Anti-Deficiency
Act. 5 The Inspector General concluded that the revolving fund money
GSA-FAS obligated by entering into the task orders had “the same purpose and time limitations” as the time-limited Recovery Act funds designated to reimburse the revolving fund. OIG Reports at 3. Because GSAPBS could not use Recovery Act funds to reimburse GSA-FAS for any
charges incurred beyond the first twelve months of the contract, the Inspector General concluded that GSA-FAS had obligated money in advance of an appropriation and thereby violated the Anti-Deficiency Act.
The Inspector General further concluded that GSA-FAS could not cure
the violation by modifying the task orders’ performance periods so that
they did not exceed one year.
We understand that GSA believes that the performance period for the other task order
never clearly extended beyond one year. GSA Letter at 2. We do not resolve that issue.
5 See Office of Inspector General, General Services Administration, Report No.
A110024/Q/A/P12006, Limited Scope Audit of Task Order NP4700101050 Funded by
the American Recovery and Reinvestment Act of 2009 (May 2, 2012); see also Office of
Inspector General, General Services Administration, Report No. A110024/Q/A/P12007,
Limited Scope Audit of Task Order NP4700101051 Funded by the American Recovery
and Reinvestment Act of 2009 (May 2, 2012) (collectively, “OIG Reports”). Because the
relevant content of the two reports is identical, citations to “OIG Reports” should be
understood as citations to the specified pages in both reports.
4
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Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds
II.
As stated above, the Anti-Deficiency Act prohibits “officer[s] or employee[s] of the United States Government” from “involv[ing] . . . [the]
government in a contract or obligation for the payment of money before
an appropriation is made unless authorized by law.” 6 31 U.S.C. § 1341.
GSA agrees that an ADA violation occurs when an agency obligates
time-limited funds by entering into a severable services contract that
exceeds one year. See 1 Federal Appropriations Law at 5-40 (violation of
bona fide needs rule can also violate the ADA). Because there is a statutory prohibition on obligating time-limited funds beyond their period of
availability for greater-than-one-year severable services contracts, an
agency entering into such a contract would have no funds legally available at the time of obligation to pay for the services it would receive
beyond the one-year mark. So, for example, if a landscaping contract
obligated FY 2013 funds for a period of time lasting into FY 2014, the
FY 2013 funds would be legally available for the first twelve months of
that contract. But at the end of that twelve months, FY 2013 funds would
no longer be available. If the contract continued beyond that point, it
would therefore have effectively obligated FY 2014 funds “before an
appropriation is made.” 31 U.S.C. § 1341.
The difference between this hypothetical landscaping contract and a
contract like the one GSA describes is that, under the latter, the agency
does not obligate time-limited funds outright; instead, it obligates revolving funds that will later be reimbursed by time-limited funds. As GSA
sees it, this arrangement does not violate the ADA. GSA reasons that an
agency generally may obligate revolving funds to pay for severable services for any period of time, so long as money in the revolving fund
remains available for obligation. GSA argues that, even though a contract
may indicate that particular time-limited funds will reimburse the revolving fund, the reimbursing agency could defer repayment until new timelimited funds become available. 7
The Anti-Deficiency Act applies not only to contracts between a government agency
and a private party, but also to contracts between one government agency and another.
See, e.g., Public Printer—Four-Year Contract for Purchase of Paper for Postal Cards,
27 Op. Att’y Gen. 584 (1909).
7 After we issued the initial version of this opinion, GSA requested that we reconsider
our conclusion. See Letter for Virginia A. Seitz, Assistant Attorney General, Office of
6
83
37 Op. O.L.C. 78 (2013)
GSA correctly notes that the one-year limit on severable services
contracts does not generally apply to revolving funds. But we do not
believe that general rule applies when an agency obligates money from
a revolving fund under an arrangement in which the fund must be
reimbursed with time-limited funds. In our view, money from a revolving fund like the Acquisition Services Fund, which agencies are legally
required to reimburse, can be obligated only to the extent that the relevant appropriations are legally available for the expenditures made by
the fund. 8 See Memorandum for the Files from Stephen J. Wilkinson,
Office of Legal Counsel, Re: Federal Register Publication on November 23, 1981 (Dec. 4, 1981). Restrictions on the availability or use of
the designated reimbursement funds limit an agency’s ability to obliLegal Counsel, from Kris E. Durmer, General Counsel, General Services Administration
(Aug. 28, 2013) (“Reconsideration Request”). The Reconsideration Request argues that,
at least with respect to one of the task orders, any contractual obligation exceeding the
twelve-month period for which Recovery Act funds were available for reimbursement
was, on the particular facts, not an impermissible obligation of Recovery Act funds, but
solely an obligation of the revolving funds in the Acquisition Services Fund. Id. at 2. On
that view, no Anti-Deficiency Act violation occurred because GSA-PBS would have had
no obligation to reimburse the Acquisition Services Fund for services that GSA-FAS
contracted for on GSA-PBS’s behalf that extended beyond the twelve-month period.
We are not in a position to evaluate the particular facts that GSA identified in its Reconsideration Request, including whether the particular contracts at issue obligated GSAPBS to reimburse the revolving fund for expenses beyond the twelve-month period, in
light of our practice to address only general legal questions that have prospective application. We accordingly reach no conclusion as to how GSA should apply our opinion to
each of its past contractual arrangements. Our opinion is confined to those circumstances
in which one government entity obligates revolving funds that another government entity
is legally obligated to reimburse with time-limited funds. We defer to GSA’s determination of whether those circumstances arose in its past contracts.
8 GSA points out that the statute requires the Administrator of GSA to establish rates
for services it provides customer agencies and to set those rates “at levels sufficient to
recover . . . so far as practicable” certain costs, 40 U.S.C. § 321(d)(2). See GSA Letter
at 5 n.9. We understand the “so far as practicable” language as an accommodation to the
reality that GSA may not always be able to quantify precisely the costs associated with
“inventory losses,” “amortization . . . of equipment,” “transportation cost,” and the other
costs listed in section 321(d)(2). We do not read this language to suggest that customer
agencies must only reimburse GSA to the extent that they have funds available, or that
GSA may obligate money from the Acquisition Services Fund that it does not expect to
recoup. The phrase “so far as practicable” qualifies the requirement that the GSA Administrator establish prices, not the requirement that agencies reimburse the GSA for obligations GSA undertakes on their behalf.
84
Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds
gate the revolving funds; otherwise, the restrictions on the use of funds
could be circumvented simply by channeling their expenditure through
a revolving fund. The one-year limit on the obligation of funds for
purchase of severable services thus continues to apply when those funds
are used to fulfill a legal obligation to reimburse a revolving fund for
payment for severable services.
This conclusion is consistent with prior advice of our Office. In November 1981, Executive Branch entities experienced a lapse in appropriations when the President vetoed a continuing resolution. Id. at 1. The
Office of the Federal Register, an Executive Branch entity, asked
whether, notwithstanding the lapse in appropriations, it could request
that the Government Printing Office (“GPO”), a Legislative Branch
entity, print the Federal Register the following day. Id. It explained that
GPO charges the cost of printing the Federal Register to a revolving
fund, which agencies must, by statute, reimburse. Id. We reasoned that
“[b]ecause the agencies are required to reimburse the revolving fund
from their own appropriations, at some point in the process the printing
of the Federal Register creates an obligation within the meaning of . . .
the Antideficiency Act.” Id. We advised the Office of the Federal Register that printing the Federal Register would violate the Act if doing so
“called for the obligation created by the printing process to be charged
to appropriations not yet enacted.” Id. at 2.
The Comptroller General has taken a similar view. 9 See Chemical
Safety and Hazard Investigation Board—Interagency Agreement with the
General Services Administration, B-318425, 2009 WL 5184705 (Comp.
Gen. Dec. 8, 2009) (“Chemical Safety Board ”). In Chemical Safety
Board, the Comptroller General rejected a proposed interagency agreement in which GSA would have used the Acquisition Services Fund to
pay for an open-ended severable services contract, which the Chemical
Safety Board would later reimburse through some combination of FY
2009 funds and future funds. Id. at *1, *4. The Comptroller General
reasoned that pledging future-year appropriations to reimburse GSA for
the obligations it incurred under the interagency agreement would “obliThe Comptroller General’s views often provide helpful guidance on appropriations
matters and related issues, although they do not bind the Executive Branch. See Use of
Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA
Conferences, 31 Op. O.L.C. 54, 55 n.1 (2007).
9
85
37 Op. O.L.C. 78 (2013)
gate [the Chemical Safety Board] to pay for severable services to be
performed in future fiscal years” and thereby violate the Anti-Deficiency
Act. Id. at *4. That GSA would use a revolving fund to pay expenses at
the outset made no difference, for “[a]n interagency agreement . . . that
is funded through an intragovernmental revolving fund, is akin to a
contract and the obligational consequences are the same as if it were a
contract.” Id. at *1 n.6.
Our analysis would not change even if the contracting agency did not
actually spend revolving-fund money when reimbursement funds were
unavailable, but only entered into a contract to do so. The Anti-Deficiency
Act prohibits “involv[ing] . . . [the] government in a contract or obligation
for the payment of money before an appropriation is made,” meaning that
the violation occurs when the agency enters into the contract, even if it
never spends the money it obligated. See Public Printer—Four-Year
Contract for Purchase of Paper for Postal Cards, 27 Op. Att’y Gen. 584,
587 (1909) (advising that it would violate a predecessor version of the
Anti-Deficiency Act to enter into a four-year paper contract, even though
“[t]he four-year contract proposed would . . . not require any expenditure
in excess of the appropriation” for the current fiscal year, because “there
is no appropriation” for any “paper contracted to be furnished after” the
date that current-year funds expire); see also Online Terms of Service
Agreements with Open-Ended Indemnification Clauses Under the AntiDeficiency Act, 36 Op. O.L.C. 112, 125 (2012) (acknowledging that
commitments made in violation of the ADA cannot be legally enforced,
but advising that “[t]he mere fact that commitments made in violation of
the ADA are not legally enforceable does not somehow erase the ADA
violation”).
Our conclusion is not at odds with the Comptroller General’s statement
that “a naked contractual obligation that carries with it no financial exposure to the government does not violate the Antideficiency Act.” See DHS
Letter at 3 (quoting Funding of Maintenance Contract Extending Beyond
Fiscal Year, B-259274, 1996 WL 276377, at *4 (Comp. Gen. May 22,
1996) (“Maintenance Contract ”)). In Maintenance Contract, the Comptroller General concluded that an agency did not violate the ADA by
leaving eight months of a twelve-month severable services contract unfunded at the time of the award where that contract included a clause
making the government’s obligation for the unfunded months “contingent
86
Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds
upon the contracting officer notifying the contractor in writing that funds
were available for continued performance and that the contractor continue
work.” 1996 WL 276377, at *1. Because the agency had made the continuation of the contract contingent on the availability of funds, it had not
involved the government in an obligation for which funds were not yet
available; it had merely given the government the option to continue the
contract should funds become available. When no such contractual contingency exists, an agency violates the Anti-Deficiency Act when it enters
into a contract that obligates the government to make payments beyond
the period in which funds are available to reimburse those expenditures.
III.
GSA, joined by DHS, urges that, even if entering into a greater-thanone-year severable services contract would violate the ADA, an agency
can cure, if not altogether avoid, the violation by modifying the contract
so that the performance period does not exceed one year.10 While shortening a severable services contract’s period of performance may terminate
an ongoing ADA violation, it would not undo the violation that occurred
when the contracting agency obligated revolving funds in advance of an
appropriation for reimbursement funds.
The Comptroller General has long taken the view that an ADA violation can be cured under certain circumstances. See 2 Federal Appropriations Law at 6-80 to 6-82 (3d ed. 2006). If an agency charges an obligation to the wrong appropriation account, and funds are available in the
correct account, the agency may adjust its accounts by charging the obligation to the correct one. Id. As long as sufficient appropriated funds
were available when the obligation occurred and remain available in the
For the purposes of this opinion, we use the word “cure” to mean taking some action after an ADA violation has occurred that retroactively eliminates the violation and
makes a report to Congress unnecessary. We use the word “avoid” to mean preventing
the violation from occurring in the first place. And we use the word “terminate” to mean
taking some post-violation action that stops an ongoing ADA violation but does not
eliminate the original violation and accordingly does not discharge the violating agency
from its responsibility to report to Congress. We do not suggest that these words are
terms of art in appropriations law, but rather define them to make sure our analysis here
is clear.
10
87
37 Op. O.L.C. 78 (2013)
correct account at the time of the adjustment, the agency does not have
to report its initial improper obligation as a violation of the ADA. Id.
A critical feature of a curable ADA violation, however, is the existence of legally available funds to cover the expenditure when the obligation occurs. If funds are not legally available, the agency cannot simply
adjust its accounts and thereby correct the improper obligation, because
the agency lacked authority to enter into the obligation at the outset.
Thus, for example, when an agency charges an appropriation account for
a purpose other than that specified in the appropriation, and no existing
account is legally available for the charged purpose, the agency violates
the ADA in a way that it cannot cure. Id. at 6-82. Similarly, when an
agency violates the ADA by entering into a contract with an impermissible indemnification provision that exposes the government to unlimited financial liability, the agency cannot cure that violation, because it
did not have funds legally available for the obligation when it was
incurred. See Department of the Army—Escrow Accounts and the Miscellaneous Receipts Statute, B-321387, 2011 WL 1178327 (Comp. Gen.
Mar. 30, 2011) (“Escrow Accounts”). In the latter situation, a contractual
modification that removes the impermissible provision may terminate an
ongoing ADA violation, but it does not undo the violation that occurred
when the agency involved the government in a contract for which appropriations were unavailable. See id. at *9.
Thus, in assessing whether the ADA violations resulting from a contractual arrangement in which one federal entity obligates revolving funds
that another entity legally must reimburse with time-limited funds, we
would examine whether funds were legally available to cover the obligation to reimburse when the contractual obligation arose. In our judgment,
contractual arrangements in which time-limited funds are obligated for
reimbursement beyond the twelve-month period permitted by 31 U.S.C.
§ 1502(a) resemble contracts with impermissible indemnification clauses:
No funds are legally available to cover the pertinent obligation at the time
it is incurred. The statute governing obligations of the revolving fund
requires that the revolving fund be reimbursed, and the contract providing
for reimbursement of the fund specifies the use of time-limited funds that
could not be obligated for any part of a contract that extended beyond one
year.
The Comptroller General decisions that GSA and DHS identify as support for their arguments do not conflict with our view. In one of the deci88
Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds
sions, the Comptroller General concluded that a three-year requirements
contract violated “the statutory prohibitions against obligating the government in advance of appropriations,” with no indication that the agency
could cure the violation. See Appropriations—Availability—Contracts—
Future Needs, 42 Comp. Gen. 272, 272 (1962) (“1962 Decision”); see
also Contracts—Federal Supply Schedule—Multi-Year Procurement, 48
Comp. Gen. 497, 499 (1969) (explaining that the 1962 Decision concluded that a violation of the ADA had occurred). The Comptroller General
allowed the contracting agency to complete the contract “in view of the
circumstances of the award,” which appeared to include the fact that the
contract provided services to a military base on a remote island, but he did
not suggest that a contractual modification could cure the violation. 1962
Decision, 42 Comp. Gen. at 278. The Maintenance Contract decision,
discussed above, does not address whether an agency can cure a violation;
rather, it concludes that a contractual arrangement that does not result in
any financial exposure for the government does not violate the ADA.
Maintenance Contract, 1996 WL 276377, at *4.
The remaining three decisions address situations in which no ADA
violation occurred or any ADA violation could be cured, but none involves a contractual arrangement similar to the one that we have described. In one decision, the Comptroller General concluded that entering
into a lease without legal authority to do so did not result in an ADA
violation (though it violated other laws) because appropriations were
available to pay for leases at the time of the obligation, and the agency
recorded the obligation in the correct account. See Interagency Agreements—Use of an Interagency Agreement between the Counterintelligence Field Activity, Department of Defense, and GovWorks to Obtain
Office Space, B-309181, 2007 WL 2389756 (Comp. Gen. Aug. 17,
2007). In another, the Comptroller General concluded that an agency
could cure an improper obligation of expired funds if it had sufficient
current-year funds at the time of obligation to cover the obligation.
Expired Funds and Interagency Agreements between GovWorks and the
Department of Defense, B-308944, 2007 WL 2120292 (Comp. Gen.
July 17, 2007). In the final decision, the agency improperly divided
payments under a nonseverable services contract over the course of two
years, and the Comptroller General concluded that the agency could
cure an ADA violation if it could adjust accounts so that it recorded the
89
37 Op. O.L.C. 78 (2013)
entire contract as an obligation for the first fiscal year, and had sufficient
funds available to do so. Financial Crimes Enforcement Network—
Obligations under a Cost-Reimbursement, Nonseverable Services Contract, B-317139, 2009 WL 1621304 (Comp. Gen. June 1, 2009). In each
decision, the agency’s ability either to avoid or to cure an ADA violation
turned on whether sufficient funds were legally available at the time the
obligation occurred. When funds are not legally available at the time of
obligation so that the agency could correct the violation through an
adjustment of accounts, the ADA violation cannot be cured.
We appreciate that modifying an impermissible contract term may prevent an ADA violation from continuing and may prevent the government
from actually spending the funds that it obligated in advance of an appropriation. But a contractual modification that prevents improper spending
does not by itself cure an initial improper obligation. See Escrow Accounts, 2011 WL 1178327, at *9. For that reason, and those explained
above, we conclude that an agency cannot cure an ADA violation that
occurs when it enters into a greater-than-one-year severable services
contract by modifying the contract’s performance period.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
90 |
|
Write a legal research memo on the following topic. | June 28, 1979
79-46
MEMORANDUM OPINION FOR THE ACTING
COMMISSIONER, IMMIGRATION AND
NATURALIZATION SERVICE
Due Process—United States (as Creditor)—
Withholding Wages of Federal Employee (as
Debtor) in Satisfaction of Debt Allegedly Owed the
Government
This responds to your request for our guidance whether the Immigra
tion and Naturalization Service (INS) must accord its employees a full
evidentiary hearing before INS withholds, pursuant to 5 U.S.C.
§ 5512(a),1 the wages of such employees in satisfaction of a debt allegedly
owed the United States. In a conversation with your Office we were in
formed that more precisely the question is what kind of due process hear
ing is required. Before we prooeed with our legalanalysis and discussion it
would be useful to delineate briefly the relevant factual situation. The INS
believed that one of its employees was obligated to reimburse the Govern
ment for the loss of certain funds for which INS deemed her accountable.
Based upon an investigation, INS decided that the employee was account
able for $2,175.00, funds found to be missing from a district office. Of
that amount, $655.00 was recovered, thus leaving the amount un
accounted for at $1,520.00. The investigation concluded that the employee
failed to follow adequate procedures to safeguard the funds.
The Federal Bureau of Investigation, by way of a separate investigation,
concluded that the evidence was inconclusive and thus recommended
against criminal prosecution. The INS, however, decided to recover the
missing $1,520.00 by withholding from the employee’s pay a designated
sum each pay period. We understand that it so advised the employee
1 T hat provision reads as follows:
The pay o f an individual in arrears to the United States shall be withheld until he has ac
counted for and paid into the Treasury o f the United States all sums for which he is liable.
See 26 O p. A tt’y. G en. 77 (1906).
269
who responded by filing a Federal civil action seeking to enjoin INS from
withholding any part of the pay. The U.S. Attorney handling the case ad
vised INS that he believed case law requires a “ due process” hearing prior
to administrative wage-withholding. Thereafter the Government and the
employee stipulated that the case should be dismissed without prejudice
and that INS, which had not yet withheld any pay, would accord the
employee a fulll evidentiary hearing through its grievance procedures.
While this stipulation moots your questions as to this particular case, you
state that you seek guidance for future cases.
The Supreme Court in recent years has considered in a variety of cir
cumstances what due process requirements apply where deprivation of
property interests are involved. The case that is most relevant here is
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). That case dealt
with hearing requirements involving garnishment of wages. The court con
sidered a Wisconsin law allowing a garnishment to be instituted by the
creditor’s lawyer by requesting the clerk of the state court to issue a sum
mons. Service of the summons upon the garnishee (the employer) effec
tively froze the employee’s (the alleged debtor’s) wages.
The Court stated:
[The wages] may, it is true, be unfrozen if the trial of the main
suit is ever had and the wage earner wins on the merits. But in the
interim the wage earner is deprived of his enjoyment of earned
wages without any opportunity to be heard and to tender any
defense he may have, whether it be fraud or otherwise. [395 U.S.
at 339.]
The Court noted that there may be extraordinary circumstances justifying
a summary procedure, e.g., in order to protect the creditor against perma
nent loss. However, it found no such circumstances in the case.2 In ana
lyzing the requirements of due process with respect to attachments and
other like processes, the Court stressed the unique nature of wages—“ a
specialized type of property presenting distinct problems in our economic
system.” Id. at 340. The Court stated:
[A] prejudgment garnishment of the Wisconsin type may as a
practical matter drive a wage-earning family to the wall. Where
the taking of one’s property is so obvious, it needs no extended
argument to conclude that absent notice and a prior hear
ing * * * this prejudgment garnishment procedure violates the
fundamental principles of due process. [Id. at 341-342.]
Hence what the Government seeks is essentially a recoupment or a
setoff. However, this does not distinguish it from garnishment since both
may “ as a practical matter drive a wage-earning family to the wall.”
1 In the usual case there probably would be no extraordinary circumstances warranting
such a summary procedure because the persons from whom the withholdings are to be made
are G overnm ent employees who have a substantial interest in their jobs and are unlikely to
abscond to avoid repaym ent.
270
The Court’s evident concern was that wages should not be withheld
without a due process hearing. This is because wages, in most cases, sus
tain the wage earner and his family from week to week and any depriva
tion thereof could have potentially severe consequences.3
It may be noted that 5 U.S.C. § 5512, the provision authorizing the
withholding here, does not expressly provide for a hearing of any kind.
The section speaks of an “ individual in arrears to the United States,” not
of one suspected of being in arrears. But it does not deal with the due proc
ess requirement governing the determination of the individual’s liability.
Accordingly, the process involved in the determination of liability must be
considered apart from § 5512. Further, the Sniadach rule is constitution
ally based and cannot be undermined by statute. It is well established
that if at all possible a statute will be construed to avoid constitutional
difficulties. Thus, where a provision entails depriving individuals of
property rights but fails to expressly provide for notice and a hearing,
it must be read as embodying the procedural rights implicit in the due
process clause. Pan American World Airways, Inc. v. Marshall, 439 F.
Supp. 487 (S.D.N.Y. 1977). By reading § 5512 as consistent with the due
process clause it becomes clear that notice and a hearing are necessary
before administrative withholding o f a Federal employee’s pay can be
effected.
Your precise question, as noted above, is whether a “ full evidentiary
hearing” is required. Although Sniadach did not discuss in detail the hear
ing requirements needed for a wage-withholding, the Court did hold that
an “ opportunity to be heard and to tender any defense” were required. Id.
at 339. It is our opinion that a hearing similar to that required in Goldberg
v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits) is necessary
here, that is, a hearing closely approximating a judicial trial. The
Goldberg hearing procedure was summarized in Mathews v. Eldridge, 424
U.S. 319, 325 n. 5 (1976) as follows:
(1) “ timely and adequate notice detailing the reasons for a pro
posed [Government action]” ; (2) “ an effective oppor
tunity * * * to defend by confronting any adverse witnesses
and by presenting his own arguments and evidence orally” ;
(3) retained counsel, if desired; (4) an “ impartial” decision
maker; (5) a decision resting “ solely on the legal rules and
evidence adduced at the hearing” ; (6) a statement of reasons for
the decision and the evidence relied on. 397 U.S., at 266-271.
1 U nder the Wisconsin procedure, up to one-half o f a d ebtor’s wages could be frozen
under the garnishment procedure. T hus, an argument can be made that freezing or
withholding a significantly lesser portion o f a person’s wages would not require the same
level o f due process protection. However, we believe that the better view is to consider any
deprivation o f wages as substantial. Indeed, the C ourt in Sniadach did not appear to consider
the potential severity o f the deprivation with respect to individual debtors. Rather, the focus
was on the importance o f wages as a general m atter.
271
The Court in Mathews stated that the dictates of due process generally
require consideration of three distinct factors:
First, the private interest that will be affected by the official ac
tion; second, the risk o f an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substi
tute procedural requirement would entail. [Id. at 355.]
The private interest that may be adversely affected here by your agency’s
action is potentially substantial. This is because wages are “ a specialized
type of property presenting distinct problems in our economic system.”
Sniadach, at 340.
Moreover, as we understand it, the proposed wage-withholding in
volved here would constitute the final agency action. Thus, unless the
employee sought judicial review and prevailed, the administrative depriva
tion will deprive the employee of the withheld wages. This is unlike
Goldberg v. Kelly and Mathews v. Eldridge, in that the official action in
those cases was temporary and subject to further administrative review
which afforded the claimant an evidentiary hearing much like that ordered
in Goldberg.* Accordingly, the deprivation would be final insofar as
agency action was concerned so that heightened solicitude for the private
interest is required. See, North Georgia Finishing, Inc. v. Di-Chem, Inc.,
419 U.S. 601, 606 (1975), where the Court noted that “ the length or sever
ity of a deprivation of use or possession [of property] would be another
factor to weigh in determining the appropriate form of hearing * *
Concerning the second factor in Mathews, i.e., the value of additional
procedural safeguards, it would seem that a wage-withholding hearing
might frequently involve disputed factual issues and questions of credibil
ity. Thus, the hearing must be structured so as to provide for their resolu
tion. Mathews at 343-345. We do not know, of course, whether such
issues will arise in a particular case.
Finally, the cost to the Government of a Goldberg-type evidentiary
hearing probably would not result in a significant burden on the Govern
ment. The Court in Mathews noted that the cost to the Government of
providing statutory benefits to ineligible recipients pending decision would
not be insubstantial. 424 U.S. at 347. This concern would be inapplicable
in wage-withholding actions because the employee is otherwise clearly en
titled to his or her wages. Further, it seems unlikely that the costs of the
hearings themselves would impose a significant burden on the Government.
4 While the welfare recipient in Goldberg was entitled to an evidentiary hearing, the
primary issue was whether the hearing was required before the term ination o f benefits or
whether term ination could be m ade subject to a subsequent evidentiary hearing. 397 U .S. at
259-260.
272
For these reasons, w e believe that a Goldberg v. Kelly-type hearing is re
quired in adm inistrative wage w ithholdings.
Leon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
273 |
|
Write a legal research memo on the following topic. | June 28, 1979
79-46
MEMORANDUM OPINION FOR THE ACTING
COMMISSIONER, IMMIGRATION AND
NATURALIZATION SERVICE
Due Process—United States (as Creditor)—
Withholding Wages of Federal Employee (as
Debtor) in Satisfaction of Debt Allegedly Owed the
Government
This responds to your request for our guidance whether the Immigra
tion and Naturalization Service (INS) must accord its employees a full
evidentiary hearing before INS withholds, pursuant to 5 U.S.C.
§ 5512(a),1 the wages of such employees in satisfaction of a debt allegedly
owed the United States. In a conversation with your Office we were in
formed that more precisely the question is what kind of due process hear
ing is required. Before we prooeed with our legalanalysis and discussion it
would be useful to delineate briefly the relevant factual situation. The INS
believed that one of its employees was obligated to reimburse the Govern
ment for the loss of certain funds for which INS deemed her accountable.
Based upon an investigation, INS decided that the employee was account
able for $2,175.00, funds found to be missing from a district office. Of
that amount, $655.00 was recovered, thus leaving the amount un
accounted for at $1,520.00. The investigation concluded that the employee
failed to follow adequate procedures to safeguard the funds.
The Federal Bureau of Investigation, by way of a separate investigation,
concluded that the evidence was inconclusive and thus recommended
against criminal prosecution. The INS, however, decided to recover the
missing $1,520.00 by withholding from the employee’s pay a designated
sum each pay period. We understand that it so advised the employee
1 T hat provision reads as follows:
The pay o f an individual in arrears to the United States shall be withheld until he has ac
counted for and paid into the Treasury o f the United States all sums for which he is liable.
See 26 O p. A tt’y. G en. 77 (1906).
269
who responded by filing a Federal civil action seeking to enjoin INS from
withholding any part of the pay. The U.S. Attorney handling the case ad
vised INS that he believed case law requires a “ due process” hearing prior
to administrative wage-withholding. Thereafter the Government and the
employee stipulated that the case should be dismissed without prejudice
and that INS, which had not yet withheld any pay, would accord the
employee a fulll evidentiary hearing through its grievance procedures.
While this stipulation moots your questions as to this particular case, you
state that you seek guidance for future cases.
The Supreme Court in recent years has considered in a variety of cir
cumstances what due process requirements apply where deprivation of
property interests are involved. The case that is most relevant here is
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). That case dealt
with hearing requirements involving garnishment of wages. The court con
sidered a Wisconsin law allowing a garnishment to be instituted by the
creditor’s lawyer by requesting the clerk of the state court to issue a sum
mons. Service of the summons upon the garnishee (the employer) effec
tively froze the employee’s (the alleged debtor’s) wages.
The Court stated:
[The wages] may, it is true, be unfrozen if the trial of the main
suit is ever had and the wage earner wins on the merits. But in the
interim the wage earner is deprived of his enjoyment of earned
wages without any opportunity to be heard and to tender any
defense he may have, whether it be fraud or otherwise. [395 U.S.
at 339.]
The Court noted that there may be extraordinary circumstances justifying
a summary procedure, e.g., in order to protect the creditor against perma
nent loss. However, it found no such circumstances in the case.2 In ana
lyzing the requirements of due process with respect to attachments and
other like processes, the Court stressed the unique nature of wages—“ a
specialized type of property presenting distinct problems in our economic
system.” Id. at 340. The Court stated:
[A] prejudgment garnishment of the Wisconsin type may as a
practical matter drive a wage-earning family to the wall. Where
the taking of one’s property is so obvious, it needs no extended
argument to conclude that absent notice and a prior hear
ing * * * this prejudgment garnishment procedure violates the
fundamental principles of due process. [Id. at 341-342.]
Hence what the Government seeks is essentially a recoupment or a
setoff. However, this does not distinguish it from garnishment since both
may “ as a practical matter drive a wage-earning family to the wall.”
1 In the usual case there probably would be no extraordinary circumstances warranting
such a summary procedure because the persons from whom the withholdings are to be made
are G overnm ent employees who have a substantial interest in their jobs and are unlikely to
abscond to avoid repaym ent.
270
The Court’s evident concern was that wages should not be withheld
without a due process hearing. This is because wages, in most cases, sus
tain the wage earner and his family from week to week and any depriva
tion thereof could have potentially severe consequences.3
It may be noted that 5 U.S.C. § 5512, the provision authorizing the
withholding here, does not expressly provide for a hearing of any kind.
The section speaks of an “ individual in arrears to the United States,” not
of one suspected of being in arrears. But it does not deal with the due proc
ess requirement governing the determination of the individual’s liability.
Accordingly, the process involved in the determination of liability must be
considered apart from § 5512. Further, the Sniadach rule is constitution
ally based and cannot be undermined by statute. It is well established
that if at all possible a statute will be construed to avoid constitutional
difficulties. Thus, where a provision entails depriving individuals of
property rights but fails to expressly provide for notice and a hearing,
it must be read as embodying the procedural rights implicit in the due
process clause. Pan American World Airways, Inc. v. Marshall, 439 F.
Supp. 487 (S.D.N.Y. 1977). By reading § 5512 as consistent with the due
process clause it becomes clear that notice and a hearing are necessary
before administrative withholding o f a Federal employee’s pay can be
effected.
Your precise question, as noted above, is whether a “ full evidentiary
hearing” is required. Although Sniadach did not discuss in detail the hear
ing requirements needed for a wage-withholding, the Court did hold that
an “ opportunity to be heard and to tender any defense” were required. Id.
at 339. It is our opinion that a hearing similar to that required in Goldberg
v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits) is necessary
here, that is, a hearing closely approximating a judicial trial. The
Goldberg hearing procedure was summarized in Mathews v. Eldridge, 424
U.S. 319, 325 n. 5 (1976) as follows:
(1) “ timely and adequate notice detailing the reasons for a pro
posed [Government action]” ; (2) “ an effective oppor
tunity * * * to defend by confronting any adverse witnesses
and by presenting his own arguments and evidence orally” ;
(3) retained counsel, if desired; (4) an “ impartial” decision
maker; (5) a decision resting “ solely on the legal rules and
evidence adduced at the hearing” ; (6) a statement of reasons for
the decision and the evidence relied on. 397 U.S., at 266-271.
1 U nder the Wisconsin procedure, up to one-half o f a d ebtor’s wages could be frozen
under the garnishment procedure. T hus, an argument can be made that freezing or
withholding a significantly lesser portion o f a person’s wages would not require the same
level o f due process protection. However, we believe that the better view is to consider any
deprivation o f wages as substantial. Indeed, the C ourt in Sniadach did not appear to consider
the potential severity o f the deprivation with respect to individual debtors. Rather, the focus
was on the importance o f wages as a general m atter.
271
The Court in Mathews stated that the dictates of due process generally
require consideration of three distinct factors:
First, the private interest that will be affected by the official ac
tion; second, the risk o f an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substi
tute procedural requirement would entail. [Id. at 355.]
The private interest that may be adversely affected here by your agency’s
action is potentially substantial. This is because wages are “ a specialized
type of property presenting distinct problems in our economic system.”
Sniadach, at 340.
Moreover, as we understand it, the proposed wage-withholding in
volved here would constitute the final agency action. Thus, unless the
employee sought judicial review and prevailed, the administrative depriva
tion will deprive the employee of the withheld wages. This is unlike
Goldberg v. Kelly and Mathews v. Eldridge, in that the official action in
those cases was temporary and subject to further administrative review
which afforded the claimant an evidentiary hearing much like that ordered
in Goldberg.* Accordingly, the deprivation would be final insofar as
agency action was concerned so that heightened solicitude for the private
interest is required. See, North Georgia Finishing, Inc. v. Di-Chem, Inc.,
419 U.S. 601, 606 (1975), where the Court noted that “ the length or sever
ity of a deprivation of use or possession [of property] would be another
factor to weigh in determining the appropriate form of hearing * *
Concerning the second factor in Mathews, i.e., the value of additional
procedural safeguards, it would seem that a wage-withholding hearing
might frequently involve disputed factual issues and questions of credibil
ity. Thus, the hearing must be structured so as to provide for their resolu
tion. Mathews at 343-345. We do not know, of course, whether such
issues will arise in a particular case.
Finally, the cost to the Government of a Goldberg-type evidentiary
hearing probably would not result in a significant burden on the Govern
ment. The Court in Mathews noted that the cost to the Government of
providing statutory benefits to ineligible recipients pending decision would
not be insubstantial. 424 U.S. at 347. This concern would be inapplicable
in wage-withholding actions because the employee is otherwise clearly en
titled to his or her wages. Further, it seems unlikely that the costs of the
hearings themselves would impose a significant burden on the Government.
4 While the welfare recipient in Goldberg was entitled to an evidentiary hearing, the
primary issue was whether the hearing was required before the term ination o f benefits or
whether term ination could be m ade subject to a subsequent evidentiary hearing. 397 U .S. at
259-260.
272
For these reasons, w e believe that a Goldberg v. Kelly-type hearing is re
quired in adm inistrative wage w ithholdings.
Leon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
273 |
|
Write a legal research memo on the following topic. | October 25, 1977
78-88
MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
The President— Constitutional Law (Article I, § 7, cl.
2)— Presentation of Enrolled Bills— Absence of the
President
In light of the President’s forthcoming trip abroad, we believe you should be
alerted to some of the problems and procedures connected with the presentation
and signing of bills during his absence, in the event the matter should arise.
Article I, § 7, cl. 2, of the Constitution provides that all bills and resolutions
approved by both Houses of the Congress are to be presented to the President,
who then has 10 days (Sundays excepted) within which to approve, veto, or
take no action on the bill. The 10-day period begins to run when an enrolled bill
is “ presented” to the President. When the President is in the United States,
presentation does not require delivery to him personally; rather it is done by
delivery of the bill to one of the legislative clerks on the W hite House staff.
See, E ber Bros. Wine & L iquor Corp. v. U nited States, 167 Ct. Cl. 665, 674,
690 (1964), cert, denied, 380 U.S. 950 (1964).
This procedure obviously will not work when the President is abroad.
Communication problems and preoccupation with the subject matter of his trip
(cf., Eber B ros., supra, at 676) could then effectively curtail the period for his
consideration. In the P ocket Veto C ase, 279 U.S. 655, 678 (1929), the Court
stressed the importance of the availability to the President of the full
constitutional period for consideration.
The simplest way of dealing with that situation is through an agreement
between the President and the congressional leadership pursuant to which no
enrolled bills will be presented during his absence. There have been several
such arrangements. See, e .g ., Zinn, Charles J., The Veto P ow er o f the
President, p. 16, U.S. Congress, House, Committee on the Judiciary,
Committee Print, W ashington, U.S. G .P .O . 1952; E ber B ros., supra, at 702,
705, 708. We are attaching for your convenience copies o f a memorandum of
President Franklin D. Roosevelt dated November 10, 1943; a letter from
Attorney General Brownell to President Eisenhower dated July 5, 1955; a letter
of President Lyndon B. Johnson dated October 14, 1966, and the reply o f the
Speaker of the House of Representatives dated October 14, 1966.
383
in the unlikely event that the President is unable to obtain such a commitment
from Congress, including the contingency of urgent legislation that cannot
await the President’s return, the President normally withdraws the legislative
clerks’ authority to accept enrolled bills on his behalf when he travels abroad
and so advises the Congress. The bills are received by the White House staff
not for “ presentation” to the President but for forwarding or transmission to
the President. Presentation is then effected either when the bills actually are
received by him abroad or upon his return to W ashington. E ber B ros., supra, at
676. While that case suggests that when the President is abroad, Congress has
the power to start the running of the 10-day period by making a personal
presentation abroad, we are not aware of any actual precedent to that effect.
We should also refer to the considerable time differences between W ashing
ton and some o f the places where the President will visit. There is a time
difference o f 10 1/2 hours between W ashington and New Delhi; midnight at
New Delhi is 1:30 p .m ., W ashington time. Hence if the President signed a bill
on Delhi time, he could lose almost half a day of the constitutional period.
Moreover, confusion could arise regarding the computation o f the time within
which to approve a bill where it is presented in one time zone but action on it is
taken in another zone.
Normally acts are dated as o f local legal time. Thus, it was held in Sunday v.
M adigan , 301 F.(2d) 871 (9th C ir., 1962), that the Uniform Code of Military
Justice which was to become effective on May 15, 1951, became effective in
Korea on May 15 Korean tim e, although it was still May 14 in the United
States. On the other hand, as we have pointed out above, it is important for the
President to have the full constitutional period of 10 days for consideration of
the action he should take. Sim ilarly, there should be no ambiguity as to when
the 10-day period begins and ends. Accordingly, we recommend that if the
President acts while abroad, notation of the time when a bill is presented to or
approved by him be made according to the date and hour calculated as of
W ashington time.
Jo h n M . H a rm o n
A ssistan t A ttorney G eneral
Office o f L egal Counsel
A ttachm ents
384
‘CO PY ”
November 10, 1943
MEMORANDUM FOR
THE VICE PRESIDENT
THE SPEAKER
As I expect to be away from W ashington for some time in the near future, I
hope that insofar as possible the transmission of completed legislation be
delayed until my return. The White House Office, however, in other cases of
emergency has been authorized to forward to me any and all enrolled bills or
joint resolutions. They will be forwarded at once by the quickest means. The
White House Office will not receive bills or resolutions on behalf of the
President but only for the purpose of forwarding them. As soon as received by
the President their presentation to the President will have been completed in
accordance with the terms o f the Constitution. I suggest, therefore, that if any
bill is fo rw a rd e d to the White H ouse, the entries on the H ouse an d Senate
Journals show “delivery to the White H ouse f o r forw ardin g to the P resid en t’’
For security reasons I hope that this can be kept confidential for as long as is
necessary.
F.D .R .
385
OFFICE OF THE ATTORNEY GENERAL
W ASHINGTON, D.C.
July 5, 1955
The President,
The W hite House.
My dear Mr. President:
It is suggested that you confer with leaders in Congress so that arrangements
can be made under the law for enrolled bills or joint resolutions to be held in
Congress until your return.
In this way, your attention to the important matters raised in Summit Talks
will not be diverted by consideration of bills which may safely await your
return.
If Congressional leadership believes that the matter is serious enough to
warrant your immediate attention, it should be advised to forward the bill to the
White House with this understanding:
1. That the entries on the House and Senate Journals will carry the
statement: “ Delivery to the W hite House for forwarding to the Presi
d en t.”
2. That the White House Office will be advised that it will not receive bills
or resolutions on behalf of the President but they will only be “ received
for forwarding them to the President” .
3. That where the President acts on an emergency measure his decision will
be communicated not only by carrier but also by cable.
This procedure would be used in order that in event of a veto the Congress
could receive as much notice as possible to permit it to act.
Respectfully,
Isl Herbert Brownell, Jr.
Attorney General
386
THE W HITE HOUSE
WASHINGTON
October 14, 1966
Dear Mr. President:
This will confirm arrangements made between you and members of my staff.
I am leaving on M onday to attend the important conference in Manila and to
visit some o f our friends in the Pacific and Southeast Asia. I expect to return to
Washington about November 2.
In view of the close scheduling and concentrated efforts required by this
mission, I think it preferable to defer until my return Presidential consideration
of all but the most urgent legislation completed by Congress prior to its
adjournment, so that each bill may receive the careful attention which it
deserves.
In line with the patterns developed by previous Presidents under similar
circumstances, I have issued instructions that bills received at the White House
while I am on this trip will be treated not as having been “ presented” to the
President in the Constitutional sense, but as having been received for
forwarding or for presentation upon my return. The bills received and the
receipts customarily given to the Congressional messengers during this period
will be stamped “ Received (date) The White House, for forwarding to the
President or for presentation to him on his return from abroad.”
Under this arrangement the ten-day period for Presidential consideration
provided in Article I, Section 7 of the Constitution will begin either upon my
return to the White House or when the bills are actually presented to me while I
am away.
Meanwhile, in order that every bill may receive full consideration at the earliest
practicable date, the Bureau of the Budget and the Executive departments and
agencies will proceed with their preparatory work on all bills as soon as such
bills are received at the W hite House.
The Acting Attorney General has reviewed and approved these procedures.
Sincerely,
/s/ Lyndon B. Johnson
Honorable Hubert H. Humphrey
President of the Senate
Washington, D.C.
387
THE SPEA K ER’S ROOMS
U .S. HOUSE OF REPRESENTATIVES
W ASHINGTON, D.C.
October 14, 1966
The President
The W hite House
W ashington, D.C.
Dear Mr. President:
I am in receipt o f your letter of October 14th in relation to the Bills that pass
both branches o f Congress and are received at the White House subsequent to
your leaving for your trip to the Philippines and other countries. So far as the
House of Representatives is concerned, when receipts are received from the
White House, similar entries to those stamped on the receipts will be made in
the House Journal and the Congressional Record.
With my very best wishes for a most successful and safe voyage abroad and
return, and with kind personal regards, I am, as always,
Very respectfully yours,
Is/ John W. M cCormack
388 |
|
Write a legal research memo on the following topic. | Constitutionality of State-Imposed Restrictions on Responses
to Census Questions
T h e S u p re m acy C lause o f th e C o n stitu tio n b ars a sta te from im posing restrictio n s on its
resid en ts’ responses to q u estio n s c o n ta in e d in cen su s form .
S p ecific lim ited g ran t o f p o w e r in th e C o n stitu tio n d o es not p re c lu d e C o n g ress from
e n a c tin g b ro a d e r cen su s legislation u n d e r th e N e ce ssa ry and P ro p e r C lause.
S ta tu to ry d eleg atio n to th e S e c re ta ry o f C o m m e rc e an d D ire c to r o f th e B ureau o f C ensus
is not excessive, c o n sid e rin g lo n g h isto ry o f cen su s legislation and p ractice, and census
fo rm s are w ith in th at deleg atio n .
February 22, 1980
M E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL,
D E PA R T M EN T O F COM M ERCE
This responds to the letter o f the Legal Adviser, Bureau of the
Census, seeking the opinion o f this Office on the constitutionality o f a
bill introduced into the Senate o f the State o f Arizona that would limit
census responses by residents o f A rizona to their name, address, and
age. It is our conclusion that such legislation, if enacted, would be
unconstitutional under the Suprem acy Clause o f the Constitution (Art.
VI, cl. 2) to the extent that it would purport to excuse residents of
Arizona from answering questions in the census form that are author
ized by federal law.
T he prim ary authority for the census form for the 1980 census is 13
U.S.C. 141(a), pursuant to which:
T he Secretary [of Com merce] shall, in the year 1980 and
every 10 years thereafter, take a decennial census o f popu
lation as o f the first day o f A pril o f such year, which date
shall be known as the “decennial census date,” in such
form and content as he may determ ine, including the use
o f sampling procedures and special surveys. In connection
with any such census, the Secretary is authorized to
obtain such other census inform ation as necessary.
Section 141(g) defines the term “census o f population” as a “census o f
population, housing, and m atters relating to population and housing.”
13 U.S.C. § 141(g). Section 5 o f title 13 gives the Secretary o f Com
416
merce general implementing authority,1 and the Joint Resolution o f
June 16, 1976, 90 Stat. 688, imposes on the Secretary o f Com m erce
special obligations to collect and publish statistics indicating the condi
tions o f Americans o f Spanish origin or descent and to develop credit
able estimates o f undercounting o f Am ericans of Spanish origin or
descent in future censuses.
Under A rticle VI, clause 2 o f the Constitution, state laws must yield
to federal laws and regulations if these federal authorities are made “in
pursuance” o f the Constitution. T he sponsors o f the A rizona legislation
seem to suggest that the census legislation conflicts with the C onstitu
tion o f the United States because A rticle I, § 2, clause 3 o f the C onstitu
tion provides only for the enum eration o f the population, and, hence,
that the Constitution does not permit the inclusion in the census o f any
additional questions. T he notion that a specific limited grant in the
Constitution precludes Congress from enacting broader statutes under
other powers granted to it in the C onstitution was rejected by the
Supreme C ourt m ore than a century ago w ith specific reference to the
census legislation. In the Legal Tender Cases, 79 U.S. (12 W all.) 457,
536 (1871), which involved the constitutionality o f the statutes making
paper money legal tender, the argum ent was made that because the
Constitution specifically authorized Congress to coin money and regu
late its value (Art. I, § 8, cl. 5), Congress did not have any other
powers in the m onetary field. T he C ourt held that under the Necessary
and Proper Clause (Art. I, § 8, cl. 18) Congress could enact legislation
in aid o f one or m ore express pow ers “even if there is another express
pow er given relating in part to the same subject but less extensive.” As
an example for this proposition, the C ourt stated:
T he Constitution orders an enum eration o f free persons in
the different States every ten years. T he direction extends
no further. Yet Congress has repeatedly directed an enu
meration not only o f free persons in the States but o f free
persons in the Territories, and not only an enum eration o f
persons but the collection o f statistics respecting age, sex,
and production. W ho questions the pow er to do this?
12 Wall, at 536.
W hile this approval o f the broad scope o f census questions in the
L egal Tender Cases was in the nature o f dictum , the C ircuit C ourt for
the Southern D istrict o f N ew York in United States v. Moriarity, 106 F.
886, 891-92 (1901) discussed the pertinent constitutional considerations
1 This section provides:
T h e Secretary (of C om m erce] shall prepare schedules, and shall determ ine the inquir
ies, and the number, form, and subdivisions thereof, fo r th e statistics, surveys, and
censuses provided for in this title.
A ug. 31. 1954, ch. 1158, § 5 , 68 Stat. 1013.
417
at length, and little can be added to this classic analysis. T he court
stated:
Respecting the suggestion that the pow er o f congress is
limited to a census o f the population, it should be noticed
that at stated periods congress is directed to make an
apportionm ent, and to take a census to furnish the neces
sary information therefor, and that certain representation
and taxation shall be related to that census. This does not
prohibit the gathering o f other statistics, if “necessary and
proper,” for the intelligent exercise o f other pow ers enu
m erated in the constitution, and in such case there could
be no objection to acquiring this information through the
same m achinery by w hich the population is enum erated,
especially as such course w ould favor econom y as well as
the convenience o f the governm ent and the citizens. . . .
It would be curious governm ental debility that should
incapacitate the nation from directing its census enum era
to r to ask an inhabitant concerning his business because
for certain purposes he was only to be counted, and
perhaps his gender ascertained. T he functions vested in
the national governm ent authorize the obtainm ent o f the
information dem anded by section 7 o f the census act, and
the exercise o f the right befits an exalted and progressive
sovereign power, enacting laws adapted to the needs of
the vast and varied interests o f the people, after acquiring
detailed know ledge thereof. . . . F or the national govern
ment to know something, if not everything, beyond the
fact that the population o f each state reaches a certain
limit, is apparent, w hen it is considered w hat is the de
pendence o f this population upon the intelligent action of
the general governm ent. Sanitation, immigration, natural
ization, the opening and developm ent o f the public
domain; the laying o f taxes, duties, imposts, and excises,
involving the adjustm ent o f duties for the purposes of
revenue to the dom estic products o f every kind, and the
taxation o f industries, . . . for these and similar purposes
the governm ent needs each item o f information demanded
by the census act, and such information, w hen obtained,
requires the most careful study, to the end that the fulfill
ment o f the governm ental function may be wise and
useful. . . . A governm ent whose successful maintenance
depends upon the education o f its citizens may not blindly
legislate, but may exercise the right to proclaim its com
mands, after careful and full know ledge o f the business
418
life o f its inhabitants, in all its intricacies and activities.
The dem urrer should be overruled.
In United States v. Rickenbacker, 309 F.2d 462, 463 (2d Cir. 1962),
cert, denied, 371 U.S. 962 (1963), also a case involving the validity of
the questions contained in the census form, the court, per then Circuit
Judge Thurgood Marshall, held:
T he authority to gather reliable statistical data reason
ably related to governmental purposes and functions is a
necessity if modern governm ent is to legislate intelligently
and effectively. United States v. Moriarity, 106 F. 886,
891-92 (C.C.S.D.N.Y. 1901). Cf. United States v. Sharrow,
309 F.2d 77 (2d Cir. 1962). The questions contained in the
household questionnaire related to im portant federal con
cerns, such as housing, labor, and health, and w ere not
unduly broad or sweeping in their scope.
The Supreme Court, in Wyman v. James, 400 U.S. 309, 321 (1971),
referred with approval to the holding in Rickenbacker concerning the
scope o f the census questions.
N or can it be said that 13 U.S.C. §§ 5 and 141(a) contain excessive
delegations o f statutory power, or that the census form, as prom ul
gated, goes beyond the scope o f the delegation. It is true that the
delegations contained in 13 U.S.C. § 5 and in the last sentence o f 13
U.S.C. § 141(a) are broad. It should be remembered, how ever, that
these statutes involve an area in which Congress has legislated since
1790, and which legislation and practice have crystallized into wellknown standards that guide the discretion o f the Secretary o f Com
merce and the D irector o f the Bureau o f the Census. Fahey Mallonee,
332 U.S. 245, 250 (1947); see Yakus v. United States 321 U.S. 414, 42425 (1944). Hence the district court properly held in United States v.
Little, 321 F. Supp. 388, 391 (D.Del. 1971):
Congress has in 13 U.S.C. §§5 and 141(a) described the
job to be done by the Secretary o f Com m erce and delin
eated the scope o f his authority, viz. to “take a census of
population unemployment, and housing (including utilities
and equipment).” 2 T he fact that there is a zone for the
exercise o f discretion by the Secretary in framing the
questions which will elicit the necessary statistical infor
mation within the scope o f the census to be undertaken
does not render the delegation invalid. Yakus v. United
States, 321 U.S. 414, 42 4 ^2 5 , 64 S. Ct. 660, 88 L. Ed. 834
(1944). F urther, in the absence o f a clear showing (which
has not been made in this case) that the Secretary’s
2 This quotation is based on the language o f 13 U.S.C. § 141(a) prior to its 1976 am endm ent.
419
exercise o f discretion was irrational, arbitrary or capri
cious, his actions will not be disturbed.
W e have examined the 1980 census form. T he questions asked appear
to be either within the scope o f the information traditionally asked in
census forms or within the mandate o f the Joint Resolution o f June 16,
1976. It is therefore our conclusion that 13 U.S.C. §§5 and 141(a), as
implemented by the 1980 census form, are valid laws o f the United
States made in pursuance o f the Constitution. M oreover, in view of the
statistical nature o f census operations, it is im perative that the census
questionnaire be answ ered uniformly throughout the United States.
State legislation that purports to excuse the inhabitants o f a state from
having to answ er some o f the questions contained in the census forms
would constitute “an obstacle to the accom plishm ent and execution of
the full purposes and objectives o f Congress.” Accordingly, the state
legislation must give way to the federal law. Hines v. Davidowitz, 312
U.S. 52, 67 (1941); Jones v. R ath Packing, 430 U.S. 519, 526 (1977).
L arry A. H am m ond
D eputy Assistant Attorney General
Office o f Legal Counsel
420 |
|
Write a legal research memo on the following topic. | The Constitutionality of Cooperative International Law
Enforcement Activities Under the Emoluments Clause
The Emolum ents Clause o f the Constitution does not bar a proposed cooperative maritime counter
narcotics operation, because the foreign naval personnel assisting U.S. law enforcement personnel
would not hold an “ Office of Profit or Trust” under the United States.
October 7, 1996
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 s s i s 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
This memorandum responds to your request for our advice on certain legal
issues raised by proposed bilateral executive agreements providing for cooperative
maritime counterdrug enforcement activities in the Caribbean. In particular, you
have asked whether the agreements would be impermissible under the Emoluments
Clause, Article I, Section 9, Clause 8 of the Constitution, and this opinion is con
fined to that question.
I.
You have explained that the United States has had discussions with several
European countries with interests in the Caribbean about possible executive agree
ments addressing maritime counterdrug enforcement activities in that region. You
have further explained the general structure of the proposed cooperative
“ shiprider” program that would be established under the terms of the agreements:
Each of the proposed agreements would have reciprocal provisions,
under which, pursuant to standing or ad hoc permission, duly au
thorized state vessels of each party would be able to enter the terri
torial sea of the other to take drug law enforcement action against
vessels not flying the flag of the coastal state, and against the per
sons on board them. Such law enforcement action could include
enforcement of the coastal state’s laws, (e.g., by seizing the vessel
and apprehending the persons, for subsequent turnover to the coast
al state’s enforcement authorities) or enforcement of the seizing
state’s laws (in which case the vessel and persons would be taken
out of the coastal state’s territorial of sea for prosecution in a terri
tory of the seizing state).1
1 M emorandum for Richard Shiffrin, Deputy Assistant A ttorney G eneral, Office of Legal Counsel, from Mark
M. Richard, Deputy Assistant Attorney G eneral, Criminal Division, Re: Request for Office o f Legal Counsel Views
on Proposed Reciprocal Maritime Counterdrug Agreements at 1 (May 31, 1996) ( “ Criminal Division Submission” ).
346
The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments
Clause
As an example, you have provided the text of a draft agreement between the
United States and the United Kingdom (acting on behalf of Bermuda, the British
Virgin Islands, and other islands) concerning maritime counterdrug operations in
the Caribbean (“ U.S.-U.K. Draft Agreement” or “ Agreement” ).2 The Agreement
provides that the parties “ shall continue to cooperate in combatting illicit maritime
drug traffic to the fullest extent possible.” 3 To that end, the parties agree to estab
lish a joint law enforcement “ shiprider” program. In relevant part, the Agreement
provides that the U.S. government may designate qualified Coast Guard officials
to act as shipriders who may:
a. embark on British law enforcement vessels;
b. authorize the pursuit, by the British law enforcement vessels on
which they are embarked, of suspect vessels and aircraft fleeing
into United States waters;
c. authorize the British law enforcement vessels on which they are
embarked to conduct counter-drug patrols in United States waters;
d. enforce the laws of the United States in United States waters,
or seaward therefrom, in the exercise of the right of hot pursuit
or otherwise in accordance with international law; and
e. authorize the British law enforcement vessels on which they are
embarked to assist in the enforcement of the laws of the United
States seaward of the territorial sea of Anguilla, Bermuda, the Cay
man Islands, Montserrat, and Turks and Caicos.4
The Agreement further provides that crew members of the British law enforce
ment vessel may assist in the search and seizure of property, detention of a person,
and use of force pursuant to the Agreement if expressly requested to do so by
the U.S. shiprider.
The provisions of the U.S.-U.K. Agreement are fully reciprocal; identical or
equivalent terms apply to create a shiprider program for the United Kingdom.
Congress has expressly authorized the President to enter into reciprocal maritime
agreements with other countries in order to promote international cooperation to
curtail drug traffic. See International Narcotics Control Act of 1992, Pub. L. No.
102-583, 106 Stat. 4914.
2 Agreement Between the Government o f the United States o f America and the Government o f the Kingdom o f
the United Kingdom o f Great Britain and Northern Ireland on behalf o f the Governments o f Anguilla, Bermuda,
the British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands, Concerning Maritime
Counter-Drug Operations in the Western Atlantic and Caribbean Areas (Attachment A to Criminal Division Submis
sion).
3 U.S.-U.K. Draft Agreement, article I.
4 U.S.-U.K. Draft Agreement, article 6.
347
Opinions o f the Office o f Legal Counsel in Volume 20
II.
The Emoluments Clause, U.S. Const, art. 1, §9, cl. 8, 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, Emolu
ment, Office, or Title, of any kind whatever, from any King, Prince,
or foreign State.
The Emoluments Clause was intended to protect foreign ministers, ambassadors,
and other officers of the United States from undue influence and corruption by
foreign governments. Governor Randolph explained the purposes underlying Arti
cle 1, Section 9, Clause 8 in the Virginia Ratification Convention. He stated that
it had been prompted by the gift of a snuff box by the King of France to Benjamin
Franklin, then Ambassador to France. It therefore “ was thought proper, in order
to exclude corruption and foreign influence, to prohibit any one in office from
receiving or holding any emoluments from foreign states.” 5
We understand that the question has arisen whether the U.S.-U.K. shiprider pro
gram violates the Emoluments Clause by authorizing U.K. naval personnel, under
instruction of the U.S. shiprider, to enforce U.S. law “ seaward of the territorial
sea of Anguilla, Bermuda, the Cayman Islands, Montserrat, and Turks and
Caicos.” 6 According to the Criminal Division Submission, see id. at 1-2, the
concern regarding the Emoluments Clause stems at least in part from a prior opin
ion of this Office that concluded that the Clause prevented foreign government
personnel— who receive pay from their own government — from being designated
U.S. federal law enforcement agents.7
We conclude that the U.K. naval personnel assisting U.S. law enforcement per
sonnel under the shiprider program do not hold an “ Office of Profit or Trust
under [the United States]” within the meaning of the Emoluments Clause, and,
thus, the Emoluments Clause presents no bar to the cooperative maritime
counterdrug operations as outlined in the Criminal Division Submission and the
U.S.-U.K. Draft Agreement. The U.K. naval personnel owe no duty of loyalty
to the United States that would be compromised by payment from the British
Royal Navy. Rather, they are, at all times, operating as members of the Royal
Navy, owing their duty to the Royal Navy, and participating in a cooperative
endeavor with the United States pursuant to the terms of an agreement executed
by their own government. If British personnel enforce U.S. law, it is merely deriv
ative of their duty to obey the dictates of the government of the United Kingdom.
5 3 The Records o f the Federal Convention o f 1787, at 327 (Max Farrand, ed., rev. ed. 1966) ( “ Farrand” ).
6 U.S.-U.K. Draft A greem ent, article 6.
7 See Authority o f Foreign Law Enforcement Agents to Carry Weapons in the United States, 12 Op. O.L.C. 67
(1988) ( “ 1988 O pinion” ).
348
The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments
Clause
Simply put, British pay could not undermine the “ undivided loyalty” 8 of the
British naval personnel to the United States because their ultimate loyalty is to
Britain, not the United States.
The Criminal Division Submission cites the 1988 Opinion of this Office, in
which we concluded that “ the Emoluments Clause precludes the designation of
foreign agents to enforce federal law in the absence of congressional consent.” 9
The 1988 Opinion concluded that “ [a]s a matter of general principle, anyone exer
cising law enforcement powers on behalf of the United States must be viewed
as holding an office of trust under the Emoluments Clause.” 10 We reject this
sweeping and unqualified view.
Until 1988, we had never interpreted the Emoluments Clause as applying to
persons entirely outside the federal government. To be sure, we concluded in 1982
that the Emoluments Clause applies more broadly than just to the “ offices” cov
ered by the Appointments Clause,11 and also reaches “ ‘lesser functionaries’ sub
ordinate to officers.” 12 But such “ ‘lesser functionaries’ subordinate to officers”
plainly are in the United States Government.
While we understand the concern behind the 1988 opinion — certain govern
mental functions are of such importance that their assignment to persons under
obligation to a foreign government may raise serious problems — we see no basis
for extending the Emoluments Clause to persons having no position or employ
ment in the United States Government.13 First, the expressed purpose for the
Emoluments Clause was to “ preserv[e] foreign Ministers & other officers of the
U.S. independent of external influence.” 14 This formulation supports the view
that the Emoluments Clause extends only to those, like foreign ministers, who
have positions in the Government of the United States. Second, the ordinary mean
ing of the term “ office” does not include assignments of duties to persons who
‘ Id. at 69.
9 Id. at 68.
i0Id. at 69.
*1See Application o f the Emoluments Clause o f the Constitution and the Foreign Gifis and Decorations Act, 6
Op. O.L.C. 156, 157-58 (1982).
12 See Application o f Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10
Op. O.L.C. 96, 98 (1986). The Appointments Clause applies only to persons (1) in a position o f employment (as
opposed to an independent contractor), (2) within the federal government (3) that carries significant authority. See
Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 2 1 0 11 (1995). The Emoluments Clause is not so limited. Most significantly, the Emoluments Clause applies regardless
of whether the person exercises “ significant authority.” See Application o f the Emoluments Clause o f the Constitution
and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) ( “ The problem o f divided loyalties
can arise at any level.” ).
13 In the same year we concluded that Civilian Aides to the Secretary o f the Army occupied an “ Office o f T rust”
and thus were covered by the Emoluments Clause. In contrast to the U.K. shipriders, however, there was no question
that, as a threshold matter, the Civilian Aides held an “ Office.” As the opinion explains, certain Army regulations
governed Civilian Aides, the Aides were chosen by the Secretary according to specified criteria, and they were
subject to security clearances and standards o f conduct. They served a “ term o f office” o f two years and enjoyed
the “ responsibilities and privileges” o f the position until formal “ separation action” was taken by the Secretary.
Memorandum for James H. Thessin, Assistant Legal Adviser for Management, United States Department o f State,
from John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re: Application o f the Emolu ments Clause to a Civilian Aide to the Secretary o f the Army at 3 (Aug. 29, 1988).
14 2 Farrand at 389.
349
Opinions o f the Office o f Legal Counsel in Volume 20
hold no positions in the government. In interpreting the term even outside the
context of the Constitution, the Supreme Court has stated that “ [a]n office is
a public station conferred by the appointment of government” and that “ [t]he
term embraces the idea of tenure, duration, emolument and duties fixed by
law.” >s
Assisting in the enforcement o f federal law does not, in itself, make a person
an officer for purposes of the Emoluments Clause. If so, all persons, including
state actors, who enforce federal law would be barred from accepting any “ emolu
ment’’ from a foreign government. Thus, for example, state governors, local offi
cers, and qui tam relators would be barred from accepting an appointment as an
instructor in certain foreign public universities.16 Such a limitation, however, is
not compelled by the text of the clause — in fact it is not even facially consistent
with the text— and would do nothing to further the purpose of the Clause.
Although the definition of an officer for the purpose of the Emoluments Clause
is more expansive than for the Appointments Clause, this Office has drawn a
distinction in the context of the Appointments Clause between individuals covered
by that Clause and individuals who exercise authority that is delegated by federal
law that is equally applicable to the Emoluments Clause. As we recently ex
plained:
It is a conceptual confusion to argue that federal laws delegating
authority to state officials create federal “ offices,” which are then
filled by (improperly appointed) state officials. Rather, the “ public
station, or employment’ ’ has been created by state law; the federal
statute simply adds federal authority to a pre-existing state office.
Accordingly, the substantiality of the delegated authority is immate
rial to the Appointments Clause conclusion. An analogous point ap
plies to delegations made to private individuals: the simple assign
ment of some duties under federal law, even significant ones, does
not by itself pose an Appointments Clause problem.17
Similarly, we believe it is a conceptual confusion to argue that delegating authority
to foreign officials creates federal “ offices,” which are then filled by (improperly
paid) foreign officials. Rather, the office held is a foreign, not a U.S. office; the
bilateral agreement merely adds additional authority to an existing foreign office.
>’ M etcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1926).
16 C f Applicability o f Emoluments Clause to Employment o f Government Employees by Foreign Public Univer
sities, 18 Op. O .L.C. 13 (1994) (concluding that foreign public universities are presumptively instrumentalities of
foreign States under the Emoluments Clause).
17 The Constitutional Separation o f Powers between the President and Congress, 20 Op. O.L.C. 124, 142 n 5 2
(1996) (expressly superseding inconsistent prior opinions o f this Office regarding the Appointments Clause).
350
The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments
Clause
The assignment of some duties under an international executive agreement, even
significant ones, does not by itself pose an Emoluments Clause problem.
CHRISTOPHER H. SCHROEDER
Acting Assistant Attorney G eneral
Office o f Legal Counsel
351 |
|
Write a legal research memo on the following topic. | Legal Authority of the Department of the Treasury to
Issue Regulations Indexing Capital Gains for Inflation
The Department of the Treasury does not have legal authority to index capital gains for inflation
by means of regulation.
September 1, 1992
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
Departm ent o f th e T r ea su ry
You have asked for our opinion whether the Department of the Treasury
(“Treasury”) has legal authority to amend its regulations to index capital
gains for inflation. In connection with that request, you have provided us
with your legal opinion concluding that Treasury does not have such author
ity. O p in io n o f the G eneral C ounsel (A ug. 28, 1992) (“T reasury
M emorandum”) In reaching that conclusion, you consider in detail, and spe
cifically reject, arguments presented by the National Chamber Foundation in
the form of a legal memorandum prepared by its private counsel, which
concludes that Treasury has such legal authority. See Memorandum for Dr.
Lawrence A. Hunter, Executive Vice President, National Chamber Founda
tion, by Charles J. Cooper, et al. (Aug. 17, 1992) (“NCF Memorandum”).
We have carefully reviewed the arguments set forth in the Treasury Memo
randum and the NCF Memorandum. As a result of that review, and of our
own research and analysis, we are compelled to agree with Treasury’s legal
conclusion that Treasury does not have legal authority to index capital gains
for inflation by means of regulation.1
I.
Section 1001(a) of the Internal Revenue Code (“Code”) provides that
“[t]he gain from the sale or other disposition of property shall be the excess
1 Were w e to disagree with your conclusion, and were Treasury to adopt a regulation o f the sort pro
posed by the N CF M emorandum, we expect that the regulation would be challenged in court. Accord
ingly, w e have consulted with the Department of Justice’s Tax Division, the litigating division that
w ould be responsible for defending any such indexing regulation. That division concurs fully in the
conclusions set forth herein.
136
of the amount realized therefrom over the adjusted basis provided in section
1011.” The general rule of section 1011(a) is that a property’s adjusted
basis is its “basis (determined under section 1012 . . .), adjusted as provided
in section 1016.” Section 1012 defines the basis o f property as generally
“the cost of such property.” Although the term “cost” is not further defined
in the Code, since the inception of the federal income tax system following
ratification of the Sixteenth Amendment in 1913, Treasury has consistently
interpreted the statutory term “cost” to mean price paid. Compare, e.g., T.D.
2090, 16 Treas. Dec. Int. Rev. 259, 273 (1914) (“The cost of property ac
quired . . . will be the actual price paid for it . . . .”), with 26 C.F.R. §
1.1012-l(a) (1992) (“The cost [of property] is the amount paid for such
property in cash or other property”). The current regulation dates from
1957. See T.D. 6265, 1957-2, 12 C.B. 463, 470.
The sole issue presented by your request is whether Treasury may, by
amending its regulations, reinterpret the statutory term “cost” to mean the
price paid as adjusted for inflation. The NCF Memorandum argues that
Treasury may do so. In making that argument, the Memorandum relies
heavily on analysis of the Supreme Court’s decision in Chevron U.S.A., Inc.
v. National Resources Defense Council, Inc., 467 U.S. 837 (1984).2 Chevron
announced a two-step rule for courts to follow when reviewing an agency’s
construction of a statute that it administers. The court must always first
examine “whether Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously ex
pressed intent o f Congress.” Id. at 842-43. If, however, “the statute is silent
or ambiguous with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction o f the
statute.” Id. at 843. As the Court noted in Chevron, “ ‘[t]he power o f an
administrative agency to administer a congressionally created . . . program
necessarily requires the formulation of policy and the making of rules to fill
any gap left, implicitly or explicitly, by Congress.’” Id. (quoting Morton v.
Ruiz, 415 U.S. 199, 231 (1974)). But any such “gap” must be created by
Congress: “assertions of ambiguity do not transform a clear statute into an
ambiguous provision.” United States v. James, 478 U.S. 597, 605 (1986).3
2 See NCF M emorandum at 1 (“We must stress at the outset that our analysis o f this question depends
heavily on the standard of judicial review that would apply to such a regulation [under Chevron]."); id.
at 12 (“The fram ew ork for analyzing the issue under study is provided by the Supreme Court’s land
mark Chevron decision.’’); id. at 21 (“In the terms of the Chevron doctrine, the question is w hether
Congress has . . . delegated authority to the Treasury to interpret the statute.” ); id. at 23 ("Accordingly,
the basic question under Chevron is whether the term ‘cost’ is amenable to a construction that takes
account o f inflation.”).
’ Two members of the Supreme Court have suggested that an agency construction should prevail if the
statute is merely “arguably ambiguous." See K M art Corp. v. Cartier, Inc., 486 U.S. 281, 293 n.4
(1988) (opinion of Kennedy, J., joined by White, J.). The N CF Memorandum's characterization o f the
“arguably am biguous” standard as the view of “the Court” in that case, id. at 22 n i l , however, is
plainly mistaken. Only two Justices embraced that view, and they expressly took issue with the refusal
o f four other members o f the Court to recognize the alleged ambiguity. See K. M art Corp., 486 U.S. at
293 n.4.
137
The NCF Memorandum’s central argument rests on the proposition that
“cost” is an ambiguous term. In essence, the Memorandum argues that
Congress, in using that word, left a “gap” in the statutory scheme to be
filled by Treasury in the exercise of its rulemaking power under the Code.
Specifically, the NCF Memorandum asserts that the “meaning of ‘cost’ is
sufficiently ambiguous to permit the exercise of administrative discretion”
to interpret cost in a manner that takes account of inflation, id. at 23, and
consequently that in light of Chevron, “a regulation indexing capital gains
for inflation should and would be upheld judicially as a valid exercise of the
Treasury’s interpretative discretion under the [Code],” id. at l.4
Chevron is a profound expression of principles that flow from the doc
trine o f separation o f powers. The decision recognizes the appropriate roles
o f each o f the three branches of government. Congress writes laws; the
executive branch interprets and enforces them. Congress may, however,
leave greater or lesser scope for Executive action. Thus, Congress often
leaves to the executive branch the task of filling in the gaps in the statutory
scheme through interpretation, and courts must then defer to the Executive’s
reasonable interpretations. As the Chevron Court explained:
4 Although we agree with the conclusion o f the NCF Memorandum that Chevron provides the frame
w ork for analyzing this issue, we note that there remains som e confusion in the case law on this point.
In C ottage Savings A ss'n v. Commissioner, 499 U.S. 554 (1991), the Supreme Court considered a
challenge to a Treasury regulation interpreting a provision o f the Code. The Court noted that Congress
had given Treasury the broad power “to prom ulgate ‘all needful rules and regulations for the enforcement
o f [the Internal Revenue C ode].’” Id. at 560 (quoting I.R.C. § 7805(a)). Based on that grant of authority,
the Court held that it “must defer to [Treasury’s] regulatory interpretations of the Code so long as they are
reasonable.” Id. at 560-61 (citing Mm'ona/ M uffler Dealers A ss'nv. United States, 440 U.S. 472,476-77
(1979)). T he C ourt made no reference to Chevron or its progeny.
W hatever the significance o f the Court’s failure in Cottage Savings to cite Chevron, we have found no
case that has expressly rejected application o f Chevron to regulations interpreting the Internal Revenue
C ode. Som e low er court cases apply the National M uffler standard without considering Chevron, see,
e.g., D avis v. United States, 972 F.2d 869 (1992), while others cite both cases without resolving any
supposed inconsistency between them, see, e.g., American Medical A ss'n v. United States, 887 F.2d
760, 770 (7th Cir. 1989). Two courts of appeals, however, expressly applied Chevron to interpretative
regulations under the Internal Revenue Code. See RJR Nabisco, Inc. v. United States, 955 F.2d 1457,
1464 (1 1th Cir. 1992); Peoples Federal Sav. & Loan Ass'n v. Commissioner, 948 F.2d 289, 299 (6th Cir.
1991). A third court of appeals noted the two different standards but declined to choose between them,
because on the facts o f the case, either standard would have compelled the same result. Pacific First
Fed. Sav. B ank v. Commissioner, 961 F.2d 800, 803 (9th Cir.) (noting, however, that much o f the
reasoning in P eoples F ederal was persuasive), cert, denied, 506 U.S. 873 (1992). Cf. Georgia Fed.
B ankv. Com m issioner, 98 T.C. 105,107-08,118 (1992) (rejecting Sixth Circuit’s conclusions in Peoples
Federal, but applying Chevron principles).
Even if we assum e that application o f the National M uffler test rather than the Chevron test can
produce different results in some cases, as applied here National Muffler would not alter our conclu
sion. The N ational M uffler standard requires that a regulation “harmoniz[e] with the plain language of
the statute, its origin, and its purpose.” 440 U.S. at 477. T his permits not a plenary review by the court,
but rather a determ ination whether the regulation is a “reasonable” interpretation of the statute. Id. at
476. Because the interpretation advanced in the NCF M emorandum is contrary to the plain language of
the statute, it would fail the National M uffler test as well as the Chevron test.
In addition, we note that the Treasury Memorandum cites several decisions in which the courts of
appeals have continued to apply — in the wake of Chevron — the traditional distinction between “leg
islative" and “ interpretive” regulations in determining how much deference is due Treasury’s interpre
tation o f the Code. Treasury Memorandum at 41-42. Under this regime, “legislative” regulations
generally are accorded greater deference than are "interpretive” regulations. We need not address the
issue o f Chevron's impact upon this traditional distinction here, because in either case the plain meaning of
the statute will control. We note, however, that the Supreme Court has not conclusively resolved this issue.
138
While agencies are not directly accountable to the people, the
Chief Executive is, and it is entirely appropriate for this po
litical branch of the Government to make such policy choices
— resolving the competing interests which Congress itself
either inadvertently did not resolve, or intentionally left to be
resolved by the agency charged with the administration o f the
statute in light of everyday realities.
467 U.S. at 865-66.
Chevron is thus a powerful analytical tool for the smooth administration
of complex statutes and for the defense of agency actions under such stat
utes. It is not, however, unlimited. Chevron also teaches that when Congress
writes legislation in specific terms, if it does not leave policy choices to be
resolved by an administrative agency, then Congress’s decision binds both
the executive branch and the judiciary. To repeat: “If the intent o f Congress
is clear, that is the end of the matter.” Id. at 842. In particular, Chevron
does not furnish blanket authority for the regulatory rewriting of statutes
whenever a dictionary gives more than a single definition for a statutory
term or whenever some arguably relevant discipline assigns a specialized,
technical meaning to such a term. Such a reading of Chevron would evis
cerate the well-established rule of construction that statutes must be accorded
their plain and commonly understood meaning.5 Indeed, it would lead to a
legal regime in which many statutory terms with widely understood mean
ings would be deemed “ambiguous.” In this regard, we fully concur in your
conclusion that “ [i]f the plain meaning doctrine could be applied only to
words that have only one conceivable meaning, it would have precious little
utility as a principle to resolve conflicting interpretations of statutes.” Trea
sury Memorandum at 7-8.6
’ This rule of construction, like Chevron itself, sounds in the separation o f powers under the C onstitu
tion and thus is an im portant limitation on judicial power. See In re Sinclair, 870 F.2d 1340, 1344 (7th
Cir. 1989) (Easterbrook, J.).
‘ Accordingly, courts have generally been reluctant to treat the meaning o f a single word or a short
phrase as other than a "pure question o f statutory construction" on which courts will not defer to agen
cies. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). Courts have rejected agency interpretations
o f such words or term s in favor of the courts' own reading of the statutory language. See, e.g., ConecuhMonroe Com m unity A ction A gency v. Bowen, 852 F.2d 581, 588-89 (D.C. Cir. 1988) (m eaning o f
“term inate” ); Telecommunications Research & Action Ctr. v. FCC, 836 F.2d 1349, 1357-58 (D.C. Cir.
1988) (meaning of “system of random selection”); Santa Fe Pac. R.R. v. Secretary o f Interior. 830 F.2d
1168, 1174-80 & n.91 (D.C. Cir. 1987) (meaning of “lieu selection . . . right” ).
Surprisingly, the N C F Memorandum nowhere discusses the plain meaning rule, despite its obvious
importance to the legal analysis. The omission is significant, because the methodology adopted by the
NCF M em orandum would undermine the rule. O f course, the availability o f two clearly inconsistent
and equally plausible alternative dictionary definitions can in some circumstances “indicated that the
statute is open to interpretation," National R.R. Passenger Corp. v. Boston <£ Me. Corp., 503 U.S. 407,
418 (1992), particularly if the overall statutory context of the provision at issue provides evidence that
the agency’s proffered interpretation is a reasonable one, id. Clearly, however, the m ere existence of
Continued
139
Chevron teaches that the inquiry into the meaning of a statutory term —
including whether that meaning is ambiguous — is to be conducted by “em
ploying traditional tools of statutory construction.” 467 U.S. at 843 n.9. See
also IN S v. Cardoza-Fonseca, 480 U.S. at 449 (using “ordinary canons of
statutory construction” to ascertain the meaning of statutory terms). These
tools and canons include examination of “the plain language of the Act, its
symmetry with [other relevant legal materials], and its legislative history.”
Id. Additionally, “ [i]n ascertaining the plain meaning o f the statute, the
court m ust look to . . . the language and design of the statute as a whole.” K
M art Corp., 486 U.S. at 291.
In reaching its ultimate conclusion that Treasury lacks the legal authority
to index capital gains for inflation, your opinion considers and rejects the
NCF M em orandum ’s arguments that the term “cost” is ambiguous. It con
cludes that “ [t]he statute itself has a plain meaning which is clear and
unambiguous: cost means the ‘actual price paid’ or ‘purchase price.’ ” Trea
sury M emorandum at 1. See also, e.g., id. at 4-8. As set forth below, we
also conclude that “cost” is not ambiguous in the context of determining
gain or loss from the disposition of property.
II.
A.
We must begin with what the Supreme Court has called a “fundamental
canon o f statutory construction” that “unless otherwise defined, words will
be interpreted as taking their ordinary, contemporary, common meaning.”
Perrin v. United States, 444 U.S. 37, 42 (1979). The fundamental canon, of
course, applies with full force to the tax laws. See, e.g., Crane v. Commis
sioner, 331 U.S. 1, 6 (1947) (“ [T]he words of statutes — including revenue
acts — should be interpreted where possible in their ordinary, everyday
senses.”); Old Colony Trust Co. v. Commissioner, 301 U.S. 379, 383 (1937)
(“The words of the statute are plain and should be accorded their usual
significance in the absence o f some dominant reason to the contrary.”);
‘ (....continued)
alternative dictionary definitions will not establish “ambiguity.” Were that so, the dictionary would be
com e an irresistible engine for destroying the plain meaning rule. In practice, o f course, the courts rely
on dictionary definitions to establish, rather than obscure, plain meaning. E.g., United States v. Rodgers,
4 66 U.S. 4 7 5 ,4 7 9 -8 0 (1 9 8 4 ) (rejecting “alternative definition” of term “jurisdiction” provided by dictio
nary in favor o f “ [t]he m ost natural, nontechnical reading” provided by same source). See also M allard v.
United Slates D istrict Court, 490 U S. 296 (1989), discussed infra. As we shall demonstrate, there is no
am biguity in the term “cost” in its statutory context.
The courts recognize that an “ambiguity” can properly be found only if there is a genuinely reason
ab le and relevant alternative reading of a term , not a merely possible or arguable alternative reading.
Only this past Term, for instance, the Suprem e Court found the meaning of the statutory phrase “person
entitled to com pensation” to be "plain,” Estate o f Cowart v. Nicklos Drilling Co., 505 U.S. 469, 478
(1992), despite the dissenting Justices’ argum ent that it could bear two distinct interpretations, id. at
500-02 (Blackm un, J., dissenting). See also United States v. James, 478 U.S. 597 (1986) (holding that
the provision o f the Flood Control Act creating immunity for “damage” was not ambiguous even though
that term m ight arguably refer only to dam age to property rather than, as ordinarily understood, to
dam age to both persons and property).
140
Helvering v. San Joaquin Fruit & Inv. Co., 297 U.S. 496, 499 (1936) (“Lan
guage used in tax statutes should be read in the ordinary and natural sense.”).7
Therefore, in order to determine whether “cost” is an ambiguous statutory
term, we must first attempt to ascertain the “ordinary, contemporary, com
mon meaning” of that term.
“Cost” first appears in the federal tax laws in the capital gains context in
the Revenue Act of 1918.8 The Supreme Court has explained that statutory
terms are best understood by reference to meanings common at the time of
their adoption. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617
(1987).9 Dictionaries that are roughly contemporaneous with the enactment
o f that Act define “cost” as the price paid for a thing or service. See, e.g.,
Webster’s New International Dictionary o f the English Language 509 (1917)
(“The amount or equivalent paid, or given, or charged, or engaged to be paid
or given for anything bought or taken in barter or service rendered . . . .”)
(emphasis added); 1 Bouvier Law Dictionary 689 (8th ed. 1914) (“The cost
of an article purchased for exportation is the price paid, with all incidental
charges paid at the place of exportation. Cost price is that actually paid for
goods.”) (citations omitted); 2 A New English Dictionary on Historical Prin
ciples 1034 (James A.H. Murray ed., New York, MacMillan & Co. 1893)
(“That which must be given or surrendered in order to acquire, produce,
accomplish, or maintain something; the price paid fo r a thing.”) (emphasis
added). More recent dictionaries give the same definition. See, e.g., Am eri
can Heritage Dictionary 301 (1976) (“An amount paid or required in payment
for a purchase.”); Black’s Law Dictionary 345 (6th ed. 1990) (“Expense;
7 In United States v. Leslie Salt Co., 350 U.S. 383 (1956), the Supreme Court unanimously rejected
Treasury’s “more recent ad hoc contention” as to how the statutory term “debenture” should be con
strued, in favor o f Treasury’s “prior longstanding and consistent administrative interpretation.” Id. at
396. Treasury’s traditional interpretation, the Court held, was more “in accord with the generally
understood meaning of the term ‘debentures.’ ‘The words of the statute [a stamp tax statute] are to be_
taken in the sense in which they will be understood by that public in which they are to take effect.'" Id.
at 397 (citations omitted; emphases added; brackets in original).
8The Revenue Act o f 1918 was actually enacted into law early in 1919. It provided in part: “T hat for
the purpose o f ascertaining the gain derived or loss sustained from the sale or other disposition o f
p ro p erty ,. . . the basis shall be . . . the cost thereof.” Act of Feb. 24, 1919, ch. 18, § 202(a)(2), 40 Stat.
1057, 1060.
Subsequent revenue acts, see infra note 16, adopted the formulation in effect today; in general, the
basis of property is “the cost of such property.” In 1939, Congress began the practice of codifying the
tax laws. The definition o f property’s basis as generally “the cost of such property” appears unchanged
in all three codifications. See Internal Revenue Code of 1939, ch. 2, § 113(a), 53 Stat. 1, 40; Internal
Revenue Code of 1954, ch. 736, § 1012, 68A Stat. 1, 296 (codified at I.R.C. § 1012); Internal Revenue
Code o f 1986, Pub. L. No. 99-514, § 2, 100 Stat. 2085, 2095 (reenacting in relevant part the Internal
Revenue Code of 1954).
*See also M olzo f v. United States, 502 U.S. 301, 307 (1992) (relying upon “ [l]egal dictionaries in
existence when the [Federal Tort Claims Act] was drafted and enacted” to ascertain the m eaning o f a
term used in that statute). Thus, although the meaning of the term “cost" has not changed in the 74
years since the enactm ent o f the Revenue Act of 1918, we refer to authority contemporaneous with the
first appearance o f “cost” in this context.
Indeed, the definition of “cost” has remained essentially unchanged since the publication o f the first
m odem English dictionary in 1755. In that year, Dr. Johnson defined “cost” principally as “ [t]he price
o f any thing.” 1 Sam uel Johnson, A D ictionary o f the English Language (1755) (G eorg Olm s
Verlagsbuchhandlung ed. 1968).
141
price. The sum or equivalent expended, paid or charged for something.”).
Indeed, the only dictionary cited in the NCF Memorandum also gives as the
primary meaning o f cost “the price paid to acquire, produce, accomplish, or
maintain anything.” NCF Memorandum at 24 (quoting Random House Dic
tionary o f the English Language 457 (2d ed. 1987)).
The NCF Memorandum’s analysis of this dictionary meaning is reveal
ing. The M emorandum first quotes the full definition: “ 1) the price paid to
acquire, produce, accomplish, or maintain anything . . . , 2) an outlay or
expenditure of money, time, labor, trouble, etc.: What will the cost be to
me?, 3) a sacrifice, loss or penalty: to work at the cost of one’s health.”
NFC M emorandum at 24. It then ignores the primary definition of cost —
“price paid” — in favor of the third, obviously figurative, definition of cost
as “loss” or “sacrifice.” 10 Id. To this, the Memorandum adds “expenditure”
generally, rather than “expenditure of money,” which is the relevant concept
when one is discussing the acquisition of property. The NCF Memorandum
thus takes a perfectly clear definition of cost as applied to financial matters
— price paid, or outlay or expenditure of money — and, without any discus
sion or further mention of that clear definition, seeks to obfuscate it."
The NCF Memorandum attempts to mix the figurative and literal mean
ings o f “cost” by asserting that “ [a]ny such ‘loss,’ ‘sacrifice,’ or ‘expenditure’
needs to be ascribed a monetary value in order to determine the [taxable]
gain realized” on the sale of an asset. Id. The Memorandum further asserts
that the monetary value of a loss, sacrifice, or expenditure could be mea
sured at other than the time it is incurred — at either the time of purchase
or the time of sale. The Memorandum concludes: “We can discern nothing
in the standard definition of ‘cost’ . . . suggesting that the historical ‘pur
chase price’ measurement of monetary value must be used in preference to a
m easurem ent that coincides with the sale of the asset.” Id. Finally, the
M emorandum asserts that when cost to the taxpayer is measured at the time
o f sale, it is legally appropriate to state cost in inflation-adjusted dollars to
reflect the real impact of the purchase and sale on the taxpayer’s buying
power. Id. at 25.
We disagree with this line o f reasoning on several levels. First, as re
flected in each of the dictionary definitions of “cost” set forth above, the
10 M oreover, after describing the third alternative dictionary definition of “cost” as “a standard defini
tion," the N C F M em orandum suggests later on the same page that it is “the" standard definition, imply
ing that the third definition is the only m eaning o f the term. NCF M emorandum at 24 (emphases
added). T hus, the prim ary dictionary definition o f “cost” is spirited away.
" T h e analysis set forth in the NCF Memorandum stands in marked contrast to the analysis employed
by the Suprem e Court in sim ilar circumstances. In M allard v. United States District Court, the Court
w as called on to interpret the word “request.” The Court first looked to “closest synonym s” in “every
day speech,” namely, “ask,” “petition,” and “entreat.” 490 U.S. at 301 (citing Webster's New Interna
tio n a l D ictionary 1929 (3d ed. 1981) and Black's Law D ictionary 1172 (5th ed. 1979)). Although the
C ourt acknow ledged that the dictionary gave other entries — “require” and “demand” — it found “little
reason to think that Congress did not intend ‘request’ to bear its most common meaning when it used the
w ord in [the statute]." Id. (emphasis added). Indeed, despite the potential alternate meanings of request,
the C ourt chose to give it “its ordinary and natural signification.” Id.; accord Perrin, 444 U.S. at 42.
142
first and most common meaning of the term is the price paid. “Price paid”
obviously does suggest an “historical ‘purchase price’ measurement of mon
etary value.” The primacy of this meaning is easily illustrated. If one were
asked “How much did your car cost?” a response simply that “the car cost
$10,000” would be considered truthful only if that amount were at least a
close approximation of the actual price paid at the time of purchase. In
contrast, a response based on some specialized meaning of the term “cost”
(such as cost expressed in inflation-adjusted dollars or net of trade-in value)
would be perceived as not responsive to the question. Indeed, such a re
sponse would be viewed as truthful only if the respondent were careful to
point out that he was using the term in other than its normal and plain
meaning. Clearly, then, a specialized use of “cost” is appropriate only with
the addition of some qualifying words signaling that the speaker is using the
term in a manner not contemplated by normal usage.12
Second, even assuming that it is appropriate to look to an alternative,
figurative definition to establish the ambiguity of a statutory term, the NCF
Memorandum’s argument on this point cuts sharply against its conclusion.
When monetary values are ascribed to terms such as “sacrifice” and “loss,”
such values are normally measured when made or expended. For example,
statements such as “I lost $5,000 on the stock market” and “I sacrificed
$10,000 to help my neighbor” require the listener to assume that the speaker
is talking about historical dollar “loss” or “sacrifice,” unless the speaker
makes clear that those terms are being used in some way other than their
ordinary meaning.13
Finally, even if the definitions of the term “cost” could be read to create
some ambiguity with respect to that term, the NCF Memorandum fails to
demonstrate the existence of any relevant ambiguity. That a particular term
has two plausible definitions does not support an agency determination that
rests on a third implausible definition. As shown above, none of the dictio
nary definitions of “cost” refers to “purchase price adjusted for inflation.” 14
l! An additional analytical flaw in the NCF M emorandum’s treatment o f the definition of the term
“cost” is its focus on the “cost to the taxpayer” rather than on the statutory phrase "cost o f such prop
erty” in section 1012 of the Code. The former phrase may be read to include a broader range o f costs
incurred by the ow ner in the course of ownership. For example, a statement of the “cost to X of owning
a car” might include, in addition to the purchase price, costs associated with maintenance o f the car,
insurance, taxes, etc. The statute however, refers to "cost o f . . . property." This phrase refers more
naturally to the original price paid for the property: “What did the car cost?”
1J O ther relevant statutory terms also provide support for our rejection o f the NCF M em orandum ’s
conclusion that “cost” as used in section 1012 may be read to refer to something other than “historical
cost.” In ordinary usage, the term “gain” would be thought to describe an increase m easured from one
point in time to another. Moreover, the term “basis” suggests that gain is measured from some fixed
baseline, rather than from a floating indicator of relative value.
14 A possible alternative argument not advanced in the NCF Memorandum would be that, although the
unambiguous meaning of “cost” is the original price paid, that definition is itself ambiguous in that it is
not specified whether the price is to be stated in nominal or inflation-adjusted dollars. This argum ent
suffers from several o f the same defects noted above with respect to the Memorandum’s attem pt to
discover ambiguity in the word “cost.” The common meaning of the term “price” requires that it be
stated in nominal dollars unless it is clear that the word is being used in some specialized sense. For
example, in everyday speech the question “What was the price of your home when you bought it?” calls
for an answer expressed in nominal dollars.
143
In addition to its argument based on the Random House Dictionary, the
NCF Memorandum argues that “standard economic analysis” should be taken
into account in determining the meaning of the term “cost.” Id. at 25. To
this end, the Memorandum looks to uses of “cost” in economics treatises to
establish the term ’s ambiguity. Id. For purposes of construing section 1012
o f the Code, however, the meaning to be given “cost” must be the “common
and ordinary” meaning of that word — not its purported meaning in the
jargon of economists. For example, the Tax Court has rejected arguments
that taxpayers should not be taxed on their nominal capital gain, but on their
“economic gain,” quoting Learned Hand’s statement that ‘“ [the] meaning [of
income] is to be gathered from the implicit assumptions of its use in com
mon speech.’ Thus, the meaning of income is not to be construed as an
economist might, but as a layperson might.” Hellermann v. Commissioner,
77 T.C. 1361, 1366 (1981) (quoting United States v. Oregon-Wash. R.R. &
Nav. Co., 251 F. 211, 212 (2d Cir. 1918)). In other words, “[t]he income tax
laws do not profess to embody perfect economic theory.” Weiss v. Wiener,
279 U.S. 333, 335 (1929). We must therefore reject the NCF Memorandum’s
attem pt to ascertain the meaning of cost under “standard economic analy
sis,” as well as its repeated invocations of “economic reality” or “principles”
of sophisticated economic analysis more generally, see, e.g., id. at 2, 8, 23-27,
68, 87, 88 n.47, in favor of the common and ordinary meaning of that term.15
E.
The drafters of the Revenue Act of 1918 had available, in addition to the
com m on and ordinary dictionary meanings of cost, Treasury’s contempora
neous regulatory definition of cost. This definition, embodied in published
Treasury Decisions, was “actual price paid.” See T.D. 2005, 16 Treas. Dec.
Int. Rev. I l l , 112 (1914), restated, T.D. 2090, 16 Treas. Dec. Int. Rev. 259,
272-73 (1914). This definition, adopted by Congress in the 1918 Act, certainly
also evidences the "ordinary, contemporary, common meaning” of cost.16
15The N C F M em orandum ’s contention that income from the sale of a capital asset can be determined
for purpose o f the Code only by taking inflation into account is similar to the legion of “tax protestor”
claim s that has so often been rejected by the courts. For example, in Stelly v. Commissioner, 804 F.2d
868, 869 (5th Cir. 1986), cert, denied, 48 0 U.S. 907 (1987), the taxpayers asserted that they were
entitled to a 13 percent downward adjustment in their interest income on the ground that their interest
incom e had been devalued by inflation T he Fifth Circuit ruled that there was “no basis in law or fact"
for the inflation adjustm ent and concluded that Treasury “properly characterized the [taxpayers’] argu
m ent as frivolous." Id. at 870.
“ The assertion in the NCF Memorandum that “there is nothing in the legislative history of the 1918
A ct indicating that these Treasury Decisions were being adopted,” id. at 36, is incorrect. As discussed
m ore fully below, the available legislative history from 1918 concerning this issue indicates that Con
gress did adopt T reasury’s interpretation w hen it wrote “cost” into the Revenue Act of 1918. During the
floor debate concerning a proposal to amend the 1918 legislation so as to virtually elim inate the effect
o f inflation on capital gains, it was explained that the capital gains provision of the Act was “ merely
enacting into law the rules and regulations now in force under the present statute.” 56 Cong. Rec.
10,349 (1918) (statem ent of Rep. Gamer) (em phasis added). See also Treasury M emorandum at 8-13.
T reasu ry ’s in terpretation o f “cost" has not substantially changed since 1914. See 26 C.F.R. §
Continued
144
That “cost” in the Code has this plain meaning has been recognized in
several court cases. For example, the Tax Court has stated that “there is no
statutory provision which allows for an upward adjustment to basis to reflect
inflation or loss of the purchasing power of the dollar.” Ruben v. Commis
sioner, 53 T.C.M. (CCH) 992, 994-95 (1987). The court also observed that
“ [s]ections 1011 and 1012 of the Internal Revenue Code provide the general
rule that a taxpayer’s basis in property shall be its cost. While it is true that
such [government] reports do provide evidence of inflation, basis in prop
erty is not affected by inflation.” Id. at 994 n.2.17
Similarly, in Crossland v. Commissioner, 35 T.C.M. (CCH) 262 (1976),
the taxpayers claimed an “inflation loss deduction” of ten percent of their
gross income. The court acknowledged that “[i]nflation is a fact” and that it
“affects every taxpayer to some extent,” but it nonetheless disallowed the
deduction: “Our tax structure is not set up to take into account the effects of
inflation. Tax liability depends on income figures computed in terms of
nominal dollars, without regard for inflation.” Id. at 262. In a passage that
is especially relevant, the court noted: “The problem of inflation has caused
several writers to explore the practicality of indexing; i.e., changing the tax
structure to adjust for price level changes in computing taxable income.
Although the suggestion might have merit, Congress has not seen fit to
consider it . . . .” Id. at 263 (footnote omitted).18
“ (....continued)
I.]0 1 2 -l(a ) (‘T h e cost [of property] is the amount paid for such property in cash or other property.”).
This definition was adopted in T.D. 6265, § 1.1012-1 (a), 1957-2, 12 C.B. 463, 470, and has not been
amended. Congress has repeatedly amended and reenacted the tax laws and has never disturbed T reasury’s
consistent interpretation o f cost. See Revenue Act of 1921, ch. 136, § 202(a), 42 Stat. 227, 229; Rev
enue Act of 1924, ch. 234, § 204(a), 43 Stat. 253, 258; Revenue Act of 1926, ch. 27, § 204(a), 44 Stat.
9, 14; Revenue Act o f 1928, ch. 852, § 113(a), 45 Stat. 791, 818; Revenue Act of 1932, ch. 209, §
113(a), 47 Stat. 169, 198; Revenue Act of 1934, ch. 277, § 113(a) 48 Stat. 680, 706; Revenue Act o f
1936, ch. 690, § 113(a), 49 Stat. 1648, 1682; Revenue Act of 1938, ch. 289, § 113(a), 52 Stat. 4 4 7 ,4 9 0 ;
Internal Revenue Code of 1939, ch. 2, § 113(a), 53 Stat. 1, 40; Internal Revenue Code o f 1954, ch. 736,
§ 1012, 68A Stat. 1, 296 (codified at I.R.C. § 1012); Internal Revenue Code of 1986, Pub. L. No. 99514, § 2, 100 Stat. 2085, 2095 (reenacting in relevant part the Internal Revenue Code o f 1954).
A court would likely deem significant Congress's repeated reenactment o f the tax laws without dis
turbing Treasury’s interpretation of “cost.” Cottage Savings, 499 U.S. at 560-62. Accord United States
V. Correll, 389 U.S. 299, 305-06 (1967); Helvering v. Winmill. 305 U.S. 79, 83 (1938). A court would
also likely attach significance to Congress's repeated consideration of and refusal to enact proposals
explicitly to index capital gains for inflation. See, e.g.. Bob Jones Univ. v. United States, 461 U.S. 574,
600-01 & n.25 (1983) (finding in Congress’s failure to enact any one of thirteen bills introduced to
overturn the Treasury’s interpretation o f section 501(c)(3) o f the Code additional support for the con
clusion that Congress acquiesced in that interpretation). For a recounting of these refusals, see infra
note 27.
"T h is key case is discussed by the NCF Memorandum only in a footnote, at the end o f a string cite, and
the Tax C ourt's quoted conclusion is mischaracterized as the court’s “refus[al], in the absence o f clear
statutory provisions to the contrary, to accept the taxpayer's construction of the [Internal Revenue Code]
over the Treasury’s contrary construction.” NCF Memorandum at 70n.39. As noted in the text, however,
the Ruben court’s conclusion rested expressly on its observation that there is no applicable “statutory
provision” perm itting an upward adjustment to basis to reflect inflation. The Ruben court viewed the
taxpayers’ argum ent to the contrary as so “frivolous" that it upheld the assessment of penalties against the
taxpayers in the form o f additional tax. 53 T.C.M. (CCH) at 996.
11 The same footnote in the NCF Memorandum that mischaracterizes Ruben m ischaracterizes Crossland
in the same way. The footnote also cites two other Tax Court cases. Neither of these cases turns upon
C o n tin u ed
145
Other courts have also interpreted the term “cost” as meaning nominal
purchase price. In Vandenberge v. Commissioner, 147 F.2d 167, 168 (5th
Cir.), cert, denied, 325 U.S. 875 (1945), the court stated: “Section 113(a) of
the Revenue Act o f 1938 provides that the unadjusted basis of property shall
be the cost of such property. The solution to the question raised is as simple
and clear as the language of the pivotal statute. The cost of the property was
the price paid to acquire it.” See also Hawke v. Commissioner, 35 B.T.A.
784, 789 (1937) (“We must assume that Congress used the term ‘cost’ in its
commonly understood meaning as the amount of money which a man pays
out in the acquisition of property.”), rev’d on other grounds, 109 F.2d 946
(9th Cir.), cert, denied, 311 U.S. 657 (1940).
C.
Another of the traditional tools of statutory construction is an examina
tion of “the language and design of the statute as a whole.” K Mart Corp.,
486 U.S. at 291. The NCF Memorandum appears to recognize this rule of
construction, but asserts flatly that there is nothing “in any other language of
the [Code] suggesting that the historical ‘purchase price’ measurement of
monetary value must be used in preference to a measurement that coincides
with the sale of the asset.” Id. at 24. That assertion is mistaken. Many
provisions of the Code that grant itemized deductions to individuals and
corporations are intelligible only if “cost” under section 1012 is measured at
the time an asset is purchased or at other times beside the time of sale.
To cite an important example, the deduction for depreciation is calculated
based on “the adjusted basis provided in section 1011, for the purpose of
determining the gain on the sale or other disposition of such property.” I.R.C.
§ 167(c). Under section 1011, of course, the adjusted basis of an asset is
determ ined by section 1012, which uses the term “cost.” Accordingly, the
cost o f an asset must be known in every year in which the taxpayer would
take a depreciation deduction. If Treasury reinterpreted cost to require that
cost be measured at the time o f the asset’s sale, as the NCF Memorandum
suggests it could, the taxpayer (and Treasury) would have no basis on which
to calculate the proper deduction. See Treasury Memorandum at 52-53.19
"(....co n tin u ed )
“T reasury’s . . . construction” o f the Code, as the M emorandum asserts. Gajewski v. Commissioner, 67
T.C. 181 (1976), a ff'd , 578 F.2d 1383 (8th Cif. 1978), held that the “ the statutory gold content of the
dollar is irrelevant for purposes of computing petitioner’s taxable income under the Code.” Id. at 195
(footnote om itted; em phasis added) 5/6/a v. Commissioner, 68 T.C. 422 (1977), a ff'd , 611 F.2d 1260
(9th Cir. 1980), held that the taxpayer w as “ not entitled to any adjustm ent in the gross incom e he
received because o f any decline in value o f the dollar with respect to gold or silver." Id. at 431. Nothing
in Sibla suggests that the holding was based on Treasury's interpretation of the Code, rather than on the
c o u rt’s ow n interpretation.
19M any other deductions and credits are also defined in terms of “adjusted basis” and would suffer
from the sam e problem . See I.R.C. §§ 42(d) (low income housing), 165(b) (losses), 166(b) (bad debts),
169(f)(1) (pollution control facilities), 171(b)(2) (bond premiums), and 612 (depletion). If cost for
som e purposes must be determined at the tim e of acquisition, or at least at the time the deduction or
credit is taken each year, while cost for purposes of calculating capital gains is to be determined at the
tim e that an asset is sold (as proposed by the NCF M emorandum), the Internal Revenue Code would
contradict itself. Such a forced contradiction would certainly undercut the reasonableness of any Trea
sury regulation indexing capital gains for inflation.
146
Other structural characteristics of the Code strongly support the conclu
sion that cost unambiguously means historical price paid, in nominal dollars
not adjusted for inflation. As indicated above, “adjusted basis” is important
in interpreting many provisions of the Code. The term appears in more than
a hundred sections. By reference to section 1012, section 1011 provides that
adjusted basis is generally the cost of property, “adjusted as provided in
section 1016.” I.R.C. § 1011(a). Section 1016 is entitled “Adjustments to
basis,” and it contains twenty-five separate items of adjustment.20 This list
of congressionally determined adjustments to cost does not include an infla
tion adjustment. Yet one would rationally expect that if Congress intended
to provide such an adjustment in the Code, the adjustment would appear in
section 1016 or in some other section of Part II of Subchapter O, entitled
“Basis Rules of General Application.” It is, at best, unlikely that Congress
would so carefully and precisely lay out the many mandatory and allowable
adjustments to cost and at the same time load (or authorize Treasury to load)
a very significant adjustment — for inflation — into the word “cost” itself.
Moreover, under the doctrine of expressio unius est exclusio alterius (“the
expression of one thing is the exclusion of another”), omissions in such
instances are to be deemed to reflect the intent of the legislature. Thus, in
TVA v. Hill, 437 U.S. 153 (1978), the Court ruled that TVA’s Tellico Dam
project was subject to Endangered Species Act requirements, reasoning that,
while Congress had included several “hardship” exemptions in the Act, none
was provided for federal agencies. The Court concluded that “under the
maxim expressio unius est exclusio alterius, we must presume that these
were the only ‘hardship cases’ Congress intended to exempt.” Id. at 188.
See also, e.g., United States v. Monsanto, 491 U.S. 600, 611 (1989) (inclu
sion o f forfeiture exemption in another chapter of the same legislation
“indicates . . . that Congress understood what it was doing in omitting such
an exemption” from the chapter at issue); Letter for George U. Cameal,
General Counsel, Federal Aviation Administration, from William H. Rehnquist,
Assistant Attorney General, Office of Legal Counsel, at 2 (Oct. 6, 1971); 2A
Norman J. Singer, Sutherland on Statutory Construction § 47.23, at 216-17
(5th ed. 1992). Because Congress has specified other adjustments to basis
but has not included an adjustment for inflation in the computation of capi
tal gains, it follows that Congress did not intend to permit indexing in the
capital gains context.
The force of this argument is even greater because Congress has, else
where in the Code, carefully and precisely set forth a number of adjustments
for inflation. Section 1(f), entitled “Adjustments in tax tables so that infla
tion will not result in tax increases,” requires Treasury every calendar year
to “increas[e] the minimum and maximum dollar amounts for each rate
bracket . . . by the cost-of-living adjustment for such calendar year,” which
“ Twenty-three of these are found in subsection (a)(l)-(9), (ll)-(24), and one each in subsections (c)
and (d).
147
adjustment is defined by reference to the Labor Department’s published Con
sum er Price Index for all-urban consumers. I.R.C. § 1(f)(2)(A), (3)-(5). At
least eight other dollar amounts specified in the Code are indexed for infla
tion by reference to section 1(0(3). Id. §§ 32(i) (earned income credit),
41(e)(5)(C) (research activity credit), 42(h)(6)(G) (low income housing credit),
63(c)(4) (standard deduction), 68(b)(2) (overall limitation on itemized de
ductions), 135(b)(2)(B) (income from U.S. savings bonds used to pay higher
education tuition and fees), 151(d)(4) (personal exemptions), and 513(h)(2)(C)
(distributions o f low cost articles by tax-exempt organizations). Section
1012, o f course, contains no comparable provision. Again, we would expect
that if Congress intended that asset costs be indexed for the calculation of
capital gains, it would have done so explicitly and in the same manner as
these many other indexing provisions.21
B.
In an attempt to find some basis in the statute to support its proposed
interpretation, the NCF Memorandum relies on the writings of certain tax
theorists for the proposition that a general purpose o f the tax code is to treat
similarly situated taxpayers alike (the principle of “horizontal equity”). Id.
at 8, 26. From this general purpose, the Memorandum argues that the term
“cost” should be read to mean inflation-adjusted cost in order to avoid the
inequity inherent in taxing real and inflationary gains at the same rate.
Although the principle of horizontal equity may be embodied as a general
purpose of the Code, that general purpose cannot be taken to provide a
statutory basis for indexing of capital gains. The Supreme Court has noted
the dangers of attempting to argue from a general statutory purpose to a
context-specific interpretation o f a particular statutory provision:
21 We note that the N CF Memorandum nowhere discusses the significance of section 1(0 of the Code
and the provisions that refer to it, even though it is clearly of legal significance that Congress has
provided for inflation-related indexation in some instances, but not in the case o f capital gains. The
N C F M em orandum attempts to explain away congressional failure to index asset costs in the same
m anner as tax brackets and other concepts in part because “the adverse effect o f inflation was am elio
rated by the general capital gains tax preference” (a lower effective tax rate on capital gains), which
“obviated the need and impetus, from 1921 until 1986, to establish a more accurate counter for infla
tion, such as indexation.” Id. at S3.
The argum ent, in fact, cuts against the N C F M em orandum 's conclusions. Accepting the argument on
its face, it is obvious that to the extent C ongress established a preference for capital gains in order to
reduce taxation o f gains that resulted m erely from inflation. Congress assumed that its tax laws other
w ise treated cost as nominal purchase price with no adjustment for inflation. Moreover, as your opinion
points out, Congress has consistently recognized that inflation introduces distortions into the calcula
tion o f capita] gains. Treasury Memorandum at 13-15. It appears, then, that Congress has consistently
m ade a deliberate policy choice not to index asset basis for inflation. As for the decision to repeal the
capital gains preference in 1986, it was not taken in ignorance of the special character o f investment in
capital assets, but with a conscious belief that the reduction in individual income tax rates would elim i
nate any need to accord preferential treatm ent to capital gains. Id. at IS. In any event, long-term
capital gains now enjoy a slightly preferential rate. See Omnibus Budget Reconciliation Act o f 1990,
Pub. L. No. 101-508, § 11101(c), 104 Stat. 1388, 1388-404 to 1388-405 (amending I.R.C. § l(j)).
148
[N]o legislation pursues its purposes at all costs. Deciding
what competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence of
legislative choice — and it frustrates rather than effectuates
legislative intent simplistically to assume that whatever fur
thers the statute’s primary objective must be the law.
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). See also Board o f
Governors v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986) (re
jecting agency’s use of the “plain purpose” of legislation to support regulatory
definitions not supported by the plain language of the statute).
Even more generally, the NCF Memorandum suggests that the Court has
deferred to agency interpretations of other terms that are “no more ambigu
ous than the terms at issue here.” Id. at 22 n.l 1. This approach to statutory
interpretation suffers from a glaring flaw: as the Supreme Court has recog
nized in determining whether deference is owed, the court “must look to the
particular statutory language at issue, as well as the language and design of
the statute as a whole.” K Mart Corp., 486 U.S. at 291. Accordingly, even
an identical term may be ambiguous in one context and not in another. For
example, in Helvering v. Reynolds, 313 U.S. 428 (1941) — relied upon in
the NCF Memorandum for the proposition that “acquisition” was found to
be ambiguous, see id. at 22 n.l 1 — the Court found the term ambiguous
only in the context presented. The Court noted that although the same term
might be “unambiguous . . . as respects other transactions,” 313 U.S. at 433
(citing Helvering v. San Joaquin Fruit & Inv. Co., 297 U.S. 496 (1936)), it
was in fact ambiguous in the context of remainder interests passing by be
quest, devise, or inheritance, id. In San Joaquin, on the other hand, the
Court, addressing real property acquired by lease with an option to buy,
relied on the “plain import” of the word “acquired,” because “acquired” was
not a term of art and “[l]anguage used in tax statutes should be read in the
ordinary and natural sense.” 297 U.S. at 499.
Moreover, the cases relied upon by the NCF Memorandum for this sug
gestion themselves rely on factors that, when applied to the present case,
undercut the Memorandum’s ultimate conclusions. The Memorandum’s re
liance in Cottage Savings, for example, appears to ignore the fact that the
Court, addressing the reasonableness of the agency’s interpretation, discussed
at length the fact that the long-standing agency interpretation had been left
undisturbed by Congress for many years, and stated that “Treasury regula
tions and interpretations long continued without substantial change, applying
to unamended or substantially reenacted statutes, are deemed to have re
ceived congressional approval and have the effect of law.” Cottage Savings,
499 U.S. at 561. Here, as the NCF Memorandum recognizes, “Treasury’s
consistent and long-standing interpretation of cost” has been “original cost.”
149
Id. at 77. See also INS v. Cardoza-Fonseca, 480 U.S. at 446 n.30 (“An
agency interpretation of a relevant provision which conflicts with the agency’s
earlier interpretation is ‘entitled to considerably less deference’ than a consis
tently held agency view.”) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).22
Finally, the NCF Memorandum cites two cases as support for the propo
sition that “ ‘cost’ or similar terms in other statutes have been construed to
permit, or even require, taking account of inflationary effects." Id. at 27
(emphasis added). That proposition is, o f course, largely irrelevant to under
standing the intent o f Congress in enacting the Internal Revenue Code. See,
e.g., Prussner v. United States, 896 F.2d 218, 228 (7th Cir. 1990) (en banc)
(pointing out that “ [different statutes passed by different Congresses often
do use the same words to mean different things”). In any event, at least one
o f the two cited cases simply offers no support for the Memorandum’s propo
sition. Amusement & Music Operators Ass'n v. Copyright Royalty Tribunal,
676 F.2d 1144 (7th Cir.), cert, denied, 459 U.S. 907 (1982), concerned a
statute that required the Copyright Royalty Tribunal to determine “reason
able copyright royalty rates.” 17 U.S.C. § 801(b)(1). The court noted that
the Tribunal had rejected an “individualized cost-based approach” and in
stead relied on factors “not related to cost.” 676 F.2d at 1148.23
Accordingly, we agree with your conclusion that the Internal Revenue
Code’s plain language and structure demonstrate that “cost” cannot be inter
preted to allow an adjustment for inflation.
III.
Under the Supreme Court’s jurisprudence, the plain meaning of the word
“cost” ends the inquiry:
The task o f resolving the dispute over the meaning of [the
statute] begins where all such inquiries must begin: with the
language of the statute itself. In this case it is also where the
inquiry should end, for where, as here, the statute’s language
is plain, “the sole function of the courts is to enforce it ac
cording to its terms.” The language before us expresses
C ongress’ intent . . . with sufficient precision so that reference
to legislative history . . . is hardly necessary.
22The C ourt's recent decision in Rust V’. Sullivan, 500 U.S. 173 (1991), which noted that an agency
interpretation is entitled to som e deference even if it represents a break with prior interpretations, id. at
186-88, did not alter this rule. Subsequent to Rust, the Court again stated the general rule that “the case
for judicial deference is less compelling with respect to agency positions that are inconsistent with
previously held view s.” P auley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1991).
23 Indeed, the statute specifically authorized the Tribunal “to make determinations concerning the ad
ju stm e n t of reasonable copyright royalty rates.” 17 U.S.C. § 801(b)(1) (emphasis added). Pursuant to
that authority the Tribunal allowed an inflation adjustment in 1987. In Chevron terms, the adjustm ent
w as “affirm atively supported by the language of the Act.” 676 F.2d at 1155. By contrast, in the case of
section 1012 o f the Internal Revenue C ode, Congress has provided only the definition of “basis" in
term s o f “co st,” while om itting any general grant of authority to make inflation-linked adjustm ents to
co st basis.
150
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (citations
omitted). Once it is determined as a textual matter that cost means “actual price
paid” in nominal dollars, resort to the legislative history is unnecessary.
As noted above, however, Chevron requires that the search for the m ean
ing of a statutory provision be conducted by “employing traditional tools of
statutory construction.” 467 U.S. at 843 n.9. These tools include the legis
lative history of the provision. See also Cardoza-Fonseca, 480 U.S. at 449.
Thus, even if we were to conclude that the plain language and the structure
of the Code did not provide a clear meaning for the term “cost” in section
1012, we would be compelled to search the legislative record of the Revenue
Act of 1918 to determine if that record could provide such meaning.24 Based
on our review of that record, we agree with your conclusion that “the con
temporaneous legislative history of the [Act] indicates that Congress intended
the word ‘cost’ to mean the price paid in nominal dollars not adjusted for
inflation.” Treasury Memorandum at 8 (capitalization omitted).
As we have noted above, Treasury’s pre-1918 regulatory definition of
cost was “actual price paid.” T.D. 2005, 16 Treas. Dec. Int. Rev. I l l , 112
(1914), restated, T.D. 2090, 16 Treas. Dec. Int. Rev. 259, 272-73 (1914).
Contrary to the assertion in the NCF Memorandum that “there is nothing in
the legislative history of the 1918 Act indicating that these Treasury D eci
sions were being adopted,” id. at 36, the legislative history concerning this
issue clearly indicates that Congress adopted Treasury’s interpretation when
it wrote “cost” into the Revenue Act of 1918. Indeed, it was explained
during floor debate concerning an amendment proposed by Representative
Hardy, intended in part to eliminate the effects of inflation on capital gains,
that the capital gains provision of the Act was “merely enacting into law the
rules and regulations now in force under the present statute.” 56 Cong. Rec.
10,349 (1918) (statement of Rep. Gamer) (emphasis added).
The NCF Memorandum, after extensively quoting from the debate sur
rounding Representative Hardy’s proposed amendment to the capital gains
provision of the Act, concedes that the legislative history “demonstrates that
at least certain members of Congress were aware of the effects o f inflation
on capital gains. It also can be argued to reflect an understanding o f Con
gress that a property’s basis referred to the acquisition cost o f the property.”
Id. at 44 (emphasis added).
" T h e NCF M emorandum suggests that the proper scope and significance o f legislative history is un
clear under Chevron. Id. at 31 n .l 5. To the contrary, we believe its relevance is quite clear. A court
undertakes a Chevron inquiry employing traditional tools of statutory construction, of which legislative
history is generally one See, e.g.. Chevron, 467 U.S. at 851-53, 862-64 (analyzing the legislative
history of the Clean Air Act); NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S.
112, 124-25 (1987) (analyzing the history of the Labor Management Relations Act). See also W agner
Seed Co. v. Bush, 946 F.2d 918, 920 (D.C. Cir. 1991) ( Chevron requires deference “when the statute,
viewed in light o f its legislative history and the traditional tools of statutory construction, is am bigu
ous.” ), cert, denied, 503 U.S. 970 (1992).
151
Indeed, Congress must have been extremely well aware of the problems of
inflation when it adopted the Act. In 1918, the year prior to the first statu
tory use of “cost” to define basis in the capital gains context, consumer
prices for all urban consumers increased by 18.0%. Economic Indicators
Handbook 224 (Damey ed. 1992).25 In the previous year, inflation was
nearly as high, at 17.4%, a dramatic rise from the 1% inflation rates in 1914
and 1915. Id.
In view o f this World War I-related inflation, it is not surprising that a
proposal intended to eliminate most of the effects of inflation on capital
gains was debated at the time. In moving to strike the basis provision out of
the Revenue Act entirely, Representative Hardy argued that the tax on gains
would be unfair because “a piece of property bought in 1913, if its exchange
value today is to be equal to its exchange value when it was bought, must
bring in dollars and cents something like two times what it cost.” 56 Cong.
Rec. at 10,349.26 See also id. (“ [If a] man today makes a sale of a tract of
land which he bought in 1913 at the prices then prevailing, and if he sold it
today at 100% apparent profit and reinvested the money he could not obtain
any more property now than he could have obtained in 1913 with the money
then paid for the same land.”).
While noting that “the reasoning of [Representative Hardy] would apply
to every conceivable source o f income,” not simply capital gains, id. at
10,350 (statement of Rep. Kitchin), opponents of the proposed amendment
emphasized that the section dealing with capital gains did not change cur
rent law. See id. (“This provision makes absolutely no change in existing
law ”) (statement of Rep. Kitchin). The opponents also explained how
current law operated. Representative Fordney thus stated that if a taxpayer
purchased property ten years ago and then sold it, the appropriate measure
of the gain would be “ [t]he difference between the price paid fo r it 10 years
ago and the price you sell it for today.” Id. at 10,351 (emphasis added).
Representative Kitchin, the Chairman of the House Ways and Means Com
mittee, further explained that “ [i]f you bought a ship in 1916 for $100,000
and sell it in 1918 at $200,000, or if you bought Bethlehem stock or United
States Steel Corporation stock in 1915, your income is the difference be
tween the purchase and selling price, and that is the only rule under which
you can administer the law.” Id. at 10,350-51. The hypotheticals posed by
Representatives Fordney and Kitchin are particularly revealing since the gains
described would, to a large degree, have been attributable to the dramatic
wartime inflation described above. No one at the time disputed these char
acterizations of current law, and the statements were consistent with the
earlier Treasury Decisions quoted above. Ultimately, Representative Hardy
withdrew his proposal to strike the basis provision and proposed an amendment
15 The 1918 Act was adopted in 1919. S ee supra note 8.
:s Representative Hardy was half right. Consumer prices had increased slightly more than 50% from
1913 to 1918, from an index o f 9.9 to an index of 15.1. Economic Indicators Handbook at 224.
152
that would measure capital gain only from the beginning of the year in which
the capital asset was sold. Id. at 10,351, 10,354. Congress was apparently
not persuaded to remedy the effects of inflation on income derived from
capital gains in this way, and the proposal was rejected. Id.
The NCF Memorandum attempts to deny the force of its own reading of
the legislative history by asserting that the 1918 Act’s legislative history
“simply does not speak directly and clearly to the ‘precise question at is
sue.’” Id. at 46-47 (quoting Chevron, 467 U.S. at 843 n.9). For the reasons
set forth above and in the Treasury Memorandum, we disagree. In any
event, as the NCF Memorandum recognizes, the legislative history is consis
tent with the ordinary meaning of the term “cost” as meaning historical
price paid, id. at 44, and clearly demonstrates that Congress legislated with
full knowledge of the effect of current law and of the impact of inflation on
capital gains.
For these reasons, we concur in your conclusion that the legislative record
evidences a clear congressional intent that “cost” be given its common and
ordinary meaning, that is, price paid in nominal dollars not adjusted for
inflation. Treasury Memorandum at 8-13.
IV.
The NCF Memorandum argues that Treasury’s adoption of a capital gains
indexing regulation is not foreclosed by Congress’s repeated reenactments
of the Internal Revenue Code with knowledge of Treasury’s interpretation of
“cost” to mean the actual price paid (the “reenactment” doctrine), or by
Congress’s rejection of statutory indexing proposals (the “acquiescence” doc
trine). See NCF Memorandum at 75-87. We have discussed these doctrines
only briefly, see supra note 16, because they have application only if Trea
sury has discretion under the statute to reinterpret “cost” — that is, only if
“cost” is ambiguous. In Parts II and III, we have demonstrated that it is not.
In places, however, the NCF Memorandum appears to make an affirma
tive argument in support of regulatory indexing of capital gains based on
recent votes of either the Senate or the House on legislative proposals to
index capital gains:
[W ]hile C ongress has not actually enacted a capital gains
indexing proposal, the legislative history o f C ongress’ con
sid eratio n o f such proposals reveals, if anything, that
C ongress fa vo rs the concept o f indexing capital gains.
Indeed, . . . indexation measures have passed in recent ses
sions of both the Senate and the House . . . .
Congress’ deliberations on the issue to date suggest that a ma
jority of both Houses would welcome a Treasury reinterpretation
of “cost” to take account of inflation.
153
NCF Memorandum at 84. See also id. at 3 (“[T]he legislative history of
C ongress’ consideration of such proposals reveals, if anything, that Congress
fa vo rs the concept of indexing capital gains.”). This reasoning is substan
tially flawed for several reasons.
First, as the Treasury Memorandum points out, although Congress has
repeatedly considered proposals explicitly to index capital gains for infla
tion, it has never enacted them. Id. at 15-18.27 It is a strange twist of logic
to conclude that because Congress has rejected a proposal many times, Con
gress therefore favors that proposal. Second, even assuming that a majority
o f both Houses would in fact be willing to enact such legislation, it by no
means follows that they would welcome an administrative agency’s decision
to bring about a similar outcome by regulatory action alone.
M ore fundamentally, the attitude of a majority of the members of the
current Congress is completely irrelevant to the question whether an agency’s
interpretation of existing law is or is not correct. Like the courts, the execu
tive branch must interpret the law as it finds it, not base its interpretations
on conjecture as to how Congress might act. Thus, although agencies must
follow the “will of Congress” in interpreting statutes, “[t]he ‘will of Con
gress’ we look to is not a will evolving from Session to Session, but a will
expressed and fixed in a particular enactment.” West Virginia Univ. Hosps.,
Inc. v. Casey, 499 U.S. 83, 101 n.7 (1991). Furthermore, it is an elementary
principle o f constitutional law that the policy preferences of individual mem
bers of Congress, even if they happen to comprise majorities of both Houses,
are legally meaningless until they crystallize into “bicameral passage fol
lowed by presentment to the President.” INS v. Chadha, 462 U.S. 919, 954-55
(1983). See also NCF Memorandum at 80 n.43.
The history of capital gains taxation also shows that Congress was aware
o f the effects o f inflation but chose to deal with them in a manner other than
indexation. The Revenue Act of 1918 did not distinguish between capital
and ordinary income for purposes of tax rates. In 1921, however, Congress
enacted the first preference for capital gains income. Compare Revenue Act
o f 1921, ch. 136, § 206(b), 42 Stat. 227, 233 (taxing capital gains at a
m aximum o f 12.5%) with id., § 211(a)(1), 42 Stat. at 233-35 (taxing ordi
nary income at rates as high as 65%). Your opinion concludes that “[o]ne of
the policy reasons most often cited for this preferential treatment was the
21 On at least four occasions since 1978, indexation legislation has been approved by either the Senate
or the H ouse, only to be rejected in conference. See Revenue Act of 1978, H.R. 13511, 95th Cong., 2d
Sess. § 404 (1978) (approved by House), rejected by H.R. Conf. Rep. No. 1800, 95th Cong., 2d Sess.
258 (1978); Tax Equity and Fiscal Responsibility Act of 1982, H.R. 4961, 97th Cong., 2d Sess. § 310A
(1982) (approved by Senate), rejected by H.R. Conf. Rep. No. 760, 97th Cong., 2d Sess. 478 (1982);
O m nibus Budget Reconciliation Act of 1989, H.R. 3299, 101st Cong., 1st Sess. § 11961 (1989) (ap
proved by House), rejected by H.R. Conf. Rep. No. 386, 101st Cong., 1st Sess. 664 (1989); Tax Fairness
and Econom ic G rowth Act o f 1992, H.R. 4210, 102d Cong., 2d Sess. § 2101 (1992) (approved by
H ouse), rejected by H R. Conf. Rep. No. 461, 102d Cong., 2d Sess. 356, 364 (1992).
154
desire to mitigate the impact of inflation on the taxation of capital gains.”
Treasury Memorandum at 13. See also id. n. l 6 (citing committee hearings
on the 1921 Act); NCF Memorandum at 48-49 & n.25 (same).
It is apparent that the draftsmen of the 1921 Act did not intend that
“cost” reflect an adjustment for inflation. In reenacting the tax laws, they
chose to mitigate the effects of inflation on capital assets by granting prefer
ential treatment to capital gains — not by indexing cost. This choice reflects
their understanding that without some special treatment, capital gains would
be peculiarly subject to the effects of inflation under the tax laws. Congress’s
decision to provide preferential treatment for capital gains assumed that the
Treasury’s regulatory interpretation of “cost” as “actual price paid” was valid
and would remain in effect.28
As recently as 1978, Congress was again faced with a choice in dealing
with the impact of inflation on the values of capital assets. In the course of
enacting the Revenue Act of 1978, the House adopted a provision expressly
indexing the basis of such assets. The Senate, on the other hand, rejected
this approach, choosing instead to increase the capital gains exclusion from
50% to 60%. The Finance Committee’s explanation for this choice is in
structive:
[A]n increased capital gains deduction will tend to offset the
effect of inflation by reducing the amount of gain which is
subject to tax. Thus, by increasing the deduction, taxable
gain should be reconciled more closely with real, rather than
merely inflationary gain. However, since the deduction is con
stant, unlike the automatic adjustments generally provided for
in various indexation proposals, it should not tend to exacer
bate inflationary increases.
S. Rep. No. 1263, 95th Cong., 2d Sess. 192 (1978). The bill as finally
enacted into law adopted the Senate’s version. Pub. L. No. 95-600, § 402(a),
92 Stat. 2763, 2867 (1978).
Whenever Congress has been faced with a choice of different methods for
dealing with the impact of inflation on capital gains, it has chosen some
means other than indexation. Indeed, it has specifically rejected indexation
in favor of the capital gains preference. This fact reflects both the under
standing that indexation was not allowed under the Code in the first place
and the intent o f Congress to keep it that way. We believe that Congress’s
“ The capital gains preference continued to be a major feature of the tax laws until 1986. Since the
enactm ent of the 19S4 Code, this preference was accomplished in part by allowing individual taxpayers
to exclude from gross income a substantial percentage of their capital gain income. See, e.g., 26 U.S.C.
§ 1202 (1982) (allowing individuals to dfduct 60% of their net capital gain from gross income). Sec
tion 1202 was repealed in 1986. Pub. L. No. 99-514, § 301(a), 100 Stat. 2085, 2216 (1986).
155
continued affirmation of an inflation-mitigating mechanism other than index
ation — specifically, preferential treatment — together with Treasury’s
consistent interpretation of “co st” as not allowing indexation, makes this a
particularly com pelling case for concluding that Congress has ratified
Treasury’s interpretation of the Code.29
V.
The NCF Memorandum advances two other arguments, both of which are
unavailing. First, the Memorandum attempts to show that “the Treasury has
historically taken a flexible view toward its own interpretation of basis and
cost.” Id. at 29. Yet the supposed instances of this “flexible” view are
mischaracterized.
The NCF Memorandum claims that because the 1918 Treasury regula
tions addressing the capital gains treatment of property acquired by gift
equated “cost” with fair market value of the property at the time of the gift,
cost “was completely divorced from concepts of historical or original cost.”
Id. at 38. This is mistaken; cost was clearly tied to the fair market value at
the time the asset was acquired by gift or bequest. Rather than altering the
time at which cost is calculated, as the Memorandum argues, the regulations
merely substituted an appropriate measure of value where the taxpayer in
question had not paid anything for the asset. See Hartley v. Commissioner,
295 U.S. 216, 219 (1935) (“T he use of the word cost does not preclude the
computation and assessment o f the taxable gains on the basis of the value of
property [at the time of acquisition] rather than its cost, where there is no
purchase by the taxpayer, and thus no cost at the controlling date.”).30 Simi
larly, although Congress subsequently rejected fair market value at the time
o f the gift in favor o f the donor’s original cosf, see Revenue Act of 1921, ch.
136, § 202(a)(2), 42 Stat. 227, 229, Congress never deviated from tying the
basis to original cost — the only question was whose original cost was
appropriate.
The NCF Memorandum also cites the treatment of depreciation and deple
tion in the 1918 regulations as an example o f Treasury’s flexibility in defining
cost. Id. at 40. Those regulations, however, reflected flexibility not in
defining “cost” but in determining what “property” the taxpayer owned. When
those regulations were challenged in United States v. Ludey, 274 U.S. 295
” There is evidence that when Congress eliminated the capita! gains preference in 1986, its decision not
to replace the preference w ith indexation was deliberate. As the NCF M emorandum points out, both the
T reasury’s public tax proposals in 1984 and the President’s proposals to the Congress in 1985 recom
m ended som e form o f indexation Id. at 57-58. Moreover, the problem o f inflation and the need to index
capital gains in the absence o f preferential treatment were the subject o f congressional hearings. See,
e.g.. Tax R eform A ct o f 1986, Part IV: H earings Before the Senate Comm, on Finance, 99th Cong., 2d
Sess. 61 (1986).
“ In any event, to reason from the treatm ent of gifts in 1918 that the indexation o f capital gains is
appropriate, the N CF Memorandum w ould have to demonstrate the legal propriety o f indexing the
value o f a gift from the date its cost is determined. T here i$, no suggestion that such an adjustm ent
w ould have been perm issible.
156
(1927), the Supreme Court observed that the depreciation allowance was
based on the theory that “by using up the [property], a gradual sale is made
of it,” and. thus “[t]he depreciation charged is the measure of the cost o f the
part which has been sold.” Id. at 301. See also id. at 302 (depletion charge
“represents the reduction in the mineral contents of the reserves from which
the product is taken”). The Court never deviated from its treatment o f cost
as a bearing on the price paid: “[t]he amount of the depreciation must be
deducted from the original cost of the whole [property] in order to deter
mine the cost of that disposed of in the final sale of properties.” Id. at 301
(emphasis added). See also Treasury Memorandum at 30 n.30. The NCF
Memorandum concedes as much: “the regulations provided that the origi
nal cost of property had to be adjusted downward for any depreciation or
depletion taken on the property by the taxpayer prior to its sale.” Id. at 40
(emphasis added). Nothing in the regulations suggested that the starting
point for this calculation was not original cost in nominal dollars.
Second, the NCF Memorandum reads Ludey as upholding “the Treasury’s
discretion to fill in gaps left by Congress in the [Code’s] capital gains provi
sions, specifically in the concept of ‘cost.’” NCF Memorandum at 66. That
reading is flawed in several respects. First, the Ludey Court did not rely on
the Commissioner’s regulatory interpretation; it instead held that “the rev
enue acts should be construed as requiring deductions for both depreciation
and depletion when determining the original cost of oil properties sold.”
274 U.S. at 300 (emphasis added). By its own terms, therefore, Ludey is hot
a decision that upholds agency discretion, but a decision in which the Court
construed the statute for itself. See also id. at 303-04 (rejecting the
Commissioner’s method for determining the appropriate deduction).
The Treasury regulations in question in Ludey did not fill in “gaps” in the
statutory term “cost;” rather, they reconciled two potentially contradictory
statutory provisions. Treasury’s interpretation of “cost” as requiring adjust
ments for depreciation was necessary to harmonize the statutory provision
taxing capital gains with the statutory provision granting annual deductions
for depreciation — that is, to prevent taxpayers from receiving tax benefits
twice. See id. at 301 (“Any other construction would permit a double deduc
tion for the loss of the same capital assets.”). The Court avoided this double
deduction based on indications in the statute that no such deduction was
intended.31 For example, the Court noted that Congress intended the allow
ance for depreciation to reflect a “gradual sale” of the property. Thus, the
“depreciation charged is the measure of the cost o f the part which has been
sold.” Id. at 301 (emphasis added). Similarly, the Court determined that
because depletion allowances were limited by statute to the amount of the
31 C f United States v. Skelly Oil Co., 394 U.S. 678, 695 (1969) (Stewart, J., dissenting) (“In prior
decisions [including Ludey) disallowing what truly were 'double deductions,' the Court has relied on
evident statutory indications, not just its own view of the equities, that Congress intended to preclude
the second deduction/’)-
157
capital invested, the deduction was meant “to be regarded as a return of
capital, not as a special bonus for enterprise and willingness to assume
risks.” Id. at 303.
In the case of indexing for purposes of determining capital gain, there is
no conflict in statutory provisions that indexing would resolve. Indeed, as
explained above, any interpretation that measures cost at the time of sale
rather than purchase would create a positive conflict with provisions allow
ing deductions for depreciation and other items.
VI.
For all the reasons set forth above, we conclude, as did the Treasury
Department, that the term “cost” as used in section 1012 is not ambiguous.32
TIMOTHY E. FLANIGAN
Assistant Attorney General
Office o f Legal Counsel
32 Because we conclude that in using the term "cost,” Congress has left no “gap” for Treasury to fill, no
further inquiry is appropriate. We need not address under step two of Chevron whether a proposed
Treasury regulation indexing capital gains for inflation would be a “reasonable” interpretation of sec
tion 1012 o f the Code. 467 U.S. at 844.
158 |
|
Write a legal research memo on the following topic. | Censorship of Transmission of
Trotzky Speech From Mexico
The Federal Communications Commission does not have statutory authority to censor the telephone
transmission from Mexico into the United States of a speech by Leon Trotzky.
February 8, 1937
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Reference is made to your request of this date that I investigate the possible
statutes relative to the proposed speech to be made tomorrow night in Mexico by
Leon Trotzky and transmitted from that place to New York City by telephone.
There do not seem to be any statutes applicable to the situation. Sections 137
and 155 of title 8, U.S. Code, relate to certain seditious utterances, but these
sections apply only to aliens. They provide for the exclusion of aliens known to
entertain certain views on political questions and for the arrest and deportation of
aliens who utter seditious statements after admission. They also provide for fine or
imprisonment of such aliens if, after such arrest and deportation or after exclusion,
they again attempt to enter the United States.
The Federal Communications Act gives no authority to the Federal Communications Commission to censor telephone communications. Section 326 of that Act,
which relates to censorship of radio communications, is significant. That section
reads:
Nothing in this chapter shall be understood or construed to give the
Commission the power of censorship over the radio communications
or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall
interfere with the right of free speech by means of radio communication. No person within the jurisdiction of the United States shall utter
any obscene, indecent, or profane language by means of radio communication.
47 U.S.C. ยง 326.
Section 33 of title 50, U.S. Code, makes it unlawful willfully to cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the
military or naval forces of the United States, or to obstruct the recruiting or
enlistment service of the United States to the injury of the service of the United
States, and section 34 of said title makes a conspiracy to violate the provisions of
section 33 unlawful; but these sections apply only when the United States is at
war.
47
Supplemental Opinions of the Office of Legal Counsel in Volume 1
The nearest approach to the subject of any statute that I have been able to find
is that of section 4 of title 18, U.S. Code, which provides:
Whoever incites, sets on foot, assists, or engages in any rebellion or
insurrection against the authority of the United States or the laws
thereof, or gives aid or comfort thereto, shall be imprisoned not more
than ten years or fined not more than $10,000, or both . . . .
(Emphasis supplied.)
If this section is applicable, those who assist in the transmission and delivery of
the speech in New York City would probably be guilty of violating it. I am of the
opinion, however, that it is not applicable to the present situation, as it is not
probable that the speech will incite to rebellion or insurrection.
There would seem to be a field here in which the privilege of free speech may
be abused, but apparently there is no present statute prohibiting such abuse. Until
such time as Congress shall see fit to enact legislation on the subject, it would
seem that the only remedy available is through diplomatic relations with the
country from which the abuse emanates.
GOLDEN W. BELL
Assistant Solicitor General
48 |
|
Write a legal research memo on the following topic. | June 14, 1979
79-41
MEMORANDUM OPINION FOR THE
COUNSEL TO THE PRESIDENT
Chairman of the Federal Home Loan Bank
Board—Reorganization Plan No. 3 of 1977 (5
U .S.C . App.)—Resignations—The President’s
Authority to Redesignate a Member as Chairman
This responds to the oral request of your Office for our views on the Pres
ident’s power to redesignate a member of the Federal Home Loan Bank
Board. The Board, established by Reorganization Plan No. 3 of 1947 (5
U.S.C. App.; see also 12 U.S.C. § 1437), consists of three members ap
pointed by the President by and with the advice and consent of the Senate.
On April 20, 1979, the Chairman tendered his resignation effective June
1, 1979. On May 1, 1979, the President accepted the resignation as Chair
man and as a member of the Board. In a letter dated June 1, 1979, he
notified the President that he had submitted his resignation only as Chair
man, but not as a member. However, he expressed his willingness to con
tinue to serve as Chairman until June 29, 1979, or until such earlier date as
his resignation as a member and Chairman would be tendered. By letter
dated June 6, 1979, the President noted that the letter of resignation of
April 20 had applied only to the position of Chairman and not to member
ship on the Board. The President thereupon redesignated the member as
Chairman of the Board until such time as his resignation as a member and
Chairman was tendered.
It is our opinion that the President was authorized to redesignate the
member as Chairman because he still was a member of the Board at that
time.
It is true that the President’s letter of May 1, 1979 stated that he ac
cepted the resignation as Chairman and member. But the resignation was
only as Chairman and not as a member. The President, of course, has the
power to remove a purely executive officer in the absence of a resignation.
Myers v. United States, 272 U.S. 52 (1926). However, in view of the bipar
tisan nature and the regulatory functions of the Board, it is questionable
248
whether the President has the same unrestricted power with respect to the
members of the Board. Humphrey’s Executor v. United States, 295 U.S.
602 (1935); Wiener v. United States, 357 U.S. 349 (1958). In any event, an
intent to remove the Chairman as a member of the Board would be incon
sistent with the highly complimentary and appreciative nature of the Presi
dent’s letter of May 1, 1979. The “ acceptance” of the resignation as a
member, therefore, was at most in the nature of a misunderstanding
without any legal effect and did not terminate membership on the Board.
Accordingly, the member was eligible to be redesignated as Chairman.
L arry A . H am m ond
Deputy Assistant Attorney General
Office o f Legal Counsel
249 |
|
Write a legal research memo on the following topic. | June 14, 1979
79-41
MEMORANDUM OPINION FOR THE
COUNSEL TO THE PRESIDENT
Chairman of the Federal Home Loan Bank
Board—Reorganization Plan No. 3 of 1977 (5
U .S.C . App.)—Resignations—The President’s
Authority to Redesignate a Member as Chairman
This responds to the oral request of your Office for our views on the Pres
ident’s power to redesignate a member of the Federal Home Loan Bank
Board. The Board, established by Reorganization Plan No. 3 of 1947 (5
U.S.C. App.; see also 12 U.S.C. § 1437), consists of three members ap
pointed by the President by and with the advice and consent of the Senate.
On April 20, 1979, the Chairman tendered his resignation effective June
1, 1979. On May 1, 1979, the President accepted the resignation as Chair
man and as a member of the Board. In a letter dated June 1, 1979, he
notified the President that he had submitted his resignation only as Chair
man, but not as a member. However, he expressed his willingness to con
tinue to serve as Chairman until June 29, 1979, or until such earlier date as
his resignation as a member and Chairman would be tendered. By letter
dated June 6, 1979, the President noted that the letter of resignation of
April 20 had applied only to the position of Chairman and not to member
ship on the Board. The President thereupon redesignated the member as
Chairman of the Board until such time as his resignation as a member and
Chairman was tendered.
It is our opinion that the President was authorized to redesignate the
member as Chairman because he still was a member of the Board at that
time.
It is true that the President’s letter of May 1, 1979 stated that he ac
cepted the resignation as Chairman and member. But the resignation was
only as Chairman and not as a member. The President, of course, has the
power to remove a purely executive officer in the absence of a resignation.
Myers v. United States, 272 U.S. 52 (1926). However, in view of the bipar
tisan nature and the regulatory functions of the Board, it is questionable
248
whether the President has the same unrestricted power with respect to the
members of the Board. Humphrey’s Executor v. United States, 295 U.S.
602 (1935); Wiener v. United States, 357 U.S. 349 (1958). In any event, an
intent to remove the Chairman as a member of the Board would be incon
sistent with the highly complimentary and appreciative nature of the Presi
dent’s letter of May 1, 1979. The “ acceptance” of the resignation as a
member, therefore, was at most in the nature of a misunderstanding
without any legal effect and did not terminate membership on the Board.
Accordingly, the member was eligible to be redesignated as Chairman.
L arry A . H am m ond
Deputy Assistant Attorney General
Office o f Legal Counsel
249 |
|
Write a legal research memo on the following topic. | June 14, 1979
79-41
MEMORANDUM OPINION FOR THE
COUNSEL TO THE PRESIDENT
Chairman of the Federal Home Loan Bank
Board—Reorganization Plan No. 3 of 1977 (5
U .S.C . App.)—Resignations—The President’s
Authority to Redesignate a Member as Chairman
This responds to the oral request of your Office for our views on the Pres
ident’s power to redesignate a member of the Federal Home Loan Bank
Board. The Board, established by Reorganization Plan No. 3 of 1947 (5
U.S.C. App.; see also 12 U.S.C. § 1437), consists of three members ap
pointed by the President by and with the advice and consent of the Senate.
On April 20, 1979, the Chairman tendered his resignation effective June
1, 1979. On May 1, 1979, the President accepted the resignation as Chair
man and as a member of the Board. In a letter dated June 1, 1979, he
notified the President that he had submitted his resignation only as Chair
man, but not as a member. However, he expressed his willingness to con
tinue to serve as Chairman until June 29, 1979, or until such earlier date as
his resignation as a member and Chairman would be tendered. By letter
dated June 6, 1979, the President noted that the letter of resignation of
April 20 had applied only to the position of Chairman and not to member
ship on the Board. The President thereupon redesignated the member as
Chairman of the Board until such time as his resignation as a member and
Chairman was tendered.
It is our opinion that the President was authorized to redesignate the
member as Chairman because he still was a member of the Board at that
time.
It is true that the President’s letter of May 1, 1979 stated that he ac
cepted the resignation as Chairman and member. But the resignation was
only as Chairman and not as a member. The President, of course, has the
power to remove a purely executive officer in the absence of a resignation.
Myers v. United States, 272 U.S. 52 (1926). However, in view of the bipar
tisan nature and the regulatory functions of the Board, it is questionable
248
whether the President has the same unrestricted power with respect to the
members of the Board. Humphrey’s Executor v. United States, 295 U.S.
602 (1935); Wiener v. United States, 357 U.S. 349 (1958). In any event, an
intent to remove the Chairman as a member of the Board would be incon
sistent with the highly complimentary and appreciative nature of the Presi
dent’s letter of May 1, 1979. The “ acceptance” of the resignation as a
member, therefore, was at most in the nature of a misunderstanding
without any legal effect and did not terminate membership on the Board.
Accordingly, the member was eligible to be redesignated as Chairman.
L arry A . H am m ond
Deputy Assistant Attorney General
Office o f Legal Counsel
249 |
|
Write a legal research memo on the following topic. | Applicability o f Executive Order No. 12674 to Personnel of
Regional Fishery Management Councils
The ap p ointed m em bers o f Regional Fishery M anagem ent C ouncils established under the M agnuson
Fishery C onservation and M anagem ent A ct and other personnel of those C ouncils are not executive
branch em ployees for purposes of E xecutive O rder No. 12674 and its im plem enting regulations,
and thus are not subject to that Order.
D ecem ber 9, 1993
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 C o m m er c e
This memorandum responds to your request1 for our opinion whether Executive
Order No. 12674, 3 C.F.R. 215 (1990) (“Order”), and the regulations implement
ing it apply to officials of the Regional Fishery Management Councils (“Councils”)
established under the Magnuson Fishery Conservation and Management Act, 16
U.S.C. §§ 1801-1882 (“Magnuson Act” or “FCMA”).2 The officials in question
are the Council members appointed by the Secretary of Commerce (“Secretary”)
and the Councils’ executive directors and administrative employees. We conclude
that, under the unusual statutory scheme of the Magnuson Act, appointed Council
members and the other Council personnel under consideration are not executive
branch “employees” subject to the Order.
I.
The Magnuson Act created eight Councils from regional groupings of coastal
States and gave them certain authority concerning ocean fisheries to the seaward of
their member States. See 16 U.S.C. § 1852(a). The Secretary appoints a majority
of the voting membership for three-year terms. Id. § 1852(a)-(b). The remaining
members, voting and nonvoting, are State and Federal officials who serve ex offi
cio. Id § 1852(b)-(c).3 The appointed Council members may be removed by the
Secretary only “for cause . . . if the Council concerned first recommends removal
1 S e e L etter fo r T im o th y E. Flanigan, A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, D epartm ent of
Ju stic e , from D epartm ent o f C om m erce (Ju ly 17, 1992) (“C om m erce L etter’ ).
2 T he O rd e r w as am en d ed by Exec O rd e r No. 12731, 3 C F.R 306 (1991), in respects not pertinent to
this discu ssio n . T h e O ffice o f G overnm ent E th ic s ’ regulations im plem enting the O rder took effect on F ebru
ary 3, 1993. S ee 57 Fed. Reg. 35,006 (1 9 9 2 ) (to be co d ified at 5 C .F R. pt. 2635).
1 T he Pacific C ouncil also h a s one n o n v o tin g m em ber appointed by, and serving at the pleasure of, the
G o v ern o r o f A laska 16 U S.C. § 1852(c)(2). W e understand from discussions w ith your staff that the term
“ m em b ers," as used in the C om m erce L etter, is lim ited to m em b ers of a C ouncil appointed by the Secretary.
C o n seq u en tly , w e have focused our analysis on this category. W e use the term “appointed” C ouncil m em
bers to d istin g u ish such m em b ers from th o se w h o serve ex officio'.
150
A pplica b ility o f Executive O rder N o 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils
by not less than two-thirds of the members who are voting members.”
Id.
§ 1852(b)(5).
Each Council has the authority to appoint an executive director and such other
administrative employees as the Secretary deems necessary. Id. § 1852(f)(1)- The
Secretary pays appointed Council members “the daily rate for GS-16 of the Gen
eral Schedule, when [such member is] engaged in the actual performance of duties
for [a] Council.” Id. § 1852(d).4 The Secretary also pays “appropriate compensa
tion” to the executive director and administrative employees. Id. § 1852(0(7).
The Administrator of General Services furnishes the Councils with such offices
and office supplies as any agency would receive. Id. § 1852(f)(4).
The Councils advise the Secretary in formulating fishery management plans
within their respective geographical areas. Id. § 1852(h). The management plans
must conform to national standards, id. § 1851, with respect to which the Secretary
has promulgated implementing guidelines. See 50 C.F.R. pt. 602 (1993). The
Councils generally are required to open their proceedings to the public and must
hold hearings to consider comments from interested persons during the develop
ment of management plans. 16 U.S.C. § 1852(h)(3). After a management plan is
prepared by a Council, it is submitted to the Secretary, who reviews it and either
approves, disapproves, or partially disapproves it. Id. § 1854(a), (b). If a Council
fails to develop and submit a management plan, or fails to change a plan that the
Secretary has partially or completely disapproved, the Secretary may prepare a
management plan for that region. Id. § 1854(c). However, “the Secretary may not
include in any fishery management plan, or any amendment to any such plan, pre
pared by him, a provision establishing a limited access system [with respect to a
fishery] . . . unless such system is first approved by a majority of the voting mem
bers, present and voting, of each appropriate Council.” Id. § 1854(c)(3). After a
management plan has been prepared or approved by the Secretary, the Secretary
promulgates implementing regulations. Id. § 1855(a). The Secretary is responsi
ble for the enforcement of the FCMA and implementing regulations. See id.
§§ 1858,1861.
In the words of the FCMA’s principal sponsor, Senator Warren G. Magnuson,
the Councils
are unique among institutions that manage natural resources. They
are neither state nor federal in character, although they possess
qualities of each. Their powers are derived from the constitutional
authority of the federal government, yet the Councils are self
determinant in their own affairs. Enforcement and administration of
the Councils’ plans and regulations are carried out by the responsi
ble federal agencies.
4
The G S-16 level in the G eneral Schedule no longer exists
378 (1992).
151
See Exec. O rder N o 12786, 3 C F R 376,
Opinions o f th e O ffice o f L egal Counsel
*
*
*
Although the Councils are to be relatively independent, each Coun
cil must operate within the uniform standards promulgated by the
Secretary of Commerce that govern the administration of the Act.
The principal function of the Councils is to formulate fishery man
agement plans upon which management and conservation regula
tions are to be based.
Warren G. Magnuson, The Fishery Conservation and Management Act o f 1976:
First Step Toward Improved Management o f Marine Fisheries, 52 Wash. L. Rev.
427,436-37 (1977).
II.
The Order’s preamble recites that it is intended to set forth “standards of ethical
conduct for all executive branch employees.”5 The term “employee” is defined
only as follows: “any officer or employee of an agency, including a special Gov
ernment employee.” Id. § 503(b).6 An “agency” means any “executive department
. . ., Government corporation . . ., or an independent establishment in the executive
branch,” as those terms are defined in 5 U.S.C. §§ 101, 103, and 104. Id. § 503(c).
A “Special Government employee” is “as defined in 18 U.S.C. 202(a).” Id.
§ 503(e).7
The Commerce Letter concludes that the Order and its implementing regulations
do not apply to appointed Council members and staff. It reasons that because the
authority for prescribing regulations governing standards of conduct is derived
from 5 U.S.C. § 7301,8 the definitions of “officer” and “employee” in title 5 should
determine whether the Order applies to the Councils.9 The Commerce Letter fur
3 T h e O rd e r su p ersed es E xec. O rder No 11222 S ee 56 Fed. R eg 3 3 ,7 7 8 ,3 3 ,7 7 8 (1 9 9 1 )
6 A s the C o m m erce L etter notes, the term s ' ‘o fficer” and “‘e m p loyee” do not receive any further definition,
thus m aking the O rd e r s d efin itio n o f “e m p lo y ee” partly circular
7 S ection 202(a) o f title 18 defines a ' “sp ecial G overnm ent em p loyee” in part as any.
o ffice r or em p lo y ee o f the executive . . . branch
w ho is retained, designated, appointed, or
em p lo y ed to p erform , w ith or without co m p en satio n , fo r not to exceed one hundred and thirty
days d u rin g any period o f three hundred and sixty-five co n secutive days, tem porary duties either
o n a full-tim e o r in term itten t basis.
8 5 U S C. § 7301 p rovides that “(t]he P resid en t m ay prescribe regulations for the conduct of e m ployees in
the e x ecu tiv e b ran ch .”
9 A n ‘‘o ffice r” under 5 U .S C § 2104 is:
[A ]n individual w ho is —
(1) required by law to be appointed m the civil service by one o f the following acting in an o ffi
cial cap a c ity —
(A ) the President;
(B ) a court o f the U nited States;
(C ) the head o f an Executive ag en cy , or
(D ) the Secretary o f a military d ep artm en t,
152
A p plicability o f E xecutive O rder No. 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils
ther argues, in reliance on a 1976 opinion of the Acting General Counsel of the
former United States Civil Service Commission,10 that “Council staffs and mem
bers are not Federal employees for the purposes of 5 U.S.C. § 2105 because al
though the public members of the Councils are appointed by a Federal official
(namely the Secretary of Commerce) and Council members perform a Federal
function authorized by statute (e.g., preparing fishery management plans), there [is]
no supervisory relationship between the Secretary of Commerce and the Councils
within the meaning of section 2105(a)(3).” Commerce Letter at 5."
III.
We accept the premise of the Commerce Letter that the terms “officer” and
“employee,” as used in § 503(b) of the Order, are identical in scope and meaning
with the terms “officer” and “employee” as used in 5 U.S.C. §§ 2104 and 2105.
We further believe that, as those terms are used in 5 U.S.C. §§ 2104 and 2105, they
do not reach the appointed Council members.
A.
Three considerations point to the conclusion that the terms “officer” and
“employee” in the Order have the same meaning as those terms in 5 U.S.C. §§
2104 and 2105. First, in the absence of any definition of “employee” in the crimi
nal conflict-of-interest statutes applicable to Federal employees in title 18, we have
generally assumed that the term “was no doubt intended to contemplate an employer-employee relationship as that term is understood in other areas of the law,”
(2) engaged in the perform ance o f a Federal function under authority o f law or an Executive act,
and
(3) subject to the supervision o f an authority nam ed by paragraph ( i ) o f this section, or the J u d i
cial C onference o f the U nited States, w hile engaged in the perform ance o f the duties o f his office
An “em ployee" u n d er 5 U S.C § 2105 is
[A ]n officer an d an individual w ho is —
(1) appointed in the civil service by one o f the follow ing acting in an official capacity—
(A ) the President,
(B) a M em ber or M em bers o f C ongress, or the C ongress,
(C) a m em ber o f a uniform ed service,
(D ) an individual w ho is an em ployee under this section;
(E) the head o f a G overnm ent controlled corporation, or
(F ) an adjutant general designated by the Secretary concerned under section 709(c) o f title
32,
(2) engaged in the perform ance o f a Federal function under authority o f law or an E xecutive act,
and
(3) subject to the supervision o f an individual nam ed by paragraph (1) o f this subsection w hile
engaged in the perform ance o f the duties o f his position.
10
L etter for Joseph E K asputys, A ssistant Secretary for A dm inistration, D epartm ent o f C om m erce, from
Joseph B Scott, A cting G eneral C ounsel, C ivil Service C om m ission (A ug 3, 1976) ( '‘C SC O pinion” )
1 The C om m erce Letter does not specifically address the possibility that appointed C ouncil m em bers
might be w ithin title 5 ’s definition o f an “officer.” H ow ever, § 2 105’s definition o f an “e m ployee” explicitly
extends to “o fficers." In contending that appointed C ouncil m em bers are not “em ployees,” th erefore, the
C om m erce Letter im pliedly excludes their being “officers ”
153
Opinions o f th e O ffice o f L egal C ounsel
and in particular have turned to 5 U.S.C. § 2105 as providing “the most obvious
source of a definition” for title 18 purposes. See Conflict o f Interest — Status o f an
Informal Presidential A dvisor as a “Special Government E m ployee” 1 Op. O.L.C.
20, 20 (1977).12 Because the objectives of the Order and its implementing regula
tions are closely related to those of the conflicts statutes, we think it reasonable to
look to title 5’s definition of “employee” when elucidating the Order. Cf. Northcross v. Board ofE duc., 412 U.S. 427, 428 (1973) (similarity of language and pur
pose in different statutes suggests that they be construed similarly).13
Second, although the Order does not expressly adopt title 5 ’s definition of an
“employee,” it does adopt that title’s definition of an “agency.” See Order § 503(c)
(“‘Agency’ means any executive agency as defined in 5 U.S.C. 105 . . . .”). We
think it unlikely that the Order was intended to cover personnel who were em
ployed by “agencies” within the meaning of title 5 but who were not themselves
“employees” within the same title.
Third, although the Order’s preamble locates the President’s authority to issue
the Order in “the Constitution and laws of the United States” without specifying
any particular statutory provision, we agree with the Commerce Letter that the
most obvious statutory source of authority for the Order is 5 U.S.C. § 7301. That
section states that the President “may prescribe regulations for the conduct of em
ployees in the executive branch,” 5 U.S.C. § 7301, and is a general statutory source
of authority for Presidential regulation of executive branch personnel. See N a t’l
A ss’n o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5 (1974); Crandon v.
United States, 494 U.S. 152, 183 (1990) (Scalia, J., concurring in the judgment)
(Executive Order No. 11222 was issued “under the President’s authority and pur
suant to 5 U.S.C. § 7301”). Because the section occurs in title 5, its interpretation
is governed by the definition of an “employee” in § 2105 of the same title.14 To
the extent that the Order rests upon § 7301, therefore, its coverage must be limited
to the class of employees within § 2105.
12 S e e a lso M em o ran d u m for Irving P. M arg u lies, D eputy G eneral C ounsel, D epartm ent of C om m erce,
from T h eo d o re B. O lson, A ssistant Attorney G eneral, O ffice o f Legal C ounsel, Re: P re sid e n t's P rivate S e c
to r S u r v e y on C o st C o n tro l at 10 (Dec 15, 1982) (“the Title 5 definition o f em ployee is frequently used as a
starting p o in t for any analysis o f whether th e conflict o f in terest laws apply to a p articular individual . .
alth o u g h the T itle [5] d efin itio n is not necessarily conclusive fo r conflicts purposes” ).
13 T h e O rd e r ex p ressly covers both regular and special G o v ern m ent em ployees o f an agency See O rder §
5 0 3 (b ) A n in d iv id u a l’s status as a special (a s distinct from re g u la r) G overnm ent em ployee turns on w hether
the app o in tm en t is fo r no m ore than 130 d a y s out o f any c o n secu tive 365 days. See R estrictions on a F ed
e ra l A p p o in te e 's C o n tin u ed Em ploym ent b y a P rivate Law F irm , 7 O p O L.C. 123, 126 (1983). W e have
ap p lied the e lem en ts o f title 5 ’s definition o f “ e m p lo y ee” lo b o th regular and special G overnm ent em ployees.
S e e 1 O p. O L C at 21, F ed era l Advisory C o m m ittee A c t (5 U .S C. App. I) — U nited S ta tes-Japan C onsulta
tiv e G ro u p on E c o n o m ic R elations, 3 Op O .L C 321, 322-23 (1979).
14 S ectio n 2105 sp ecifies that its definition applies g enerally in title 5, “except as otherw ise provided by
this sec tio n o r w hen sp ecifically modified.*’ Section 7301 d o es not undertake to m odify § 2 1 0 5 ’s definition
o f an “e m p lo y e e,” and thus does not fall w ith in this exception
154
A pplicability’ o f Executive O rder No. 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils
B.
Assuming then that the Order applies only to “employees” within the meaning
of § 2105, an appointed Council member would have to meet each of the three
tests in § 2105 to be deemed a covered “employee.” He or she would have to be
(1) “appointed” by an appropriate official, (2) engaged in the performance of a
Federal function, and (3) subject to the supervision of an appropriate Federal offi
cer or employee. See Horner v. Acosta, 803 F.2d 687, 691-92 (Fed. Cir. 1986)
(collecting cases); Costner v. United States , 665 F.2d 1016, 1019-20 (Ct. Cl.
1981).
It is not disputed that appointed Council members satisfy the first two of these
tests. The Commerce Letter contends, however, that the third test is not met. In its
view, because these Council members are not subject to the supervision of the Sec
retary, they are not “employees” within § 2105 or the Order. We agree that the
third test is not met.
We begin by considering the text of the Magnuson Act. As we have observed,
“[t]he FCMA ‘adopts a somewhat convoluted scheme to achieve its purposes of
conservation and management of fishery resources.’” Litigating Authority o f the
Regional Fishery Management Councils, 4B Op. O.L.C. 778, 778 (1980) (quoting
Washington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979),
rev ’d on other grounds, 645 F.2d 684 (9th Cir. 1981)) (“Litigating Authority”).15
Two features of the Act in particular demonstrate that Congress did not intend ap
pointed Council members to be “subject to the supervision o f ’ the Secretary within
the meaning of § 2105. First, the Secretary’s removal power as to an appointed
Council member cannot be exercised except upon the prior recommendation of
two-thirds of a Council. See 16 U.S.C. § 1852(b)(5). This provision severely lim
its the Secretary’s removal power and is designed to constrain narrowly the Secre
tary’s ability to supervise and control the Council members he appoints. See
Morrison v. Olson, 487 U.S. 654, 694, 696 (1988) (power to remove officials pro
vides ability to supervise and control them); M eyer v. Bush, 981 F.2d 1288, 1295
(D.C. Cir. 1993) (same).16
15 In enacting the M agnuson Act, C ongress “creat[ed] really a unique anim al in these m anagem ent coun
cils, som ething that had not existed before
W e tr[ied] to create som ething unique, and w e d id in the
regional m anagem ent councils We did not m ake them regular Federal em ployees, because we did not want
them to be regular Federal em ployees.” See F ishery C onservation a nd M anagem ent A c f H earings Before
the Subcom m on Fisheries and WiUlhje C onservation a n d the E nvironm ent oj the H ouse C om m on M er
chant M arine a n d Fisheries, 96th C ong 4 4 8 -4 9 (1979) (“ 1979 H earings” ) (rem arks o f Rep Studds)
16 C onsistent w ith that intent, the H ouse R eport on the 1983 am endm ents to the M agnuson Act stated that
the C ouncils '‘en jo y some degree o f independence from the Secretary ’ See H R Rep No 97-549, at 15
(1982), rep rin ted in 1982 U S .C C A N 4320, 4328 (“ 1982 H ouse R eport” ) (accom panying H R 5002 e n
acted as Pub L. N o 97-453, 96 Stat 2481 (1 9 8 3 )) R epresentative Studds w ent further in em p h asizin g the
C ouncils' autonom y:
I w ould have been outraged looking at that statem ent “The councils enjoy som e degree of in d e
pendence from the Secretary ” That w as backw ards, absolutely inside-out and backw ard
In
som e lim ited ways, the councils have som e responsibilities w hich involve the Secretary T hey are
155
Opinions o f th e O ffice o f Legal C ounsel
Second, any fishery management plan drafted by the Secretary may not limit ac
cess to a fishery unless a majority of the voting membership of each affected
Council approves. See 16 U.S.C. § 1854(c)(3). Thus, the statute empowers the
Councils to prevent certain regulatory actions by the Secretary and, in effect, puts
the Councils on a footing with the Secretary in regulating access to regional fish
eries. In view of both the powerful constraints on the Secretary’s removal author
ity and the Councils’ apparent “veto” power over some of the Secretary’s
initiatives, it cannot be said that the Council members are subject to the Secretary’s
supervision.
Legislative history (albeit history relating to amendments to the original Magnu
son Act) supports this reading of the statute. The House Report on the 1983
amendments to the Magnuson Act stated that “Council members and administrative
staffs are not Federal employees in the sense of 5 USC 2105 because they are not
appointed by, or subject to the supervision of Federal officials in their day-to-day
activities.” 1982 House Report at 15.17 Moreover, the Commerce Department
itself denies (and has long denied) that the Secretary of Commerce exercises su
pervisory authority over the Councils. The Commerce Department’s position is
buttressed by the 1976 CSC Opinion. See Commerce Letter at 6.
Consequently, we conclude that appointed Council members are not
“employees” subject to the Order. In addition, the executive directors and admin
istrative employees of the Councils also are not “employees” because they are ap
pointed and supervised by the Councils, see 16 U.S.C. § 1852(0(1), a majority of
whose members are not federal employees, so that the requirements of 5 U.S.C. §
2105 again are not met. Accord 1982 House Report at 15.18
In reaching these conclusions, we do not suggest that the existence of statutory
limitations on removal is generally inconsistent with the retention of supervisory
power in the person who can exercise the power to remove. On the contrary, the
case law clearly supports the view that “for cause” limitations on removal power
can be compatible with the continuing power and duty to supervise.19 In the case
of the Councils, however, the statute does not restrict the Secretary’s removal
fu n d am en tally independent from the S ecretary They do not enjoy som e degree o f independence
from the S ecretary, they are basically, fundam entally and critically independent o f the Secretary.
1979 H earin g s at 4 4 9 -5 0
17 W e note that the H ouse R eport is in e rro r insofar as it slates broadly that C ouncil m em bers are not
appoin ted by Federal officials. The Secretary appoints the C ouncil m em bers w hose status is in question
here
18 H ow ev er, Federal em p lo y ees detailed to the C ouncils pu rsu ant to 16 U.S C § 1852(0(2) w ould retain
their statu s as “em p lo y e es” w ithin the m eaning o f 5 U S C § 2105.
19 See, e.g ., M o rriso n v. O lson, 487 U S at 692 (“good cause*’ lim itation on the A ttorney G eneral’s pow er
to rem ove in d ep en d en t co u n sel did not p rev en t A ttorney G eneral from exercising sufficient supervisory
authority to assu re that co u n sel perform ed co m p eten tly and in accordance w ith statutory m andate), B ow sher
v Svna r, 4 7 8 U.S 714, 72 6 , 7 2 8 -2 9 (1986) (C o n g re ss’s pow er to rem ove the C om ptroller G eneral for causes
in cludin g “in efficien cy , * “n eglect of duty,’* and “ m alfeasance’* enabled it to control execution o f law s by
C o m p tro lle r G eneral). Indeed, the very a b ility to rem ove for “cause*’ presupposes that the officer or body
that has the rem o v al p o w er m ust supervise the subordinate o ffic e r at least to the extent needed to determ ine
w hether “cause** for rem o v al exists
156
A pplica b ility o f E xecutive O rder N o 12674 to P ersonnel o f R egional Fishery M anagem ent C ouncils
power merely by requiring that “cause” for removal exist. It also demands that,
before a Council member can be removed, two-thirds of the Council’s voting
membership recommend such removal. In effect, the statutory scheme not only
circumscribes the removal power, but also vests that power jointly in the Secretary
and the Councils themselves. This unusual feature of the Magnuson Act distin
guishes it from more traditional legislation in which some form of “cause” is all
that is required before removal can occur. As a result, the Councils possess greater
autonomy than that enjoyed, for example, by typical “independent” agencies.20
We also do not suggest that the Secretary utterly lacks any supervisory authority
with regard to the Councils. On the contrary, it is clear that under this unusual
statutory scheme, Congress intended the Secretary to exert substantial control over
basic aspects of the Councils’ activities. Thus, as we have pointed out:
However independent the Councils may be in their day-to-day op
erations, ultimate authority over a majority of their membership,
budgets, and their major area of concern — the fishery management
plans — remains with the Secretary or other federal agencies. The
Councils perform the basic research, hold hearings, draft the plan
for their area, and propose regulations. It is the Secretary, however,
to whom the drafts and proposals are submitted and it is the Secre
tary who either approves the management plan or amends it to his
satisfaction. It is also the Secretary who reviews the regulations to
insure their legality and who implements them.
Litigating Authority, 4B Op. O.L.C. at 782 (footnotes and citations omitted).21
In our judgment, however, the Secretary’s powers with respect to the Councils
do not suffice to render appointed Council members “employees” subject to the
Secretary’s supervision. As Senator Magnuson put it, “the Councils are self
determinant in their own affairs.” Magnuson, supra at 436. The unusually severe
constraints on the Secretary’s removal power, coupled with the Councils’ ability to
“veto” the Secretary’s draft fishery management plan if the plan limits access to a
fishery, are incompatible with the ordinary meaning of supervision. Consequently,
20 C om pare 16 U S C § 1852(b)(5) (prior recom m endation o f tw o-thirds o f C ouncil needed before Secretary may rem ove m em ber for “cause” ) with, e g , 1 5 U S C . § 41 (P resident may rem ove m em ber o f Fed
eral Trade C om m ission for “inefficiency, neglect o f duty, o r m alfeasance in office” ) W e have found only
one other statute, 16 U S C § 4009, establishing certain seafood m arketing councils, that limits the rem oval
pow er in a fashion com parable to 16 U S.C § 1852(b)(5).
21 See also C hristopher L. K och, C om m ent, J udicial R eview o j F ishery M anagem ent Regulations U nder
the F is h e n ’ C onservation a n d M anagem ent A c t o f 1976, 52 W ash L. Rev. 599, 616, 6 20 (1977) (S ecretary
is final arbiter in prom ulgation o f fishery m anagem ent m easures and is responsible for ensuring that m an
agem ent schem es com port w ith legislative standards, fact that Secretary m ust review C o u n cils' decisions
perm its scrutiny o f m anagem ent plans for self-serving m easures that C ouncils dom inated by fishing industry
m ight put forw ard).
157
Opinions o f th e O ffice o f Legal C ounsel
we conclude that appointed Council members are not employees covered by the
Order.
Conclusion
As a matter of statutory construction, and on the basis of the specific features of
the Magnuson Act, we conclude that Executive Order No. 12674, as amended by
Executive Order No. 12731, and the implementing regulations relating to that Or
der, do not apply to appointed members, executive directors, or administrative em
ployees of the Regional Fishery Management Councils.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
158 |
|
Write a legal research memo on the following topic. | Reimbursement for Defense Department Assistance
to Civilian Law Enforcement Officials
T he D epartm ent o f D efense A uthorization Act of 1982 authorizes the Secretary of Defense to seek
reim bursem ent from civilian law enforcem ent agencies to whom the Departm ent provides various
form s o f assistance, and the Secretary of D efense m ay condition his D epartm ent’s provision of
assistance on such reim bursem ent. However, the Act also gives the Secretary discretion to waive a
requirem ent o f reim bursem ent for assistance provided under its authority.
T he E conom y A ct, 31 U .S .C . § 686 (1976), provides general authority for one agency to request
assistance from another agency for an activity o r operation that the requesting agency has authority
to p erfo rm , and a perform ing agency should seek reim bursem ent for the actual cost o f services
provided under that A ct. However, w here there is specific authonty for one agency to assist
another, the provisions o f the Econom y Act do not apply.
July 24, 1982
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
This responds to your request for an opinion regarding reimbursement for
assistance provided by the Department of Defense to civilian law enforcement
officials under the Department o f Defense Authorization Act, 1982.1 This Act
provided the Defense Department with express authorization to provide certain
assistance to civilian law enforcement officials. With such express authorization,
the provision of such assistance cannot be said to violate the Posse Comitatus
Act, a Reconstruction-era law generally limiting the role of the Nation’s military
forces in executing the law.2The narrow issue upon which you have requested our
opinion is whether the Defense Department is required to seek reimbursement
from civilian law enforcement agencies for authorized assistance it provides
pursuant to this Act, or whether, under this Act, that Department is authorized to
condition assistance on reimbursement although it need not do so.
It is our opinion, after reviewing the Act and its legislative history as well as a
number of memoranda prepared by the Defense Department,3 that the Act
1 The Department of Defense Authorization Act, 1982, is Pub L No 97-86, 95 Stat. 1099 (1981).
2 The Posse Comitatus Act is codified at 18 U .S.C § 1385. That Act’s general restriction on the Defense
Department's authonty to execute the laws is made inapplicable under § 1385 itself if use of the Armed Forces is
“ expressly authorized by .
Act of Congress. . .
3 We have received five main documents from the Defense Department stating its view. (1) a Memorandum for
the Deputy Secretary of Defense from the General Counsel, Defense Department, dated March 11, 1982, to which
is attached a background discussion of the Act’s legislative history; (2) a Memorandum for the Deputy Secretary of
Defense from the General Counsel, Defense Department, dated March 18, 1982; (3) Enclosure 5 of Defense
Department Directive No 5525.5, dated March 22, 1982, entitled “ DoD Cooperation with Civilian Law EnforceC o ntinued
464
authorizes but does not require that Department to seek reimbursement from
civilian law enforcement agencies. Our reasons for reaching this conclusion are
set forth in section II below. The Defense Department’s position on the matter at
issue is summarized in section I.
I. The Defense Department’s Interpretation
To understand the matter at hand, it is first necessary to set forth the major
provisions of the Department of Defense Authorization Act, 1982. They are the
following new §§ 371 through 377 of Title 10, United States Code (Supp. V),
contained in § 905, Title IX, of the Act:
§ 371. Use o f information collected during military operations
The Secretary c f Defense may, in accordance with other ap
plicable law, provide to Federal, State, or local civilian law
enforcement officials any information collected during the normal
course of military operations that may be relevant to a violation of
any Federal or State law within the jurisdiction of such officials.
§ 372. Use c f military equipment and facilities
The Secretary of Defense may, in accordance with other ap
plicable law, make available any equipment, base facility, or
research facility of the Army, Navy, Air Force, or Marine Corps
to any Federal, State, or local civilian law enforcement official for
law enforcement purposes.
§ 373. Training and advising civilian law enforcement officials
The Secretary c f Defense may assign members of the Army,
Navy, Air Force, and Marine Corps to train Federal, State, and
local civilian law enforcement officials in the operation and
maintenance c f equipment made available under section 372 of
this title and to provide expert advice relevant to the purposes of
this chapter.
§ 374. Assistance by Department c f Defense personnel
( a ) . . . the Secretary c f Defense, upon request from the head of
an agency with jurisdiction to enforce—
(1)
the Controlled Substances Act (21 U.S.C. 801 et seq.) or
the Controlled Substances Import and Export Act (21 U.S.C. 951
et seq.);
ment Officials", (4) a letter from the Deputy Secretary of Defense to the Attorney General, dated March 26, 1982;
and (5) a letter from the General Counsel, Defense Department, to Theodore B Olson, Assistant Attorney General,
Office of Legal Counsel, dated June 11, 1982.
In additton, we have received a copy of testtmony by the Defense Department’s General Counsel before the
Subcommittee on C nm e o f the House Committee on the Judiciary, dated June 3,1981, which relates generally to the
issue before us Rirther, we have received a copy of a memorandum prepared by this Department’s Office of Legal
Policy on the issue at hand, dated April 30, 1982.
465
(2) any of sections 274 through 278 of the Immigration and
Nationality Act (8 U.S.C. 1324—1328); or
(3) a law relating to the arrival or departure of merchandise (as
defi ned in section 401 o f the Tariff A cto fl9 3 0 (1 9 U .S .C . 1401))
into or out of the customs territory of the United States (as defined
in general headnote 2 o f the Tariff Schedules of the United States
(19 U .S.C . 1202)) or any other territory or possession of the
United States, may assign personnel o f the Department of Defense
to operate and maintain or assist in operating and maintaining
equipment made available under section 372 of this title with
respect to any criminal violation of any such provision of law.
§ 375. Restriction on direct participation by military personnel.
The Secretary cf Defense shall issue such regulations as may be
necessary to insure that the provision cfany assistance (including
the provision of any equipment or facility or the assignment of any
personnel) to any civilian law enforcement official under this
chapter does not include or perm it direct participation by a
m em ber o f the Army, Navy, A ir Force, or Marine Corps in an
interdiction of a vessel o r aircraft, a search and seizure, arrest, or
other similar activity unless participation in such activity by such
m em ber is otherwise authorized by law.
§ 376. Assistance not to affect adversely military preparedness
Assistance (including the provision of any equipment or facili
ty or the assignment of any personnel) may not be provided to any
civilian law enforcement official under this chapter if the provi
sion of such assistance will adversely affect the military prepared
ness of the United States. . . .
§ 377. Reimbursement
The Secretary of Defense shall issue regulations providing that
reimbursement may be a condition c f assistance to a civilian law
enforcement official under this chapter.
(Emphasis added.)
The foregoing provisions authorize the Defense Department to provide various
forms of assistance to civilian law enforcement officials, although certain general
limitations must be observed. First, Congress took care to prevent “ direct”
involvement of military forces in civilian law enforcement activities, see § 375.
Second, Congress sought to assure that assistance under the Act would not
adversely affect the Nation’s military preparedness, see § 376. In § 377, Con
gress specifically provided that the Secretary of Defense shall issue regulations
466
“ providing that reimbursement may be a condition of assistance to a civilian law
enforcement official under this chapter.” (Emphasis added.)
The Defense Department’s interpretation of its authority to waive reimburse
ment may be summarized in terms of two major propositions. First, the Depart
ment contends that when its authority for assisting civilian law enforcement
officials was based on the Economy Act, 31 U.S.C. § 686 (1976), as it was prior
to the passage of the Department of Defense Authorization Act, 1982, the
Secretary of Defense was legally required to request reimbursement in most
situations. This contention rests on an analysis of the Economy Act and decision
al law, particularly that of the Comptroller General, under it. Second, the
Department argues that nothing in the Department of Defense Authorization Act,
1982, changed that result. In short, the Defense Department urges that the
principles of the Economy Act as applied prior to the recent Act’s passage still
apply.
The Defense Department’s position is expressed in the letter of the Deputy
Secretary of Defense to you dated March 27, 1982, where it is stated that “ [t]he
authority of the Secretary of Defense to make reimbursement a condition of
assistance under 10 U.S.C. § 377 permits waiver of reimbursement only to the
extent that reimbursement is not required by other applicable laws, such as the
Economy Act.” The letter proceeds to urge that Congress’ intent in enacting the
recent Act was “ to leave in place existing laws governing the provision of
assistance to other agencies,” and “ did not intend . . . to provide a new basis for
DoD funding of civilian law enforcement activities.” (Page 1.)
As a result of the Defense Department’s analysis of the reimbursement issue, it
concludes that the recent Act does not accord the Department any new discretion
or any general authority to waive reimbursement for assistance provided to
civilian law enforcement officials.
II. Analysis of the Defense Department’s Interpretation
In responding in this section to the major points underlying the Defense
Department’s interpretation, we will set forth our own analysis of the reimburse
ment issue.
(1) First, we find no reason to agree or disagree with the Defense Department’s
argument about the requirement, prior to the passage of the recent Act, to seek
reimbursement from civilian law enforcement agencies for assistance provided
to them. It is correct that the Economy Act, 31 U.S.C. § 686, is a source of
authority for one agency to request assistance from another agency for an activity
or operation that the requesting agency has authority to •perform.4 It also is
4 As the Comptroller General has stated, the purpose o f 31 U .S.C . § 686, which is § 601 of the Economy Act of
1932, as amended, is to authorize inter-agency procurement of work, materials, or equipment 57 Comp. Gen. 674,
676-77 (1978). Congress intended that economies could be achieved by providing such authority to “ enable all
bureaus and activities of the Government to be utilized to their fullest ” Id. at 680, quoting H.R. Rep No 2 2 0 1 ,71st
Cong., 2d Sess 2 -3 (1931) (a report on a predecessor bill) The Economy Act, 31 U.S C. § 686, does not give the
performing agency any new authority to perform any function; it only gives the requesting agency authonty to
request the performing agency to assist the requesting agency if the requesting agency otherwise has authonty to
perform the function.
467
generally correct that, under the Comptroller General’s opinions interpreting the
Economy Act, a performing agency should seek reimbursement for the actual
cost of services provided to a requesting agency under the Economy Act.5
However, in our view, these propositions and the argument employing them as
advanced by the Defense Department are essentially beside the point in the
present context.
The Economy Act, 31 U.S.C. § 686, is needed only when there is no specific
authority for one agency to assist another agency, or no authority for the
performing agency to take the action in the course of fulfilling its own statutory
duties. In such circumstances, under the terms of the Economy Act, an agency
may “ place orders with any other such department, establishment, bureau, or
office for materials, supplies, equipment, work, or services, of any kind that such
requisitioned Federal agency may be in a position to supply or equipped to
render. . . .” However, where there is specific authority for one agency to assist
another, there is simply no need to rely on the Economy Act in the first place.
This point is clear not only from the Economy Act’s language, but also from its
legislative history, which makes plain that the chief purpose of enacting the
provision was to establish general authority for one agency to assist another
agency when specific authority did not satisfy the requesting agency’s needs for
assistance. See, e .g ., 57 Comp. Gen. 675, 678-80 (1978) (reviewing the legis
lative history of the Economy Act, and noting that prior to its passage, some
agencies had specific authority to perform certain classes of work for other
agencies, but there was no general authority under which agencies could assist
other agencies); H.R. Rep. No. 1126, 72d Cong., 1st Sess. 15—16 (1932).
Accordingly, we cannot accept the suggestions that the Economy Act applies
in the present context and that it requires reimbursement for assistance provided
by the Defense Department. O ur chief difficulty with these suggestions is, in
short, that the Economy Act no longer applies since there is no longer any need to
use its general authority as the basis on which the Defense Department provides
assistance to civilian law enforcement officials. In its plain terms, the Depart
ment of Defense Authorization Act, 1982, authorizes the Defense Department to
provide certain forms of assistance to civilian law enforcement officials. In such a
situation, the law concerning reimbursement under the Economy Act is
inapplicable.6
(2)
Second, the Defense Department’s suggestion that nothing in the recent
Act countermands its conclusion that reimbursement is required under the
Economy Act cannot be reconciled with the plain language of § 377, the
reimbursement provision. This provision states specifically that the Secretary of
Defense “ shall issue regulations providing that reimbursement may be a con
5 See, e.g .. 57 Comp Gen. 674 (1978), 56 Comp. Gen. 275 (1977); 46 Comp Gen. 73, 76 (1966); 18 Comp.
Gen. 262, 266 (1938).
6 We would emphasize that this conclusion follows directly from the existence in the Department of Defense
Authorization Act, 1982, of specific authority for the Defense Department to assist civilian law enforcement
agencies. The existence of this specific authority makes it unnecessary to rely on the Economy Act, 31 U .S.C
§ 686, as the authority for such assistance. Accordingly, even if § 377 of the recent Act had not been enacted, the
Economy Act would be inapplicable in (he present context.
468
dition of assistance to a civilian law enforcement official under this chapter.”
(Emphasis added.) It is difficult to imagine how Congress could have indicated
more clearly that the Secretary may— but need not— condition assistance on
reimbursement.7
This conclusion is supported by the ordinary meaning of “ may,” which
normally indicates that one has permission or liberty to do something, not that
one is required or compelled to do something. See Webster’s Third New Interna
tional Dictionary 1396 (1976). A statute’s terms are ordinarily to be interpreted in
light of the usual or customary meaning of the words themselves. See, e .g .,
Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). More
over, it is significant that in § 377, Congress spoke of reimbursement in terms of
what the Secretary “ may” do, whereas it spoke of the issuance of regulations
dealing with reimbursement in terms of what the Secretary “ shall” do. This
contrast in the use of terms suggests strongly that when Congress wanted to
impose a mandatory requirement in this statute— indeed, this very provision— it
knew how to do so.
If the plain language of § 377 were an insufficient basis on which to rest the
conclusion that the Secretary has discretion to decide whether to condition
assistance under the Act on reimbursement, then we believe that consideration of
the provision’s legislative history confirms the foregoing reading of its plain
meaning.
The predecessor provision in the bill introduced in the Senate, S. 815, 97th
Cong., 1st Sess. (1981), also was permissive on its face with respect to the issue
of reimbursement. It provided:
The Secretary of Defense shall . . . issue such regulations as may
be necessary to insure that reimbursement for the provision of
assistance, including the provision of any equipment or facility,
under this chapter to any Federal, State, or local civilian law
enforcement official may be obtained whenever the Secretary of
Defense determines such reimbursement to be appropriate.
(Emphasis added.)8 The report of the Senate Committee on Armed Services
stressed that the bill’s language was intended to authorize the Secretary to provide
certain indirect assistance to civilian law enforcement officials without requiring
the Defense Department to provide such assistance. The report also noted that the
decision whether to request reimbursement for such assistance was within the
Secretary’s discretion to so act as “ appropriate.” As the report stated:
The Secretary of Defense would be authorized, not required, to
provide this aid. And the Department c f Defense could obtain
7 We note that because § 377 on its face deals only with "assistance” provided by Defense “ under this chapter
[§§ 371-77],’*any assistance provided by the Department of Defense pursuant lo any other existing authority that
predated, and is not overlapped by, this Act is nol covered by § 377. In other words, if assistance is not authonzed by
the recent Act, then its provision continues to be governed by the Economy Act
8 The reimbursement provision in the Senate bill would have been a new § 374(b) of Title 10, United States Code;
it appears at pages 64 to 65 of the pnnted Senate bill
469
reimbursement for any assistance provided when the Secretary
determ ined such reimbursement was appropriate.
S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added).
The House bill, H.R. 3519, 97th Cong., 1st Sess. (1981), contained the same
reimbursement provision as the Senate bill.9 The report of the House Committee
on Armed Services noted specifically that the provision was intended to authorize
the Secretary to issue regulations “ to ensure reimbursement for provisions of
assistance, equipment and facilities whenever he determines reimbursement is
appropriate. . . .” (Emphasis added.) H.R. Rep. No. 71, 97th Cong., 1st Sess.
(pt. 1) 164 (1981).
The report of the House Committee on the Judiciary, to which the bill was
sequentially referred, elaborated upon the permissive nature of the reimburse
ment authorization:
The final subsection of proposed section 374 authorizes the Secre
tary of Defense to issue regulations which may condition the
rendering c f any assistance under this Chapter upon a reimburse
ment to the military. According to information received from the
Coast Guard, United States Customs Service, and the Depart
ment of Justice (the Federal agencies most likely to request
assistance), this reimbursement provision is acceptable and
should not require any immediate increase in the budgets of those
agencies. The availability of this reimbursement option is not
meant to serve as an excuse fo r the Secretary c f Defense to decline
to cooperate in the provision c f assistance. Rather, the reimburse
ment option should serve instead as an informal check of the
magnitude and frequency of the requests made by civilian law
enforcement officials. The availability cf military assistance is
not intended by the Committee to be an indirect method c f increas
ing the budget authority o f the civilian law enforcement agency.
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added).
In the foregoing discussion, the House Judiciary Committee clearly sought to
tread a careful line between seeming to impose an undue burden on federal
civilian law enforcement agencies, on the one hand, and to impose an excessive
burden on the Department of Defense by indirectly “ increasing the budget
authority of the civilian law enforcement agency” involved, on the other hand.
At the same time, the foregoing passage, by referring specifically to “ the
reimbursement option” created by the bill (emphasis added), makes plain that
reimbursement under the House bill would not be required by the bill itself, but
rather was to be an option available to the Defense Department. The Committee
acknowledged that the need to pay for assistance authorized by the bill was likely
to operate as an informal check on the number and size of requests for such
9 The reimbursement provision appears at page 44 of the printed House bill.
470
assistance. As the Committee put it, “ the reimbursement option should serve
. . . as an informal check on the magnitude and frequency of the requests made
by civilian law enforcement officials.” Nevertheless, such a “ check” was
evidently intended to operate as the result of a discretionary decision by the
Secretary of Defense to request reimbursement in a particular case, not as the
result of any requirement of reimbursement under the bill itself.
The discussion of the reimbursement provision contained in the House bill by
the third House Committee to which the bill was referred, the Committee on
Government Operations, confirms that reimbursement was to be an option, not a
requirement:
Section 908 of H.R. 3519 as reported by the committee of
original jurisdiction contains the following language:
The Secretary of Defense may assign members of the armed
forces to train Federal, State, and local law enforcement officials
in the operation of military equipm ent. . . and to provide expert
advice relevant to the purposes of this chapter, if the provision of
such training or advice will not adversely affect the military
preparedness of the United States.
- An additional provision c f the section specifies that the Secre
tary c f Defense shall issue such regulations as may be necessary
to insure that reimbursement fo r the provision c f such assistance
is obtained when the Secretary deems such reimbursement to be
appropriate.
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981) (emphasis added).10
During floor debate on the House bill, it was acknowledged once again that
reimbursement for assistance provided to civilian law enforcement officials by
the Defense Department would be an option of the Secretary of Defense.
Congressman Bennett, for instance, stated that:
Section 374 requires the Secretary c f Defense to issue regula
tions: First, to insure that the provision of assistance, equipment,
or facilities does not impair military training or operations neces
sary to the military preparedness of the United States; and second,
to insure reimbursement fo r the provision c f assistance obtained
from the Department c f Defense when the Secretary determines it
is appropriate. The regulations provided by this section will
insure that the cooperation with the civilian law enforcement
officials does not interfere with carrying out the primary mission
of our Armed Forces, that is, military preparedness. The regula
tion will also insure that the law enforcement cooperation is not
done at the expense c f defense activities.
"■ In another passage of the report of the House Committee on Government Operations, it is reaffirmed that the
House bill would extend authority to the Secretary of Defense to provide training services and advice “ without
reimbursement, if he determined that to be appropriate.” H R Rep. No 7 1,97th Cong., 1st Sess. (pt. 3)37(1981).
471
The results of the Armed Forces work should not be used at the
cost of defense budgets to support the activities of other agencies
of Government regardless of how laudable those activities might
be. I understand the Department c f Defense has always required
reimbursement in the p a st, and it will continue to do so under
these provisions.
127 Cong. Rec. H 4056-57 (d^ily ed. July 8, 1981) (emphasis added). These
remarks reflect sensitivity to the potential problems that could arise if the Defense
D epartm ent were not allowed to seek reimbursement for the assistance it
provides to civilian law enforcement agencies. The reimbursement option evi
dently was designed to “ insure that the law enforcement cooperation [as autho
rized by the bill] is not done at the expense of defense activities.” In this context,
Congressman Bennett noted that “ in the past” the Defense Department had
required reimbursement, and that it intended to do so in the future. At the same
time, these remarks do not purport to, and they do not, state any legal require
ment that reimbursement be sought under the bill. To the contrary, the remarks
are directly tailored to protect the Defense Department’s authority to obtain
reimbursement when the Secretary deems it “ appropriate.”
Another pertinent discussion o f reimbursement during the House debate is the
following by Congressman Hughes:
Mr. C hairm an,. . . under the provisions of the bill any loaning
of equipment or any loaning of personnel is reimbursable. It does
not come out c f the Department c f Defense budget. We are not
asking the Defense Department to use their amounts set aside for
the m ilitary mission for law enforcement purposes.
All we are doing is, we are trying, first of all, to codify the
existing practices relative to the sharing of intelligence, the shar
ing of base facilities, the sharing of research, and we have taken it
one step further; they need equipment from time to time, but it is
an empty gesture when you offer equipment and do not offer the
manpower to operate the very sophisticated equipment. . . .
Id. at H 4066-67 (emphasis added). Although the foregoing remarks indicate
concern about using Defense Department funds appropriated for military mis
sions to provide assistance to civilian law enforcement agencies, the comments
are limited in their reference: “We are not asking the Defense Department to use
their amounts set aside for the military mission for law enforcement purposes.”
(Emphasis added.) We believe that this statement means only that Congress did
not intend to require the Defense Department to pay for the assistance it provides
as authorized by the bill. Indeed, the bill specifically empowers the Defense
Department to seek reimbursement. Congressman Hughes’ comments, like
those discussed above, do not purport to establish any legal requirement that
reimbursement must be sought by the Defense Department, even though they
indicate an expectation that reimbursement might frequently be sought. This
472
crucial point is further confirmed by the statement of Congressman Sawyer that
“ the law enforcement agency requesting the military equipment is chargeable
for the use of that equipment.” Id. at 4067 (emphasis added). To say that a civilian
law enforcement agency is “ chargeable” under the bill is not to say that such an
agency must be charged for assistance authorized by the bill.
If there were any substantial doubt remaining after a survey of the foregoing
comments in the legislative record about the conclusion that the Defense Depart
ment has discretion to decide whether to condition assistance on reimbursement,
such doubt is dispelled by the report of the conference committee, which stated
the following about the reimbursement provision:
This section authorizes the Secretary of Defense to issue regula
tions providing that reimbursement may be a condition c f the
assistance to civilian law enforcement officials under this chapter.
This provision was contained, in slightly different form, in both
bills. The regulation should reflect sufficient flexibility to take into
consideration the budgetary resources available to civilian law
enforcement agencies.
H.R. Rep. No. 311, 97th Cong., 1st Sess. 122 (1981) (emphasis added). If the
conference committee had sought to require the Secretary of Defense to con
dition assistance on reimbursement, it would hardly have been consistent for the
committee to have noted that the reimbursement provision provides “ sufficient
flexibility to take into consideration the budgetary resources available to civilian
law enforcement agencies.” Such “ flexibility” in fact is reflected in the language
ultimately enacted, which provides that the Secretary of Defense “ may” con
dition assistance under the Act on reimbursement.
In view of the plain language of § 377 and the fact that the relevant committee
reports and floor debates confirm that Congress sought to provide flexibility to
the Secretary to determine whether to require reimbursement, we conclude that
the Secretary of Defense has discretion under the Act to decide whether to
request reimbursement for assistance rendered pursuant to the Act. Since the
Act’s fundamental purpose was to provide the express authorization for the
Defense Department to assist civilian law enforcement officials notwithstanding
the general restriction under the Posse Comitatus Act, see note 2, supra, there is
no longer any need for the Defense Department to rely on the Economy Act in
providing the assistance authorized by the Act. In short, since the reimbursement
provision of the Department of Defense Authorization Act, 1982, governs, and
since that provision is permissive, we conclude that the Secretary of Defense is
authorized but not required to seek reimbursement for assistance rendered under
the Act.
(3) In opposition to the foregoing analysis of § 377 and its legislative history,
the Defense Department maintains that Congress intended to retain under this
Act the strictures of the Economy Act, 31 U.S.C. § 686. This position rests on
three main arguments.
473
First, the Defense Department contends that the language of § 372, which
limits the provision of assistance under that section “ in accordance with other
applicable law,” effectively incorporates, albeit indirectly, the Economy Act into
this Act. Second, the Defense Department seeks support in a variety of passages
in the legislative history indicating that Congress expected that the Defense
Department would not have to pay for all of the assistance rendered under the
Act. Third, the Defense Department notes that it is charged with implementing
the Act by means of regulations. For this reason, the Department suggests, even
if implicitly, that its interpretation should be given particular weight. We will
discuss each argument in turn.
A. The Language c f § 372
The Defense Department’s primary textual argument is that the phrase, “ in
accordance with other applicable law,” in § 372 incorporates in this Act the law
relating to reimbursement under the Economy Act, 31 U.S.C. § 686. Section
372 states:
The Secretary of Defense may, in accordance with other applica
ble law, make available any equipment, base facility, or research
facility of the Army, Navy, Air Force, or Marine Corps to any
Federal, State, or local civilian law enforcement official for law
enforcement purposes.
(Emphasis added.)
The central support for this reading of the phrase, “ in accordance with other
applicable law,” is the following passage from the report of the House Commit
tee of the Judiciary, H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 9 (1981):
The Committee on Government Operations expressed some con
cern that the proposed section, as reported by the Armed Services
Committee, could cause potential conflicts with the application cf
other property disposition statutes. Thus, at the recommendation
of the Committee on Government Operations and with the support
of the Department of Defense, the [Judiciary] Committee added
the phrase ‘in accordance with other applicable law’ to clarify
the continued application c f the disposition procedures c f the
Economy Act, 31 U.S.C. 638a, and other similar provisions. See,
e .g ., 10 U .S.C . 2576 a n d 2667 (governing the disposition of
certain real and personal military property).
(Emphasis added.) The foregoing reference to the “disposition procedures of the
Economy Act, 31 U .S.C . 638a,” is said by the Defense Department to demon
strate that Congress intended to retain the reimbursement requirements that
would apply if the provision of assistance to civilian law enforcement agencies
underthe Act were to proceed entirely under the Economy Act, 31 U.S.C. § 686.
474
We have a number of difficulties with this contention. First, the statute cited as
the Economy Act in the foregoing passage from the Committee report, 31
U.S.C. § 638a, is not the same as the statute upon which the Defense Depart
ment seeks to rely, namely, 31 U.S.C. § 686. The statute actually cited by the
Committee— 31 U.S.C. § 638a— deals specifically with the purchase, opera
tion, use, and maintenance of passenger motor vehicles and aircraft by the
federal government." Although it might be suggested that the Committee report
made a mistake in citation, the statute actually cited does appear directly relevant
to the point the Committee report was making, namely, that “ disposition pro
cedures” specifically relating to federal property should continue to apply.
Moreover, it bears noting that such “ disposition procedures” are not in any
obvious or necessary sense “ similar” to principles of reimbursement under 31
U.S.C. § 686.12 The two statutes cited by the Committee in addition to 31
U.S.C. § 638a deal respectively with the sale to law enforcement and firefight
ing agencies of surplus military equipment, 10 U.S.C. § 2576, and leases by
military departments of “ non-excess” property, 10 U.S.C. § 2667. These stat
utes, combined with 31 U.S.C. § 638a, place specific limits on the disposition of
federal property. The particular requirements in these three statutes are simply
not the same as the general principles concerning reimbursement on which the
Defense Department seeks to rely.
The evidently limited reference of the “ other applicable law” language in
§ 372 is confirmed by a passage in the report of the House Committee on
Government Operations. It should be recalled that the House Judiciary Commit
tee, in adding the “ other applicable law” language, stated that it was doing so in
response to the concern of the Government Operations Committee that the lack of
such language “ could cause potential conflicts with the application of other
property disposition statutes.” Accordingly, the explanation of the Government
Operations Committee of the meaning of the phrase “ other applicable law”
should be given particular weight. That Committee explained the language as
follows:
Under an amendment adopted by the Judiciary Committee on
June 9,1981, the provision of military equipment and facilities to
law enforcement officials would be made ‘in accordance with
applicable law.’ It is the Committee’s understanding that this
language would bring [the section] under the terms of the proper
ty management and disposal provisions c f the Federal Property
and Administrative Services A ct c f 1949P
11 U nder3l U S.C § 638a, a number oflimitations are placed on the purchase or hire of passenger motor vehicles
and aircraft by the federal government.
12 The need to be clear about exactly which statutes were intended to remain applicable under § 372 is obvious in
light of such additional statements in the legislative history as the following: "T he sale, donation or other outright
transfer of such equipment to civilian law enforcement agencies shall be in accordance with existing statutes
covering such transfers” S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added). This statement
suggests, but by itself does not make fully clear, that the relevant statutes are those dealing specifically with property
or equipment transfers, which constitute a distinct subject from that o f reimbursement for any of a variety of types of
assistance provided by one agency to another under 31 U S C § 686.
13 See also H .R. Rep. No 311, 97th Cong., 1st Sess 119 (1981) ("This provision [speaking of “ other applicable
law” ] assures the continued application of existing law, such as the Federal Property and Administrative Services
Act of 1949” )
475
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981). This reference to the
Federal Property and Administrative Services Act underscores that the Govern
ment Operations Committee’s intention was to guarantee that that statute’s
provisions— not general reimbursement principles under 31 U.S.C. § 686—
would continue to operate under this Act.
In short, we are unconvinced that the inclusion in § 372 of the “ other
applicable law” language was intended to have the far-reaching effects attributed
to the language by the Defense Department. We believe that the phrase “ other
applicable law” in § 372 refers to the specific statutes cited in the legislative
history, which do not include 31 U .S.C . § 686. This conclusion is buttressed by
the canon of statutory construction that each provision of a statute should be read
to have independent meaning.14 If § 372 had been intended to have the meaning
attributed to it by the Defense Department, it would constitute in effect a
nullification of the plain language of § 377, a result finding no support in the
language, history, or purposes of the A ct.15
B. The A ct’s Legislative History
The Defense Department also argues that the legislative history supports its
view that the Secretary of Defense has no general authority to waive reimburse
14 Courts have noted that, in the normal case, every word Congress uses in a statute should be given effect See,
e g , Reiter v. Sonotone Corp., 4 4 2 U S 330, 339 (1979). This approach is reflected in the notion that the “ meaning
of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in
view,” Panama Refining Co. v Ryan, 293 U S 388, 439 (1935) (Cardozo, J , dissenting), and that “ a section of a
statute should not be read in isolation from the context of the whole Act. . .” Richards v. United Stales, 369 U S.
1,11 (1962). Moreover, a court interpreting a statute 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 Act but to amend it ” Detroit Trust Co. v The
Barium , 293 U S. 21, 38 (1934), quoted in Fedorenko v United States, 449 U S. 490, 513 (1981)
15 We also note that § 371 specifies that action pursuant to it shall be “ in accordance with other applicable law.”
This provision authorizes the sharing of information obtained by the Defense Department “ dunng the normal course
of military operations.” To what does the “ in accordance with other applicable law” language in § 371 refer9 To be
consistent with its argum ent about § 372, the D efense Department apparently would have to argue that it refers to
the Economy Act, 31 U .S .C . § 686
However, we are aware of no legislative history to that effect Indeed, the House Judiciary Committee specifically
stated that the “ other applicable law” language in § 371 refers to the Privacy Act (without mentioning 31 U S.C.
§ 686). “ The phrase ‘in accordance with other applicable law’ as used in section 371 is meant to continue the
application of the Privacy Act to this type of intelligence sharing. See 5 U.S.C. 552a.” H .R. Rep. No 71, 97th
C ong., IstS ess. (pt 2)8 (1 9 8 1 ) S e ea/w H .R . Rep. No 3 1 1 ,97thC ong , IstSess. 119(1981). This explanation of
§ 371 seems to confirm a pattern by which C ongress, in referring to “ other applicable law” in certain provisions
granting the Defense Department authonty to provide assistance, was intending to refer to statutes directly bearing
on the specific subject matter of the authorizing provision in question Such a pattern is not consistent with the
Defense D epartm ent’s suggestion that “ other applicable law” refers to a broad set of principles relating to
reimbursement under the Economy Act in general
Furthermore, even if the phrase refemng to “ other applicable law ” in §§ 372 and 371 were to be construed—
contrary lo what we consider the reasonable construction— as effectively nullifying the reimbursement provision, it
is difficult to understand how such a construction would lead to the result sought by the Defense Department with
respect lo assistance provided under §§ 373 and 374 The latter two provisions do not contain “ other applicable
law” language. Although they do refer to equipment provided under § 372, their subjects are distinct from that of
§ 372: § 373 deals with the use of Defense personnel in training and advisory capacities, and § 374 deals with the
use o f Defense'personnel.in operating and maintaining equipment provided under § 372 In order for the Defense
Department to establish its position with respect to §§ 373 and 374, it would be necessary to conclude that the fact
that those sections involve the use of personnel in connection with equipment provided under § 372 is sufficient tc
limit the assistance of such personnel in the same manner that the use of equipment is said to be limited under § 372
“ in accordance with other applicable law” We believe lhat this argument is excessively attenuated. Not only does i'
depend on an interpretation of “ other applicable law ” that is not borne out by the legislative history, but it alsc
depends on reading into §§ 373 and 374 language that is not contained in those provisions
476
ment for assistance provided under the Act. The initial difficulty with this
argument is that legislative history cannot serve to supersede the plain language
of a statutory provision such as § 377. It is an established canon of statutory
construction that “ legislative intention, without more, is not legislation.” Train
v. City of New York, 420 U.S. 35, 45 (1975).
In any event, we do not read the passages in the legislative history on which the
Defense Department seeks to rely as supporting the view advanced by that
Department. The problems with relying on the passages may be shown with
reference to each one.
One of the central passages relied upon in the March 26, 1982, letter from the
Deputy Secretary of Defense to the Attorney General is the following drawn from
remarks by Congressman Hughes during floor debate on the House bill:
[UJnder the provisions of the bill any loaning of equipment or any
loaning of personnel is reimbursable. It does not come out of the
Department of Defense budget. We are not asking the Defense
Department to use their amounts set aside fo r the military mission
fo r law enforcement purposes.
127 Cong. Rec. H 4066 (daily ed. July 8, 1981). These remarks are quoted in
their fuller context above.
The main observation to make about the foregoing remarks is that they merely
state that the Defense Department is not required under the Act to use money
appropriated specifically for military purposes to pay for assistance provided
under the bill. As Congressman Hughes noted, Congress is “ not asking the
Defense Department to use their amounts set aside for the military mission for
law enforcement purposes.” That, however, is not the question before us. Our
question is whether the Defense Department has discretion under the Act to
determine whether it will condition authorized assistance on reimbursement. It
is, in brief, a non sequitur to argue that because Congressman Hughes indicated
that Congress was not requiring the Defense Department to use military funds to
pay for assistance provided under the bill, therefore the Defense Department is
required by the Act to demand reimbursement when it does provide assistance.
The latter proposition, in our view, is not established by the quoted comments.
Another passage relied upon by the Defense Department is taken from testi
mony by the Department’s General Counsel on June 3, 1981, as follows:
Section 374 [of the House bill] contains two provisions of consid
erable importance to the Department of Defense. . . .Subsection
(b) requires the Secretary to issue regulations governing reim
bursement to the Department of Defense, an essential element of
the legislation. The funding of nonmilitary law enforcement
activities is the responsibility of those agencies given the au
thority to investigate and prosecute crimes against the United
States. The Department c f Defense is pleased to provide assist
ance, consistent with the limitations set forth in this legislation
477
and other laws, but we cannot use defense resources to fund the
activities c f other agencies cf the federal government. We have
required reimbursement in the past when costs have been incurred
in the provision cfsuch assistance, and we shall continue to do so
under the provision cf this legislation if enacted.
Posse Comitatus Act: Hearings on H.R. 3519 Before the Subcomm. on Crime cf
the House Comm, on the Judiciary, 97th Cong., IstSess. 15—16 (1981) (empha
sis added). In the Defense Department’s view, this statement confirms that it
always has intended to approach the issue of reimbursement under the Act in the
same manner in which it approached reimbursement prior to the Act’s passage.
Our difficulty with relying on this testimony in the present context is that it
merely reflects the Defense Department’s intention at the time of testimony with
respect to implementing any powers it would have under the bill, if enacted, and
it discusses the Department’s past practices regarding reimbursement. However,
these are not the issues with which we are primarily concerned. Our question is
whether the Act requires the Defense Department to implement its stated desire
of seeking reimbursement in certain circumstances.16 The testimony of the
General Counsel establishes only that the Defense Department informed Con
gress that it would generally seek reimbursement, but this does not clarify the
fundamental issue whether that Department is legally compelled to do so.
An additional passage in the legislative history relied upon by the Defense
Department is the following from the report of the House Judiciary Committee:
The final subsection of proposed section 374 authorizes the Secre
tary of Defense to issue regulations which may condition the
rendering of any assistance under this Chapter upon a reimburse
ment to the military. According to information received from the
Coast Guard, United States Customs Service, and the Depart
ment of Justice (the Federal agencies most likely to request
assistance), this reimbursement provision is acceptable and
should not require any immediate increase in the budgets of those
agencies. The availability of this reimbursement option is not
meant to serve as an excuse fo r the Secretary c f Defense to decline
to cooperate in the provision cf assistance. Rather, the reimburse
ment option should serve instead a s an informal check c f (sic) the
magnitude and frequency c f the requests made by civilian law
enforcement officials. The availability c f military assistance is not
intended by the Committee to be an indirect method of increasing
the budget authority c f the civilian law enforcement agency.
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added).
16 One must bear in mind the fundamental distinction between a requirement to do X and the authority to d o X . In
this context, the Defense Department has the authority to implement its stated intention of seeking reimbursement
under the A ct's reimbursement provision This does not mean, however, that the Department is necessarily required
to seek reimbursement. The tw o matters are a n d must be kept analytically distinct.
478
Our inability to derive from the foregoing passage the conclusion preferred by
the Defense Department rests primarily on the fact that the passage speaks of
reimbursement in terms of an “ option” available to the Defense Department, not
in terms of a legal requirement. As we noted earlier, it is clear that the Committee
was sensitive to the need to balance the interests of the Defense Department in not
having to pay for all of the assistance it provides to civilian law enforcement
officials against the legislative desire to authorize such assistance. But it simply
does not follow from this that the Defense Department is legally required under
the Act to seek reimbursement. If it were, the Department would not have the
“ option” evidently contemplated by the Committee.17
To summarize, the Defense Department’s argument based on legislative histo
ry founders, first, on the canon of construction that legislative history cannot
overcome the plain language of a statutory provision and, second, on the fact that
the passages cited do not appear directly to support the notion that the Depart
ment is required by the Act to seek reimbursement for assistance authorized by
the Act.
C. The Defense Department’s Construction c f the Act
Implicit in the Defense Department’s position is the further argument that its
interpretation of Congress’ intention should be controlling since it is the agency
charged with implementing the statute by regulation. Also, it actively partici
pated in the legislation’s drafting, and thus may be presumed to have intimate
knowledge of the congressional design. We acknowledge that these facts dis
tinguished the present case from one in which an agency charged with imple
menting a statute has not been similarly involved with the statute in question.
Surely a court reviewing the legal issue presented to us would accord a responsi
ble agency’s view a certain respect in light of the normal understanding that such
an agency is in a position to grasp the legislature’s intent.18
However, there are two difficulties with relying on any presumption that the
Defense Department’s views should be accorded special weight in this case.
First, the Defense Department is not the only agency in the Executive Branch
affected by the authority conferred by the Act, nor is it the only agency that was
involved in deliberations prior to the Act’s passage. This Department, as the
major civilian law enforcement agency, is intimately affected by the Act and
played a role in deliberations leading to its enactment. Accordingly, any argu
ment by the Defense Department that its views should be accorded special
consideration must be balanced against the fact that it is not the only department
whose views are entitled to consideration.
More importantly, a court will not blindly give weight to a particular agency’s
views of a statute affecting the agency. To the contrary, courts have made clear
17 For further discussion of this passage from the House Judiciary Committee report, see supra.
18 See generally Red Lion Broadcasting Co. v. FCC, 395 U S. 367, 381 (1969); Zemel v. Rusk, 381 U .S 1,
11-12 (1965); Udall v. Tollman, 380 U.S. 1, 16 (1965). See also SEC v Sloan, 436 U.S 103 (1978); General
Electric Co. v Gilbert, 429 U.S. 125, 141 (1976).
479
that their primary responsibility of deciding issues of law arising in cases
involving challenges to an agency’s action requires them to reach an independent
judgment in light of statutory language and legislative history. Courts in general
will not defer to an administrative interpretation when it is not consistent with a
statute’s language and history.19
In this case, there is no doubt that the Secretary of Defense, subject to the
supervisory power of the President, has the authority and responsibility to issue
regulations dealing with the issue of reimbursement. However, the Secretary may
not read into the statute a legal requirement that is not contained therein. In our
view, for the reasons stated earlier, we do not believe that the Secretary is required
by the Act to seek reimbursement.
III. Conclusion
In conclusion, we believe that the Act’s reimbursement provision means what
it says: the Secretary of Defense “ shall issue regulations providing that reim
bursement may be a condition of assistance” under the Act. We cannot find in
this provision, its legislative history, other provisions of the statute, or the Act’s
legislative history in general any legal requirement that reimbursement be sought
under the Act. Also, since this Act provides authority for the Defense Depart
ment to assist civilian law enforcement officials in certain circumstances, there is
no occasion to rely on the Economy Act, 31 U.S.C. § 686, as the authority under
which the Defense Department will provide such assistance. Therefore, this is
not a situation in which reimbursement is governed by the law that would have
applied under the Economy Act itself.
T
heodore
B. O
lson
Assistant Attorney General
Office of Legal Counsel
19 A court’s deference to an agency’s construction is constrained by the statute *s language, history and purposes.
See Teamsters v. D aniel. 439 U .S 551, 566 n 2 0 (1979), Morton v. Ruiz, 415 U .S. 199, 237 (1974); Billings v.
Truesdell, 321 U S. 542, 552-53 (1944); Great Northern Ry Co. v. United States, 315 U.S 262, 275-76(1942);
U nited States v. Jackson, 280 U .S 183, 193 (1930). Courts are the final authorities on issues of statutory
interpretation and “ are not obliged to stand aside and rubber stamp their affirmance of administrative decisions that
they deem inconsistent with a statutory mandate o r that frustrate the congressional policy underlying a statute ”
Volkswagenwerk Aktiengesellschaft v. FMC, 390 U .S. 261, 272 (1968).
480 |
|
Write a legal research memo on the following topic. | Constitutional Issues Raised by Commerce, Justice, and
State Appropriations Bill
A provision prohibiting the use of appropriated funds for United Nations peacekeeping missions
involving the use of United States Armed Forces under the command of a foreign national unconstitutionally constrains the President’s authority as Commander in Chief and his authority over foreign
affairs.
A provision prohibiting the use of appropriated funds for cooperation with, assistance to, or other
support for the International Criminal Court would be unconstitutional insofar as it would prohibit
the President from providing support and assistance to the ICC under any and all circumstances, but
it can be applied in a manner consistent with the President’s constitutional authority in the area of
foreign affairs.
November 28, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
This memorandum responds to your request for our views on four provisions in
H.R. 2500, the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Bill for Fiscal Year 2002, 107th Cong. (2001)
(“CJS appropriations bill”): sections 609 (participation in United Nations peacekeeping), 612 (Department of Justice anti-terrorism restructuring), 626 (removing
foreign sovereign immunity in pending Iran hostages litigation), and 630 (support
for International Criminal Court).
We conclude that section 626 does not raise constitutional concerns, but that
section 609 unconstitutionally constrains the President’s Commander-in-Chief and
foreign affairs authority, section 612 represents the sort of legislative micromanagement of the Executive Branch that should be resisted on separation of powers
policy grounds, and application of section 630 in certain circumstances would
unconstitutionally interfere with the President’s foreign affairs authority.
I. Section 609
Section 609 provides that:
None of the funds made available by this Act may be used for any
United Nations undertaking when it is made known to the Federal
official having authority to obligate or expend such funds: (1) that
the United Nations undertaking is a peacekeeping mission; (2) that
such undertaking will involve United States Armed Forces under the
command or operational control of a foreign national; and (3) that
the President’s military advisors have not submitted to the President
a recommendation that such involvement is in the national security
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Opinions of the Office of Legal Counsel in Volume 25
interests of the United States and the President has not submitted to
the Congress such a recommendation.
Section 609 thus prohibits the use of appropriated funds (by entities receiving
appropriations under the CJS appropriations bill) for the participation of United
States Armed Forces in a United Nations peacekeeping mission under foreign
command, unless the President’s military advisors have recommended such
involvement and the President has submitted such recommendation to Congress.
This provision first appeared in CJS appropriations bills in 1996. We have
consistently taken the position that it is unconstitutional and have submitted
signing statement language saying that the provision unconstitutionally constrains
the President’s Commander-in-Chief authority and that the President will apply it
consistent with his constitutional responsibilities.
Our position has been based on the analysis that it is unconstitutional for Congress to place conditions, whether substantive or procedural, on the President’s
exercise of his constitutional authority—as Commander in Chief and with respect
to the conduct of diplomacy—to order United States military participation in an
United Nations peacekeeping operation. Specifically, it is unconstitutional to
require the President to satisfy the requirements set forth in section 609: that the
President’s military advisors have recommended that the involvement in the
peacekeeping operation is in the national security interests of the United States and
that the recommendation has been submitted to Congress.
Our analysis starts with the constitutional principle that responsibility for the
conduct of foreign affairs and for protecting the national security are “‘central’
Presidential domains.” Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The
President’s constitutional responsibilities in both these areas flow from the specific
grants of authority in Article II making him Chief Executive, U.S. Const. art. II,
§ 1, cl. 1, and Commander in Chief, id. art. II, § 2, cl.1, see Nixon v. Fitzgerald,
457 U.S. 731, 749-50 (1982), as well as from the “unique position” that the
President occupies in the constitutional structure, id. at 749. The President’s
exclusive authority to conduct the Nation’s diplomatic relations with other States
derives primarily from the Vesting Clause and the Commander-in-Chief Clause,
and is buttressed by the President’s more specific powers to “make Treaties,” U.S.
Const. art. II, § 2, cl. 2; to “appoint Ambassadors . . . and Consuls,” id.; and to
“receive Ambassadors and other public Ministers,” id. art. II, § 3.
The Supreme Court has consistently “recognized ‘the generally accepted view
that foreign policy [is] the province and responsibility of the Executive.’” Dep’t of
Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 29394 (1981)). See also Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (President is
the nation’s “guiding organ in the conduct of our foreign affairs”); Ex parte
Hennen, 38 U.S. (13 Pet.) 230, 235 (1839) (“As the executive magistrate of the
country, he is the only functionary intrusted with the foreign relations of the
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Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill
nation.”); Secretary of State Thomas Jefferson, Opinion on the Question Whether
the Senate Has the Right to Negative the Grade of Persons Appointed by the
Executive to Fill Foreign Missions (Apr. 24, 1790), in 5 The Writings of Thomas
Jefferson 161 (Paul L. Ford ed., 1895); The President’s Compliance with the
“Timely Notification” Requirement of Section 501(b) of the National Security Act,
10 Op. O.L.C. 159, 162 (1986) (“The presumptively exclusive authority of the
President in foreign affairs was asserted at the outset by George Washington and
acknowledged by the First Congress.”).
It is vital to the President’s ability to conduct diplomatic relations that he
should have the authority to deploy United States Armed Forces in the international arena, and be able to threaten credibly to do so. 1 Furthermore, the authority to
deploy military force in the defense of the security and interests of the United
States is expressly placed under the President’s authority by the Commander-inChief Clause, U.S. Const. art. II, § 2, cl. 1. The “inherent powers” of the President
as Commander in Chief are “clearly extensive.” Loving v. United States, 517 U.S.
748, 776 (1996) (Scalia, J., concurring in part and concurring in the judgment). As
Attorney General, later Justice, Robert Jackson explained:
Article II, section 2, of the Constitution provides that the President “shall be Commander in Chief of the Army and Navy of the
United States.” By virtue of this constitutional office he has supreme
command over the land and naval forces of the country and may
order them to perform such military duties as, in his opinion, are
necessary or appropriate for the defense of the United States. These
powers exist in time of peace as well as in time of war. . . .
Thus the President’s responsibility as Commander in Chief
embraces the authority to command and direct the armed forces in
their immediate movements and operations designed to protect the
security and effectuate the defense of the United States. . . . [T]his
authority undoubtedly includes the power to dispose of troops and
equipment in such manner and on such duties as best to promote the
safety of the country.
1
Longstanding historical practice supports the claim of presidential authority to deploy the armed
forces as a tool of foreign policy. See, e.g., Memorandum on the Authority of the President to Repel the
Attack in Korea, 23 Dep’t of State Bull. 173, 174 (1950) (historical practice supports use of United
States forces “in the broad interests of American foreign policy”). The President has “‘authority to
commit troops overseas without specific prior Congressional approval “on missions of good will or
rescue, or for the purpose of protecting American lives or property or American interests.”’” The
President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations
Supporting Them, 25 Op. O.L.C. 188, 197 (2001) (quoting Authority to Use United States Military
Forces in Somalia, 16 Op. O.L.C. 6, 6 (1992) (Barr, A.G.) (quoting Training of British Flying Students
in the United States, 40 Op. Att’y Gen. 58, 62 (1941) (Jackson, A.G.))).
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Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 6162 (1941).
Congress cannot, in the manner set forth in section 609, place impediments on
the President’s ability to deploy United States forces abroad for purposes he deems
vital to the national security. 2 As we have noted, long historical practice supports
the legitimacy of the President’s deploying military forces abroad in order to
protect the nation’s security and to uphold its interests. Moreover, as Commander
in Chief, the President must be able to determine, not only whether United States
Armed Forces are to be deployed abroad, but also under what conditions they are
to be deployed. Thus, the President has the authority to decide, within applicable
constitutional limits, what command structures the forces deployed are to have,
what tactics they are to adopt, what military objectives they are to pursue, and—
most relevantly here—whether and how they are to cooperate with foreign or
international forces in the same theater of operations. Such decisions implicate
both military and diplomatic judgments which the President alone is constitutionally empowered to make. Taking account of military needs and of foreign
relations, the President may well conclude, in particular circumstances, that it
serves the nation’s security and foreign policy best to deploy our forces as part of a
United Nations operation, rather than unilaterally (or not at all). 3 Congress is
without power to prevent the President from acting on that conclusion.
The fact that in section 609 Congress is placing a condition on the President’s
exercise of his constitutional authority indirectly, through the appropriations
process, rather than as a direct mandate, does not change our conclusion. “Broad
as the spending power of the Legislative Branch undoubtedly is, it is clear that
Congress may not deploy it to accomplish unconstitutional ends.” Presidential
Certification Regarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act, 20 Op. O.L.C. 253, 266 (1996). Of
particular relevance in the present context is the principle that “‘Congress cannot
use the appropriations power to control a Presidential power that is beyond its
direct control.’” Id. (citation omitted).
The Executive Branch’s insistence on this principle is longstanding. In 1860,
President Buchanan issued a signing statement denying Congress’s power to
interfere with his authority to issue orders to military officers through the device of
2
None of Congress’s enumerated powers in Article I appears to provide a basis for limiting, in the
manner proposed by the bill, the authority of the President to make the deployments in question. We do
not see, for example, how the proposed prohibition on deployments could fairly be described as an
exercise of Congress’s power to “declare War,” U.S. Const. art. I, § 8, cl. 11; of the power to “raise and
support Armies,” id. cl. 12; or to “make Rules for the Government and Regulation of the land and naval
Forces,” id. cl. 14.
3
See John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673,
1707-08 (2000) (explaining why multilateralism was preferable to unilateralism from the United States’
point of view in responding to crisis in Kosovo).
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a condition on the availability of appropriated funds. The President therefore
construed the statute at issue not to work such an interference. See Signing
Statement of President Buchanan to the House of Representatives (1860),
reprinted in 7 A Compilation of the Messages and Papers of the Presidents 3128
(James D. Richardson ed., 1897). The views expressed in the signing statement
were subsequently reviewed and endorsed by an opinion the President requested
from Attorney General Black. The Attorney General wrote that “[i]f Congress had
really intended to [interfere with the President’s command authority], that purpose
could not be accomplished in this indirect manner any more than if it was attempted directly.” Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 469 (1860). Since
that time, the Executive has consistently denied the binding effect of appropriations conditions that violate the constitutional separation of powers or usurp the
President’s constitutional authority.
Finally, we do not think that section 609’s authorization to participate in a
peacekeeping operation if the President’s military advisors have recommended the
participation and the recommendation has been submitted to Congress saves
section 609 from unconstitutionality. Congress can exempt the President from a
legislative restriction only if it has the authority to impose that restriction in the
first place. For the reasons stated above, we do not think Congress has such power.
II. Section 612
Section 612 addresses the subject of the organization of the Department of
Justice with respect to combating terrorism. Subsection (a) of section 612 requires
the President to
submit as part of the fiscal year 2003 budget to Congress a proposal
to restructure the Department of Justice to include a coordinator of
Department of Justice activities relating to combating domestic terrorism, including State and local grant programs subject to the
authority of the Attorney General, and who will serve as the Department of Justice representative at interagency meetings on combating
terrorism below the Cabinet level.
Viewed in isolation, subsection (a) appears to require the President to submit a
legislative proposal to Congress, which would raise constitutional concerns under
the Recommendations Clause, which provides that the President “shall from time
to time . . . recommend to [Congress] . . . such Measures as he shall judge
necessary and expedient.” U.S. Const. art. II, § 3. Under the Recommendations
Clause, Congress cannot compel the President to submit legislative proposals to
Congress.
When subsection (a) is read in conjunction with the remainder of section 612,
however, it is apparent that section 612 does not require the President to submit a
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legislative proposal. Rather, he is being given the choice of submitting a legislative proposal under subsection (a) or acquiescing in the congressional proposal set
forth in the remainder of section 612. Subsection (b) provides that “[i]f the
President does not submit a proposal as described in subsection (a), or if Congress
fails to enact legislation establishing a new position described in subsection (a), by
June 30, 2002, then effective on such date subsections (c) through (f) [the
remaining provisions of section 612] shall take effect.” Those remaining subsections establish the position of Deputy Attorney General for Combating Domestic
Terrorism.
Thus, the legislative proposal provision of subsection (a) is not a mandatory
requirement for the President, but is merely part of a mechanism created by the
entirety of section 612, under which the congressional enactment set forth in
subsections (c) through (f) will go into effect if the President does not propose an
alternative approach to restructuring the Department of Justice to deal with
terrorism. The President is not required by section 612(a) to submit legislation to
Congress because he has the choice of accepting the congressional approach set
forth in the rest of section 612.
Although we do not believe that section 612 violates the Recommendations
Clause, it does represent the sort of legislative micromanagement of the Executive
Branch that we have objected to in the past. See Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 253-54 (1989) (stating
that “Congress’ recent interest in determining the precise organizational structure
of executive branch departments . . . seriously threatens the executive branch’s
ability to effectively and efficiently fulfill its obligations”). By requiring that a
particular executive officer coordinate specific policy and executive decisions,
section 612 infringes upon the President’s constitutional authority to direct the
activities of the Executive Branch. While Congress has broad authority to
determine what laws the President must enforce, we do not believe that Congress
has an entirely free hand in determining how the Executive Branch must be
organized to enforce those laws. Indeed, if it did, the Executive Branch would be
substantially controlled and administered by the Legislative Branch. Thus, on
separation of powers policy grounds, we believe that Congress’s effort to restructure the Department of Justice should be vigorously resisted.
III. Section 626
Subsection (c) of section 626 would amend provisions of the Foreign Sovereign
Immunities Act (“FSIA”) that establish the circumstances in which foreign states
are not immune from the jurisdiction of the courts of the United States in civil
actions brought against them. Section 626(c) would amend section 1605(a)(7)(A)
of the FSIA by specifying that any “act . . . related to” a designated case against
the Government of Iran presently pending in the U.S. District Court for the District
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of Columbia is not protected by foreign sovereign immunity under the FSIA. The
case designated in the provision is Roeder v. Islamic Republic of Iran,
No. 1:00CV03110(ESG) (D.D.C.). That case, we are advised, is based upon the
Iranian Government’s actions in connection with the detention and mistreatment
of hostages in the U.S. Embassy in Teheran in 1979. The Civil Division advises
that a default judgment has been entered against Iran in that case and proceedings
to assess damages remain to be held in the U.S. District Court. The United States
has filed a motion to intervene and a motion to vacate the judgment, which
motions are presently pending.
We do not believe section 626(c) raises constitutional concerns. This provision
would merely establish by statute that Iran does not have sovereign immunity in
U.S. courts with respect to the acts related to the Iran hostage crisis that form the
basis of the claim in Roeder—a claim that is the subject of ongoing litigation and
which has not been reduced to final judgment. Nothing in the Constitution bars
Congress from enacting such legislation. In particular, the provision does not
violate the principles of the Supreme Court’s precedents in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211 (1995), or United States v. Klein, 80 U.S. (13 Wall.) 128
(1871). Under Plaut, Congress may not enact legislation that requires federal
courts to reopen or otherwise alter final judgments. Because the Roeder case has
not been reduced to final judgment, the Plaut principle is inapplicable. Even if the
default judgment in question were a final judgment at this stage, section 626(c)
would still not appear to violate Plaut because (by denying sovereign immunity) it
appears to reinforce, rather than reopen, the validity of the judgment against Iran.
Klein, on the other hand, is sometimes cited for the general proposition that
Congress may not prescribe to the courts a rule of decision to dictate the court’s
interpretation of the law in a particular case. Klein does not, however, prohibit
Congress from changing the underlying law that governs in a pending case, even if
that case was still pending when the change in the law was made. As explained by
the Supreme Court in Plaut, “[w]hatever the precise scope of Klein, . . . later
decisions have made clear that its prohibition does not take hold when Congress
‘amend[s] applicable law.’” 514 U.S. at 218 (quoting Robertson v. Seattle
Audubon Soc., 503 U.S. 429, 441 (1992)).
In addition, we do not believe that section 626(c) is constitutionally objectionable as an improper congressional interference with the President’s foreign affairs
powers. The Supreme Court has firmly upheld the constitutionality of the FSIA’s
regulation of foreign sovereign immunity as a valid exercise of Congress’s power
to regulate foreign commerce and as falling within the proper bounds of Congress’s Article III powers as well. See Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 496-97 (1983). Although the provisions of section 626(c) are very
specific in their coverage, we cannot say that they exceed the proper scope of
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legislative regulation upheld by the courts in granting or withholding sovereign
immunity to foreign states in the courts of the United States. 4
IV. Section 630
Section 630 provides that “[n]one of the funds appropriated or otherwise made
available by this Act shall be available for cooperation with, or assistance or other
support to, the International Criminal Court [(“ICC”)] or [its] Preparatory
Commission [(“Commission”)].” We believe that section 630 would be unconstitutional to the extent that it would prohibit the President, through his subordinates,
from providing support and assistance to the ICC or the Commission under any
and all circumstances. Therefore, we have submitted signing statement language
saying that the President will apply this provision consistent with his constitutional
authority in the area of foreign affairs.
Section 630 can be given effect consistent with the Constitution. Prohibiting
technical or ministerial cooperation with or assistance to the ICC or the Commission would generally not interfere with the President’s exercise of his constitutional authority, and therefore as applied to those circumstances section 630 would not
be constitutionally problematic.
Serious as-applied constitutional difficulties would arise under section 630,
however, if its prohibition were to apply to certain diplomatic activities or
substantive positions the President might take with respect to or before the ICC or
the Commission. The Constitution commits to the President the primary responsibility for conducting the foreign relations of the United States, see, e.g., Dep’t of
Navy v. Egan, 484 U.S. at 529 (the Supreme Court has “recognized ‘the generally
accepted view that foreign policy was the province and responsibility of the
Executive’”) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred Dunhill
of London, Inc. v. Republic of Cuba, 425 U.S. 682, 705-06 n.18 (1976) (“[T]he
conduct of [foreign policy] is committed primarily to the Executive Branch.”), and
the exclusive responsibility for formulating the position of the United States in
international fora and for conducting negotiations with foreign nations, see, e.g.,
United States v. Louisiana, 363 U.S. 1, 35 (1960) (the President is “the constitutional representative of the United States in its dealings with foreign nations”).
4
Two other issues have been raised by section 626. Subsections (a) and (b) purport to require the
President to submit to Congress a detailed legislative proposal dictated by Congress and thus raise clear
concerns under the Recommendations Clause. This issue is straightforward, and we have already
addressed it in our comments to the Office of Management and Budget, which have included
recommended language for the President’s signing statement. In addition, the National Security
Council staff has submitted signing statement language indicating that the Executive Branch will act,
and encourage the courts to act, with regard to subsection (c)’s removal of Iran’s sovereign immunity in
the pending litigation, in a manner consistent with the obligations of the United States under the 1981
Algiers Accords that achieved the release of the hostages. This Office has cleared that language.
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Thus, there might well be circumstances in which the President finds it necessary, in the exercise of his constitutional responsibilities, to order an executive
agency to provide support or assistance to the ICC or the Commission. For
example, the President might find that it served overriding United States national
security and foreign policy interests to assist the ICC in investigating, capturing, or
prosecuting a prominent foreign individual whose activities threaten American
lives and interests. Failure to assist the ICC in such efforts by, for example,
supplying intelligence information on the whereabouts or activities of such an
individual could do serious and lasting harm to United States security and its
international standing.
It will therefore be important in applying section 630 to interpret the terms
“cooperation,” “assistance,” and “support” in a way that is consistent with the
understanding that the provision cannot constitutionally limit the President’s
exercise of his constitutional responsibilities. Properly understood, however, these
terms should not unconstitutionally constrain the President. For example, in light
of the President’s exclusive constitutional responsibilities for the conduct of
diplomacy, we would not interpret the Executive Branch’s participation in
negotiations concerning the ICC to constitute cooperation, assistance, or support.
Similarly, we do not believe the section 630 prohibition could constitutionally
be applied to the sharing of intelligence information with the ICC concerning an
alleged terrorist who has been brought before the ICC. As Chief Executive and
Commander in Chief, the President has independent authority to gather intelligence and to control access to national security information. The Supreme Court
has specifically recognized the President’s constitutional authority to control the
disclosure of classified information:
The President . . . is the “Commander in Chief of the Army and
Navy of the United States.” . . . His authority to classify and control
access to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and
exists quite apart from any explicit congressional grant. . . . This
Court has recognized the Government’s “compelling interest” in
withholding national security information from unauthorized persons
in the course of executive business. . . . The authority to protect such
information falls on the President as head of the Executive Branch
and as Commander in Chief.
Dep’t of Navy v. Egan, 484 U.S. at 527. See also New York Times Co. v. United
States, 403 U.S. 713, 728-29 (1971) (Stewart, J., concurring) (“If the Constitution
gives the Executive a large degree of unshared power in the conduct of foreign
affairs and the maintenance of our national defense, then under the Constitution
the Executive must have the largely unshared duty to determine and preserve the
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degree of internal security necessary to exercise that power successfully.”).
Implicit in the President’s authority to gather such information and to control
access to it is the authority to disclose it to foreign nations or to international
bodies if, in the exercise of his diplomatic responsibilities, he finds it proper to do
so.
The President may well find it necessary or advisable in particular circumstances to disclose classified information to foreign nations or to international bodies in
order to promote this nation’s diplomatic objectives or to guard its interests and
security. Such disclosure is a legitimate—and often, an unavoidable—exercise of
the President’s diplomatic and military responsibilities. For example, the President
may find it necessary to disclose to a foreign government classified information
about the identity or whereabouts of a foreign terrorist, or about the extent to
which that government’s security has been compromised by a third country’s
intelligence operations. Or the President may need to warn a potential enemy
nation (even if the information disclosed is classified) about United States military
planning and capabilities, in order to deter that country from acts of aggression.
JOHN C. YOO
Deputy Assistant Attorney General
Office of Legal Counsel
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|
Write a legal research memo on the following topic. | Constitutional Limits on “Contracting Out” Department of
Justice Functions under OMB Circular A-76
L itig a tio n o n b e h a l f o f th e U nited S ta te s m u st be c o n d u c te d o r c lo s e ly s u p e rv is e d by o ffic e rs o f
th e U n ite d S ta te s w h o have b een a p p o in te d in c o n fo rm ity w ith th e A p p o in tm e n ts C la u s e an d
w h o a re u n d e r th e s u p erv isio n o f th e A tto rn e y G e n e r a l a n d th e P r e s id e n t.’
C e r ta in p ro g r a m a n a ly s t, p ro g ram m o n ito r a n d h is to ric a l re s e a rc h su p p o rt p o s itio n s in th e D e
p a r tm e n t o f J u s tic e d o n o t in v o lv e g o v e rn m e n ta l a u th o rity th a t can o n ly b e e x e rc is e d by
o ff ic e rs o f th e U n ite d S tates, but in s te a d in v o lv e in fo rm a tio n g a th e rin g a n d re p o rtin g d u tie s
w h ic h m a y c o n s titu tio n a lly be p e rfo r m e d by p riv a te p a rtie s o n a c o n tra c t b a sis .
April 27, 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
J u s t ic e M a n a g e m e n t D iv is io n
You have asked for our advice concerning the constitutional limitations
on employing private contractors or individuals to perform certain tasks now
performed by Department of Justice employees. First, you have asked us to
explore any constitutional questions raised by the contracting out of fortyeight program analyst and program manager positions responsible for grant
activities in the Office of Juvenile Justice and Delinquency Prevention
(“O JJDP”) and the Bureau of Justice Assistance (“BJA”). According to the
D epartm ent’s notice in the January 8, 1990 Commerce Business Daily, the
functions performed by these positions include, but are not limited to, the
following:
First, the development, monitoring, and promotion of criminal
justice (including drug prevention), juvenile justice and delin
quency prevention, and related programs administered by State
and local government agencies and other public and nonprofit
* E d ito r's n o te: T h e O ffice o f Legal C o u n se l has d isav o w e d the interpretation o f the A ppointm ents
C la u se s e t fo rth in th is o p in io n . See M em o ran d u m for th e G eneral C ounsels o f the Federal G o v e rn
m en t, fro m W alter D ellin g er, A ssistant A tto rn e y G eneral, Re: The Constitutional Separation o f Powers
betw een the President and Congress, at 2 0-21 n.53 (M ay 7, 1996).
94
organizations and institutions. (Congress sets certain require
ments which these agencies must meet to qualify for federal
assistance.) Second, the provision of technical assistance to
State/local agencies in the form of short-term training on tech
nical matters; dissemination of information (publications,
institutes, conferences, seminars, etc.); provision of information
to develop programs proposals; and preparation of program plans.
The notice also indicates that as a general matter, personnel holding these
positions are “responsible for administering the Federal part of the state or
local government’s criminal justice or related programs.” It is our under
standing that employees in these positions presently monitor the programs
of state and nonprofit grantees and report on their compliance with federal
law and grant specifications. While these reports may form the basis for
federal funding decisions made by the Administrator of OJJDP or the Direc
tor of BJA, no final decisions concerning program compliance or federal
funding can be made by any of the forty-eight employees who presently
occupy these positions. In addition, some of these employees may assist in
the formation of program initiatives within the framework of overall policy
goals set by the Administrator or the Director. Finally, some of these posi
tions involve rendering non-binding advice to grantees concerning compliance
with federal law. However, all final decisions as to actual compliance with
federal law rest with the Administrator and the Director.
Second, you have asked our opinion concerning the contracting out of
historical research support positions in the Office of Special Investigations
(“OSI”) of the Criminal Division. The work contracted out in this context
would involve translation, research, and secretarial support services for OSI
historians investigating individuals suspected of having committed war crimes
during World War II.
Finally, you have expressed the need for more general guidance concern
ing the constitutional limitations on the application of OMB Circular A-76
to Department of Justice functions.1 In particular, you have inquired whether
we adhere to the views expressed in an opinion issued by this Office in 1983
that concludes that legislation providing for the use of private counsel to
represent the United States in debt collection actions is constitutionally prob
lematic. See Memorandum to Deputy Attorney General Schmults, from
Assistant Attorney General Olson, Office of Legal Counsel (May 20, 1983).
' It ap p ears to us that, absent presidential d irectiv es to the contrary, the A ttorney G eneral, as the h e ad o f
the D ep artm en t o f Justice and the P resid en t's c h ie f legal advisor, has the final a u th o rity to d e te rm in e
w hat po sitio n s w ithin the D epartm ent o f Justice are suitable to be co nsidered fo r c o n tractin g o ut. See S
U .S .C . § 301 (“T h e h ead o f an E xecutive d e p a rtm e n t. . . m ay p rescribe re gulations fo r the g o v e rn m e n t
o f h is d ep artm en t, the co n du ct o f its em ployees, the distrib u tio n and perform ance o f its b u sin ess, and
the custody, use, and preservation o f its records, p apers, and p ro p erty.” ); see also Olympic Fed. Sav. &
Loan A ss'n v. Office o f Thrift Supervision, T i l F. Supp. 1183, 1197 (D .D .C . 1990) (‘‘[T ]he A tto rn ey
G en eral is charged w ith responsibility fo r en suring that only law fully appointed officials act on b e h a lf
o f the U n ited S tates, an d c o n seq u en tly his in terp retatio n o f law on this subject is e n title d to g reat
d e fe re n c e .” ).
95
II. Analysis
The Constitution provides that “[t]he executive Power shall be vested in a
President o f the United States of America,” and charges the President to
“take Care that the Laws be faithfully executed.” U.S. Const, art II, § 1, cl.
1; art. II, § 3. The very core of the executive power is the authority to
pursue civil and criminal enforcement actions on behalf of the United States.
See Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) (“A lawsuit is the
ultim ate remedy for a breach o f the law, and it is to the President . . . that
the Constitution entrusts the responsibility to ‘take Care that the Laws be
faithfully executed.’”); Morrison v. Olson, 487 U.S. 654, 691 (1988) (“no
real dispute that the functions performed by the independent counsel are
‘executive’”); Springer v. Philippine Islands, 277 U.S. 189, 202 (1928) (au
thority to enforce the laws and to appoint agents to do so are executive
functions); M yers v. United States, 272 U.S. 52 (1926) (same). More gener
ally, the executive power encompasses the interpretation and effectuation of
all public law. Bowsher v. Synar , 478 U.S. 714, 733 (1986) (“Interpreting a
law enacted by Congress to implement the legislative mandate is the very
essence o f ‘execution’ of the law.”).
Obviously, the President alone cannot assure the faithful execution of the
laws, and the Appointments Clause provides the constitutional mechanism
for the delegation of the executive power to a corps of federal officers under
the President’s control to assist him in executing the laws. See M yers, 272
U.S. at 133 (“Each head of a department is and must be the President’s alter
ego in the matters of that department where the President is required by law
to exercise authority.”); see a lso In re Neagle, 135 U.S. 1, 63 (1890) (“The
Constitution, section 3, Article 2, declares that the President ‘shall take care
that the laws be faithfully executed,’ and he is provided with the means of
fulfilling this obligation by his authority to commission all the officers of
the United States, and, by and with the advice and consent of the Senate, to
appoint the most important o f them and to fill vacancies.”).
The Appointments Clause has both a “horizontal” and a “vertical” role to
play in the separation of powers. Horizontally, it assures that executive
power is not exercised by individuals appointed by, or subservient to, an
other branch o f government. Vertically, the clause protects against the
delegation of federal executive authority to private entities outside the con
stitutional framework.2
2 T h e “ v e rtic a l” p ro te c tio n s o f the A p p o in tm en ts C lau se un d ergird the “horizo n tal" separation o f pow
e rs. I f th e fe d e ra l e x ec u tiv e , legislative, a n d ju d ic ia l po w ers could be granted to priv ate e n titie s to be
w ie ld e d o u ts id e o f c o n stitu tio n a l strictu res, the carefu l sep aration and interm ingling o f pow ers in the
C o n stitu tio n its e lf w o u ld be rendered a p a p e r g esture. Cf. Northern Pipeline Constr. Co. v. M arathon
P ipeline Co., 4 5 8 U .S . 5 0 (1 9 8 2 ) (holding u n co n stitu tio n al d e leg ation o f A rticle III duties to ju d g e s not
a p p o in te d in c o n fo rm ity w ith the A p p o in tm en ts C la u se ); A .L A . Schechter Poultry Corp. v. United
States, 295 U .S . 495 (1 9 3 5 ) (federal le g islativ e p o w er m ay not be d elegated to p rivate parties). In
ad d itio n , th e “ v ertical” o r “nondelegation” aspect o f the A ppointm ents C lause ensures that the President,
th ro u g h a u n itary e x ecu tiv e branch, can b e held politically accountable for his execution o f the law s.
96
The Appointments Clause, Article II, Section 2, Clause 2, 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, whose Appoint
ments are not herein otherwise provided for, and which shall
be established by Law; but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in
the President alone, in the Courts of Law, or in the Head of
Departments.
In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court
examined the reach and requirements of the Appointments Clause in the
context of a constitutional challenge to the composition of, and authority
wielded by, the Federal Election Commission. The Commission was com
posed o f six voting members. The President pro tempore of the Senate, the
Speaker of the House, and the President each appointed two of the voting
members. None of the voting members of the Commission was nominated
by the President and confirmed by the Senate in accordance with the Ap
pointments Clause.
By statute the Commission was charged with what the Supreme Court
viewed as three distinct types of tasks. First, the Commission was to gather,
organize, and make available to the public data concerning campaign spend
ing and the administration of elections. The Court characterized these as
“recordkeeping, disclosure, and investigative functions.” Id. at 110. Sec
ond, the Com m ission was granted extensive power to issue binding
administrative rules, to “formulate general policy” concerning the enforce
ment of applicable statutes, and to issue advisory opinions concerning election
law requirements. Id. at 110-11. Finally, the Commission was granted what
the Court characterized as “direct and wide ranging” enforcement powers.
Id. at 111. The Commission was authorized to institute civil actions to
enforce statutory requirements, to sue for the return of campaign “matching
funds” to the United States Treasury, and to issue “findings” of failure to file
expenditure reports. Id.
The Court began its analysis by rejecting the notion that the locution
“Officers of the United States” in the Appointments Clause was merely a
creature of “etiquette or protocol.” Instead, the Court viewed the term as a
reference to those persons who may exercise “significant authority” under
the laws of the United States. The Court stated:
We think that the term “Officers of the United States” as used
in Art. II, defined to include “all persons who can be said to
hold an office under the government” in United States v.
97
G erm aine, [99 U.S. 508 (1879)], is a term intended to have
substantive meaning. We think its fair import is that any ap
pointee exercising significant authority pursuant to the laws
o f the United States is an “Officer of the United States,” and
must, therefore, be appointed in the manner prescribed by § 2,
cl. 2 of that Article.
Id. at 125-26.
W hile the Buckley Court did not offer a comprehensive definition of what
constitutes “significant authority” for purposes of the Appointments Clause,
the C ourt’s treatment of the various powers and duties conferred upon the
Federal Election Commission offers significant guideposts. First, the Court
made clear that “vesting in the Commission primary responsibility for con
ducting civil litigation in the courts of the United States for vindicating
public rights, violate[s] Art. II, § 2, cl. 2, of the Constitution.” Id. at 140.
The Court indicated that “[s]uch functions may be discharged only by per
sons who are ‘Officers of the United States’ within the language of that
section.” Id.
The Court also held that the Commission’s “broad administrative powers:
rulemaking, advisory opinions, and determinations of eligibility for funds
and even for federal elective office itself,” constituted “significant authority”
that could only be executed by properly appointed officers of the United
States. Id. at 140, 141-42. The Court indicated that “each of these functions
also represents the performance of a significant governmental duty exercised
pursuant to a public law.” Id. at 141.3
Finally, the Court held that the Commission, as then constituted, could
exercise powers of “an investigative and informative nature, falling in the
same general category as those powers which Congress might delegate to
one o f its own committees.” Id. at 137. These information gathering duties
were, in the Court’s view, “sufficiently removed from the administration and
enforcement of the public law as to permit their being performed by persons
not ‘Officers of the United States.’” Id. at 139.4
1 It sh o u ld b e no ted th at the "advisory” o p in io n s o f the Federal E lection C om m ission w ere so in nam e
o n ly . T h e sta tu te p ro v id e d th at any in d iv id u a l w ho a c te d in good fa ith on the b a sis o f such an opinion
“ s h all b e p re su m ed to be in com pliance” w ith federal e le ctio n law “ n o tw ithstanding any o th e r provision
o f law .” Buckley, 4 2 4 U .S . at 110-11.
J T h e c o n stitu tio n a l c o n c e rn s ex p ressed by th e B uckley C o u rt are th e m selv e s re fle c te d in O M B C ir
c u la r A -7 6 . T h e C irc u la r recognizes th a t ‘‘[c je rta in fu n c tio n s are in h e re n tly G o v e rn m e n ta l in n a tu re ,"
d e fin e d as fu n c tio n s “ w h ic h require e ith e r the ex ercise o f d iscretio n in a p p ly in g G o v e rn m e n t a u th o rity
o r th e u se o f v a lu e ju d g m e n t in m aking d e c isio n s fo r the G o v e rn m e n t.” O M B C irc u la r N o. A -76 §§ 5b,
6 e (R ev . A u g . 4 , 1983). Listed e x am p les include “c rim in a l in v e stig atio n s, p ro se cu tio n s and o th e r
ju d ic ia l fu n c tio n s ; m a n a g em e n t o f G o v e rn m e n t p ro g ram s re q u irin g v alue ju d g m e n ts ,” and “ sele c tio n
o f p ro g ra m p rio ritie s ." Id. § 6 e (l). T h e C irc u la r in d ic a te s th at it is the policy o f the U n ited S ta te s to
“ [r]e ta in G o v e rn m e n ta l [f u n c tio n s [i]n -h o u s e ,” and th a t th ese fu n c tio n s “sh all be p erfo rm ed by G o v
e rn m e n t e m p lo y e e s .” Id. § 5(b).
98
Buckley thus makes it clear that the exercise of rulemaking or policymaking
functions requires proper authority under the Appointments Clause. See
also Olympic Fed. Sav. & Loan A s s ’n. v. Office o f Thrift Supervision, 732 F.
Supp. 1183 (D.D.C. 1990) (Director of the Office of Thrift Supervision exer
cises significant rulemaking and regulatory authority and thus under Buckley
must be appointed in accordance with the Appointments Clause). On the
other hand, information gathering, investigative, and advisory functions that
do not involve final actions affecting third party rights may be performed by
private parties or “independent” contractors. Similarly, purely ministerial
and internal functions, such as building security, mail operations, and physi
cal plant maintenance, which neither affect the legal rights of third parties
outside the Government nor involve the exercise of significant policymaking au
thority may be performed by persons who are not federal officers or employees.
Applying these criteria to the two types of functions at issue here, we
conclude that both the forty-eight program analyst and program monitor
positions and the historical research support positions do not involve the
exercise of “significant authority pursuant to the laws of the United States,”
as that phrase is used in Buckley. We emphasize that under Buckley private
individuals may not determine the policy of the United States, or interpret
and apply federal law in any way that binds the United States or affects the
legal rights of third parties. Nor can any private individuals make funding
decisions. See Letter for Marshall J. Breger, Chairman of the Administrative
Conference of the United States, from Deputy Attorney General Bums at 4
(Nov. 10, 1986) (“Bums Letter”) (“[W]e do not believe that individuals who
are not officers of the government may commit or dispose of the property of
the United States.”). Properly appointed federal officials must maintain both
legal and effective control over the direction of United States policy in this
area as well as control over the allocation of federal funds.
As we understand it, however, the program analysts and monitors in
volved here simply study and make recom m endations concerning the
compliance of various state and local programs with federal funding require
ments. While the employees who presently occupy these positions may
advise and assist in policy formation, they cannot determine the final policy
of the Department of Justice. Nor can these employees take any indepen
dent action on behalf of the United States affecting the rights o f grantees.
The prior opinions of this Office indicate that such “study and report” func
tions need not be performed by officers of the United States within the
meaning of the Appointments Clause. See, e.g., Memorandum for the Attor
ney General, from Theodore B. Olson, Assistant Attorney General, Office of
Legal Counsel, Re: Enrolled Bill S. 118, “To Provide fo r the Establishment
o f a Commission on the Bicentennial o f the Constitution’’ (Sept. 29, 1983)
(Commission on the Bicentennial of the Constitution); Memorandum for
Robert A. McConnell, Assistant Attorney General, Office of Legal Affairs,
from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal
99
Counsel, Re: Enrolled Bill H R. 1900 (Apr. 6, 1983).5
We also conclude that under Buckley, the duties of the historical research
support positions may be performed by private persons. As a general matter,
the investigation of criminal activity is an inherently governmental function
performed exclusively by federal officers within the executive branch. Thus,
we have no doubt that the authority to seek and execute search warrants, or
to make arrests in the name o f the United States is “significant authority”
under Buckley. However, as w e understand it, the historical research support
personnel at issue here conduct background research and translation under
the direction o f the OSI historians who are properly appointed federal offic
ers. These support personnel have no authority to take or authorize any
legal action on behalf of the United States. Rather, they are simply charged
with library research, translation, and collation of data. The functions to be
performed by these individuals are more akin to those of an expert witness
or consultant than they are to those of an FBI agent or a federal prosecutor.
Such purely informational tasks may be performed by private individuals.
See Memorandum for Richard C. Stiener, Chief, United States National Cen
tral Bureau, INTERPOL, from Larry Simms, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Establishment o f an Interpol Subbureau
in Puerto Rico (Jan. 19, 1984) (information gathering and sharing functions
o f United States National Central Bureau of INTERPOL may be performed
by persons not officers of the United States); id. at 12 n .ll (noting that
“ [e]ven private citizens can be an important source of information in the
cause o f law enforcement”).
As a general matter, we also reaffirm the consistent position of this Of
fice and the Department of Justice that the authority to direct litigation on
behalf of the United States may not be vested in persons who are not offic
ers of the United States appointed in the proper manner under Article II,
Section 2, Clause 2 o f the Constitution. See, e.g., Brief for the United States
as Amicus Curiae Supporting Appellees at 17, Morrison v. Olson, 487 U.S.
654 (1988) (No. 87-1279) (“[T]he duty of the President to ‘take Care’ means
that he, with the help of the Senate in certain cases and acting on his own or
through his heads of departments in others, is responsible and accountable
to the people for selecting those persons who will exercise significant au
thority in executing the law.”); Bums Letter at 2 (“[A]ny broad delegation of
authority to private persons to conduct litigation in the name of the United
States is likely to raise constitutional problems.”).
This position is dictated both by the Supreme C ourt’s decision in Buckley
and by the broader separation of powers concerns underlying the Supreme
C ourt’s Appointments Clause jurisprudence. See Buckley, 424 U.S. at 139
(“ [A]ll such suits [civil and criminal], so far as the interests of the United
5 It is q u ite p o s sib le th a t O M B C ircu lar A -7 6 ’s d e fin itio n o f in h e re n tly g o v e rn m e n ta l fu n c tio n s c o v
ers a w id e r ran g e o f fu n c tio n s than those th a t entail the e x e rc ise o f “sig n iftean t a u th o rity ” u n d e r Buckley.
T h is o p in io n d o e s n o t a d d re ss that issue.
100
States are concerned, are subject to the direction, and within the control of,
the Attorney-General.”) (quoting The Confiscation Cases, 74 U.S. (7 Wall.)
454, 458-59 (1869)); 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 of the institution and conduct of the pleas of the United States, and
of the litigation which is necessary to establish the rights of the govern
ment”).6 Thus, both the Appointments Clause and more general separation
of powers concerns make it clear that the vesting of independent litigation
authority in persons who are not federal officers or employees and who are
not subject to executive branch discipline and control is unconstitutional.
Were this not so, Congress could displace particular litigation authority from
the executive branch and vest it in a private interest group or even in the
House or Senate Counsel.
We note that the Department’s support for the Debt Collection Act Amend
ments o f 1986, Pub. L. No. 99-578, 100 Stat. 3305 (codified at 31 U.S.C. §
3718(b)), is fully consistent with this position. Those amendments autho
rized the Attorney General to retain private counsel to assist in the collection
of non-tax debts owed to the United States. In signing that legislation into
law. President Reagan stated:
I am approving [the debt collection amendments] knowing
that the Attorney General will take all steps necessary to en
sure that any contact entered into with private counsel contains
provisions requiring ongoing supervision of the private coun
sel so that all fundamental decisions, including whether to
initiate litigation and whether to settle or compromise a claim,
are executed by an officer of the United States, as required by
the Constitution.
Pub. Papers of Ronald Reagan 1454 (1986).
The Department has issued regulations requiring the designation of “an
Assistant U.S. Attorney to serve as the Contracting Officer’s Technical Rep
resentative (“COTR”) on the contracts with private debt collection lawyers
4 We n o te that apart from the constitutional c o n strain ts exam ined in Buckley there is stro n g su pport in
the statutes o rganizing the litigation authority o f the ex ecu tiv e branch fo r the p ro p o sitio n that on ly
o fficers o f the U n ited S tates m ay conduct litig atio n in the nam e o f the U n ited States. S e c tio n 3106 o f
title 5 pro v id es that, in g en eral, agency and dep artm en t heads “ m ay not em p lo y an atto rn e y o r co u n sel
for the co n d u ct o f litigation in w hich the U nited States . . . is a party, o r is interested, o r fo r the secu rin g
o f e vidence therefor, but shall refer the m atter to the D ep artm en t o f Justice.” W ithin the D e p artm e n t o f
Ju stic e itself, statu to ry stru ctu re reflects c o n stitu tio n al design. A ll litigation m ust b e c o n d u cted by
officers u n d e r th e control and supervision o f the A tto rn ey G eneral. See, e.g., 28 U .S.C . § 5 1 5 (b ) (“ E ach
a ttorney sp ec ia lly retained un d er the authority o f the D epartm ent o f Justice shall be co m m issio n ed as a
special a ssistan t to the A ttorney G eneral o r special attorney, an d shall take the oath re q u ire d by law .” );
28 U .S .C . § 516 ( “ [T ]he conduct o f litig atio n in w hich the U nited States . . . is a party . . . is reserved to
officers o f the D ep artm en t o f Justice, un d er the d irectio n o f the A ttorney G e n eral.” ); see also 28 U .S .C .
§§ 519, 547.
101
in their respective districts.” 28 C.F.R. § 11.2 (1989). Under the regulations,
these COTRs “will be responsible for assisting the contracting officer by
supervising the work of the private counsel in their respective districts and
providing necessary approvals with respect to the initiation or settlement of
lawsuits or similar matters.” Id. In addition, the Department’s Request for
Proposals (“RFP”), issued pursuant to the debt collection amendments, makes
it clear that the COTR must review all major pleadings in debt collection
actions before they are filed by the private attorney. The Department has
indicated that it considers this kind of close supervision of private attorneys
“necessary to meet constitutional .concerns and preserve the authority of the
Attorney General over litigation.” Bums Letter at 3.
Conclusion
In sum, we reaffirm the longstanding position o f this Office and the De
partment that litigation on behalf of the United States must be conducted or
closely supervised by properly appointed officers of the United States, offic
ers who are themselves under the supervision of the Attorney General and
the President. In addition, any significant policymaking duties under federal
law or discretionary acts which affect the rights of citizens cannot be under
taken by private parties. On the other hand, advisory and information gathering
functions, as well as purely ministerial and internal management matters,
need not be performed by officers of the United States. We therefore con
clude that the forty-eight program analyst and program monitor positions and
the historical research support positions do not involve governmental author
ity that can only be exercised by officers, but instead involve information
gathering and reporting duties which may constitutionally be performed by
private parties on a contract basis.
WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
102 |
|
Write a legal research memo on the following topic. | April 22, 1977
77-22
MEMORANDUM OPINION FOR THE
ACTING ASSISTANT ATTORNEY GENERAL,
TAX DIVISION
Proposed Tax Assessment Against the United States
Postal Service
This is in response to your request for our opinion as to the available
remedies to resolve a dispute between the Internal Revenue Service
(IRS) and the Postal Service. In our opinion, the question for consider
ation is the justiciability of a dispute between the IRS and another
executive branch entity regarding Federal taxes to be paid by the latter.
We conclude that there is no reasonable basis to believe that such a
dispute over the allocation of funds between two executive agencies, a
matter that does not concern any adverse private person as a “real
party in interest,” is justiciable. If formally asked this question by the
Postal Service and IRS, we would so respond. Having so concluded,
we see no need for us to consider the question of what administrative
steps must be taken to bring the matter into a litigating posture.
The dispute involves the Airport and Airway Revenue Act of 1970,
which imposes a 5 percent tax on the amount paid for the transporta
tion of property by air. 26 U.S.C. §4271.1 The tax is imposed upon the
person making the transportation payment subject to the tax. The
legislative history of the statute clearly indicates that the Postal Service
1 T he provision reads in pertinent part as follows:
§ 4271. Imposition o f tax
(a) In general.—T here is hereby imposed, upon the am ount paid w ithin o r w ithout
the U nited States for the taxable transportation . . . of p roperty a tax equal to S
percent o f the am ount so paid for such transportation. T h e tax imposed by this
subsection shall apply only to am ounts paid to a person engaged in the business o f
transporting property by air for hire.
(b) By w hom paid.—
(1) In general.—. . . the tax imposed by subsection (a) shall be paid by the
person making the paym ent subject to tax.
79
is subject to the transportation tax,2 and, so far as we are aware, the
Postal Service has not disputed this. The particular issue concerns the
proper computation of the tax. The IRS in Revenue Ruling 74-512
required the Postal Service to pay the 5 percent tax not only on the
line haul charge it pays to air carriers for transportation of mail, etc.,
but also on terminal handling charges, including receipt of mail, load
ing, unloading, and transfer of mail between planes. The Postal Service
disagrees with this interpretation o f § 4271 and has refused payment of
the tax on the terminal handling charges, although it has apparently
paid the line haul charges.
Section 4291 of Title 26 provides, with certain exceptions, that per
sons receiving payments for services or facilities subject to tax 3 shall
collect the tax from the person making the payment; but an administra
tive regulation, Treas. Reg. § 154.2-1(f)(1), provides that in the case of
amounts subject to tax that are paid by the Postal Service, the tax shall
be paid directly to the IR S by the Postal Service as if it were a
collecting agent.4
We understand that the IRS is presently holding in abeyance a
proposed tax assessment of some $10 million against the Postal Service.
The IRS has raised the question whether it may follow its regular
assessment procedure, under which the Postal Service would be re
quired to pay the tax, claim a refund, and bring suit against the United
States for the refund in order to contest the IRS’ interpretation of
§4271.
The leading case on the issue of justiciability in this context is United
States v. I.C.C., 337 U.S. 426 (1949). The question there was whether
the United States as a shipper was barred from challenging in the
Federal courts an Interstate Commerce Commission order denying the
Government a recovery in damages for the exaction of an allegedly
unlawful railroad rate. Both the Commission and the United States
were made defendants, the latter because of the statutory requirement
that any action to set aside an order of the Commission had to be
2 T h e H ouse C om m ittee report states:
T h e exem ptions for transportation furnished to State and local governm ents, the
U nited States, and nonprofit educational organizations are term inated. R em oving the
exem ption for transportation furnished to the U nited States subjects the Post Office
to the 5 percent property tax o n am ounts it pays for the transportation o f mail by air.
It did not seem appropriate t o continue special exem ptions for these governm ental
and educational organizations since this tax is now generally view ed as a user charge.
In this situation there would appear to be no reason w hy these governm ental and
educational organizations should not pay for their share o f the use o f the airw ay
facilities. H. Rep. No. 601, 91st Cong., 1st Sess., at 46 (1969). A ccord, S. Rep. No.
706, 91st C ong., 2d Sess., at 18 n. 5 (1970).
3 A cco rd in g to Rev. Rul. 74-512, in m ost cases the Postal Service pays an air c arrier to
perform these services.
4 T h e IR S has inform ed us th a t although T reas. Reg. § 154.2—1(f)(1) arguably is con
tra ry to §4291, in its view, if th e Postal S ervice paid the claimed tax pursuant to this
regulation, the Postal Service w ould not be barred from bringing suit for a refund by the
rule th at a m ere volunteer who p a y s a tax m ay not sue for a refund. T h e refund statutes
and regulations d o not expressly c o v e r this situation. See 26 U.S.C. § 6415.
80
brought against the United States. A three-judge district court dis
missed the case on the ground that the Government could not sue itself.
The Supreme Court reversed in a unanimous opinion, holding that
“courts must look behind names that symbolize the parties to determine
whether a justiciable case or controversy is presented,” at 430. It
viewed the case as one involving controversies of a type that were
traditionally justiciable, stating at 430-431:
The basic question is whether railroads have illegally exacted sums
of money from the United States. Unless barred by statute, the
Government is not less entitled than any other shipper to invoke
administrative and judicial protection. To collect the alleged illegal
exactions from the railroads the United States instituted proceed
ings before the Interstate Commerce Commission. In pursuit of the
same objective the Government challenged the legality of the
Commission’s action. This suit therefore is a step in proceedings to
settle who is legally entitled to sums of money, the Government or
the railroads. The order if valid would defeat the Government’s
claim to that money. But the Government charged that the order
was issued arbitrarily and without substantial evidence. . . . Con
sequently, the established principle that a person cannot create a
justiciable controversy against himself has no application here.
In our opinion, the Court’s analysis does not support the position that
the Postal Service and IRS are entitled to judicial resolution of their
dispute. The only significant similarity is that the dispute involves large
sums of money; otherwise, the situations are markedly dissimilar. In
United States v. I.C.C., as the Court noted, “the basic question [was]
whether railroads have illegally exacted sums of money from the
United States”; here the basic question is which of two governmental
entities is entitled to money appropriated by Congress. It is in essence
an interagency dispute. The question of which agency should have the
money is peculiarly inappropriate for judicial determination; we do not
believe that a question of this kind is one that, in the words of the
Court, “involves controversies of a type which are traditionally justicia
ble.” 337 U.S. at 430.
Subsequent judicial holdings confirm our view. The lower court
decisions following United States v. I.C.C. have interpreted it as up
holding Federal jurisdiction over a suit by the Government against
itself only if one of the real parties in interest is a truly adverse private
party. United States v. Easement and Right o f Way, 204 F. Supp. 837
(D. Tenn. 1962), was a condemnation suit brought by the Tennessee
Valley Authority (TVA) in which it sought to join as a defendant the
Farmers Home Administration (FHA), Department of Agriculture,
which held a mortgage security interest in the land involved. The court
held that this could not be done, stating that “there could not be any
issue between the TV A and the FHA, both being the United States,
which this Court could litigate or adjudicate. Any differences between
81
these agencies would at most be interagency disputes which are not
subject to settlement by adjudication.” 204 F. Supp. at 839. A similar
analysis was applied in Ishverlal M adanlal & Co. v. SS Vishva Mangal,
358 F. Supp. 386 (D. N.Y. 1973), a suit brought by the Indian Supply
Mission on behalf of the Indian government against a vessel and its
ow ner (a corporation formed by the merger of a private corporation
and a second corporation wholly owned by the Indian government) for
damage to the cargo. Although the plaintiff was the Supply Mission,
the real party in interest was the cargo insurer. The court held that the
suit .was justiciable. It interpreted United States v. I. C. C. as holding that
the courts should “look to the real parties in interest and to the nature
of the underlying controversy in order to ascertain whether or not
there is a real controversy and jurisdiction exists.” 358 F. Supp. at 390.
The court noted that in U.S. ex rel. Chapman v. F.P.C., 345 U.S. 153
(1953), a proceeding by the Secretary of the Interior for judicial review
of an order by the Federal Power Commission, the real party in interest
adverse to the Secretary was a private power company licensed by the
Commission.
In Chapman, the Supreme Court did not discuss the justiciability
issue.5 The only Supreme Court opinion to address this question since
United States v. I.C.C. is United States v. Nixon, 418 U.S. 683 (1974),
which involved quite unusual facts. In Nixon, the Court upheld the
jurisdiction of a Federal district court over the Special Prosecutor’s
attempt to enforce a documentary subpoena directed to President
Nixon, w ho claimed executive privilege. The President argued that
there was no case or controversy because the dispute was solely an
intrabranch dispute between members o f the executive branch. The
Supreme Court rejected this argument, citing United States v. I.C.C.,
and other decisions of the Court.8 It noted that the material was sought
for use in a Federal grand jury proceeding, and that the enforceability
of a subpoena and the claim of a privilege were traditionally justiciable
issues (at 696-697). Moreover, the concrete adverseness necessary to
sharpen the issues was present. See, 418 U.S. at 697. Although the
Special Prosecutor was an agent o f the executive branch, he had been
delegated the authority by the Attorney General to challenge the Presi
dent’s refusal to produce evidence.
A lthough a number of the cases cited by the Court involved intra
branch disputes, they provide little guidance, because the Court did not
discuss the issue. See, United States v. Marine Bancorporation, 418 U.S.
5 T h e C o u rt observed that the S ecretary had standing, but it stated that the difference
in view s betw een the members o f the C o u rt precluded a single opinion on this issue, and
that setting out the divergent view s w ould “not further clarification o f this com plicated
specialty o f federal jurisdiction, th e solution o f w hose problem s is in any event m ore o r
less determ ined by the specific circum stances o f individual situations . . .
345 U.S. at
156.
• T h e C o u rt stated (p. 693): “T h e m ere assertion o f a claim o f an ‘intra-branch dispute,’
w ith o u t m ore, has never operated to defeat federal jurisdiction; justiciability does not
depend on such a surface inquiry."
82
602 (1974); United States v. Connecticut National Bank, 418 U.S. 656
(1974); Powell v. McCormack, 395 U.S. 486 (1969);7 Federal Marine
Board v. Isbrandtsen, 356 U.S. 481, 483 n. 2 (1958); Secretary o f Agricul
ture v. United States, 347 U.S. 645 (1954); United States ex rel. Chap
man, supra; I.C.C. v. Jersey City 322 U.S. 503 (1944).
Thus the few cases dealing explicitly with this problem require at a
minimum that there be an issue of the kind traditionally viewed as
justiciable, and also that there be sufficient adverseness to sharpen the
issues. With regard to the adverseness of the parties, the Postal Service,
like the Special Prosecutor in Nixon and the regulatory agencies in
volved in United States v. I.C.C. and U.S. ex rel. Chapman v. F.P.C.,
has a degree of independence from the executive branch. It is an
“ independent establishment of the executive branch of the Government
of the United States.” 39 U.S.C. §201. [Emphasis added.] It was re
moved from direct political control,8 and given considerable indepen
dence in managing its finances.9 It has the authority to sue and be sued
in its official name, 39 U.S.C. §401(1), and, with the prior consent of
the Attorney General, it may employ its own attorneys to conduct its
litigation. 39 U.S.C. § 409(d).
But we do not believe that there is a nongovernmental “real party in
interest” here. Congress intended to apply the tax in §4271 to the
transportation of the mails and other transportation *'furnished to the
United S t a t e s [Emphasis added.]10 We recognize that the individual
users of the mails and of the airports and airways have an interest in the
outcome of this dispute; the mail rates may increase if the Postal
Service’s costs increase, and a decrease in revenues collected under
§4271 might ultimately result in the imposition of a higher rate of tax
on those who use the airports and airways. However, these broad
interest groups are not identifiable individuals or entities like the rail
roads and private power companies in United States v. I.C.C. and U.S.
ex rel. Chapman, respectively, who were active parties in the agency
7 T he C ourt did reject the argum ent that the case was nonjusticiable because judicial
review w ould im properly interfere w ith the functioning o f the coordinate legislative
branch. 395 U.S. at 548-49.
“ A Board o f G o vernors is appointed by the President for a fixed term . 39 U.S.C. § 202.
These G overnors, not the President, “shall appoint and shall have the pow er to rem ove
the Postm aster G eneral . . [and to fix his] pay and term o f service . . .
39 U.S.C.
§ 202(c). T he G o vernors and the Postm aster G eneral then appoint his D eputy and fix his
term. 39 U.S.C. § 202(d). See H.R. Rep. No. 1104, 91st Cong., 2d Sess. at 11-13 (1970);
H .R D oc. No. 313, 91st Cong., 2d Sess. at 52.
• In enacting the Postal R eorganization A ct, C ongress’ purpose was to authorize the
operation o f the Postal Service in “a business-like w ay.” H.R. Rep. No. 1104, 91st Cong.,
2d Sess. 11 (1970). T he Postal Service Fund is available to the Service w ithout fiscal year
limitation. 39 U.S.C. § 2003. It is required to submit a yearly budget, including a state
ment o f the am ounts it requests to be appropriated, and the President is required to
include these am ounts “w ith his recom m endations but w ithout revision, in the budget
transm itted to C ongress.” 39 U.S.C. § 2009. It is authorized to “determ ine the character
of, and necessity for, its expenses,” to "determ ine and keep its ow n system o f accounts,”
to "settle and com prom ise claims by o r against it,” and “sue and be sued in its official
nam e." 39 U.S.C. §401.
10 H.R. Rep. No. 601, supra, n. 2.
83
and judicial proceedings, vigorously defending their private interests. In
contrast, nearly all citizens use the mails, and of course many individ
uals and businesses use both the mails and the airports and airways. The
interests represented by both the Postal Service and the IRS are facets
of the public interest, not truly private interests adverse to those of the
Federal Government as a whole.
For the foregoing reasons, it is our opinion that the question here
involved in not susceptible of resolution by the courts.
L
eon
U
lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
84 |
|
Write a legal research memo on the following topic. | Applicability of the Antideficiency Act to a Violation of a
Condition or Internal Cap Within an Appropriation
Any expenditure of funds in violation of a condition or internal cap in an appropriations act would
generally constitute a violation of the Antideficiency Act.
January 19, 2001
MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL
FOR ADMINISTRATION
The Constitution provides that “[n]o Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.
The Antideficiency Act, codified at 31 U.S.C. §§ 1341-1342, 1349-1351, 15111519 (1994) (“ADA”), is one of several means by which Congress has sought to
enforce this fundamental principle. See J. Gregory Sidak, The President’s Power
of the Purse, 1989 Duke L.J. 1162, 1234 (“The statutory mechanism by which
Congress guards its appropriations power is the Anti-Deficiency Act.”). The Act’s
central prohibition, set out at 31 U.S.C. § 1341(a)(1), provides in relevant part:
An officer or employee of the United States Government or the District of Columbia government may not—(A) make or authorize an
expenditure or obligation exceeding an amount available in an
appropriation or fund for the expenditure or obligation; or (B)
involve either government in a contract or obligation for the payment
of money before an appropriation is made unless authorized by law.
A violation of this section requires “appropriate administrative discipline,” id.
§ 1349(a), including possible suspension without pay or removal from office, and,
if the violation was knowing and willful, a fine of up to $5,000 and/or imprisonment of up to two years, id. § 1350. See Office of Pers. Mgmt. v. Richmond, 496
U.S. 414, 430 (1990) (citing sections 1341 and 1350 for the proposition that “[i]t is
a federal crime, punishable by fine and imprisonment, for any Government officer
or employee to knowingly spend money in excess of that appropriated by Congress”); see also Hercules, Inc. v. United States, 516 U.S. 417, 427 (1996) (“The
Anti-Deficiency Act bars a federal employee or agency from entering into a
contract for future payment of money in advance of, or in excess of, an existing
appropriation.”). In addition, violations must be reported by the head of the agency
concerned to the President and Congress. 31 U.S.C. § 1351.
You have asked whether a violation of a “condition” or “internal cap” within an
appropriations act would violate the Antideficiency Act. For purposes of this
opinion, we assume that a “condition” on an appropriation would prohibit an
agency from expending any of its funds for a particular purpose, and that an
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“internal cap” would prohibit an agency from expending any of its funds in excess
of a designated amount for a particular purpose. Your question arises in the
specific context of the following provision of the Department of Justice Appropriation Act, 2000, Pub. L. No. 106-113, div. B, app. A, 113 Stat. 1501A-3,
1501A-11 (1999):
For salaries and expenses for the Border Patrol program, the detention and deportation program, the intelligence program, the investigations
program,
and
the
inspections
program . . .
$1,107,429,000 . . . . Provided further, That none of the funds available to the Immigration and Naturalization Service [“INS”] shall be
available to pay any employee overtime pay in an amount in excess
of $30,000 during the calendar year beginning January 1, 2000.
We understand this provision to be an internal cap, and thus to have prohibited
the Department of Justice from using any funds available to the INS under any
appropriation to pay any individual employee more than $30,000 in overtime
during calendar year 2000. There are, of course, a variety of other ways in which
Congress sets limits in appropriations. For example, Congress often earmarks
funds for specific purposes. See, e.g., Department of Transportation and Related
Agencies Appropriations Act, 1997, Pub. L. No. 104-205, 110 Stat. 2951, 2951-52
(1996) (appropriating “for necessary expenses for conducting transportation
planning, research, systems development, and development activities . . .
$3,000,000”). Congress also imposes ceilings within particular appropriations acts.
See id., 110 Stat. at 2952 (providing that “none of the funds in this Act shall be
available for the implementation or execution of programs in excess of
$25,900,000 for the Payments to Air Carriers program in fiscal year 1997”)
(emphasis added). For purposes of this opinion, we employ a narrow definition of
“conditions” and “internal caps,” which does not include these other types of
limits, and do not address the applicability of the Antideficiency Act to these other
types of limitations. 1
1
Our opinion, therefore, does not address situations where purpose restrictions apply to some—but
not all—funds available to an agency, or where those restrictions are not found in appropriations acts.
Nor does our opinion address whether the Department may use statutory “reprogramming” or transfer
authority, see, e.g., Department of Justice Appropriation Act, 2000, §§ 605, 107, 113 Stat. at 1501A-52
to 1501A-53, 1501A-19, to avoid the limitations of a condition or internal cap, or to cure retroactively
expenditures that would, in the absence of a reprogramming of funds, violate the Antideficiency Act.
We also do not consider what the legal effect might be of after-the-fact delegations or ratifications (by
authorized officials) to cure obligations or expenditures made by persons acting without requisite legal
authority. Finally, this memorandum does not address the situation in which a condition or internal cap
within an appropriations act implicates another branch’s discharge of its constitutionally assigned
functions. Cf. Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Application of the Independent Counsel Provisions of the Ethics
in Government Act to Alleged Violations of the Boland Amendment and the Antideficiency Act (Apr. 27,
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By its terms, the Antideficiency Act prohibits any expenditure or obligation
exceeding an amount “available in an appropriation or fund for the expenditure or
obligation.” 31 U.S.C. § 1341(a)(1)(A) (emphases added). The question before us,
therefore, is whether, when Congress has expressly prohibited the expenditure of
any funds for a particular purpose, or of any funds in excess of a specific amount
appropriated for that purpose, an agency’s expenditure of funds in violation of
such a limit necessarily also “exceed[s] an amount available . . . for the expenditure,” even when there are sufficient unobligated funds otherwise available in an
appropriation to cover the expenditure. The question whether violation of a
“condition” or “internal cap” also violates the Antideficiency Act is a difficult
issue of first impression for this Office. 2 Its importance is underscored by the
availability of criminal felony sanctions against government officers and employees who knowingly and willfully authorize or make such expenditures. For the
reasons set forth below, we conclude that a violation of a condition or internal cap
within an appropriation would generally constitute a violation of the
Antideficiency Act. 3
1984) (“Olson Memorandum”) (alleged violation of Boland Amendment, which implicated President’s
foreign affairs powers, could not reasonably be construed as a federal crime under Antideficiency Act
due to justiciability concerns based on political question doctrine, lack of specific manageable
standards, and vagueness of the Amendment); Authority for the Continuance of Government Functions
During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5-7 (1981) (President’s obligational
authority may be strengthened in connection with initiatives grounded in peculiar institutional powers
and competency of the President; Antideficiency Act not necessarily dispositive in such circumstances); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring) (noting that
Congress may not “impair the President’s pardon power by denying him appropriations for pen and
paper”); see also J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J. 2079 (1989) (arguing
that certain appropriations riders raise separation of powers concerns and conflict with the President’s
constitutional duty to make recommendations to Congress); Kate Stith, Congress’ Power of the Purse,
97 Yale L.J. 1343, 1352 (1988) (noting that “Congress may not completely frustrate the exercise of the
President’s constitutional duties”).
2
Cf. Olson Memorandum (assuming without discussion that alleged violation of Boland Amendment, which imposed a condition within an appropriation, would violate Antideficiency Act absent
separation of powers concerns).
3
There may be circumstances in which determining the precise scope of a condition or internal cap
raises difficult issues. Congress may, for example, enact a law in the middle of a fiscal year stating that
previously available funds may no longer be used for a particular, previously authorized, purpose. After
the effective date of such a law, previously available and unobligated funds could no longer be
obligated for the proscribed purpose. However, a construction of such a law that would preclude, after
the effective date, expenditure of funds that had been obligated prior to the effective date for services
rendered prior to the effective date could cause the government to breach certain contracts or to violate
federal personnel laws. These considerations, along with the general presumption that statutes should
not be given retroactive effect, Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), might
reasonably justify the conclusion that such a law should be construed, if possible, not to prohibit the
payment of such obligations. There may be other circumstances where determining the legal
availability of funds under a condition or internal cap poses similarly difficult interpretive questions
that we cannot, and therefore do not, address.
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I. Language and Structure of the Act
As in all cases of statutory interpretation, we begin with the language of the Act
itself. See United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989);
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Section 1341(a)(1) prohibits
any “expenditure or obligation exceeding an amount available in an appropriation
or fund for the expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A) (emphasis
added). The scope of the Act’s coverage thus turns, to a significant degree, on the
meaning of the term “available” in this context. Webster’s Third New International Dictionary defines “available” to mean “valid”; “such as may be availed of:
capable of use for the accomplishment of a purpose: immediately utilizable”; or
“that is accessible or may be obtained.” Webster’s Third New International
Dictionary 150 (1993). Similarly, Black’s Law Dictionary defines the term
“available” to mean either “[s]uitable; useable; accessible; obtainable; present or
ready for immediate use,” or “[h]aving sufficient force or efficacy; effectual;
valid.” Black’s Law Dictionary 135 (6th ed. 1990). These definitions reflect two
distinct concepts. To the extent the word “available” means “present or ready for
immediate use,” it appears to require only that funds be accessible or obtainable in
a practical sense—i.e., unobligated. So understood, the Act would generally
prohibit only those expenditures that exceed the total amount of funds Congress
has provided within a particular account—i.e., those expenditures that result in socalled “coercive deficiencies” because they effectively obligate Congress to
appropriate additional funds. On the other hand, to the extent that “available” also
incorporates the concept of “validity,” it suggests an additional requirement of
legal permissibility. On this reading, if Congress provides that “no funds made
available under this or any other appropriation shall be available to pay in excess
of $30,000 for overtime,” only $30,000 is “available,” within the meaning of the
Antideficiency Act, for that purpose. Any expenditure in excess of that sum on
overtime, accordingly, is an “expenditure or obligation exceeding an amount
available in an appropriation,” regardless of whether such an expenditure would
cause an agency or office to exceed its overall appropriation. Although the statute
is not entirely free from ambiguity on this point, we conclude that the second
reading better comports with the Act’s language and structure.
Various arguments may be mustered from the text and structure of the statute
and related provisions to support the view that “available” in the context of
section 1341(a)(1) simply means “unobligated.” For example, because subsection
(a)(1)(B) sets forth a clearly temporal limitation on contracting or otherwise
obligating federal funds—i.e., no spending “before an appropriation is made”—it
might be argued that the parallel proscription of subsection (a)(1)(A) should
likewise be understood as a temporal limitation—i.e., no spending “after funds are
exhausted.” In other words, the Act reflects Congress’s concern with preventing
spending that creates deficiencies, rather than with enforcing restrictions on
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spending for particular purposes. This interpretation draws support from other
provisions of the Act (codified at 31 U.S.C. §§ 1511-1519) that require federal
agencies to apportion their funds throughout the fiscal year. Section 1512(a)
provides generally that, except as otherwise provided, “an appropriation available
for a definite period shall be apportioned to prevent obligation or expenditure at a
rate that would indicate a necessity for a deficiency or supplemental appropriation
for the period.” 4 The responsible agency official may make such apportionments
by “(A) months, calendar quarters, operating seasons, or other time periods;
(B) activities, functions, projects, or objects; or (C) a combination of the ways
referred to in clauses (A) and (B),” as the official considers appropriate. 31 U.S.C.
§ 1512(b)(1). Section 1517(a) makes it unlawful for an officer or employee of a
federal agency or the District of Columbia government to “make or authorize an
expenditure or obligation exceeding . . . an apportionment.” The penalties for
violating this prohibition are essentially identical to those mandated for violations
of section 1341(a): reporting of violations to the President and Congress, see 31
U.S.C. § 1517(b), “appropriate administrative discipline, including, when
circumstances warrant, suspension from duty without pay or removal from office,”
31 U.S.C. § 1518, and, in the case of “knowing[] and willful[]” violations,
criminal sanctions that may include a fine of up to $5000, imprisonment for up to
two years, or both, 31 U.S.C. § 1519. Cf. 31 U.S.C. §§ 1349(a), 1350, 1351. These
provisions highlight the degree to which Congress sought in the Antideficiency
Act to prevent government agencies from exceeding their appropriated funds in a
given fiscal year. 5
Congress’s obvious concern with overall deficiencies caused by expenditures in
excess of appropriated funds does not, however, exclude the possibility that it also
intended through the Antideficiency Act to enforce its appropriations power by
exercising control over the purposes for which agencies may use their appropriated funds. Indeed, there is considerable textual evidence to support a reading of the
term “available” that incorporates a “legal permissibility” component as well as
the basic requirement that sufficient funds be unexpended or “unobligated.” In
section 1341(a)(1)(A) itself, the word “available” is modified by the phrase “for
4
Certain exceptions to this requirement are set out in 31 U.S.C. § 1515.
This reading is also arguably supported by another provision in chapter 13 of title 31 (the chapter
entitled “Appropriations,” which also includes section 1341(a)), in which Congress appears to have
used the term “available” to mean simply unobligated. In section 1344(a)(1), Congress referred to
“available” funds, then separately specified a limitation on the permissible use of such funds. See 31
U.S.C. § 1344(a)(1) (“Funds available to a Federal agency, by appropriation or otherwise, may be
expended . . . for the maintenance, operation, or repair of any passenger carrier only to the extent that
such carrier is used to provide transportation for official purposes.”). Cf. Keene Corp. v. United States,
508 U.S. 200, 208 (1993) (relying on slight differences in language in “nearby sections of Title 28” to
construe the term “jurisdiction”). But see infra pp. 38-39 (discussing other uses of term “available” in
title 31).
5
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the expenditure or obligation,” which suggests a more restrictive intent. 6 If
Congress had intended to address solely the problem of overall deficiency
spending, this phrase would appear somewhat superfluous. Congress could have
simply prohibited any expenditure or obligation “exceeding an amount available in
an appropriation.” The fact that Congress did not simply prohibit expenditures in
excess of total appropriations suggests that the term “available” should be
construed more broadly to encompass the concept of legal permissibility. Nor does
the temporal focus of subsection (a)(1)(B) compel the conclusion that subsection
(a)(1)(A) has a similarly limited focus. It is just as logical to conclude that these
separate prohibitions were aimed at separate problems, only one of which had a
purely temporal dimension.
As noted above, Congress often uses the term “available” in its appropriations
acts in a manner that clearly connotes legal permissibility. See, e.g., Pub. L. No.
101-516, 104 Stat. 2155, 2157 (1990) (“none of the funds in this or any other Act
shall be available for the implementation or execution of programs in excess of
$26,600 for the Payments to Air Carriers program”) (emphasis added). Similarly,
Congress has used “available” in this sense in numerous other provisions of
chapters 13 and 15 of title 31. Section 1343(d), for example, provides that an
appropriation “is available to buy, maintain, or operate an aircraft only if the
appropriation specifically authorizes the purchase, maintenance, or operation.” 31
U.S.C. § 1343(d). Section 1346 provides that “public money and appropriations
are not available to pay” certain expenses related to commissions, councils,
boards, and similar groups, but that the “[a]ppropriations of an executive agency
are available for the expenses of an interagency group conducting activities of
interest common to executive agencies when the group includes a representative of
the agency.” Id. § 1346(a), (b). Section 1348 provides that “[e]xcept as provided in
this section, appropriations are not available to install telephones in private
residences or for tolls or other charges for telephone service from private residences,” but that the “[a]ppropriations of an agency are available to pay charges for a
long-distance call if required for official business,” provided “the head of the
agency . . . certifies that the call is necessary in the interest of the Government.”
Id. § 1348(a)(1), (b). In each of these statutes, Congress used the term “available”
in a manner that is not dependent on whether funds are actually “unobligated,” and
that instead limits the permissible purposes for which funds may be spent. See also
31 U.S.C. § 1502(a) (“The balance of an appropriation or fund limited for
obligation to a definite period is available only for payment of expenses properly
incurred during the period of availability or to complete contracts properly made
within that period of availability and obligated consistent with section 1501 of this
title.”)
6
See infra pp. 39-40 (discussing changes in text made by 1982 recodification of title 31, which
Congress did not intend to have substantive effect).
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An argument can be made, however, that the current language of section
1341(a)(1) should be read more narrowly in view of the fact that it was enacted as
part of the 1982 general recodification of title 31, which was not intended to make
any substantive change in the law. See H.R. Rep. No. 97-651, at 1-3 (1982),
reprinted in 1982 U.S.C.C.A.N. 1895, 1896 (describing purpose of bill “to revise,
codify, and enact without substantive change certain general and permanent laws
related to money and finance as title 31, United States Code, ‘Money and
Finance,’” and to simplify language); see also Walters v. Nat’l Ass’n of Radiation
Survivors, 473 U.S. 305, 318 (1985) (when enacted without substantive comment,
change during codification of legislation is generally held not to have been
intended to alter statute’s scope); cf. Interpretation of the Grandfather Clause in
18 U.S.C. § 709—Use of Word “Federal” in Name of Insurance Company, 1 Op.
O.L.C. 60, 61 (1977) (“the relevant law is not strictly” criminal statute as revised
in 1948, but rather its predecessor). The previous version of the Antideficiency
Act, as enacted in 1950 (the last occasion on which Congress made substantive
changes to this section), provided:
No officer or employee of the United States shall make or authorize
an expenditure from or create or authorize an obligation under any
appropriation or fund in excess of the amount available therein; nor
shall any such officer or employee involve the Government in any
contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless
such contract or obligation is authorized by law.
31 U.S.C. § 655(a) (1976). Notably, in the first clause of the pre-1982 statute, the
word “available” is not modified by the phrase “for the expenditure or obligation,”
but rather by the term “therein.” Indeed, only the second clause, which concerns
obligations in advance of appropriations, contains express purpose-restrictive
language. Arguably, therefore, the 1950 statute did not use the term “available” to
capture the concept of “legal permissibility,” and the language added by the 1982
recodification should not be read to incorporate that concept either, because the
legislative history of the recodification indicates only an intent to standardize and
simplify statutory language within the title.
Ultimately, however, we do not find this argument persuasive. Congress’s
statement that the recodification worked no substantive change in the law is
perfectly consistent with the conclusion that the language added in 1982 did
nothing more than confirm that the word “available” in the Act had always
incorporated the concept of legal permissibility. The express prohibition in the
1950 law on obligations incurred in advance of appropriations “made for such
purpose” supports this view. It seems highly unlikely that Congress would have
intended to adopt a legal-availability approach to the second clause of the 1950
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law, but not to the first clause. Indeed, as we explain below, this understanding of
the 1950 version is consistent with the fact that, when Congress amended the law
that year, it deleted the phrases “in any one fiscal year” and “for that fiscal year”
from the statute, thereby broadening the statutory focus beyond an apparent
concern with overall deficiencies. 7
We have also considered whether the “Purpose Statute,” 31 U.S.C. § 1301(a),
provides any basis for a narrowing construction of the Antideficiency Act. The
Purpose Statute, which predates the Antideficiency Act and carries no criminal
penalties, provides that “[a]ppropriations shall be applied only to the objects for
which the appropriations were made except as otherwise provided by law.” Id.
Although, as the Supreme Court has observed, “it is hardly a novel proposition
that [two statutes] ‘prohibit some of the same conduct,’” Herman & MacLean v.
Huddleston, 459 U.S. 375, 383 (1983) (quoting United States v. Naftalin, 441 U.S.
768, 778 (1979), and referring to overlap of 1933 and 1934 securities laws), a
construction of one statute that renders another wholly superfluous should
generally be avoided. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)
(“If there is a big hole in the fence for the big cat, need there be a small hole for
the small one?”). If the Purpose Statute prohibits nothing more than expenditures
and obligations that are illegal under the Antideficiency Act, then the civil
prohibition of the Purpose Statute would have no independent function. This is not
the case, however, because the Purpose Statute may be violated in circumstances
where no violation of the Antideficiency Act occurs. For example, the Comptroller
General has consistently found that “deliberately charging the wrong appropriation
for purposes of expediency or administrative convenience, with the expectation of
rectifying the situation by a subsequent transfer from the right appropriation,
violates [the Purpose Statute].” 1 General Accounting Office, Principles of
Federal Appropriations Law 4-4 (2d ed. 1991) (“Federal Appropriations Law”)
(citing 36 Comp. Gen. 386 (1956); 26 Comp. Gen. 902, 906 (1947); 19 Comp.
Gen. 395 (1939); 14 Comp. Gen. 103 (1934)). In such circumstances, funds are
“available” under the broader construction of that term in the Antideficiency Act,
because funds are both “on deposit” and may legally be obligated or expended for
the purpose in question; thus, although the expenditure would not run afoul of the
broader reading of the Antideficiency Act, it violates the Purpose Statute’s
requirement that funds be “applied only to the objects for which the [charged]
appropriation[] [was] made.” See 63 Comp. Gen. 422, 424 (1984) (“Even though
an expenditure may have been charged to an improper source, the Antideficiency
Act’s prohibition against incurring obligations in excess or in advance of available
appropriations is not also violated unless no other funds were available for that
expenditure.”). Although the legal interpretations of the Comptroller General are
7
As discussed below, this reading of the text is consistent with interpretations of the pre-1982
versions of the Act by the Supreme Court, the Comptroller General, and members of Congress.
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not binding on the Executive Branch, see Bowsher v. Synar, 478 U.S. 714, 727-32
(1986), we find this interpretation of the Purpose Statute persuasive. 8 Accordingly,
because we find that the Purpose Statute may apply in circumstances where, even
under a broad reading, the Antideficiency Act would not, the existence of the
Purpose Statute provides no basis for narrowly construing the language of the
Antideficiency Act.
Similarly, we do not believe that the “rule of lenity” justifies a construction of
the Act that equates the terms “available” and “unobligated.” To be sure, the
Supreme Court has “instructed that ‘ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity,’ . . . and that ‘when choice has to be
made between two readings of what conduct Congress has made a crime, it is
appropriate, before we choose the harsher alternative, to require that Congress
should have spoken in language that is clear and definite.’” 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, 221-22
(1952), respectively). The degree of ambiguity in the Antideficiency Act, however, is insufficient to warrant invocation of this rule. As the Court has explained,
“[l]enity applies only when the equipoise of competing reasons cannot otherwise
be resolved.” Johnson v. United States, 120 S. Ct. 1795, 1807 n.13 (2000). Thus,
the rule of lenity applies “‘only if, after seizing everything from which aid can be
derived, . . . we can make no more than a guess as to what Congress intended,’”
Holloway v. United States, 526 U.S. 1, 12 n.14 (1999) (quoting Muscarello v.
United States, 524 U.S. 125, 138 (1999)) (additional quotations and citations
omitted), or where “there is a ‘“‘grievous ambiguity or uncertainty’” in the
statute,’” Muscarello, 524 U.S. at 139 (quoting Staples v. United States, 511 U.S.
600, 619 n.17 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463
(1991))). See also 3 Norman J. Singer, Sutherland on Statutes and Statutory
Construction § 59.03 (5th ed. 1992) (“In fact, it has been said that the rule of lenity
is a tie breaker when there is an otherwise unresolved ambiguity.”). Although the
language of the Antideficiency Act admits of some ambiguity, there is by no
means a “grievous ambiguity or uncertainty in the statute,” nor complete equipoise
between the competing interpretations we have identified. Rather, as we have
explained, we believe that the text of section 1341(a)(1) is best read to apply to
violations of conditions and internal caps within appropriations acts. Moreover,
“everything from which aid can be derived,” Holloway v. United States, 526 U.S.
at 12 n.14, serves to clarify and confirm this reading, rather than requiring us to
“make no more than a guess as to what Congress intended.” Id. Thus, as we
8
For purposes of resolving the question before us, we need not consider any other interpretations of
the Purpose Statute that the Comptroller General has rendered, and should not be understood generally
to embrace the substantial body of opinions the Comptroller General has issued with respect to this
statute. See generally 1 Federal Appropriations Law ch. 4.
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explain below, the Act’s legislative history, relevant court decisions, decisions of
the Comptroller General, and scholarly commentary all support our conclusion
that the Act applies to expenditures that violate conditions and internal caps within
appropriations acts.
II. History and Evolution of the Act
Our examination of the historical record confirms our view that, except in those
circumstances in which an internal cap or condition would prevent another branch
from discharging its constitutionally assigned functions, see supra note 1, the text
of the Antideficiency Act is best read to prohibit an expenditure in excess of such
a condition or internal cap. See Crandon v. United States, 494 U.S. 152, 158
(1990) (“In determining the meaning of the statute, we look not only to the
particular statutory language, but to the design of the statute as a whole and to its
object and policy.”).
What is now known as the Antideficiency Act arose during the nineteenth
century from Congress’s increasing frustration with the failure of Executive
Branch agencies to stay within the budgets Congress allocated to them. At least as
early as 1809, members of Congress complained of budgetary abuses and misapplication of funds by the War and Navy departments, and in that year Congress
passed legislation requiring that “the sums appropriated by law for each branch of
expenditure in the several departments shall be solely applied to the objects for
which they are respectively appropriated, and to no other.” Act of Mar. 3, 1809,
ch. 28, § 1, 2 Stat. 535, 535; see also 19 Annals of Cong. 1551-55, 1560-61, 1575
(1809). 9 In 1820, Congress enacted additional legislation providing that, with
certain exceptions for obtaining subsistence and clothing, “no contract shall
hereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except under a law authorizing the same, or under an
appropriation adequate to its fulfilment.” Act of May 1, 1820, ch. 52, § 6, 3 Stat.
9
This precursor of the present-day “Purpose Statute” (31 U.S.C. § 1301(a) (1994)) permitted the
President to authorize a transfer of funds from one “branch of expenditure” within a particular
department to another “branch of expenditure” within the same department. See 2 Stat. at 235.
Congress repealed that authority in 1868, amending the 1809 Act to provide that “all acts or parts of
acts authorizing such transfers of appropriations be and the same are hereby repealed, and no money
appropriated for one purpose shall hereafter be used for any other purpose than that for which it is
appropriated.” Act of Feb. 12, 1868, ch. 8, § 2, 15 Stat. 35, 36. The Act was subsequently codified as
section 3678 of the Revised Statutes, which provided: “All sums appropriated for the various branches
of expenditure in the public service shall be applied solely to the objects for which they are respectively
made, and for no others.” Rev. Stat. § 3678 (2d ed. 1878), 18 Stat. pt. 1, at 723 (repl. vol.). The current
version of the Purpose Statute (as recodified in 1982) provides that “[a]ppropriations shall be applied
only to the objects for which the appropriations were made except as otherwise provided by law.” 31
U.S.C. § 1301(a).
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567, 568.10 In 1868, Congress passed a statute providing that “no contract shall be
entered into for the erection, repair, or furnishing of any public building, or for any
public improvement . . . which shall bind the government to pay a larger sum of
money than the amount in the treasury appropriated for the specific purpose.” Act
of July 25, 1868, ch. 233, § 3, 15 Stat. 171, 177 (codified at Rev. Stat. § 3733 (2d
ed. 1878), 18 Stat. pt. 1, at 736-37) (repl. vol.)) (emphasis added). The 1868 Act
established criminal penalties of up to two years imprisonment and a $2000 fine
for “knowing” violations. Id. (codified at Rev. Stat. § 5503 (2d ed. 1878), 18 Stat.
pt 1, at 1066 (repl. vol.)).11
In 1870, Congress again expressed its frustration with Executive Branch overspending by enacting general legislation making it unlawful “for any department
of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in
any contract for the future payment of money in excess of such appropriations.”
Act of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251 (codified at Rev. Stat. § 3679
(2d ed. 1878), 18 Stat. pt. 1, at 723 (repl. vol.)). This was the original version of
the Antideficiency Act, which has since been amended on numerous occasions.12
When asked why such legislation was needed, given that its prohibition was
already “the law of the land,” the amendment’s sponsor replied: “Well they do not
adhere to it. I want to put it in here, so that it shall have force and effect on every
appropriation.” Cong. Globe, 41st Cong., 2d Sess. 1553 (1870) (Remarks of Rep.
Randall).
Despite these legislative efforts to enforce its fiscal prerogatives, Congress
continued to find itself faced with situations in which federal agencies exceeded
their budgets and then presented Congress with deficiencies, which Congress felt
obliged to pay. In 1905, Congress attempted to address this problem by amending
10
This provision was subsequently codified as section 3732 of the Revised Statutes (2d ed. 1878),
18 Stat. pt. 1, at 736 (repl. vol.), and exists in a somewhat different form today as 41 U.S.C. § 11
(1994).
11
This criminal offense is currently codified at 18 U.S.C. § 435 (1994) (“Whoever, being an officer
or employee of the United States, knowingly contracts for the erection, repair, or furnishing of any
public building, or for any public improvement, to pay a larger amount than the specific sum
appropriated for such purpose, shall be fined under this title or imprisoned not more than one year, or
both.”) (emphasis added); see also 41 U.S.C. § 12 (1994). The 1948 Reviser’s Note, 18 U.S.C. § 435,
states that the applicable punishment was reduced because “[t]he offense described in this section
involves no moral turpitude” and should not carry “the stigma of a felony.” We have been unable to
find any discussion of the relationship between this statute and the Antideficiency Act, or any
explanation of the discrepancy in their criminal sanctions.
12
Act of Mar. 3, 1905, ch. 1484, § 4, 33 Stat. 1257; Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 27,
48; Act of Aug. 23, 1912, ch. 350, § 6, 37 Stat. 360, 414; Act of Sept. 6, 1950, ch. 896, § 1211, 64 Stat.
595, 765; Act of Aug. 1, 1956, ch. 814, § 3, 70 Stat. 782, 783; Pub. L. No. 85-170, § 1401, 71 Stat.
426, 440 (1957); Pub. L. No. 93-344, § 1002, 88 Stat. 297, 332 (1974); Pub. L. No. 93-618, § 175(a),
88 Stat. 1978, 2011 (1975); Pub. L. No. 101-508, § 13213(a), 104 Stat. 1388, 1388-621 (1990).
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Rev. Stat. § 3679 in several significant ways. See Act of Mar. 3, 1905, ch. 1484,
§ 4, 33 Stat. 1257. The amended Antideficiency Act provided:
No Department of the Government shall expend, in any one fiscal
year, any sum in excess of appropriations made by Congress for that
fiscal year, or involve the Government in any contract or obligation
for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. . . . Any person
violating any provision of this section shall be summarily removed
from office and may also be punished by a fine of not less than one
hundred dollars or by imprisonment for not less than one month.
33 Stat. at 1257-58 (1905). The 1905 amendment also added restrictions on the
acceptance of voluntary services and required that certain types of funds be
apportioned over the course of the fiscal year, although it permitted heads of
departments to waive or modify an apportionment in particular cases. Id. The
purpose of the new apportionment requirement was “to prevent undue expenditures in one portion of the year that may require deficiency or additional appropriations to complete the service of the fiscal year.” Id. at 1258. In introducing the
proposed amendment, Representative Hemenway (Chairman of the Appropriations
Committee, which reported the bill) explained:
I call attention to this particular limitation because we seek by it to
prevent deficiencies in the future. . . . We give to Departments what
we think is ample, but they come back with a deficiency. Under the
law they can make these deficiencies, and Congress can refuse to
allow them; but after they are made it is very hard to refuse to allow
them. So we seek by this amendment to in some respect, at least,
cure that abuse.
39 Cong. Rec. 3687 (1905); see also id. at 3689-92, 3780-82 (statements of other
members of Appropriations Committee expressing frustration with deficiencies
incurred by Executive Branch and then presented to Congress).
Although much of the legislative debate focused on the problem of overall
deficiencies, several Committee members and other representatives emphasized
the need to prevent Executive Branch departments from taking funds authorized
for one purpose and using them for another, noting that such abuses were a
significant cause of deficiencies. See, e.g., 39 Cong. Rec. 3692 (statement of Rep.
Livingston) (“some of the Departments of this Government have been absolutely
taking lump sums appropriated for a particular purpose and promoting clerks and
officers out of it”); id. at 3780 (statement of Rep. Underwood) (criticizing
deficiencies “made by Department officers, who exceeded the law and used
moneys appropriated for one purpose for a different purpose than Congress
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intended”); id. at 3783 (statement of Rep. Underwood) (“if the officers of the
Government had stayed within the law and only used their funds for the purpose
they should have been used for the deficiency would not have occurred”). There
was extensive discussion in the House of an incident in which a Navy official used
funds appropriated for the maintenance of battleships in order to install two sights
on guns for which only one sight had been authorized by Congress. See id. at 3781
(statement of Rep. Underwood) (“the money appropriated for the ordinary
maintenance and care of the battle ships of the country has been used for other
purposes; I will not say illegitimate purposes, but for purposes that the Navy
Department should have come to Congress and asked the authority of the Naval
Committee to do”). Another example concerned a State Department official’s
“misapplication of the fund” appropriated for ordinary printing in order to print a
book that Congress had not authorized. Id. at 3781 (“Mr. Littlefield. Will the
amendment which the committee have proposed . . . reach a case like this? Mr.
Underwood. It will.”). Representative Underwood, who was also a member of the
committee that reported the bill, repeatedly asserted, without contradiction, that
the proposed bill would “stop” such abuses and “prevent this thing being done in
the future.” Id. at 3780, 3781; see also id. at 3691 (statement of Rep. Livingston)
(“if you permit this clause to remain in this bill there will be no more expenditure
of money without authority”).13 Indeed, Representative Underwood stated the goal
of the antideficiency provision in broad constitutional terms:
This is only one illustration. It shows how the money that we appropriate . . . is misapplied, and it demonstrates conclusively how necessary it is for Congress to pass some legislation such as we propose in
this bill to check that evil and retain the power of appropriation in
the hands of Congress. We are getting farther and farther away from
it every day. The great power that was intended to be exercised by
the legislative branch of the Government is being taken away from it
by departmental officers creating deficiencies for purposes that are
not authorized under the law.
Id. at 3782.
Within a year, Congress again sought to strengthen its control over appropriations by amending the Act to prohibit department heads from modifying apportionments except in “extraordinary emergenc[ies] or unusual circumstance[s]” that
could not have been anticipated when the appropriated funds were apportioned.
See 34 Stat. 27, 48-49 (1906). Representative Littauer, the sponsor of the amendment, reiterated the need for the House to “regain its control over appropria-
13
The primary reason identified for lack of compliance with existing law was the lack of any
penalty for violation of the statute. See 39 Cong. Rec. at 3690, 3780, 3781.
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tions . . . in order that the Departments may understand that such moneys, and such
moneys alone as we appropriate, will be at their service to carry on the work of the
Government.” 40 Cong. Rec. 1275 (1906). Again, various members of the House
indicated their understanding that the Act applied not just to expenditures in
excess of total appropriations, but rather also to expenditures inconsistent with the
express terms of the appropriations. Thus, Representative Fitzgerald identified one
cause of deficiencies as “officials spending money in defiance of the action of
Congress in refusing to appropriate money for the purpose for which they
estimated,” and stated that “[i]t is necessary for Congress to impress upon the men
in the administrative offices of the Government that Congress means just what it
says in the law, and that if these men do not comply with it they will not only be
dismissed from the public service, but they shall be punished as this law provides.”
Id. at 1289-90. Similarly, Representative Burton emphasized the duty of the
people’s representatives “to determine for what objects expenditures shall be made
and how much shall be expended,” and asserted that members of Congress must
“scrutinize the public expenditures and make sure that they are applied to purposes
which approve themselves to our judgment and to the judgment of the people.” Id.
at 1298 (emphasis added).14 A particular example of conduct the 1906 amendment
sought to prevent was the Attorney General’s use of the Justice Department’s
miscellaneous expenditures account to commission a portrait. See id. at 1274-75;
see also id. at 1275 (Rep. Gaines) (“[T]he law should not have been evaded . . . by
taking public funds that were not appropriated to do this particular thing.”). In
response to a question as to whether “Congress should deprive the heads of these
Departments of all discretion . . . and allow them to expend no money for any
purpose except that specifically appropriated for that particular purpose,” Representative Brundidge responded: “that is practically the law now.” Id. at 1276
(noting the exception for emergencies).
As the foregoing history reveals, although the language of the statute at that
time—which merely prohibited expenditures “in any one fiscal year” in an amount
“in excess of appropriations made by Congress for that fiscal year”—appeared
designed primarily to prevent overall deficiencies, a number of members of
Congress asserted (without opposition) that the 1905 and 1906 amendments would
also enforce Congress’s constitutional authority to control the objects on which
funds were to be spent. Indeed, the remarks cited above indicate that proponents of
the legislation believed that unauthorized spending—that is, spending on projects
that Congress had failed to authorize, or spending more money on projects than
Congress had authorized—was a primary cause of overall deficiencies. These
14
Representative Burton also stated with respect to the Act’s penalty provisions that, “unless the
law is very severe,” executive officers would spend funds on particular items they had recommended
that were rejected by Congress. “It is fit and proper that by the severest penalties we should provide
against that possibility.” Id. at 1298.
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proponents, therefore, presumably would not have perceived any inherent tension
between the goal of barring coercive deficiencies and the goal of barring spending
in excess of conditions or internal caps; any statutory focus on the former goal,
therefore, does not necessarily demonstrate that Congress did not intend to achieve
the latter as well.
In subsequent years, Congress continued to modify the Act in an attempt to rein
in overspending by the Executive Branch and retain control of the federal fisc in
the hands of Congress. In 1950, Congress amended the first portion of the statute
to read:
Sec. 3679. (a) No officer or employee of the United States shall
make or authorize an expenditure from or create or authorize an
obligation under any appropriation or fund in excess of the amount
available therein; nor shall any such officer or employee involve the
Government in any contract or other obligation, for the payment of
money for any purpose, in advance of appropriations made for such
purpose, unless such contract or obligation is authorized by law.
Pub. L. No. 81-759, 64 Stat. 595, 765.15 Notably, the 1950 amendment eliminated
the phrases “in any one fiscal year” and “for that fiscal year,” thereby changing the
focus of the Act’s language from overall spending to spending out of particular
appropriations, and also introduced the term “available” for the first time in the
Act’s history. See 96 Cong. Rec. at 6835 (“subsection (a) would prohibit the
making or authorizing of expenditures in excess of the amount available in any
appropriation or fund”) (emphasis added). The legislative history provides little
explanation for these changes. The House Report merely noted that the existing
statute was “antiquated” and needed redrafting in light of the increasing complexity of the government, see H.R. Rep. No. 81-1797, at 9 (1950), while the legislative
debates once again focused on the problem of deficiencies. Representative Norrell,
a committee member and sponsor of the amendment, stated: “The entire effort is
to try to discourage, if not entirely eliminate, supplementals and deficiencies.” 96
Cong. Rec. at 6726; see also id. at 6729 (purpose of amendment is to restore
“proper control over appropriations” to Congress) (remarks of Rep. Taber and
Rep. Wigglesworth). Yet Congress also seems to have been concerned with fiscal
15
Congress also increased the maximum penalty for “knowing[] and willful[]” violations of this
provision of the Act to a $5000 fine and two years imprisonment, and for all other violations required
“appropriate administrative discipline, including, when circumstances warrant, suspension from duty
without pay or removal from office.” § 3679(i), 64 Stat. at 768; see also 96 Cong. Rec. 6835, 6837
(1950) (section-by-section analysis) (amendment designed to supply “more practicable penalties, which
can be gaged with reference to the seriousness of the offense”). Finally, the amended Act required
agencies to report certain violations of the statute, and the actions taken, to the President and Congress.
§ 3679(i), 64 Stat. 768.
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control in a broader sense. The House Report admonished the Executive Branch
that “[a]ppropriation of a given amount for a particular activity constitutes only a
ceiling upon the amount which should be expended for that activity.” H.R. Rep.
No. 81-1797, at 9 (emphasis added). Moreover, as noted above, Congress added
specific language to the second clause of the section, dealing with obligations in
advance of appropriations, which appears to presuppose that obligations are
limited to the particular purposes Congress has authorized.
Between 1950 and 1982, Congress made only a few minor and technical
amendments (not relevant here) to the Antideficiency Act. The Act achieved
essentially its current form in 1982, as part of the general recodification of title 31
of the United States Code.16 See H.R. Rep. No. 97-651, at 1 (1982), reprinted in
1982 U.S.C.C.A.N. 1895 (describing purpose of bill “to revise, codify, and enact
without substantive change certain general and permanent laws related to money
and finance as title 31, United States Code, ‘Money and Finance’”). The new
section 1341(a) differed in several ways from its predecessor. In describing
unlawful expenditures and obligations, for example, the revisers changed the
phrase “under any appropriation or fund in excess of the amount available
therein” to “exceeding an amount available in an appropriation or fund for the
expenditure or obligation.” 31 U.S.C. § 1341(a) (emphasis added). In the second
clause, the phrase “for the payment of money for any purpose, in advance of
appropriations made for such purpose” became “for the payment of money before
an appropriation is made.” The House Report specified, however, that the bill
made no substantive change in the law. See H.R. Rep. No. 97-651, at 1-3; 1982
U.S.C.C.A.N. at 1896. Accordingly, we understand these changes simply to have
clarified the longstanding meaning of the Act. See H.R. Rep. No. 97-651, at 1
(“simple language has been substituted for awkward and obsolete terms”).
Although the legislative history of the Antideficiency Act manifests particular
congressional concern with the problem of overall deficiencies, we believe that
history indicates that the Act’s proponents sought not only to prohibit government
agencies from spending funds in excess of their total annual appropriations (i.e.,
creating a deficiency), but also to enforce Congress’s control over the uses to
which public funds are put. This broader view of the Act’s goals was expressed
when the Act took its modern form in 1905 and 1906, and was reinforced when
the 1950 amendments to the statutory language focused the Act’s prohibition on
expenditures in excess of any single appropriation or fund instead of expenditures
within a fiscal year. Indeed, the legislative history from 1905 on indicates a
16
In 1990, Congress added sections 1341(a)(1)(C) and (D) in conformity with the Balanced Budget
and Emergency Deficit Control Act of 1985. Congress also clarified that the exception allowing the
acceptance of voluntary or personal services in time of emergencies (see 31 U.S.C. § 1342 (1994)) may
be applied only in the face of an imminent threat to life or property. See H.R. Rep. No. 101-964, at
1170 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 2374, 2875.
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congressional intent to enforce the full extent of Congress’s constitutionally
mandated control over public spending. To be sure, in denouncing unauthorized
spending, members typically focused only on examples that resulted in overall
deficiencies, such as the excess spending on naval gun sights that depleted funds
available for ship maintenance. But the comments of Representatives in 1905 and
1906 and the 1950 House Report are not so limited, and reflect a desire to prohibit
all expenditures on particular projects in excess of authorized levels. See, e.g., 39
Cong. Rec. at 3780 (Rep. Underwood criticizing use of “moneys appropriated for
one purpose for a different purpose than Congress intended”); 40 Cong. Rec. at
1298 (Rep. Burton emphasizing Congress’s right “to determine for what objects
expenditures shall be made and how much shall be expended,” and asserting that
Congress must ensure that public funds “are applied to purposes which approve
themselves to our judgment and to the judgment of the people”); H.R. Rep. No.
81-1797, at 9 (“Appropriation of a given amount for a particular activity constitutes . . . a ceiling upon the amount which should be expended for that activity.”)
(emphasis added).
The legislative history thus reinforces our conclusion that the Antideficiency
Act prohibits not only expenditures or obligations in excess of overall appropriations, but also expenditures in excess of internal caps or conditions within
particular appropriations acts. In our view, this reading of the Act better reflects its
full history and evolution, and is more consistent with its purpose. As this Office
has stated previously, “[t]he manifest purpose of the Antideficiency Act is to
insure that Congress will determine for what purposes the government’s money is
to be spent and how much for each purpose.” Applicability of the Antideficiency
Act Upon a Lapse in an Agency’s Appropriation, 4A Op. O.L.C. 16, 19-20 (1980).
See also Appropriation—Construction of New York Dry Dock, 28 Op. Att’y Gen.
466, 466 (1910) (Secretary of the Navy may not borrow funds “from appropriations not strictly applicable” to meet the payments on a contract for the erection of
a dry dock where funds specifically appropriated for that purpose have been
exhausted).
III. Judicial, Administrative, and Scholarly Interpretations of the Act
Our understanding of the Act’s prohibitions is further supported by the purposes of the Constitution’s Appropriations Clause, the decisions of the Supreme Court
and the Comptroller General, and the views of scholars who have addressed the
subject. The Antideficiency Act itself is unquestionably intended to enforce
Congress’s authority under the Appropriations Clause. As the Supreme Court has
explained, that Clause is intended “to assure that public funds will be spent
according to the letter of the difficult judgments reached by Congress as to the
common good and not according to the individual favor of Government agents or
the individual pleas of litigants.” Office of Pers. Mgmt. v. Richmond, 496 U.S. at
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428. The “letter of the difficult judgments reached by Congress as to the common
good” is very often reflected in the conditions and internal caps included in
appropriations laws. Accordingly, a construction of the Antideficiency Act that
prohibits expenditures that do not necessarily result in overall deficiencies but that
nevertheless frustrate difficult congressional judgments about the appropriate level
of spending on a particular purpose ensures that Congress is able to exercise its
full constitutional authority over public spending.
The Supreme Court has applied these principles on the rare occasions it has had
to interpret any of the various versions of the Antideficiency Act. In Hooe v.
United States, 218 U.S. 322 (1910), the Court held that, under the 1870 version of
the Act and other similar enactments, the Civil Service Commission was legally
incapable of incurring an obligation to pay more rent for a building it occupied
than Congress had specifically appropriated for that purpose, and that any implied
contractual obligation to pay fair market rental value in excess of the appropriated
amount was a nullity. The relevant appropriations acts expressly stated that the
sum of $4000 would be “in full compensation” for each year’s use of the building.
Id. at 332. The Court pointed out that “[i]t is for Congress, proceeding under the
Constitution, to say what amount may be drawn from the Treasury in pursuance of
an appropriation.” Id. at 333. The agency could not contract for rent in excess of
that amount, “particularly where . . . Congress had taken care to say . . . that the
appropriation shall be in full compensation for the specific purpose named in the
appropriation act.” Id.; see also Sutton v. United States, 256 U.S. 575, 580-81
(1921) (under 1906 version of Act, Secretary of War could not obligate the
government to pay more than the $23,000 appropriated for improving a channel);
Bradley v. United States, 98 U.S. 104 (1878) (where Congress appropriated only
$1800 for payment of third year’s rent under a contract for annual rent of $4200,
lessor could not recover anything beyond that amount). Because none of these
cases involved situations in which officers or agencies drew upon other appropriated funds and made expenditures in excess of the amount (or limits) Congress had
specified for the purpose in question, the Court did not squarely address whether
such expenditures violate the Act. In addition, the Court was applying versions of
the Act that did not use the term “available.” Nevertheless, in each case the Court
treated the limitation in the relevant appropriation as an internal cap, and cited the
Act for the proposition that federal officials were legally incapable of obligating
the government to exceed that cap. These holdings thus appear to support our
conclusion that, when Congress uses an internal cap or condition to limit the
amount of money that can be used for a particular purpose, only the amount of
money specified in the cap or condition is “available,” within the meaning of the
Antideficiency Act, for that purpose, and any expenditure in excess of that amount
is an “expenditure or obligation exceeding an amount available in an appropriation.”
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More recently, the Federal Circuit has held that “[s]ection 1341(a)(1)(A) makes
it clear that an agency may not spend more money for a program than has been
appropriated for that program.” Highland Falls-Fort Montgomery Cent. Sch. Dist.
v. United States, 48 F.3d 1166, 1171 (Fed. Cir.) (emphasis added), cert. denied,
516 U.S. 820 (1995). On this basis, the court rejected the argument that, while
Congress had failed to appropriate sufficient earmarked money to fund certain
entitlements under the Impact Aid Act, Pub. L. No. 81-874, 64 Stat. 1100 (1950),
the Department of Education should have redirected funds from other programs in
order to cover the shortfall, and concluded that, if the Department had transferred
money from other appropriations, “it would have been spending more money than
Congress had appropriated for [those] entitlements, in violation of
§ 1341(a)(1)(A).” Id. Similarly, in Eastern Band of Cherokee Indians v. United
States, 16 Cl. Ct. 75 (1988), the Court of Claims held that if Congress has not
appropriated funds for a particular purpose, it would violate the Antideficiency
Act for officials to expend other funds for that purpose. The court denied the claim
of the Eastern Band of Cherokee Indians that the Department of the Interior should
have given them increased funds for their school under a statutory provision that
provides for equivalent funding for schools operated by the Bureau of Indian
Affairs, as compared with public schools. Id. at 76. At the time of the tribe’s
request, no appropriations had been made for the Set-Aside Fund from which the
payments were required to be made by the Department’s implementing regulations. Id. Although the tribe argued that the Department could have made payments from other accounts, the court held that such an action would violate the
Antideficiency Act. Id. at 79. These cases are consistent with this Office’s
conclusion that “there is no presumption that Congress has made funds available
for every authorized purpose in any given fiscal year.” Anti-Lobbying Restrictions
Applicable to Community Services Administration Grantees, 5 Op. O.L.C. 180,
184 (1981).17
One district court, however, has found that the expenditure of funds in violation
of a prohibition within an appropriation does not violate the Antideficiency Act.
The case, Southern Packaging & Storage Co. v. United States, 588 F. Supp. 532
(D.S.C. 1984), involved a “buy American” restriction in the Department of
Defense’s appropriations.18 The court held that, although the Department’s
acquisition of food items produced in Canada from ingredients obtained from
within the United States violated this restriction, it did not violate the
17
As noted above, we take no position on whether earmarks of the type involved in these cases
operate as internal caps, or whether the Department’s transfer or reprogramming authority would, in
some contexts, be available to permit spending in excess of an earmark.
18
The appropriation stated: “No part of any appropriation contained in this Act . . . shall be available for the procurement of any article of food . . . not grown, reprocessed, reused, or produced in the
United States or its possessions . . . .” Pub. L. No. 97-114, § 723, 95 Stat. 1565, 1582 (1981) (emphasis
added). It thus did not bar the use of any funds for that purpose.
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Opinions of the Office of Legal Counsel in Volume 25
Antideficiency Act because there was “no evidence [that the Department]
authorized expenditures beyond the amount appropriated by Congress for the
procurement of” the ready-to-eat meals. Id. at 550. The court did not explain this
holding or suggest that there was another appropriation from which the Department could obtain funding for the meals. We disagree with the court’s apparent
conclusion that, even though the appropriation forbade the purchase of nonAmerican food items, there remained funds “available” in that appropriation for
such purchases within the meaning of the Antideficiency Act. The district court’s
unexplained decision is inconsistent with the Antideficiency Act’s legislative
history and evolution and with the rest of the (limited) caselaw. 19
Our interpretation of the Act is also consistent with that of the Comptroller
General, including Comptroller General decisions applying the pre-1982 version
of the Act. See, e.g., 60 Comp. Gen. 440 (1981) (incurring an obligation to pay
overtime to employees in excess of a ceiling in an agency’s appropriation violates
the Antideficiency Act where no other funds are available for that purpose); 42
Comp. Gen. 272, 275 (1962) (Antideficiency Act reflects congressional intent to
keep departments within limits and purposes of appropriations annually provided)
(quoted with approval in Authority to Use Funds from Fiscal Year 1990 Appropriations to Cover Shortfall from Prior Year’s Pell Grant Program, 14 Op. O.L.C.
68, 77 (1990)); see generally 2 Federal Appropriations Law at 6-43 to 6-45 (2d
ed. 1992).20 The Department of Defense has also adopted this interpretation of the
Act. See Dep’t of Defense, Dir. 7200.1, Administrative Control of Appropriations
(May 4, 1995) (Antideficiency Act violation occurs when disbursements are made
that exceed statutory or regulatory limitations on amounts of an appropriation that
may be used for a particular purpose); Dep’t of Defense, Accounting Manual,
DoD 7220.9-M at 21-6 (Feb. 1988) (expenditure in excess of a statutory limitation
19
The General Accounting Office (“GAO”), moreover, has expressly criticized the Southern
Packaging decision. See 2 Federal Appropriations Law at 6-45 to 6-46 (2d ed. 1992) (discussing the
Southern Packaging decision and suggesting that, while not every unauthorized expenditure—e.g., an
unauthorized long-distance telephone call—should be held to violate the Antideficiency Act, where
Congress has expressly prohibited the use of appropriated funds for a particular expenditure, “it seems
clear” that there are no funds “available” for that item). This Opinion does not address, or foreclose
future consideration of, the possibility that the Act may incorporate a de minimis exception for
inadvertent or negligible violations, such as that suggested by GAO in its discussion of the Southern
Packaging decision, or recognized by the Comptroller General and this Office with respect to the
Purpose Statute, 31 U.S.C. § 1301(a). Cf. 64 Comp. Gen. 370, 380-81 (1985) (permitting
nonreimbursable interagency details that have a negligible impact on the loaning agency’s appropriations); Memorandum for Margaret C. Love, Associate Deputy Attorney General, from John O.
McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Deputation of Interior
Department Inspector General Personnel (Apr. 11, 1990) (concluding that nonreimbursable detail
involving 280 man-hours would satisfy de minimis exception to Purpose Statute).
20
As we explained above, the opinions and legal interpretation of the Comptroller General and the
GAO are not binding upon departments, agencies, or officers of the Executive Branch.
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Applicability of ADA to Violation of Condition Within Appropriation
that legally limits the availability of funds constitutes a violation of the
Antideficiency Act).
Finally, our conclusion that a violation of a condition or an internal cap in an
appropriation violates the Antideficiency Act is supported by the views of a
number of legal scholars. As one commentator has explained, “the plain terms of
the Act broadly codify the [constitutional] Principle of Appropriations Control,” a
principle “that is broader than the particular concern that led to its enactment.” See
Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. at 1374-75; id. at 1375 &
n.157 (arguing that the Act permits the Executive to spend funds only for the
objects authorized by Congress, and noting Comptroller General’s view that “the
Anti-Deficiency Act prohibits expenditure in some cases where ‘coercive deficiencies’ are not threatened”); see also Ralph S. Abascal & John R. Kramer,
Presidential Impoundment Part I: Historical Genesis and Constitutional Framework, 62 Geo. L.J. 1549, 1587 (1974) (“The House Appropriations Committee
proposed [the Antideficiency Act] to end abuses that had continued for many
years—the use of monies appropriated for one purpose for a different purpose and
the use of coercive deficiencies to obtain mid-year increases in financing.”). J.
Gregory Sidak, for example, has suggested that “[i]f Congress expressly prohibits
the spending of any funds to examine a particular policy, then even the expenditure of a dollar by the President to recommend the prohibited policy to Congress
would ‘exceed[] an amount available in an appropriation’ and thus violate the
Antideficiency Act.” J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J.
at 2101 (arguing, however, that application of the Act to appropriations riders of
this type would violate the Recommendation Clause). William C. Banks and Peter
Raven-Hansen have argued that violation of an appropriation rider such as the
Boland Amendment, which prohibited the expenditure for certain purposes of any
funds available to the Central Intelligence Agency and the Department of Defense,
also violates the Antideficiency Act.21 National Security Law and the Power of the
Purse 139 (1994); see also Kathryn R. Sommerkamp, Commanders’ Coins: Worth
Their Weight in Gold?, Army Law. 6, 13 & n.70 (Nov. 1997) (exceeding a
limitation in an appropriation violates the Antideficiency Act); Paul D. Hancq,
Violations of the Antideficiency Act: Is the Army Too Quick to Find Them?, Army
Law. 30, 34 (July 1995) (Antideficiency Act violated when an agency exceeds an
“absolute ceiling” in an appropriation because there are no proper funds “available” for the excess).
21
See also S. Rep. No. 100-216, at 411-12 (1987) (Iran-Contra Investigation Report) (implying that
use of private and foreign funds to circumvent Boland Amendment violated Antideficiency Act); Olson
Memorandum.
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Opinions of the Office of Legal Counsel in Volume 25
IV. Conclusion
In sum, given the underlying purpose of the Antideficiency Act—control by
Congress of both the amount and objects of Executive Branch spending—we
conclude that when Congress has explicitly prohibited an agency’s use of any
funds for a particular purpose by placing a condition in an appropriations act, no
funds are legally “available” for that purpose within the meaning of the Act.
Similarly, when Congress has expressly limited an agency’s use of any funds in
excess of a particular amount for a certain purpose by means of an internal cap,
there remain no legally “available” funds for that purpose once the statutory limit
has been reached. Therefore, subject to the various reservations noted above, we
conclude that any expenditure of funds in violation of a condition or internal cap
in an appropriations act would violate the Antideficiency Act.22
RANDOLPH D. MOSS
Assistant Attorney General
Office of Legal Counsel
22
Although all violations of sections 1341(a) and 1342 of title 31 must be reported to Congress, see
31 U.S.C. § 1351 (1994), we offer no view as to the applicability of the criminal and civil penalties
imposed by the Act. In contemplating the availability of any sanction, very difficult considerations,
such as fair warning and desuetude, would have to be evaluated. See generally United States v. Lanier,
520 U.S. 259, 267 (1997) (in construing a criminal statute “the touchstone is whether the statute, either
standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s
conduct was criminal”). We note that, to our knowledge, no criminal or civil penalties have been
sought under the Act in the almost 95 years that such penalties have been available. Indeed, one
member of Congress stated in 1906 that there were “not likely to be any” prosecutions under the Act,
suggesting that Congress should instead withhold deficiency appropriations where the Act had been
violated. See 40 Cong. Rec. at 1276 (1906) (Rep. Brundidge). See also Applicability of the
Antideficiency Act Upon a Lapse in an Agency’s Appropriation, 4A Op. O.L.C. at 20 (“This Department will not undertake investigations and prosecutions of officials who, in the past, may have kept
their agencies open in advance of appropriations. Because of the uncertainty among budget and
accounting officers as to the proper interpretation of the Act and Congress’s subsequent ratifications of
past obligations incurred during periods of lapsed appropriations, criminal sanctions would be
inappropriate for those actions.”)
54
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|
Write a legal research memo on the following topic. | Constitutional Issues Raised by Inter-American
Convention on International Commercial Arbitration
P ro p o sed legislation g iv in g In te r-A m e ric a n C o m m ercial A rb itra tio n C om m ission
( IA C A C ) p o w e r to am en d rules w h ic h h a v e been en acted by C o n g ress w o u ld result in
an im p ro p e r d eleg atio n o f legislative p o w e r to a p riv a te o rg an izatio n , and any am en d ed
ru le co u ld not co n stitu tio n ally be ap p lied to ag re e m e n ts e n te re d in to a fter th e effe ctiv e
d a te o f th e am en d m en ts.
P ro v isio n in p ro p o sed legislation allo w in g o n e H ouse o f C o n g ress to d isa p p ro v e am e n d
m en ts to IA C A C rules, a lth o u g h n ot a v e to o f ex ecu tiv e actio n , n onetheless violates
th e P resen tm en t C lauses.
A n a lte rn a tiv e rev iew m ech anism w h e re b y th e S e c re ta ry o f S tate w o u ld be req u ire d to
a p p ro v e o r d isa p p ro v e am en d m en ts to th e IA C A C rules w o u ld be c o n stitu tio n a lly
accep tab le, since th e am en d m en ts w o u ld not be binding on the g o v e rn m e n t but m erely
ad v iso ry.
March 20, 1980
MEMORANDUM OPINION FOR TH E ASSISTANT LEG AL
ADVISER FOR PRIV A TE IN TER N A TIO N A L LAW,
D EPA R TM EN T O F STA TE
This responds to your request for the views of the Justice Depart
ment on the congressional review mechanism in the proposed imple
menting legislation for the Inter-American Convention on International
Commercial Arbitration. You ask whether the review mechanism con
stitutes a “legislative veto.” Our analysis of the review mechanism in
the proposed legislation raises an additional question whether Congress
may delegate its legislative power to the Inter-American Commercial
Arbitration Commission (IACAC), a private organization. While the
law is not clear in this area, we conclude that the delegation made in
the proposed legislation presents serious constitutional problems. We
believe, however, that the constitutional problems could be ameliorated
if IACAC’s amendments to its rules were applicable only to agreements
entered into after the effective date of the amendments. The review
mechanism in the proposed legislation, although not a veto of executive
action, is a legislative veto and is, therefore, unconstitutional. At your
request, we suggest an alternative review mechanism.
509
I.
The Inter-American Convention on Internationa) Commercial Arbi
tration provides that, when parties of signatory nations have agreed to
submit to arbitration any dispute that may arise out of a commercial
transaction, the arbitration shall be conducted in accordance with the
rules of procedure of the IACAC unless the parties have expressly
agreed otherwise. Articles 1 & 3. The proposed implementing legisla
tion for the Convention defines the rules referred to in Article 3 of the
Convention to be those rules as promulgated by the Commission on
January 1, 1978. § 306(a). If the IACAC modifies or amends its rules,
§ 306(b) would require the Secretary of State to transmit to the House
of Representatives and the Senate a document containing the rules as
modified or amended together with a report setting forth the reasons
for and the effect of such modifications or amendments. A majority of
either the House or Senate may disapprove the rules as modified or
amended within 90 days of the transmission. If the rules are not disap
proved, the rules shall be published after 90 days have elapsed and shall
become effective 120 days after publication. If the rules are disap
proved, the Secretary is required to use his best efforts to reconvene
the rulemaking body of IACAC to ensure that the rules applicable to
the signatory parties to the Convention are uniform.
II.
The threshold question presented by the proposed implementing leg
islation is whether it involves an unconstitutional delegation of legisla
tive power to a private organization. The legislation would incorporate
by reference and thereby enact the rules of procedure of the IACAC in
effect as of January 1, 1978. Since it is assumed that Congress would
review and approve the rules in enacting the legislation, the incorpora
tion of those rules by reference does not involve a delegation of
legislative power to a private organization. C f United States v.
Sharpnack, 355 U.S. 286, 293 (1958). See also Liebmann, G.W., Delega
tion to Private Parties in American Constitutional Law, 50 Ind. L.J. 650,
680 (1975). However, the proposed legislation implicitly gives the
IACAC the power to amend those rules subject to one House’s disap
proval of such amendments. In effect, the legislature would delegate to
a private organization the power to amend congressional legislation.
We believe that such a delegation raises serious constitutional problems.
In analyzing the delegation question, we are hampered by the fact
that “ [t]he case law has not crystallized any consistent principles, either
in the federal courts or in the state courts.” Davis, Administrative Law
Treatise §2.14 at 138 (1958). Nevertheless, a survey of the relevant
Supreme Court cases provides some guidance. In 1908, the Supreme
Court rejected a claim that a statute permitting the American Railway
510
Association to set the uniform height for drawbars on freight cars
constituted an invalid delegation, St. Louis, Iron Mountain & Southern
Railway Co. v. Taylor, 210 U.S. 281 (1908). Three years earlier, it had
upheld a delegation to miners to make regulations governing the re
cording of mining claims and the amount of work necessary to establish
possession of a mining claim. Butte City Water Co. v. Baker, 196 U.S.
119 (1905).
However, more recently the Court found invalid a delegation to
producers of two-thirds of coal to fix for producers selling coal to
government contractors the minimum wages and maximum hours of
their workers. Carter v. Carter Coal Co., 298 U.S. 238, 310 (1936).
Holding that the delegation violated the Due Process Clause of the
Fifth Amendment, the Court stated:
The power conferred upon the majority is, in effect, the
power to regulate the affairs of an unwilling minority.
This is legislative delegation in its most obnoxious form;
for it is not even delegation to an official or an official
body, presumptively disinterested, but to private persons
whose interests may be and often are adverse to the
interests of others in the same business.
Id. at 311. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495 (1935), the Court, addressing the argument that a delegation to the
President to approve codes of fair competition proposed by trade asso
ciations was proper because a delegation to the trade associations alone
would be constitutional, stated:
But would it be seriously contended that Congress could
delegate its legislative authority to trade or industrial
associations or groups so as to empower them to enact the
laws they deem to be wise and beneficent for the rehabili
tation and expansion of their trade or industries? Could
trade or industrial associations or groups be constituted
legislative bodies for that purpose because such associa
tions or groups are familiar with the problems of their
enterprises? . . . Such a delegation of legislative power is
unknown to our law and is utterly inconsistent with the
constitutional prerogatives and duties of Congress.
Id. at 537. The Court in Schechter distinguished St. Louis, Iron Mountain
& Southern Railway Co., as involving a matter of a technical nature and
Butte City Water Co. as a recognition of local customs and of the rules
of miners concerning mining claims. 295 U.S. at 537.
Adopting this distinction, it could be argued that the IACAC rules
are not substantive regulations capable of imposing anti-competitive or
unfair restrictions but are merely “technical” rules promulgated by a
511
presumably disinterested body with a recognized expertise in arbitration
procedure. Cf. Liebmann, supra at 680-719.
However, because the rules may affect substantive rights,1 we are
reluctant to conclude on the basis of this distinction that the delegation
to the IACAC is clearly constitutional, especially in light of the scar
city and age of federal case law approving delegation to private
bodies.2
Our concern about the effect such amendments might have on sub
stantive rights would be significantly reduced if the amendments would
apply only to agreements entered into after the effective date of the
amendments. This approach would eliminate any potential for unfair
ness because a party entering an arbitration agreement would have the
opportunity to examine the amendments to the IACAC rules and, if he
regarded the amendments as unfair, could either decline to agree to
arbitration or negotiate with the other party to the agreement the
application of other rules or modifications to the amendments.3
Whether you decide to apply the amended rules to all agreements in
the interest of uniformity or only to agreements entered into after the
effective -date of amendments will determine whether governmental
review is required. If the former approach is adopted, we believe that,
in order to minimize the possibility of a challenge to amended IACAC
rules, the rules should be subject to governmental review and adoption
by legislation.
III.
The proposed legislative veto mechanism, although it does provide
some governmental review of IACAC amendments, presents other con
stitutional problems. As you point out in your memorandum, this
review mechanism is unlike the classic “legislative veto” provision
1 For instance, the rules govern the place of arbitration, the choice o f law, the appointment of
arbitrators, and the right to an oral hearing. It is conceivable that the rules could be amended in such
a manner that American citizens could be disadvantaged in arbitration proceedings, e.g., a country
distant from the United States could be designated as the place of arbitration.
2 Other problems could also be present here. First, a problem could arise out of the concept that, in
a representative government, governmental powers should be vested in elected or disinterested public
officials. In this manner, governmental decisions ‘and processes are subject to the checks of a variety of
legal controls such as the oath of office, the conflict of interest laws, the control over appropriations,
the powers of appointment, confirmation, or removal, and ultimately the electoral process. Another
problem arises from the nature of the power vested in the private body. It could be argued that rule
making power may be constitutionally vested only in “Officers of the United States” appointed
pursuant to the Appointments Clause, Article II, § 2, clause 2. See Buckley v. Valeo. 424 U.S. 1, 113-41
(1976). Finally, if it is constitutional to delegate legislative power to private organizations, such a
delegation should be subject to standards restricting the exercise of that power. C f A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495 (1935). Although the courts’ attitude toward delegation of
legislative power to executive agencies without specific standards has relaxed considerably, see gener
ally K.C. Davis, Administrative Law Treatise, §§2.05, 2.06 and 2.15 (1958), the lack of the checks
mentioned above on a private organization’s exercise of that power would suggest that standards
imposed upon the exercise of legislative power by private organizations should be more stringent than
the standards imposed on public bodies.
3 Article 3 of the Inter-American Convention on International Commercial Arbitration applies the
IACAC rules only when parties to an arbitration agreement have not expressly agreed otherwise.
512
which purports to vest one House of Congress with the power to veto
Executive action. Instead, the provision would allow one House of
Congress to veto “private” action. Assuming, arguendo, that Congress
could delegate to the IACAC the power to amend rules that had been
enacted by Congress, the question is whether the Constitution author
izes a procedure whereby one House may control the exercise of
discretion vested in the IACAC.
Article I, § 1 of the Constitution vests all legislative powers in a
Congress, consisting of a Senate and House of Representatives. Further
more, those powers cannot be exercised absent participation by the
President. Article I, § 7, clause 2 requires “[e]very Bill . . . be pre
sented to the President of the United States” for his approval or
disapproval before it can become a law. Article I, § 7, clause 3 provides
that “[e]very Order, Resolution, or Vote” to which concurrence of
both Houses is necessary shall be presented to the President for his
approval or veto.4
The Presentment Clauses thus provide two primary checks on the
exercise of legislative power—the principle of bicameralism and the
Executive veto. The veto provision in the proposed implementing legis
lation would not respect these constitutional checks. The proposed
legislation would allow one House of Congress to disapprove amend
ments to the IACAC rules, but that legislative decision would not be
presented to the President for his approval or veto. Nor would the
President be given the opportunity to veto any “approval” of the
amendments because the approval would be expressed by congressional
inaction. Further, exercise by one House of the veto power would
purport to place on the Secretary of State a legal duty to take steps to
reconvene the rulemaking body of the IACAC. In our view, legal
duties may not be imposed on the Executive by the exercise of some
thing less than the full legislative process. Finally, if Congress could
constitutionally delegate to the IACAC its legislative power to amend
the rules, that power may be revoked only by affirmative legislative
action by both Houses of Congress and the President, not by one House
of Congress disapproving the exercise of that power.
IV.
If you decide that the IACAC rules amended should, as a matter of
policy, apply to all arbitration agreements, you may wish to consider an
4 Giving the President this integral role in the legislative process was believed necessary by the
Framers in order to limit congressional power. As James Madison put it: “(I]t is against the enterpris
ing ambition of this [legislative] department that the people ought to indulge all their jealousy and
exhaust all their precautions." The Federalist No. 48, at 309 (New American Library Ed. 1961).
Alexander Hamilton viewed the veto power of the President as necessary to prevent legislative and
Executive powers from becoming blended in the same hands. Id., No. 73, at 442. For more extensive
discussion of the constitutionality of legislative vetoes, see 37 Op. A tt’y Gen. 56 (1933); 41 Op. A tt’y
Gen! 230 (1955); 41 Op. A tt'y Gen. 300 (1957).
513
alternative governmental review mechanism which would vest the Sec
retary of State with the power and duty to approve or disapprove
amendments to the IACAC rules. This approach would cure the pro
posed legislation of both constitutional infirmities. IACAC’s action in
amending the rules would not be an exercise of legislative power
because the amendments would not be binding on the government but
would be merely advisory. The courts have held similar schemes not to
be an unconstitutional delegation of legislative power. Sun-Shine An
thracite Coal Co. v. Atkins, 310 U.S. 381 (1940); Todd & Co., Inc. v.
SEC, 557 F.2d 1008, 1012-13 (3d Cir. 1977); R.H. Johnson & Co. v.
SEC, 198 F.2d 690, 695 (2d Cir. 1952).
A model for this approach may be found in the Maloney Act, 15
U.S.C. § 78o-3, authorizing Securities and Exchange Commission
(SEC) registration of approved associations of securities dealers. Both
the Second and Third Circuits have upheld the Maloney Act against a
challenge that it unconstitutionally delegates legislative power to pri
vate parties. Todd & Co., Inc. v. SEC, 557 F.2d 1008, and R.H. Johnson
& Co. v. SEC, 198 F.2d 690. Membership in a registered association, as
a practical matter, is essential to doing business in over-the-counter
securities.5 The Maloney Act authorizes these associations to adopt
substantive as well as procedural rules, to conduct disciplinary proceed
ings and to enforce sanctions, including expulsion. The associations are
required to submit any changes in or additions to their rules to the SEC
for review. 15 U.S.C. § 78o-3(j). The rules as amended become effec
tive if within 20 days the SEC has not disapproved the amendments.
The SEC is required to disapprove the amendments if they are not
consistent with the Act.
The Maloney Act resembles the proposed implementing legislation in
that amendments to the rules become effective unless disapproved. A
critical difference, however, is that the Act requires the SEC to disap
prove amendments if they are inconsistent with the Act. The Act,
therefore, places an affirmative obligation on the SEC to consider
amendments, determine whether they are inconsistent with the Act and
disapprove them if they are.
The Secretary of State’s review of IACAC’s amendments, however,
would have to be conducted in accordance with the rule-making re
quirements of the Administrative Procedure Act, 5 U.S.C. § 553,®
unless the Secretary’s review and adoption of IACAC rules could be
considered a foreign affairs function so as to trigger the foreign affairs
exemption, 5 U.S.C. § 553(a)(1), or unless an exception were otherwise
provided. We understand that your Department interprets that exemp
8 An association may require its members to charge nonmember brokers the commissions charged
to the general public rather than the lower commissions charged to members. IS U.S.C. §78o-3(e).
6 See SEC regulations governing its review of amendments of registered association's rules. 17
C.F.R. 240.19b-4.
514
tion broadly. Bonfield, Military and Foreign Affairs Function RuleMaking under the APA, 71 Mich. L. Rev. 221, 258-62 (1972). We
express no opinion on the applicability of this exemption. We would be
happy, however, to consider your views on this question and advise
you on the exemption’s applicability.
If you decide to apply the amended rules only to agreements entered
into after the effective date of the amendments, the amendments, be
cause they would be presumed to have been agreed to by the parties to
an arbitration agreement, would not have to be approved by the Secre
tary of State. If you feel that the implementing legislation should, as a
matter of policy, provide for some opportunity for governmental
review of amendments, you may want to consider a “report and wait”
provision. A model for this approach may be found in 28 U.S.C. § 2072
which delays the effective date of procedural rules promulgated by the
Supreme Court until 90 days after the rules have been reported to
Congress. Within that 90-day period, Congress may through the legisla
tive process revoke all or some of the rules.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
515 |
|
Write a legal research memo on the following topic. | Constitutional Issues Raised by Inter-American
Convention on International Commercial Arbitration
P ro p o sed legislation g iv in g In te r-A m e ric a n C o m m ercial A rb itra tio n C om m ission
( IA C A C ) p o w e r to am en d rules w h ic h h a v e been en acted by C o n g ress w o u ld result in
an im p ro p e r d eleg atio n o f legislative p o w e r to a p riv a te o rg an izatio n , and any am en d ed
ru le co u ld not co n stitu tio n ally be ap p lied to ag re e m e n ts e n te re d in to a fter th e effe ctiv e
d a te o f th e am en d m en ts.
P ro v isio n in p ro p o sed legislation allo w in g o n e H ouse o f C o n g ress to d isa p p ro v e am e n d
m en ts to IA C A C rules, a lth o u g h n ot a v e to o f ex ecu tiv e actio n , n onetheless violates
th e P resen tm en t C lauses.
A n a lte rn a tiv e rev iew m ech anism w h e re b y th e S e c re ta ry o f S tate w o u ld be req u ire d to
a p p ro v e o r d isa p p ro v e am en d m en ts to th e IA C A C rules w o u ld be c o n stitu tio n a lly
accep tab le, since th e am en d m en ts w o u ld not be binding on the g o v e rn m e n t but m erely
ad v iso ry.
March 20, 1980
MEMORANDUM OPINION FOR TH E ASSISTANT LEG AL
ADVISER FOR PRIV A TE IN TER N A TIO N A L LAW,
D EPA R TM EN T O F STA TE
This responds to your request for the views of the Justice Depart
ment on the congressional review mechanism in the proposed imple
menting legislation for the Inter-American Convention on International
Commercial Arbitration. You ask whether the review mechanism con
stitutes a “legislative veto.” Our analysis of the review mechanism in
the proposed legislation raises an additional question whether Congress
may delegate its legislative power to the Inter-American Commercial
Arbitration Commission (IACAC), a private organization. While the
law is not clear in this area, we conclude that the delegation made in
the proposed legislation presents serious constitutional problems. We
believe, however, that the constitutional problems could be ameliorated
if IACAC’s amendments to its rules were applicable only to agreements
entered into after the effective date of the amendments. The review
mechanism in the proposed legislation, although not a veto of executive
action, is a legislative veto and is, therefore, unconstitutional. At your
request, we suggest an alternative review mechanism.
509
I.
The Inter-American Convention on Internationa) Commercial Arbi
tration provides that, when parties of signatory nations have agreed to
submit to arbitration any dispute that may arise out of a commercial
transaction, the arbitration shall be conducted in accordance with the
rules of procedure of the IACAC unless the parties have expressly
agreed otherwise. Articles 1 & 3. The proposed implementing legisla
tion for the Convention defines the rules referred to in Article 3 of the
Convention to be those rules as promulgated by the Commission on
January 1, 1978. § 306(a). If the IACAC modifies or amends its rules,
§ 306(b) would require the Secretary of State to transmit to the House
of Representatives and the Senate a document containing the rules as
modified or amended together with a report setting forth the reasons
for and the effect of such modifications or amendments. A majority of
either the House or Senate may disapprove the rules as modified or
amended within 90 days of the transmission. If the rules are not disap
proved, the rules shall be published after 90 days have elapsed and shall
become effective 120 days after publication. If the rules are disap
proved, the Secretary is required to use his best efforts to reconvene
the rulemaking body of IACAC to ensure that the rules applicable to
the signatory parties to the Convention are uniform.
II.
The threshold question presented by the proposed implementing leg
islation is whether it involves an unconstitutional delegation of legisla
tive power to a private organization. The legislation would incorporate
by reference and thereby enact the rules of procedure of the IACAC in
effect as of January 1, 1978. Since it is assumed that Congress would
review and approve the rules in enacting the legislation, the incorpora
tion of those rules by reference does not involve a delegation of
legislative power to a private organization. C f United States v.
Sharpnack, 355 U.S. 286, 293 (1958). See also Liebmann, G.W., Delega
tion to Private Parties in American Constitutional Law, 50 Ind. L.J. 650,
680 (1975). However, the proposed legislation implicitly gives the
IACAC the power to amend those rules subject to one House’s disap
proval of such amendments. In effect, the legislature would delegate to
a private organization the power to amend congressional legislation.
We believe that such a delegation raises serious constitutional problems.
In analyzing the delegation question, we are hampered by the fact
that “ [t]he case law has not crystallized any consistent principles, either
in the federal courts or in the state courts.” Davis, Administrative Law
Treatise §2.14 at 138 (1958). Nevertheless, a survey of the relevant
Supreme Court cases provides some guidance. In 1908, the Supreme
Court rejected a claim that a statute permitting the American Railway
510
Association to set the uniform height for drawbars on freight cars
constituted an invalid delegation, St. Louis, Iron Mountain & Southern
Railway Co. v. Taylor, 210 U.S. 281 (1908). Three years earlier, it had
upheld a delegation to miners to make regulations governing the re
cording of mining claims and the amount of work necessary to establish
possession of a mining claim. Butte City Water Co. v. Baker, 196 U.S.
119 (1905).
However, more recently the Court found invalid a delegation to
producers of two-thirds of coal to fix for producers selling coal to
government contractors the minimum wages and maximum hours of
their workers. Carter v. Carter Coal Co., 298 U.S. 238, 310 (1936).
Holding that the delegation violated the Due Process Clause of the
Fifth Amendment, the Court stated:
The power conferred upon the majority is, in effect, the
power to regulate the affairs of an unwilling minority.
This is legislative delegation in its most obnoxious form;
for it is not even delegation to an official or an official
body, presumptively disinterested, but to private persons
whose interests may be and often are adverse to the
interests of others in the same business.
Id. at 311. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495 (1935), the Court, addressing the argument that a delegation to the
President to approve codes of fair competition proposed by trade asso
ciations was proper because a delegation to the trade associations alone
would be constitutional, stated:
But would it be seriously contended that Congress could
delegate its legislative authority to trade or industrial
associations or groups so as to empower them to enact the
laws they deem to be wise and beneficent for the rehabili
tation and expansion of their trade or industries? Could
trade or industrial associations or groups be constituted
legislative bodies for that purpose because such associa
tions or groups are familiar with the problems of their
enterprises? . . . Such a delegation of legislative power is
unknown to our law and is utterly inconsistent with the
constitutional prerogatives and duties of Congress.
Id. at 537. The Court in Schechter distinguished St. Louis, Iron Mountain
& Southern Railway Co., as involving a matter of a technical nature and
Butte City Water Co. as a recognition of local customs and of the rules
of miners concerning mining claims. 295 U.S. at 537.
Adopting this distinction, it could be argued that the IACAC rules
are not substantive regulations capable of imposing anti-competitive or
unfair restrictions but are merely “technical” rules promulgated by a
511
presumably disinterested body with a recognized expertise in arbitration
procedure. Cf. Liebmann, supra at 680-719.
However, because the rules may affect substantive rights,1 we are
reluctant to conclude on the basis of this distinction that the delegation
to the IACAC is clearly constitutional, especially in light of the scar
city and age of federal case law approving delegation to private
bodies.2
Our concern about the effect such amendments might have on sub
stantive rights would be significantly reduced if the amendments would
apply only to agreements entered into after the effective date of the
amendments. This approach would eliminate any potential for unfair
ness because a party entering an arbitration agreement would have the
opportunity to examine the amendments to the IACAC rules and, if he
regarded the amendments as unfair, could either decline to agree to
arbitration or negotiate with the other party to the agreement the
application of other rules or modifications to the amendments.3
Whether you decide to apply the amended rules to all agreements in
the interest of uniformity or only to agreements entered into after the
effective -date of amendments will determine whether governmental
review is required. If the former approach is adopted, we believe that,
in order to minimize the possibility of a challenge to amended IACAC
rules, the rules should be subject to governmental review and adoption
by legislation.
III.
The proposed legislative veto mechanism, although it does provide
some governmental review of IACAC amendments, presents other con
stitutional problems. As you point out in your memorandum, this
review mechanism is unlike the classic “legislative veto” provision
1 For instance, the rules govern the place of arbitration, the choice o f law, the appointment of
arbitrators, and the right to an oral hearing. It is conceivable that the rules could be amended in such
a manner that American citizens could be disadvantaged in arbitration proceedings, e.g., a country
distant from the United States could be designated as the place of arbitration.
2 Other problems could also be present here. First, a problem could arise out of the concept that, in
a representative government, governmental powers should be vested in elected or disinterested public
officials. In this manner, governmental decisions ‘and processes are subject to the checks of a variety of
legal controls such as the oath of office, the conflict of interest laws, the control over appropriations,
the powers of appointment, confirmation, or removal, and ultimately the electoral process. Another
problem arises from the nature of the power vested in the private body. It could be argued that rule
making power may be constitutionally vested only in “Officers of the United States” appointed
pursuant to the Appointments Clause, Article II, § 2, clause 2. See Buckley v. Valeo. 424 U.S. 1, 113-41
(1976). Finally, if it is constitutional to delegate legislative power to private organizations, such a
delegation should be subject to standards restricting the exercise of that power. C f A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495 (1935). Although the courts’ attitude toward delegation of
legislative power to executive agencies without specific standards has relaxed considerably, see gener
ally K.C. Davis, Administrative Law Treatise, §§2.05, 2.06 and 2.15 (1958), the lack of the checks
mentioned above on a private organization’s exercise of that power would suggest that standards
imposed upon the exercise of legislative power by private organizations should be more stringent than
the standards imposed on public bodies.
3 Article 3 of the Inter-American Convention on International Commercial Arbitration applies the
IACAC rules only when parties to an arbitration agreement have not expressly agreed otherwise.
512
which purports to vest one House of Congress with the power to veto
Executive action. Instead, the provision would allow one House of
Congress to veto “private” action. Assuming, arguendo, that Congress
could delegate to the IACAC the power to amend rules that had been
enacted by Congress, the question is whether the Constitution author
izes a procedure whereby one House may control the exercise of
discretion vested in the IACAC.
Article I, § 1 of the Constitution vests all legislative powers in a
Congress, consisting of a Senate and House of Representatives. Further
more, those powers cannot be exercised absent participation by the
President. Article I, § 7, clause 2 requires “[e]very Bill . . . be pre
sented to the President of the United States” for his approval or
disapproval before it can become a law. Article I, § 7, clause 3 provides
that “[e]very Order, Resolution, or Vote” to which concurrence of
both Houses is necessary shall be presented to the President for his
approval or veto.4
The Presentment Clauses thus provide two primary checks on the
exercise of legislative power—the principle of bicameralism and the
Executive veto. The veto provision in the proposed implementing legis
lation would not respect these constitutional checks. The proposed
legislation would allow one House of Congress to disapprove amend
ments to the IACAC rules, but that legislative decision would not be
presented to the President for his approval or veto. Nor would the
President be given the opportunity to veto any “approval” of the
amendments because the approval would be expressed by congressional
inaction. Further, exercise by one House of the veto power would
purport to place on the Secretary of State a legal duty to take steps to
reconvene the rulemaking body of the IACAC. In our view, legal
duties may not be imposed on the Executive by the exercise of some
thing less than the full legislative process. Finally, if Congress could
constitutionally delegate to the IACAC its legislative power to amend
the rules, that power may be revoked only by affirmative legislative
action by both Houses of Congress and the President, not by one House
of Congress disapproving the exercise of that power.
IV.
If you decide that the IACAC rules amended should, as a matter of
policy, apply to all arbitration agreements, you may wish to consider an
4 Giving the President this integral role in the legislative process was believed necessary by the
Framers in order to limit congressional power. As James Madison put it: “(I]t is against the enterpris
ing ambition of this [legislative] department that the people ought to indulge all their jealousy and
exhaust all their precautions." The Federalist No. 48, at 309 (New American Library Ed. 1961).
Alexander Hamilton viewed the veto power of the President as necessary to prevent legislative and
Executive powers from becoming blended in the same hands. Id., No. 73, at 442. For more extensive
discussion of the constitutionality of legislative vetoes, see 37 Op. A tt’y Gen. 56 (1933); 41 Op. A tt’y
Gen! 230 (1955); 41 Op. A tt'y Gen. 300 (1957).
513
alternative governmental review mechanism which would vest the Sec
retary of State with the power and duty to approve or disapprove
amendments to the IACAC rules. This approach would cure the pro
posed legislation of both constitutional infirmities. IACAC’s action in
amending the rules would not be an exercise of legislative power
because the amendments would not be binding on the government but
would be merely advisory. The courts have held similar schemes not to
be an unconstitutional delegation of legislative power. Sun-Shine An
thracite Coal Co. v. Atkins, 310 U.S. 381 (1940); Todd & Co., Inc. v.
SEC, 557 F.2d 1008, 1012-13 (3d Cir. 1977); R.H. Johnson & Co. v.
SEC, 198 F.2d 690, 695 (2d Cir. 1952).
A model for this approach may be found in the Maloney Act, 15
U.S.C. § 78o-3, authorizing Securities and Exchange Commission
(SEC) registration of approved associations of securities dealers. Both
the Second and Third Circuits have upheld the Maloney Act against a
challenge that it unconstitutionally delegates legislative power to pri
vate parties. Todd & Co., Inc. v. SEC, 557 F.2d 1008, and R.H. Johnson
& Co. v. SEC, 198 F.2d 690. Membership in a registered association, as
a practical matter, is essential to doing business in over-the-counter
securities.5 The Maloney Act authorizes these associations to adopt
substantive as well as procedural rules, to conduct disciplinary proceed
ings and to enforce sanctions, including expulsion. The associations are
required to submit any changes in or additions to their rules to the SEC
for review. 15 U.S.C. § 78o-3(j). The rules as amended become effec
tive if within 20 days the SEC has not disapproved the amendments.
The SEC is required to disapprove the amendments if they are not
consistent with the Act.
The Maloney Act resembles the proposed implementing legislation in
that amendments to the rules become effective unless disapproved. A
critical difference, however, is that the Act requires the SEC to disap
prove amendments if they are inconsistent with the Act. The Act,
therefore, places an affirmative obligation on the SEC to consider
amendments, determine whether they are inconsistent with the Act and
disapprove them if they are.
The Secretary of State’s review of IACAC’s amendments, however,
would have to be conducted in accordance with the rule-making re
quirements of the Administrative Procedure Act, 5 U.S.C. § 553,®
unless the Secretary’s review and adoption of IACAC rules could be
considered a foreign affairs function so as to trigger the foreign affairs
exemption, 5 U.S.C. § 553(a)(1), or unless an exception were otherwise
provided. We understand that your Department interprets that exemp
8 An association may require its members to charge nonmember brokers the commissions charged
to the general public rather than the lower commissions charged to members. IS U.S.C. §78o-3(e).
6 See SEC regulations governing its review of amendments of registered association's rules. 17
C.F.R. 240.19b-4.
514
tion broadly. Bonfield, Military and Foreign Affairs Function RuleMaking under the APA, 71 Mich. L. Rev. 221, 258-62 (1972). We
express no opinion on the applicability of this exemption. We would be
happy, however, to consider your views on this question and advise
you on the exemption’s applicability.
If you decide to apply the amended rules only to agreements entered
into after the effective date of the amendments, the amendments, be
cause they would be presumed to have been agreed to by the parties to
an arbitration agreement, would not have to be approved by the Secre
tary of State. If you feel that the implementing legislation should, as a
matter of policy, provide for some opportunity for governmental
review of amendments, you may want to consider a “report and wait”
provision. A model for this approach may be found in 28 U.S.C. § 2072
which delays the effective date of procedural rules promulgated by the
Supreme Court until 90 days after the rules have been reported to
Congress. Within that 90-day period, Congress may through the legisla
tive process revoke all or some of the rules.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
515 |
|
Write a legal research memo on the following topic. | Permitting Part-Time Employees to Work
Regularly Scheduled Weeks of 33 to 39 Hours
The statutes governing federal employment permit federal agencies to schedule part-time
employees to work regularly scheduled weeks of 33 to 39 hours.
The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’ preexisting authority to schedule part-time employees to work any number of
hours per week less than 40.
December 31, 2015
MEMORANDUM OPINION FOR THE
PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL
CIVIL RIGHTS DIVISION
The Civil Rights Division (“CRT”) has asked whether federal agencies
may permit their part-time employees to work regularly scheduled workweeks of 33 to 39 hours. 1 In CRT’s view, such arrangements are lawful
because the statutes governing federal employment grant agencies broad
authority to set their employees’ schedules and no statute prohibits parttime schedules of 33 to 39 hours per week. 2 The Office of Personnel
Management (“OPM”) disagrees. It observes that the Federal Employees
Part-Time Career Employment Act of 1978, Pub. L. No. 95-437, 92 Stat.
1055 (codified as amended at 5 U.S.C. § 3401 et seq.) (the “Act”), defines
“part-time career employment” for purposes of the Act as “part-time
employment of 16 to 32 hours a week.” 5 U.S.C. § 3401(2). OPM argues
that this provision sets forth the exclusive definition of part-time employment in the federal government and, as a result, bars part-time employees from working regular schedules of 33 to 39 hours per week. 3
1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal
Counsel, from Jocelyn Samuels, Acting Assistant Attorney General, CRT, Re: Request for
Legal Opinion (Nov. 6, 2013) (“CRT Memorandum”).
2 See id.; Memorandum for Karl Thompson, Acting Assistant Attorney General, Office
of Legal Counsel, from Office of Employment Counsel, CRT, Re: Response to OPM
Comments on Whether Agencies May Permit Employees to Work Part-Time Schedules of
33 to 39 Hours Per Week (Mar. 25, 2014) (“CRT Reply”).
3 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal
Counsel, from R. Alan Miller, Associate General Counsel, OPM, Re: Request for OPM
Comments re Issue of Whether Agencies May Permit Employees to Work Part-Time
99
39 Op. O.L.C. 99 (2015)
We conclude that the statutes governing federal employment permit
regular part-time schedules of 33 to 39 hours per week. Before the enactment of the Act in October 1978, federal employment statutes permitted
agencies to schedule part-time employees to work any number of hours
per week less than 40, and in our view the Act did not alter that authority.
The text of the Act does not prohibit any form of part-time employment,
and the Act’s purpose, structure, legislative history, and statutory context
do not provide a basis to infer such a prohibition.
In reaching this conclusion, we do not address whether OPM has authority, independent of the Act, to prohibit agencies from offering parttime employment of more than 32 hours per week or whether agencies
may as a policy matter elect to require their components not to offer such
employment. Nor do we address what administrative steps, if any, CRT
would need to undertake before scheduling part-time employees to work
regular schedules of more than 32 hours per week.
I.
We begin with the relevant statutory and regulatory background: the
statutes that governed part-time employment before enactment of the Act
in 1978, the provisions of the Act, and subsequent regulatory action relating to the Act.
A.
For many decades, agencies have been authorized to “employ such
number of employees . . . as Congress may appropriate for from year to
year.” 5 U.S.C. § 3101 (Supp. II 1966); see 5 U.S.C. § 43 (1934) (“There
is authorized to be employed in each executive department . . . such
number of employees . . . as may be appropriated for by Congress from
year to year.”). Since the enactment of the Federal Employees Pay Act of
Schedules of 33 to 39 Hours Per Week (Dec. 31, 2013) (“OPM Memorandum”); E-mail
for Leondra R. Kruger, Deputy Assistant Attorney General, Office of Legal Counsel, from
Melanie J. Watson, OPM, Re: Solicitation of Views on Reduced Scheduling Issue att.
(Feb. 18, 2014, 11:17 AM) (attachment referred to as “OPM Reply”); E-mail for Brian
Boynton, Deputy Assistant Attorney General, Office of Legal Counsel, from Melanie J.
Watson, OPM, Re: OLC Part-Time Government Employment Opinion: Follow-Up
Questions (July 22, 2015, 1:50 PM).
100
Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
1945, Pub. L. No. 79-106, 59 Stat. 295, Congress has required agencies
“to establish . . . for all full-time officers and employees . . . a basic administrative workweek of forty hours.” Id. § 604(a) (codified as amended
at 5 U.S.C. § 6101(a)(2)(A)). But Congress has long made clear that agencies are not limited to hiring only full-time employees. It has enacted
numerous statutes that set forth rules governing part-time employees who
may work less than the standard 40-hour schedule.
One of the first statutes to address part-time federal employment was
the 1945 Pay Act itself. In addition to establishing the basic 40-hour
workweek, that statute instructed the Director of the Bureau of the Budget
to “determine the numbers of full-time employees and man-months of
part-time employment, which in his opinion are required” for “the proper
and efficient performance” of each agency’s authorized functions, and to
order agencies to release or terminate “any personnel or employment . . .
in excess thereof.” Id. § 607(b). Hence, at the same time that Congress
codified the 40-hour workweek for full-time employees, it also acknowledged the existence of “part-time employment” and permitted agencies to
retain part-time personnel so long as they were not “in excess” of administrative personnel ceilings.
In the decades that followed, Congress enacted additional statutes addressing part-time federal employment. For instance, in 1949, after
discovering that “the estimated 10,000 part-time [federal] employees”
working regular 5-day schedules were ineligible for sick and annual
leave, H.R. Rep. No. 81-655, at 1, 5 (1949), Congress enacted a statute
providing that “part-time officers and employees for whom there has
been established a regular tour of duty covering not less than five days in
any administrative workweek shall . . . be entitled to the benefits pro rata
of the annual and sick leave Acts.” Pub. L. No. 81-316, § 1, 63 Stat. 703,
703 (1949) (codified as amended at 5 U.S.C. § 6302(c)). In 1964, Congress enacted the Dual Compensation Act, Pub. L. No. 88-448, 78 Stat.
484 (1964), which provided that federal employees could work in “more
than one civilian office”—including more than one “temporary, parttime, or intermittent position”—for up to “an aggregate of forty hours of
work in any one calendar week.” Id. §§ 101(3), 301(a) (codified as
amended at 5 U.S.C. §§ 5531(a)(2), 5533(a)); see S. Rep. No. 88-935, at
17 (1964) (explaining that this statute would enable “part-time employees” to hold “a combination of part-time positions equaling one full-time
101
39 Op. O.L.C. 99 (2015)
position”). In 1971, seeing “no reasonable justification for depriving
part-time and intermittent salaried employees of premium pay,” S. Rep.
No. 92-530, at 1–2 (1971), Congress made overtime pay available for
federal employees working “full-time, part-time and intermittent tours of
duty.” Pub. L. No. 92-194, 85 Stat. 648 (1971) (codified as amended at
5 U.S.C. § 5542(a)). And in September 1978, Congress enacted the
Federal Employees Flexible and Compressed Work Schedules Act of
1978, Pub. L. No. 95-390, 92 Stat. 755, which authorized agencies to
conduct three-year experiments “to test a . . . compressed schedule,”
defined “in the case of a part-time employee” as a “biweekly basic work
requirement of less than 80 hours which is scheduled for less than 10
workdays.” Id. §§ 201(1)(B), 202(a), (d). 4
The Civil Service Commission—the agency charged with administering
the federal personnel laws until the establishment of OPM in 1978—also
acknowledged agencies’ authority to hire part-time employees. In 1954,
for instance, the Commission promulgated regulations defining a “[r]egularly scheduled administrative workweek . . . [f]or part-time employees”
to mean “the officially prescribed days and hours within an administrative
workweek during which such employees are required to be on duty regularly.” 19 Fed. Reg. 7097, 7097 (Nov. 2, 1954). And in 1971, the Commission issued a version of its Federal Personnel Manual that defined a
“part-time employee” for purposes of administrative personnel ceilings as
an employee “who works less than 40 hours a week.” Federal Personnel
Manual, ch. 312, app. B, § B-2(d) (Apr. 30, 1971).
B.
In October 1978, Congress enacted the Federal Employees Part-Time
Career Employment Act. At that time, Congress was aware that part-time
employment existed throughout the federal government. See H.R. Rep.
No. 95-932, at 2–3 (1978) (noting that “1.9 percent of all nonpostal Federal employees work part time” and listing percentages of employees
See also Pub. L. No. 94-397, § 1(a), 90 Stat. 1202, 1202 (1976) (codified as
amended at 5 U.S.C. § 8344(a)) (prescribing the civil service annuities available to
employees working “on a part-time basis”); Classification Act of 1949, Pub. L. No.
81-429, § 202(30), 63 Stat. 954, 956 (codified as amended at 5 U.S.C. § 5102(c)(21))
(exempting some part-time employees from the pay classification system).
4
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
working part-time in numerous federal agencies); S. Rep. No. 95-1116, at
3–4 (1978) (stating that “2.3 percent of the Federal work force were
permanent part-time employees” in 1977). But committees in both Houses
expressed concern that “[t]he Federal Government ha[d] lagged far behind
the private sphere in providing and improving part-time employment
opportunities of any type.” S. Rep. No. 95-1116, at 3; see H.R. Rep. No.
95-932, at 2. “The major obstacle[s] to part-time Federal employment,”
the committees found, were “agency personnel ceilings set by the Office
of Management and Budget,” under which a part-time employee occupied
one of the limited number of positions allotted to each agency “whether
the employee work[ed] two or 39 hours.” H.R. Rep. No. 95-932, at 3; see
S. Rep. No. 95-1116, at 9. As a consequence of this system, the committees concluded, agencies had a tendency “to hire 39 hour per week ‘part
timers,’” rather than “truly part-time employees,” H.R. Rep. No. 95-932,
at 4, 7, and “in all likelihood employees falling into th[e] 35- to 39-hour a
week category made up the vast majority of the new people hired to work
part-time in the past year,” S. Rep. No. 95-1116, at 10.
The Act was designed to address these problems. Its stated “purpose” is
“to provide increased part-time career employment opportunities throughout the Federal Government.” Act § 2(b). It defines the term “part-time
career employment” as follows:
For the purpose of this chapter . . .
(2) ‘part-time career employment’ means part-time employment of
16 to 32 hours a week (or 32 to 64 hours during a biweekly pay period in the case of a flexible or compressed work schedule under subchapter II of chapter 61 of this title) under a schedule consisting of
an equal or varied number of hours per day, whether in a position
which would be part-time without regard to this section or one established to allow job-sharing or comparable arrangements, but does not
include employment on a temporary or intermittent basis.
5 U.S.C. § 3401.
To further its stated purpose, the Act requires the head of each agency
to “establish and maintain a program for part-time career employment.”
Id. § 3402(a)(1). Such a program must include, among other things,
“procedures and criteria to be used in connection with establishing or
converting positions for part-time career employment,” “annual goals
103
39 Op. O.L.C. 99 (2015)
for establishing or converting positions for part-time career employment,” and “interim and final deadlines for achieving such goals.” Id.
§ 3402(a)(1)(B), (C). The Act also includes several provisions to protect
existing employees from any negative consequences of such programs.
It prohibits an agency from “abolish[ing] any position occupied by an
employee in order to make the duties of such position available to be
performed on a part-time career employment basis,” id. § 3403(a); states
that “[a]ny person who is employed on a full-time basis in an agency
shall not be required to accept part-time employment as a condition of
continued employment,” id. § 3403(b); and makes its provisions inapplicable to positions for which, “on the date of [the Act’s] enactment . . .
there is in effect . . . a collective-bargaining agreement which establishes
the number of hours of employment a week,” id. § 3405(a); see also id.
§ 3405(b) (stating that the Act does not apply to certain senior-level
positions).
The Act also addresses the application of personnel ceilings to parttime career employees. It provides that “[i]n administering any personnel
ceiling applicable to an agency (or unit therein), an employee employed
by such agency on a part-time career employment basis shall be counted
as a fraction which is determined by dividing 40 hours into the average
number of hours of such employee’s regularly scheduled workweek.” Id.
§ 3404. Thus, rather than counting each part-time employee as one full
employee for purposes of an agency’s personnel ceiling—the practice that
the Act’s drafters thought encouraged the hiring of “39 hour per week
‘part timers,’” H.R. Rep. No. 95-932, at 4—the Act “mandates the use of
a ‘full-time equivalent’ . . . accounting system” that counts each part-time
career employee as a fraction equivalent to the fraction of a full-time
workweek he works. S. Rep. No. 95-1116, at 9. A part-time career employee who “work[s] a regularly scheduled workweek of 20 hours,” for
example, now “count[s] as one-half ” of a full-time employee for purposes
of an agency’s personnel ceiling. Id. at 17.
Finally, the Act includes “[m]iscellaneous provisions” concerning retirement, life insurance, and health benefits. H.R. Rep. No. 95-932, at
12; S. Rep. No. 95-1116, at 18. The Act states that the Civil Service
Commission (later replaced by OPM) may not exclude an employee who
occupies “a position on a part-time career employment basis” from
receiving retirement, life insurance, or health benefits. Act § 4(a)–(c)(1)
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
(codified at 5 U.S.C. §§ 8347(g), 8716(b), 8913(b)). It also specifies that
government contributions for part-time career employees’ health insurance are to be prorated based on the number of hours worked per week.
Id. § 4(c)(2)(A) (codified as amended at 5 U.S.C. § 8906(b)(3)). Because this proration requirement was a change from the government’s
prior practice of “contribut[ing] to [a part-time employee’s] health
benefits the same amount as to an employee working 40 hours a week,”
S. Rep. No. 95-1116, at 12, Congress provided that “any employee
serving in a position on a part-time career employment basis on the date
of the enactment of this Act” would continue to receive full health
benefits “for such period as the employee continues to serve without a
break in service in that or any other position on such part-time basis,”
Act § 4(c)(2)(B).
C.
After the Act’s passage, OPM promulgated a set of regulations regarding part-time career employment. See Part-Time Employment; Federal
Employees Health Benefits Program, 44 Fed. Reg. 57,379 (Oct. 5, 1979).
OPM made three statements in the regulations’ preamble that are pertinent here. First, OPM concluded that the Act prohibited agencies from
“regularly employ[ing]” part-time employees “under schedules of more
than 32 hours per week.” Id. at 57,379. It reasoned that “[a]lthough the
major thrust of [the Act] was to expand Federal part-time employment
opportunities, Congress also evidenced clear intent to end the practice of
employing ‘nominal’ part-time employees in the 33- to 39-hour-per-week
range to skirt personnel ceilings.” Id. Second, OPM stated that this “prohibition” on part-time employment of more than 32 hours per week did
“not apply to employment of part-timers who were already working on a
permanent part-time basis before [April 8, 1979] for as long as they
continue to work part time.” Id. Third, OPM concluded that because
“Congress did not explicitly evidence intent to end the practice of employing career part-timers for less than 16 hours per week in the same
way that 33- to 39-hour-per-week employment was proscribed,” agencies
could “employ permanent workers under regular schedules of less than
16 hours per week.” Id. at 57,380; see also id. at 57,382 (adding 5 C.F.R.
§ 340.202(b)).
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The Department of Justice’s Justice Management Division (“JMD”) has
also issued an order interpreting the Act. As relevant here, that order
states that while “a part-time employee” may work more than 32 hours
per week on a temporary basis, “[a] temporary increase in the tour of duty
above 32 hours per week is not permitted for more than two consecutive
pay periods.” Part-Time Career Employment Program, Human Resources
Order DOJ 1200.1, ch. 1-8, ¶ B.6 (Mar. 26, 2004), http://www.justice.gov/
jmd/hr-order-doj12001-part-1-employment. JMD has informed this Office
that it, like OPM, “does not believe there is authority to expand part time
schedules to exceed 32 hours on an ongoing basis.” E-mail for Leondra R.
Kruger, Deputy Assistant Attorney General, Office of Legal Counsel,
from Arthur E. Gary, General Counsel, JMD, Re: Question about parttime employment (Nov. 25, 2014, 6:48 PM).
II.
Having set forth the relevant background, we now consider the legal
question at issue: Does federal law permit agencies to schedule their parttime employees to work regular schedules of 33 to 39 hours per week?
We first analyze the scope of agencies’ authority to schedule part-time
workers before the Act. We then address the effect of the Act on prior
law, considering at the outset the standard that governs our inquiry and
then evaluating the Act under that standard.
A.
We begin with the scope of agencies’ authority prior to the Act’s adoption. Both OPM and CRT assert that before the Act became law, agencies
had authority both to hire part-time employees and to schedule them to
work 33 to 39 hours per week. See OPM Memorandum at 5 (“Prior to
enactment of the Act, agencies could employ individuals on a part-time
work schedule of 33 to 39 hours per week.”); CRT Reply at 1 (similar).
We agree that agencies possessed both types of authority.
First, before the Act, agencies possessed authority to hire part-time
employees. As noted above, for decades Congress had vested agencies
with general authority to “employ such number of employees . . . as
Congress may appropriate for from year to year,” 5 U.S.C. § 3101 (Supp.
II 1966); see 5 U.S.C. § 43 (1934) (similar), and in numerous statutes
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between 1945 and October 1978, Congress made clear that the “employees” agencies could hire included part-time employees. For example,
Congress permitted agencies to employ “part-time employ[ees]” within
limits set by the Director of the Bureau of the Budget, Pub. L. No. 79-106,
§ 607(b); made “part-time officers and employees” eligible for annual and
sick leave, Pub. L. No. 81-316, § 1; permitted employees to work in more
than one “part-time . . . position” for up to an aggregate of 40 hours per
week, Pub. L. No. 88-448, §§ 101(3), 301(a); extended overtime pay to
employees working “part-time . . . tours of duty,” Pub. L. No. 92-194; and
allowed “part-time employee[s]” to work compressed schedules, Pub. L.
No. 95-390, § 201(1)(B). These statutes were premised on the lawfulness
of part-time employment across the federal government. See, e.g., H.R.
Rep. No. 81-655, at 2 (describing existing part-time employees whom
statute would benefit); S. Rep. No. 92-530, at 1–2 (same). It is therefore
straightforward to conclude from them that agencies possessed the authority to hire part-time employees. See Tex. Dep’t of Hous. & Cmty. Affairs
v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (inferring
that “disparate-impact liability exists” under the Fair Housing Act from a
series of amendments “that assume the existence of disparate-impact
claims”); Bilski v. Kappos, 561 U.S. 593, 607 (2010) (inferring that business methods are patentable from provisions that “explicitly contemplate[]
the existence of at least some business method patents” and that would be
“render[ed] . . . meaningless” if those patents were unlawful).
Congress again recognized agencies’ preexisting authority to hire parttime employees when it enacted the Act. Several of the Act’s provisions
refer to or acknowledge part-time employees hired prior to the Act’s
enactment. See Act § 4(c)(2)(B) (grandfathering health benefits for “any
employee serving in a position on a part-time career employment basis on
the date of the enactment of this Act”); id. § 2(b) (stating that the Act’s
purpose is “to provide increased part-time career employment opportunities throughout the Federal Government” (emphasis added)); 5 U.S.C.
§ 3401(2) (referring to “position[s] which would be part-time without
regard to this section”). Moreover, Congress’s central concern in enacting
the Act was that agencies were hiring too few part-time employees. See
S. Rep. No. 95-1116, at 3–4, 8–10; H.R. Rep. No. 95-932, at 2–3, 8.
Nothing in the Act’s legislative history reveals any doubt about agencies’
authority to hire part-time employees in the first place.
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Second, prior to the Act, agencies also possessed authority to schedule part-time employees to work any number of hours per week below
40. For full-time employees, Congress set “a basic administrative workweek of 40 hours.” 5 U.S.C. § 6101(a)(2)(A) (1976). But Congress did
not set a specific number of hours that part-time employees were required to work. By implication, agencies could not schedule part-time
employees to work a full-time schedule of 40 hours per week. See Webster’s Third New International Dictionary 1648 (1976) (defining “parttime” to mean “employed for or working less than the amount of time
considered customary or standard”). Otherwise, however, agencies had
unrestricted authority to schedule part-time employees to work any
number of hours per week below 40—including, if they chose, 33 to 39
hours. See 5 U.S.C. § 6101(b)(1) (Supp. II 1966) (recognizing the authority of agency heads to set employee schedules); 5 C.F.R. § 25.203(a)(2)
(1961) (defining the “‘[r]egularly scheduled administrative workweek’
. . . [f ]or part-time employees” as “the officially prescribed days and
hours within an administrative workweek during which such employees
are required to be on duty regularly”); Federal Personnel Manual, ch.
312, app. B, § B-2(d) (Apr. 30, 1971) (defining a “part-time employee”
as one “who works less than 40 hours a week”); see also Pub. L. No. 95390, § 201(1)(B) (defining a compressed schedule for part-time employees as a “biweekly basic work requirement of less than 80 hours which
is scheduled for less than 10 workdays” (emphasis added)).
Congress has not repealed any of the major enactments discussed
above. Except for the provision of the 1945 Pay Act regarding personnel
ceilings, all of the statutes and regulations concerning part-time employment or granting agencies employment or scheduling authority remain in
effect. See 5 U.S.C. § 3101 (2012 & Supp. II 2014) (employment authority); id. §§ 5531(2), 5533(a) (dual compensation); id. § 5542(a) (premium
pay); id. § 6101(a)(3) (scheduling authority); id. § 6121(5)(B) (compressed schedules); id. § 6302(c) (annual and sick leave); 5 C.F.R.
§ 610.102 (2015) (part-time workweek); see also Pub. L. No. 81-784,
§ 301(85) (1950), 64 Stat. 832, 843 (repealing statutory personnel ceilings). Hence, unless Congress has enacted a statute limiting that authority,
agencies may continue to schedule part-time employees to work 33 to 39
hours per week.
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B.
We now consider the effect of the Federal Employees Part-Time Career
Employment Act on the prior law governing part-time employment. In
order to do so, we must first identify the standard that will control our
analysis. CRT and OPM suggest different governing standards in support
of their respective constructions of the Act.
On one hand, CRT argues that the Act should not be construed to diminish agencies’ authority to set part-time work schedules unless it clearly states that it was intended to have that effect. See CRT Memorandum at
4. CRT relies on the principle that “‘[r]epeals by implication . . . will not
be found unless an intent to repeal is clear and manifest.’” Id. (quoting
Rodriguez v. United States, 480 U.S. 522, 524 (1987) (per curiam)); see
United States v. Fausto, 484 U.S. 439, 453 (1988) (stating that “it can be
strongly presumed that Congress will specifically address language on the
statute books that it wishes to change”). CRT contends that any limitation
of agencies’ scheduling authority would amount to a partial repeal of
chapter 61 of title 5 of the United States Code—the chapter granting
agencies general scheduling authority—and that the Act should therefore
be presumed not to impose such a limitation. CRT Memorandum at 4; see
CRT Reply at 1–2.
We do not agree that the presumption against implied repeals applies
here. Chapter 61 of title 5 does not expressly state that agencies have
authority to schedule part-time employees to work any number of hours
per week below 40. Rather, as relevant, it provides that the basic administrative workweek for full-time employees is 40 hours, see 5 U.S.C.
§ 6101(a)(2)(A), and suggests that agencies have authority to set different schedules for employees who are not full-time, see, e.g., id.
§ 6101(a)(3)(A) (requiring agencies to “provide, with respect to each
employee . . . that assignments to tours of duty are scheduled in advance”). As discussed above, it is a fair implication that, in the absence
of any other limit, agencies may schedule part-time employees to work
up to 39 hours per week. But a statute “does not stand repealed” whenever its “implications . . . may be altered by the implications of a later
statute.” Fausto, 484 U.S. at 453. A repeal occurs—and thus the presumption against repeals by implication is applicable—only where a
subsequent statute contradicts “express statutory text,” not “a legal dis109
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position implied by a statutory text.” Id. Consequently, we do not believe
that the Act must contain a clear statement in order to limit agencies’
preexisting authority to schedule part-time employees.
OPM, on the other hand, contends that its 1979 regulations interpreting
the Act to bar part-time schedules of more than 32 hours per week “merit
deference.” OPM Memorandum at 6. We presume that OPM is referring
to the type of deference described in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), which held that
courts should defer to an “an agency’s construction of the statute which it
administers” where “the statute is silent or ambiguous with respect to the
specific issue” under review and the agency’s construction is “permissible.” Id. at 842–43. Chevron deference, however, is inapplicable in this
context. Courts have held that agencies are not entitled to Chevron deference when interpreting “generic statutes that apply to dozens of agencies.”
Collins v. Nat’l Transp. Safety Bd., 351 F.3d 1246, 1252 (D.C. Cir. 2003);
see Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 642 n.30 (1986) (explaining
that “the same basis for deference predicated on expertise” was not present where an agency was interpreting a statute under which “[t]wentyseven agencies . . . ha[d] promulgated regulations”); Proffitt v. FDIC, 200
F.3d 855, 860 (D.C. Cir. 2000) (declining to grant Chevron deference to
an agency’s interpretation of a “statute of general applicability” (internal
quotation marks omitted)); Salleh v. Christopher, 85 F.3d 689, 692 (D.C.
Cir. 1996) (noting a line of decisions “that have declined to defer to an
agency’s interpretation of a statute when more than one agency is granted
authority to interpret the same statute”); cf. Proposed Agency Interpretation of “Federal Means-Tested Public Benefit[s]” Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 21 Op.
O.L.C. 21, 34–35 (1997) (distinguishing a situation in which “a statute
assigns a group of agencies a particular task that is related to the duties
that the agencies already have been assigned by their governing statutes”
and “the agencies . . . concur in their interpretation” of that statute).
Here, numerous agencies administer, and are required to promulgate
regulations implementing, the Act. See 5 U.S.C. § 3402(a)(1) (requiring
“the head of each agency, by regulation, [to] establish and maintain a
program for part-time career employment within such agency”). OPM’s
authority under the Act is limited to “advis[ing] and assist[ing]” agencies
in developing their own implementing regulations and conducting a
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“research and demonstration program with respect to part-time career
employment.” Id. § 3402(b)(1)–(2). Hence, although OPM’s views concerning the Act merit respect and careful consideration, we do not believe
they are entitled to Chevron deference. 5
Because neither the presumption against implied repeals nor Chevron
deference applies, our role is to identify the best reading of the Act using
standard tools of statutory construction. See, e.g., Reimbursing TransitionRelated Expenses Incurred Before the Administrator of General Services
Ascertained Who Were the Apparent Successful Candidates for the Offices
of President and Vice President, 25 Op. O.L.C. 7, 8 (2001) (endeavoring
to identify “the best reading of the statute”).
C.
There appear to be two possible ways to interpret the Act. The first
possible interpretation is that the Act encourages agencies to schedule
part-time employees to work 16 to 32 hours per week but does not prohibit agencies from setting part-time schedules outside that range. CRT
favors this reading. See CRT Memorandum at 2–3. The second possible
interpretation is that the Act not only encourages “part-time career employment” but also redefines part-time employment to include only employment of 16 to 32 hours per week. OPM favors this reading. See
OPM Memorandum at 1; 44 Fed. Reg. at 57,379. In the following sections, we examine in turn the Act’s text, purpose, structure, history, and
context to determine which of these competing interpretations is the
better reading of the Act.
1.
“‘[W]e start, of course, with the statutory text.’” Sebelius v. Cloer, 133
S. Ct. 1886, 1893 (2013) (quoting BP Am. Prod. Co. v. Burton, 549 U.S.
84, 91 (2006)). As noted above, the Act defines part-time career employment “[f ]or the purpose of th[e] chapter” in which it appears as “part-time
employment of 16 to 32 hours a week.” 5 U.S.C. § 3401(2). It then proEven if Chevron deference were applicable, the first step in the analysis would be to
determine whether the Act is ambiguous using “traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. Applying those tools here, we do not believe the Act
is ambiguous for the reasons set forth below.
5
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vides that, “in order to promote part-time career employment opportunities in all grade levels,” each agency “shall establish and maintain a program for part-time career employment,” which must include “procedures
and criteria” and “annual goals” for “establishing or converting positions
for part-time career employment,” as well as “interim and final deadlines
for achieving such goals.” Id. § 3402(a)(1)(B), (C). The Act also specifies
that “[i]n administering any personnel ceiling,” a part-time career employee “shall be counted as a fraction” equivalent to the fraction of the
full workweek she works. Id. § 3404. Additionally, the Act entitles parttime career employees to full retirement and life insurance benefits and to
health benefits prorated to the portion of the full workweek they work.
Act § 4.
On its face, the Act thus defines a particular type of part-time employment—“part-time career employment”—and establishes programs and
requirements to encourage it. The Act does not state that all part-time
employment must satisfy its definition of part-time career employment.
Nor does the Act say that any particular form of part-time employment is
prohibited or limit the number of hours that employees other than “parttime career employees” may work. It simply leaves all part-time employment except part-time career employment unaddressed.
OPM contends that the Act’s definition of part-time career employment
“redefine[s] the specific hours which constitute part-time employment” to
include only “work schedules of 16 to 32 hours per week.” OPM Memorandum at 2; see 44 Fed. Reg. at 57,379 (stating that the Act “narrows the
definition of part-time career employment in the Federal Government
from scheduled work of less than 40 hours per week to scheduled work
between 16 and 32 hours per week”). That interpretation, however, is
difficult to reconcile with the plain text of the definition. The Act defines
only the specific term “part-time career employment,” not part-time employment generally. 5 U.S.C. § 3401(2). And it defines that term only
“[f ]or the purpose of this chapter”—i.e., chapter 34 of title 5, which
consists exclusively of the Act itself. Id. It is unclear why Congress
would have limited the definition in these ways if its intention was to
redefine part-time employment more broadly. Moreover, numerous courts
have expressly declined to “apply a definition from one statutory provision to another” where it is defined only “for purposes of ” a particular
provision, even if that provision offers “the only definition of [the defined
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term] in the [U.S.] Code.” United States v. Mazza-Alaluf, 621 F.3d 205,
209–210 (2d Cir. 2010); see, e.g., United States v. Ervin, 601 F. App’x
793, 799 (11th Cir. 2015) (per curiam); Molski v. M.J. Cable, Inc., 481
F.3d 724, 733 (9th Cir. 2007); United States v. Savin, 349 F.3d 27, 36 (2d
Cir. 2003); Sierra Club v. EPA, 325 F.3d 374, 383 (D.C. Cir. 2003);
Cunningham v. Scibana, 259 F.3d 303, 308 n.2 (4th Cir. 2001); United
States v. Levario-Quiroz, 161 F.3d 903, 908 (5th Cir. 1998); Moldovan v.
Great Atl. & Pac. Tea Co., 790 F.2d 894, 901 (3d Cir. 1986).
Hence, the plain text of the Act does not limit agencies’ preexisting
authority to schedule part-time employees to work any number of hours
per week below 40 or redefine “part-time” employment as that term is
used throughout the laws governing federal employment. E.g., 5 U.S.C.
§§ 5531(2), 5542(a), 6121(5)(B), 6302(c). That is a strong indication
that the Act does not prohibit part-time employment that falls outside
the Act’s definition. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2003)
(“It is well established that when the statute’s language is plain, the
sole function of the courts—at least where the disposition required by
the text is not absurd—is to enforce it according to its terms.” (internal
quotation marks omitted)).
2.
We next consider the purpose of the Act. The statute addresses this subject directly: The Act states that its “purpose . . . is to provide increased
part-time career employment opportunities throughout the Federal Government.” Act § 2(b). The Act reiterates this objective in its core provision, instructing agencies to establish part-time career employment programs “[i]n order to promote part-time career employment opportunities
in all grade levels.” 5 U.S.C. § 3402(a)(1). These statements of purpose
indicate that the Act is designed to “provide increased . . . opportunities”
for and “promote” part-time career employment, principally through the
requirement that agencies establish part-time career employment programs. They do not contain any suggestion that Congress intended to
prohibit alternative forms of part-time employment. Nor does the Act
contain any other expressions of purpose that might arguably support such
a reading. The Act’s stated purpose, therefore, also supports the first
possible interpretation of the statute.
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3.
We also consider the structure of the Act. As discussed above, the Act
requires each agency to “establish and maintain a program for part-time
career employment,” 5 U.S.C. § 3402(a)(1); provides that each part-time
career employee “shall be counted as a fraction” of a full-time employee
for purposes of federal personnel ceilings, id. § 3404; and specifies the
retirement, life insurance, and health benefits to which part-time career
employees are entitled, Act § 4.
The principal provisions of the Act—the requirement that agencies
establish part-time career employment programs and the new approach
to counting part-time employees covered by the Act—work just as
Congress intended under either possible interpretation of the Act. Regardless of whether the Act is read to allow part-time employment that
falls outside the Act’s definition of part-time career employment, each
agency has the same legal duty to “establish and maintain a program for
part-time career employment,” 5 U.S.C. § 3402(a)(1), thereby ensuring
that agencies provide “increased part-time career employment opportunities,” Act § 2(b). Similarly, no matter whether agencies may hire parttime employees outside the Act, the provision of the Act addressing
agency personnel ceilings eliminates any incentive to favor part-time
employees who work nearly 40 hours per week over part-time employees covered by the Act in order to “skirt personnel ceilings.” H.R. Rep.
No. 95-932, at 7; see 5 U.S.C. § 3404.
OPM contends that support for its interpretation can be found in the
structure of the Act’s provisions concerning the benefits available to parttime career employees. See OPM Memorandum at 3–6. In considering
these provisions, we must be mindful that Congress typically “does not
alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 458, 468 (2001). A
prohibition on part-time employment of less than 16 or more than 32
hours per week would constitute an important feature of the Act and a
significant limitation on agencies’ scheduling authority. In contrast, the
Act’s “[m]iscellaneous provisions” concerning benefits, H.R. Rep. No.
95-932, at 12; S. Rep. No. 95-1116, at 18, are ancillary features of the
statute that do not purport to address the authority of agencies to permit
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different kinds of part-time schedules. It is therefore unlikely that, had
Congress intended to prohibit part-time employment other than part-time
career employment as defined in the Act, it would have done so—only by
implication—in this part of the Act. With that admonition in mind, we
consider the Act’s provisions regarding retirement, life insurance, and
health benefits.
a.
The Act first addresses retirement benefits. Before the Act became law,
5 U.S.C. § 8347(g) stated that the Civil Service Commission “may exclude from [retirement benefits] an employee or group of employees in or
under an Executive agency whose employment is temporary or intermittent.” 5 U.S.C. § 8347(g) (1976). The Act amended this subsection by
adding a sentence stating that the Commission (now OPM) “may not
exclude any employee who occupies a position on a part-time career
employment basis.” Act § 4(a).
OPM contends that this amendment “demonstrates congressional intent
to address benefits coverage for all part-time employees.” OPM Memorandum at 5 n.2. It is not clear, however, why that is so. The amendment
simply “ensure[s] that employees employed under a part-time career
employment program may not be excluded from civil service retirement
coverage.” H.R. Rep. No. 95-932, at 12; see S. Rep. No. 95-1116, at 18
(same). The amendment is thus entirely consistent with the view that the
Act seeks to encourage part-time career employment—in this case, by
extending to part-time career employees a special guarantee of retirement
benefits—without necessarily prohibiting alternative forms of part-time
employment. Several other provisions of the Act similarly favor part-time
career employees, including the requirement that agencies establish programs exclusively to promote part-time career employment, 5 U.S.C.
§ 3402(a)(1), the provision altering the way only part-time career employees are counted for purposes of personnel ceilings, id. § 3404, and the
Act’s stated purpose of “provid[ing] increased part-time career employment opportunities,” Act § 2(b). 6
6 Moreover, the effect of this amendment was quite limited. The Act expressly provides that part-time career employment “does not include employment on a temporary or
intermittent basis.” 5 U.S.C. § 3401(2). As a result, there was no need for Congress to
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b.
The Act’s second benefits provision addresses life insurance. Prior to
the Act, 5 U.S.C. § 8716(b) stated that the Civil Service Commission
“may exclude an employee” from receiving life insurance benefits “on
the basis of the nature and type of his employment or conditions pertaining to it, such as short-term appointment, seasonal, intermittent or parttime employment, and employment of like nature.” 5 U.S.C. § 8716(b)
(1976) (emphasis added). In the Act, Congress amended this provision by
striking “part-time” and adding a new paragraph stating that the Commission (now OPM) may not exclude “an employee who is occupying a
position on a part-time career employment basis” from receiving life
insurance benefits. Act § 4(b).
OPM argues that this provision supports its interpretation of the Act in
two ways. First, OPM contends that it would have been illogical for
Congress to prevent it from excluding part-time career employees from
life insurance coverage without granting a similar protection to other parttime employees. OPM Memorandum at 5. But as we have just explained,
the Act was intended to increase part-time career employment, and it
favors that type of employment in a number of different ways. It therefore
would be neither surprising nor irrational if Congress favored part-time
career employees by granting them a special entitlement to life insurance
benefits that it did not extend to other part-time employees.
Second, OPM argues that there would have been no reason for Congress to delete “part-time” from section 8716(b) if agencies could still
employ (and thus still exclude from life insurance coverage) part-time
employees who were not part-time career employees. OPM Memorandum
at 5. Although it is not entirely clear why Congress amended section
8716(b) in the manner it did, there is at least one plausible reason why
Congress might have removed the reference to “part-time” employment in
section 8716(b) even if agencies could continue to employ part-time
employees not covered by the Act. Removing this phrase eliminated any
except part-time career employment from 5 U.S.C. § 8347(g), which permitted the
exclusion from retirement benefits of only “temporary or intermittent” employees. See
H.R. Rep. No. 95-932, at 12 (acknowledging this point); S. Rep. No. 95-1116, at 18
(same). Similarly, there was no need to clarify that OPM could not exclude other parttime employment that is not temporary or intermittent.
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inconsistency between the statement that OPM “may not exclude . . . parttime career employ[ees]” and the statement that it “may exclude . . . parttime employ[ees],” a broader category that seemingly would include parttime career employees. At the same time, this amendment continued to
permit OPM to exclude employees from life insurance benefits “on the
basis of the nature and type of [their] employment,” thus allowing the
agency to deny benefits to part-time employees not covered by the Act
(since theirs is a “type” of employment). 5 U.S.C. § 8716(b) (2012); cf.
5 C.F.R. § 870.302(b)(4)–(8) (2015) (relying on this provision to exclude
employees paid “$12 a year or less,” employees paid on a “contract or fee
basis,” “Senate restaurant employee[s],” and other such categories from
life insurance benefits). Of course, Congress could have accomplished
this result in other ways, such as by permitting OPM to exclude an employee from life insurance benefits on the basis of “part-time employment
other than part-time career employment.” But the fact that “Congress
could have accomplished the same result by phrasing the statute differently” does not provide a basis for reading unstated limitations into its text.
United States v. Aguilar, 515 U.S. 593, 604 (1995).
c.
The Act’s third benefits provision concerns health insurance. Much like
the retirement and life insurance provisions, this provision begins by
clarifying that OPM may not exclude “an employee who is occupying a
position on a part-time career employment basis” from receiving health
benefits. Act § 4(c)(1) (codified at 5 U.S.C. § 8913(b)(3)). OPM contends
that this amendment “demonstrates congressional intent to address benefits coverage for all part-time employees.” OPM Memorandum at 5 n.2.
For the same reasons we have just given, however, we do not agree.
Congress may have intended to grant part-time career employees a protection to which other part-time employees are not entitled, a goal that would
be fully consistent with the purpose and structure of the statute.
The health insurance benefits provision goes on to provide that employees “occupying a position on a part-time career employment basis”
shall receive health benefits in an amount prorated to the proportion of the
full workweek that they work. Act § 4(c)(2)(A). OPM makes a stronger
argument based on this portion of the provision. Neither the Act nor any
other statute similarly prorates health benefits for other part-time employ117
39 Op. O.L.C. 99 (2015)
ees. OPM thus argues that the Act would result in an anomaly if agencies
could employ part-time employees outside of the Act’s definition of parttime career employment: Whereas part-time career employees would
receive prorated health benefits, other part-time employees would be
eligible for either full health benefits or no health benefits at all. OPM
Memorandum at 3 & n.1. OPM asserts that this system would be inconsistent with Congress’s goal of “providing appropriate benefits to parttime employees” and of “limiting Government obligations commensurate
with the number of hours in the reduced work schedule of part-time
employees.” Id. at 3.
We acknowledge that it would seem somewhat anomalous for Congress to have prorated health benefits for employees in the part-time
career employment program it was trying to promote while failing to do
so for other part-time employees. But the Supreme Court has cautioned
that it “does not revise legislation . . . just because the text as written
creates an apparent anomaly as to some subject it does not address.”
Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2033 (2014). And
here, the anomaly OPM identifies is neither particularly serious nor
inexplicable. Congress has allowed a similar anomaly to exist in other
circumstances by declining to prorate health benefits for seasonal, intermittent, and short-term workers and thus putting OPM to the same choice
of offering those less-than-full-time employees either full health benefits
or no benefits at all. See 5 U.S.C. § 8906(b) (prescribing the health
benefits to which eligible employees are entitled); id. § 8913(b) (permitting OPM to exclude such employees from health benefits). Moreover,
the legislative history indicates that Congress prorated health benefits for
part-time career employees for a reason that was inapplicable to other
part-time employees. The version of the Act initially passed by the House
would have granted full health benefits to part-time career employees.
See H.R. 10126, 95th Cong. § 4(c) (as passed by House, Mar. 13, 1978).
The relevant Senate committee, however, observed that these benefits
“comprised the major part of the price tag for the House-passed bill” and
expressed concern that “the public [would] accept” the Act only if it held
“the cost of government constant.” S. Rep. No. 95-1116, at 12. The
Senate therefore amended the bill to provide that health benefits for parttime career employees “would be prorated according to the number of
hours worked.” Id.; see S. 518, 95th Cong. § 4(c)(2)(A) (as passed by
Senate, Aug. 25, 1978); see also 124 Cong. Rec. 30,968 (1978) (state118
Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
ment of Rep. Schroeder) (House sponsor of the Act stating that she
agreed with the Senate amendment because it “would save money”). This
history suggests that Congress did not enact the proration provision to
establish a general principle that government obligations should be
“commensurate with the number of hours” worked, as OPM contends.
OPM Memorandum at 3. Rather, it enacted the proration provision as
part of a compromise designed to ensure that the Act would win public
acceptance. 7
The health insurance benefits provision of the Act also states that the
Act’s proration of health benefits does not apply to “any employee serving in a position on a part-time career employment basis on the date of the
enactment of this Act.” Act § 4(c)(2)(B). OPM contends that this provision shows that Congress “intended to bring all types of part-time employment under [the Act’s] coverage” because it indicates that employees
hired prior to the date of the Act’s enactment can qualify as part-time
career employees. OPM Memorandum at 4 (emphasis added). We do not
think that follows. The fact that part-time employees hired before the Act
can fall within the Act’s definition of “part-time employment” provides
no basis to conclude that Congress foreclosed part-time employment
outside that definition. Nor is it relevant that the provision applies only to
part-time career employees. The Act did not alter health benefits for parttime employees who fall outside the Act’s definition, so there was no
need to grandfather benefits for such employees.
In sum, the Act’s principal provisions would work as Congress intended under either possible reading of the Act, and the Act’s miscellaneous
benefits provisions do not provide any strong indication that Congress
intended to foreclose all part-time employment not covered by the Act.
7 In its estimate of the bill’s costs, the Senate report does not contemplate any savings
to the government from the elimination of part-time employees who fall outside the Act.
See S. Rep. No. 95-1116, at 19–21. If the second reading of the Act were correct, then the
Senate bill would have resulted in substantial financial savings to the government by
eliminating its obligation to pay full health benefits to existing part-time employees
working less than 16 or more than 32 hours per week. The drafters’ failure to consider
that possibility—notwithstanding their close attention to other ways the Act might
generate financial savings, see id. at 20 (identifying possible savings resulting from
reduced enrollment in health plans by part-time career employees)—suggests that the
drafters did not believe that the Act would prohibit part-time employment not covered by
the Act.
119
39 Op. O.L.C. 99 (2015)
The Act’s structure is thus consistent with either possible interpretation of
the statute.
4.
We turn next to the legislative history of the Act generally. Both the
House and Senate committee reports open by stating that “[t]he purpose
of [the Act] is to encourage the use of part-time career employment in the
Federal government by requiring each agency to establish a program to
provide for increased part-time career employment opportunities.” S. Rep.
No. 95-1116, at 1; H.R. Rep. No. 95-932, at 1. Similarly, each committee
report discusses at length the concern that federal agencies “lagged far
behind the private sphere in providing and improving part-time employment opportunities.” S. Rep. No. 95-1116, at 3; see id. at 3–12 (discussing
the scope of this problem); H.R. Rep. No. 95-932, at 2–5, 8 (similar).
These discussions are consistent with the Act’s statements that its purpose
is to “provide increased opportunities for” and “promote” part-time career
employment. Act § 2(b); 5 U.S.C. § 3402(a)(1). And they tend to support
the view that Congress intended to encourage part-time career employment but not prohibit alternative forms of part-time employment.
OPM identifies two passages from the House and Senate reports that it
contends support the conclusion that Congress intended to redefine parttime employment to include only employment of 16 to 32 hours per week.
See OPM Memorandum at 2–3. The first passage OPM identifies appears
in the House report. In explaining the Act’s definition of part-time career
employment, that report says:
This legislation defines “part-time career employment” as employment of 16 to 32 hours per week, and does not include temporary or
intermittent employment. Its aim is to encourage the hiring of truly
part-time employees, in contrast to the current practice of suing [sic]
employees working up to 39 hours per week to skirt personnel ceilings.
H.R. Rep. No. 95-932, at 7. OPM argues that this passage shows that the
Act’s drafters “inten[ded] that part-time employment be limited to hours
substantially less than 40 hours per week.” OPM Memorandum at 2.
Although that inference is plausible, it is not the only possible reading of
the relevant language. The passage says that the Act aims to “encourage
120
Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
the hiring of truly part-time employees.” H.R. Rep. No. 95-932, at 7
(emphasis added). Even if the drafters believed that employees who do
not work 16 to 32 hours per week are not “truly part-time,” the passage
states that the drafters’ method of promoting “part-time career employment” under the Act was by encouragement, not mandate. Moreover, the
passage specifically disapproves of the use of “employees working up to
39 hours per week to skirt personnel ceilings,” id. (emphasis added), and
under any interpretation, the Act eliminates the incentive to engage in that
practice by changing the manner in which part-time career employees are
counted for purposes of personnel ceilings, see 5 U.S.C. § 3404; S. Rep.
No. 95-1116, at 16–17.
The second passage OPM cites appears in a section of the Senate report
discussing the definition of part-time career employment contained in the
Senate’s version of the Act. The passage begins by explaining that the
Senate bill “defines the term[] . . . ‘part-time career employment’ for the
purposes of new subchapter VIII . . . to mean part-time employment of 10
hours, 20 hours, and 30 hours a week.” S. Rep. No. 95-1116, at 13. It goes
on to acknowledge that this “approach to the definition of part-time career
employment differs from the approach taken in the House.” Id. at 14. The
passage then states:
The administration contends that part-time employment should be
defined as anything less than 40 hours per week. The committee disagrees because such a definition would make possible the current arrangement by which those individuals defined as working part-time
for the Federal Government include many working 35 to 39 hours
per week. In order for the legislation to have an impact, the committee shares the view of the House that part-time employment must be
defined so that the jobs created entail significantly less than 40 hours
of work per week.
Id.
OPM contends that this passage shows that Congress intended to
“limit[] part-time employment” to “work schedule[s] [of ] significantly
less than 40 hours.” OPM Memorandum at 3. That reading is reasonable;
it draws support from the drafters’ statement of disapproval of the “arrangement by which those individuals defined as working part-time for
the Federal Government include many working 35 to 39 hours per
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39 Op. O.L.C. 99 (2015)
week,” and their reference to the definition of “part-time employment,”
rather than “part-time career employment,” S. Rep. No. 95-1116, at 14.
But it is also reasonable to read this passage as stating that the drafters
intended the Act to encourage only part-time employment falling within
the Act’s definition of part-time career employment. In support of this
reading, the passage says that the drafters intended to ensure that “the
jobs created entail significantly less than 40 hours of work per week,”
id. (emphasis added)—a goal the Act achieves by limiting the Act’s
definition of “part-time career employment” to employees working
between 16 and 32 hours per week and requiring each agency to “establish and maintain a program for part-time career employment,” 5 U.S.C.
§ 3402(a)(1). Moreover, the passage’s reference to “part-time employment” may simply have been an imprecise shorthand for “part-time
career employment.” The drafters used the same shorthand elsewhere in
the Senate report, even where they clearly intended to refer only to parttime career employment; for instance, in two places the report states that
the Act entitles “current personnel working part-time” to receive full
health benefits, S. Rep. No. 95-1116, at 12 (emphasis added); see id. at 2
(similar), even though the Act grants that entitlement only to personnel
working “on a part-time career employment basis on the date of the
enactment of this Act,” Act § 4(c)(2)(B) (emphasis added), and the
drafters were well aware that “many” part-time employees employed on
the date of the Act’s enactment were not part-time career employees,
S. Rep. No. 95-1116, at 14. In addition, the relevant passage opens by
referring to the manner in which the Act “defines the term[] . . . ‘parttime career employment’ for the purposes of new subchapter VIII,” and
goes on to refer to the Act’s “definition of part-time career employment.” Id. at 13–14.
As a result, we conclude that the legislative history of the Act is ambiguous with respect to the question at hand. Some statements in the
House and Senate reports support the first possible interpretation of the
Act, while others might (but need not) be read to support the second
interpretation. Because “the authoritative statement” of a statute’s meaning is “the statutory text, not the legislative history,” this equivocal
evidence of congressional intent bears little weight in construing the
Act. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005); see Milner v. Dep’t of Navy, 562 U.S. 562, 572 (2011) (“We will
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
not . . . allow[] ambiguous legislative history to muddy clear statutory
language.”).
5.
Finally, we examine the context in which the Act was drafted and its
“place in the overall statutory scheme.” Roberts v. Sea-Land Servs., Inc.,
132 S. Ct. 1350, 1357 (2012) (quoting Davis v. Mich. Dep’t of Treasury,
489 U.S. 803, 809 (1989)).
a.
We begin by considering the Act’s effect on part-time employment arrangements that existed at the time of its enactment. The first possible
interpretation of the Act would not appear to have any significant adverse
effects on preexisting part-time employment arrangements. Under that
interpretation, agencies would retain their authority to schedule part-time
employees as they see fit, and there would be no disruptive or improbable
effects on preexisting employees.
The second interpretation of the Act, in contrast, would lead to two unlikely and disruptive consequences, which themselves could be avoided
only by significantly straining the Act’s text. First, if the Act prohibited
all part-time employment falling outside of its definition, then the Act
seemingly would have made it unlawful for agencies to continue to employ part-time employees already working more than 32 hours per week.
Congress was aware that agencies employed numerous such employees
when the Act was enacted. See S. Rep. No. 95-1116, at 10 (stating that
“the vast majority” of new part-time employees worked between 35 and
39 hours per week); H.R. Rep. No. 95-932, at 4 (stating that “the tendency
is to hire 39 hour per week ‘part timers’”). Yet nothing in the text or
history of the Act indicates that Congress contemplated that agencies
would need to terminate or reschedule all of those employees—an omission that is particularly notable given that Congress showed solicitude for
other employees potentially affected by the Act’s provisions. See 5 U.S.C.
§ 3403(a) (prohibiting agencies from abolishing positions to make them
available to part-time career employees); id. § 3403(b) (prohibiting agencies from requiring full-time employees to accept part-time employment);
Act § 4(c)(2)(B) (grandfathering health benefits for preexisting part-time
123
39 Op. O.L.C. 99 (2015)
career employees). Congress’s silence on this subject strongly suggests
that Congress did not intend to proscribe part-time employment not within
the Act’s definition. Cf. Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991)
(“Congress’ silence in this regard can be likened to the dog that did not
bark.”).
OPM attempted to mitigate this severe consequence of its interpretation
when it promulgated regulations concerning the Act in 1979. In the preamble to those regulations, OPM—applying its understanding of the
Act—asserted that the Act’s “prohibition” on the employment of part-time
employees working 33 to 39 hours per week “d[id] not apply” to anyone
employed prior to April 8, 1979. 44 Fed. Reg. at 57,379. But OPM did not
cite any statutory basis for this assertion, and we have identified none.
Second, if the Act offered the exclusive definition of part-time employment for federal employees, then the statute would prohibit not only
part-time employment of more than 32 hours per week, but also part-time
employment of less than “16 . . . hours a week.” 5 U.S.C. § 3401(2). Yet
as OPM observed, there is no evidence—even in the legislative history—
that Congress “inten[ded] to end the practice of employing” part-time
employees who work 1 to 15 hours per week. 44 Fed. Reg. at 57,380.
Accordingly, OPM promulgated a regulation stating that agencies could
continue to permit schedules of 1 to 15 hours per week “under the authority provided in 5 U.S.C. 3402(a)(3).” 5 C.F.R. § 340.202(b). But this
exception too lacks a firm basis in the Act’s text. Section 3402(a)(3)
provides that “[r]egulations established under” section 3402(a)(1) “may
provide for such exceptions as may be necessary to carry out the mission
of the agency.” 5 U.S.C. § 3402(a)(3). The “[r]egulations established
under” section 3402(a)(1), however, are ones that “establish and maintain
a program for part-time career employment” by setting various procedures
for establishing, reviewing, and setting goals and timetables for the creation of part-time career employment positions. Id. § 3402(a)(1). Section
3402(a)(3) thus appears to permit exceptions only to the various procedures that constitute an agency’s part-time career employment program.
See S. Rep. No. 95-1116, at 15 (“Paragraph (3) provides that agency
regulations establishing part-time career employment programs may
provide for such exceptions to such programs as may be necessary to
carry out the mission of the agency.” (emphasis added)); H.R. Rep. No.
95-932, at 10 (same). It is doubtful that an exception altering the defini124
Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
tion of “part-time career employment” falls within that authority.8 OPM’s
interpretation of the Act would therefore either compel a result that Congress apparently did not intend (elimination of part-time schedules of less
than 16 hours per week) or require a significant expansion of the Act’s
text to avoid that result.
b.
We next consider three potentially relevant statutes enacted subsequent
to the Act. First, as discussed above, a few weeks before the Act’s passage, Congress enacted a statute establishing a three-year experimental
program “to test . . . compressed schedule[s]” that defined a compressed
schedule for a “part-time employee” as “a biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays.”
Pub. L. No. 95-390, §§ 201(1)(B), 202(a). Three years later, Congress
made this program permanent by enacting the Federal Employees Flexible
and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96
Stat. 227 (codified as amended at 5 U.S.C. § 6120 et seq.). In this new
statute, Congress reenacted without change the prior definition of a compressed schedule. 5 U.S.C. § 6121(5)(B). Congress also amended the
Act’s definition of “part-time career employment” to state that it includes
part-time employment of “32 to 64 hours during a biweekly pay period in
the case of a flexible or compressed schedule under subchapter II of
chapter 61 of this title.” Pub. L. No. 97-221, § 3. This pair of definitions
in the 1982 statute indicates that the enacting Congress did not believe
that all part-time employees were required to work between 16 and 32
hours per week. The statute provides that agencies may permit a “parttime employee” to work “less than 80 hours” over a biweekly period, or
less than 40 hours in a single workweek. 5 U.S.C. § 6121(5)(B); see id.
§ 6127(a) (authorizing agencies to “establish programs which use a 4-day
workweek or other compressed schedule”). At the same time, it provides
that agencies may permit a “part-time career employ[ee]” to work only
“32 to 64 hours” over a biweekly period, or 16 to 32 hours in a single
workweek. Id. § 3401(2) (emphasis added). If Congress believed that all
part-time employees were part-time career employees, then these defini8 As noted above, we do not address whether OPM might have authority under other
statutes to limit or expand the scope of part-time employment.
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39 Op. O.L.C. 99 (2015)
tions should have been the same—all such employees should have been
permitted to work only 32 to 64 hours in a biweekly period. This statute
thus appears to reflect Congress’s belief that, subsequent to the Act,
agencies could continue to employ part-time employees who worked more
than 32 hours per week. The fact that Congress “seems clearly to have
contemplated” such conduct is “entitled to significant weight” in interpreting the Act. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S.
572, 595–96 (1980); see Almendarez-Torres v. United States, 523 U.S.
224, 237 (1998) (describing circumstances in which later-enacted laws
may inform the interpretation of earlier provisions, including when there
is “direct focus by Congress upon the meaning of the earlier enacted
provisions”). 9
A second potentially relevant statute amended 5 U.S.C. § 6323, a provision granting “permanent or temporary indefinite” employees the right
to accrue leave for military purposes “at the rate of 15 days per fiscal
year.” 5 U.S.C. § 6323(a)(1). In 1980, Congress added a new subsection
to this provision stating that employees “employed on a part-time career
employment basis” would accrue military leave at a rate prorated to the
portion of the full workweek they work. Pub. L. No. 96-431, § 1, 94 Stat.
1850, 1850 (codified at 5 U.S.C. § 6323(a)(2)). OPM argues that this
amendment supports its reading of the Act, presumably on the theory
that—as with the Act’s health benefits provision—it would be anomalous
if this statute prorated leave for part-time career employees while entitling
other part-time employees to full military leave. OPM Reply at 4. But we
think this argument rests on a mistaken premise. Prior to the enactment of
this statute, the Comptroller General had consistently interpreted section
6323 and its predecessor, 10 U.S.C. §§ 371–371a, to entitle part-time
employees to no military leave. See William P. Wisinger, 59 Comp. Gen.
9 OPM argues that this discrepancy is the result of “inartful drafting”: It speculates that
the “less than 80 hours” language is an “oversight” that Congress inadvertently included
in this statute as a “remnant” of the 1978 flexible and compressed schedules statute. OPM
Reply at 1–3. We do not think this theory is persuasive. Congress did not simply copy the
text of the 1978 flexible and compressed schedules statute without accounting for the
passage of the Act. On the contrary, it expressly amended the Act’s definition of “parttime career employment” to specify the hours that constituted a compressed schedule for
part-time career employees. Congress’s failure to similarly amend the definition of
“compressed schedule” for all part-time employees thus appears to have been a deliberate
choice, not an oversight.
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
365, 365 (1980) (citing prior decisions and legislative history supporting
this view). In 1980, Congress concluded that this longstanding interpretation ran “counter to the Federal Employees Part-time Career Employment
Act” as applied to part-time career employees and therefore extended the
military leave statute to part-time career employees on a prorated basis.
H.R. Rep. No. 96-1128, at 3 (1980). At least against the legal backdrop as
Congress understood it, 10 this statute thus granted part-time career employees a benefit to which other part-time employees would not be entitled—a result, as we have said, that is entirely consistent with the Act’s
structure and purpose. See supra Part II.C.3.a.
A third statute referencing the Act was enacted in 1991. That statute,
the Department of Veterans Affairs Health-Care Personnel Act of 1991,
Pub. L. No. 102-40, 105 Stat. 187, authorizes the Secretary of Veterans
Affairs to make appointments to the Veterans Health Administration
without regard to a number of civil service requirements. Id. § 401(b)(2)
(codified at 38 U.S.C. §§ 7405(a), 7406(a)(1)); id. § 401(b)(3) (codified at
38 U.S.C. § 7425). As relevant here, the statute provides that the Act’s
provisions “pertaining to part-time career employment” do “not apply to
[covered] part-time appointments.” 38 U.S.C. § 7407(e). OPM argues that
this exemption “demonstrat[es] that an exclusion was required to prevent”
all part-time employees from being subject to the Act. OPM Reply at 4.
But we do not think the statute supports such an inference. Congress often
exempts classes of persons from requirements that apply to some but not
all class members, including elsewhere in the Department of Veterans
Affairs Health-Care Personnel Act itself. See, e.g., 38 U.S.C. § 7425(a)
(exempting all employees appointed pursuant to the statute from requirements applicable only to the Senior Executive Service). Indeed, many of
the “part-time appointments” authorized by this statute are required to be
“temporary,” id. § 7405(d), (g)(1), and so would not be subject to the Act
under any reading. See 5 U.S.C. § 3401(2) (stating that “‘part-time career
employment’ . . . does not include employment on a temporary or intermittent basis”). Hence, this statute too is fully consistent with the view
that the Act did not eliminate part-time employment outside of its definition of part-time career employment.
10 We express no view on whether the Comptroller General’s decisions are correct or
whether part-time employees who fall outside the Act’s definition are eligible for military
leave under 5 U.S.C. § 6323(a).
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39 Op. O.L.C. 99 (2015)
For these reasons, we think that the statutes enacted subsequent to the
Act support the first reading of the statute. The Federal Employees Flexible and Compressed Work Schedules Act seems clearly to contemplate
the existence of part-time employees who do not work between 16 and 32
hours per week, whereas the other two statutes we have considered are
equally consistent with either the first or second reading of the Act. The
context of the Act as a whole thus bolsters the conclusion that it does not
prohibit part-time employment that falls outside its definition.
* * * * *
In sum, several significant considerations support the conclusion that
the Act does not limit agencies’ preexisting authority to schedule parttime employees to work more than 32 hours per week. The Act’s plain
text and stated purpose do not purport to limit agencies’ preexisting
authority; its principal provisions would work as Congress intended if
agencies retained that authority; and a contrary conclusion would lead to
improbable results and undermine a later-enacted statute. In contrast, a
conclusion that the Act prohibits all part-time employment of more than
32 hours per week would find support only in potential inferences drawn
from the Act’s ancillary benefits provisions and in ambiguous statements
contained in the Act’s legislative history. Accordingly, we think that the
Act is best read not to limit agencies’ preexisting authority to hire parttime employees and to schedule them for regular workweeks of 33 to 39
hours.
III.
For the foregoing reasons, we conclude that the statutes governing federal employment permit part-time schedules of 33 to 39 hours a week. As
noted above, we do not address whether OPM has authority, independent
of the Act, to prohibit agencies from offering such schedules or whether
agencies may elect (or require their components) not to offer such employment. Nor do we address what administrative steps, if any, would be
required before CRT could begin authorizing part-time employees to work
those schedules.
BRIAN M. BOYNTON
Deputy Assistant Attorney General
Office of Legal Counsel
128 |
|
Write a legal research memo on the following topic. | Liability of the United States for State and Local Taxes on
Seized and Forfeited Property
In c iv il fo rfe itu re p ro c e e d in g s (u n d e r 21 U S C § 8 8 1 ), th e U n ite d S ta te s is o b lig a te d to pay lie n s for
s ta le a n d lo cal ta x e s a c c ru in g a fte r the c o m m is s io n o f th e o ffe n se le a d in g to fo rfe itu re an d b e fo re
th e e n try o f a ju d ic ia l o rd e r o f fo rfeitu re, if th e lie n -h o ld e r e sta b lis h e s, b e fo re the c o u rt e n te rs the
o r d e r o f fo rfe itu re , th a t it is an in n o cen t o w n e r o f the in te re s t it a sse rts
In c rim in a l fo rfe itu re p ro c e e d in g s (u n d e r 18 U S C . § 1963 o r 21 U S C . § 8 53), the U n ite d S ta te s m ay
n o t p a y s u c h h e n s b e c a u s e state and lo cal tax lie n -h o ld e rs a re not b o n a fide p u rc h a se rs for valu e o f
th e in te re s ts th e y w o u ld a sse rt, and th e re fo re d o n o t c o m e w ith in a n y a p p lic ab le e x c e p tio n to a s ta t
ute th a t, u p o n e n try o f a c o u r t’s final o rd e r o f fo rfe itu re , v e sts full o w n e rsh ip re tro a c tiv e ly in the
U n ite d S ta te s as o f th e d a te o f th e offen se.
O ctober 18, 1993
M e m o r a n d u m O p in io n f o r t h e D i r e c t o r a n d C h i e f C o u n s e l
E x e c u t iv e O f f i c e f o r A s s e t F o r f e i t u r e
You have asked us to reconsider our opinion that property seized by and for
feited to the United States is not subject to state or local taxation for the period
between the com m ission of the offense that leads to the order of forfeiture and the
entry o f the order o f forfeiture. See Liability o f the United States fo r State and
Local Taxes on Seized and Forfeited P roperty, 15 Op. O.L.C. 69 (1991)
(“Harrison M em orandum ”). In light of the Supreme C ourt’s decision in United
States v. 92 Buena Vista A ve., 507 U.S. 111 (1993), we partially reverse our opin
ion.
B ecause states and localities may not tax federal property (absent express con
gressional authorization),1 the time at which ownership o f forfeited property passes
to the United States and the extent of the ownership interest that passes to the
United States determ ine whether state and local taxes are owed. In many property
transactions, the time and the extent o f transfer o f ownership are unambiguous and
independent issues. In cases of transfers of ownership under the federal forfeiture
statutes, however, the answ er to the question of when ownership is transferred has
been a m atter o f dispute, and of great consequence for the extent of the interest
transferred.
T he Harrison M emorandum expresses the Justice D epartm ent’s traditional view
that title vests in the United States at the time of the offense. This view is based on
1
See, e g , U n ited S ta te s v C ttx oj D etroit, 355 U S 466, 4 6 9 (1958) ( “ a State cannot constitutionally
levy a tax d irectly against the G overnm ent o f the U nited States o r its property w ithout the consent o f C o n
gress"), M 'C u llo ch v. M a ryla n d , 17 U S (4 W h eat.) 3 16 (1819).
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Liability o f U.S. fo r State and L ocal Taxes on Seized and F orfeited P roperty
an interpretation of the “relation back” doctrine, which provides that a judicial or
der of forfeiture retroactively vests title to the forfeited property in the United
States as of the time of the offense that leads to forfeiture, not as o f the time of the
judicial order itself. See 21 U.S.C. § 881(h) (“[a]ll right, title, and interest in prop
erty [subject to forfeiture] shall vest in the United States upon commission of the
act giving rise to forfeiture . . . .”); 18 U.S.C. § 1963(c), 21 U.S.C. § 853(c)
(substantially identical to quoted language from 21 U.S.C. § 881(h)). Under the
Departm ent’s traditional interpretation, title in forfeited property vests in the fed
eral government at the time of the offense. The date o f the judicial order o f for
feiture is not significant. From the date of the offense, states and other parties are
barred from acquiring interests in the property from the owner whose interests are
forfeited to the United States. See In re One 1985 Nissan, 889 F.2d 1317, 1319-20
(4th Cir. 1989); Eggleston v. Colorado, 873 F.2d 242, 245-48 (10th Cir. 1989),
cert, denied, 493 U.S. 1070 (1990) (cases decided before Buena Vista and consis
tent with the Harrison Memorandum).
The Harrison M emorandum considers and rejects several possible grounds for
limiting the operation of the relation back doctrine and requiring payment of state
and local tax liens for the period between the offense and the forfeiture order. The
two grounds of principal concern here are the “innocent ow ner” defense in the civil
drug forfeiture statute, see 21 U.S.C. § 881(a)(6)2, and the “bona fide purchaser”
defense in the criminal drug forfeiture statute, see 21 U.S.C. § 853(c), and in the
forfeiture provision of the RICO statute, see 18 U.S.C. § 1963(c). The Harrison
Memorandum concludes that these defenses do not protect a state or locality (or
anyone else) who innocently acquires a property interest after the time o f the of
fense. The Supreme C ourt’s decision in Buena Vista forces us to reconsider this
conclusion. We conclude that the Harrison M em orandum ’s conclusion concerning
the innocent owner defense must be reversed, but that the Harrison M em orandum ’s
conclusion regarding the bona fide purchasers defense is correct (although this
latter conclusion is less certain than the Harrison M emorandum indicates and we
reach it through an analysis different from that set forth in the Harrison M em oran
dum).
I.
The civil drug forfeiture statute provides that “no property shall be forfeited
. . . , to the extent of the interest of an owner, by reason o f any act or omission es
tablished by that owner to have been committed or omitted without the knowledge
or consent of that owner.” 21 U.S.C. § 881(a)(6). The Harrison Memorandum
' T he conclusions w ith regard to § 881(a)(6), the innocent o w n er provision im m ediately at issue in B uena
Visia and applicable to all “ things o f value" traceable to an exchange for a controlled substance also apply to
§ 881(a)(7), w hich co n tain s a nearly identical innocent ow ner provision applicable to real properly used in a
drug offense See notes 3, 7, injra
105
Opinions o f th e Office o f L egal C ounsel
accepted that “owner” could include a state or locality holding a tax lien on the
property. See H arrison M emorandum, 15 Op. O.L.C. at 72 . The Memorandum
concluded, however, that this “innocent ow ner” provision does not apply to as
serted property interests that arise after the tim e of the offense because, as of the
mom ent o f the offense, the property belongs (by operation of the relation back
doctrine) to the United States, and not to the person from whom a third party inno
cently acquires an interest.
W e conclude, consistent with the Harrison M emorandum, that a state or locality
holding a tax lien can be an “owner” as that term is defined in the civil forfeiture
statute’s innocent ow ner provisions. The broad language of the statute — “[a ] ll. . .
things o f value” and “ [a]ll real property, including any right, title and interest” —
provides no reason to exclude a tax lien-holder from the definition of “owner.”
21 U.S.C. § 881(a)(6), (7). The legislative history urges a broad reading.3 And the
courts have followed, sometimes explicitly, the path suggested by Congress.4 The
“innocence” requirem ent o f an innocent ow ner defense would seem to be easy to
satisfy in most cases. Like an innocent donee or purchaser, a state or locality
holding a tax lien generally has obtained its interest without knowledge of the of
fense giving rise to the forfeiture.
The Harrison M em orandum ’s further conclusion with regard to the innocent
owner defense, however, cannot survive the ruling in Buena Vista. The plurality
and concurring opinions reject the interpretation of the relation back doctrine set
forth in the Harrison M emorandum, and agree that the innocent owner defense is
available to persons who acquire interests in forfeitable property after the com m is
sion o f the offense that rendered the property subject to forfeiture. The opinions
differ only as to the reading of the statute that leads to this result.
The plurality and the concurrence both analyze the common law doctrine of re
lation back as transferring ownership of forfeited property retroactively to the date
of the offense, but only upon the entry of a judgm ent of forfeiture. Until a court
issues such a judgm ent, this retroactive vesting of ownership in the United States
does not occur, and all defenses to forfeiture that an owner of the property other
wise may invoke will remain available. Thus, a person who has acquired an inter
est in the property may raise any such defense in a forfeiture proceeding. If that
3 S e e Jo in t E xplanatory S tatem en t of Titles II and III o f Pub L No 95-633, 95th C ong , 2d Sess. (1978),
r ep rin te d in 1978 U S C C A N 9522 (in § 8 8 1 (a)(6 ), “ [t]he term ‘o w n er' should be broadly interpreted to
include any person w ith a recognizable legal o r equitable interest in the property seized ), see also S. Rep.
No 98-2 2 5 , at 195, 215 (1984), reprinted in 1984 U .S .C C A N 3182, 3378, 3398 (describing § 881(a)(7)
as, in effect, ex te n d in g § 88 1 (a)(6 ) to cover re a l property used in a drug offense but not acquired w ith pro
ceeds o f p ro h ib ited d rug tran sactio n s)
4 See, e g ., U n ite d S ta tes v. 7 / 7 S. W oodw ard S t , 2 F 3d 529, 535 (3d C ir.1993) (citing legislative h is
tory); U n ited S ta te s v 6 9 6 0 M ira jlo res Ave , 9 9 5 F.2d 1558, 1561 (11th C ir 1993) ("L ien holders have the
right to assert th eir claim [s] o f innocent o w n ersh ip " u n d er § 881(a), as interpreted in B uena Vi,\ta); U nited
Slates v' 6 1 0 9 G ru h b Rd., 886 F 2d 618, 625 n 4 (3d C ir 1989) (cited in Buena Vista and citing legislative
history); see a lso U nited S ta te s i\ 2350 N W 187 S t . 9 9 6 F.2d 1141, 1144 (11th C ir 1993) (B uena Vista
analysis o f § 8 8 1(a) innocent o w n er provisions assum ed to apply where purported innocent ow ner is local tax
lien holder).
106
Liability o f U S. f o r State a n d Local Taxes on Seized an d F orfeited P roperty
person prevails, a judgm ent of forfeiture will not vest (retroactively) ow nership of
that property interest in the United States. Buena Vista, 507 U.S. at 125-27, 12830 (plurality opinion) 131-38 (Scalia, J., concurring).
The plurality and the concurrence both conclude that the federal civil forfeiture
statute is fully compatible with the common law, and that the statutory innocent
owner clause provides a defense for a third party who innocently acquires owner
ship of the property after the offense and before a judgm ent of forfeiture. The plu
rality notes that § 881(h), which sets forth the relation back doctrine for the civil
forfeiture statute, applies that doctrine only to “property described in subsection (a)
o f this section.” Subsection (a)(6) excepts, from its description o f forfeitable prop
erty, the property of an innocent owner. Therefore, in the plurality’s analysis, sub
section (a) places the property of an innocent owner beyond the reach of the
forfeiture and relation back provisions in subsection (h). See Buena Vista, 507
U.S. at 127-30. Accordingly, an ownership interest in forfeitable property that is
transferred to an innocent person (after the offense giving rise to forfeiture) does
not vest in the United States as of the time of the offense. Indeed, it does not vest
in the United States at all.
Interpreting the civil forfeiture statute as a more straightforward codification of
common law doctrine,5 the concurrence reads the phrase, in subsection (h), ‘“ shall
vest in the United States upon commission of the act giving rise to forfeiture’” as
meaning “ ‘shall vest in the United States upon forfeiture, effective as of com m is
sion of the act giving rise to forfeiture.’” Buena Vista, 507 U.S. at 134 (Scalia, J.,
concurring).6 The result, of course, is the same as under the plurality’s analysis: a
property interest innocently acquired after the offense is not forfeited to the United
States if an owner asserts the interest in a proper and timely way, before the entry
o f a forfeiture judgment.
In sum, we reverse the Harrison M emorandum’s conclusion that the innocent
owner defense, set forth in 21 U.S.C. § 881(a), does not protect state and local
claims for tax liabilities arising between the time of an offense rendering property
subject to forfeiture and the issuance of a court order of forfeiture.7
3
The concurrence specifically rejects the p lu rality 's reading o f the phrase, in subsection (h), "property
described in subsection (a)" as m eaning, in effect, “property forfeitable under subsection (a) ” T he co n cu r
rence stresses that subsection (h) refers to '‘property d escrib ed in subsection (a)." not property d eem ed for
feitable under subsection (a) Since subsection (a) describes property generally and does not declare that
property that cannot be forfeited is not ' ’p ro p e rty ,' the “property described in subsection (a)* refers to all
relevant property interests, including those o f innocent ow ners Buena Vista, 507 U S. at 133 (S calia, J ,
concurring)
6 The concurrence "ack n o w le d g e ^ ] that there is som e textual difficulty w ith th[is] interp retatio n ,'1 but
argues, first, that the im precision im puted to the quoted language in subsection (h) is to be e xpected “ in a
legal culture fam iliar with retroactive forfeiture" and, second, that the civil forfeiture statute as a whole,
including subsection (d) and u s adoption o f forfeiture procedures applicable under 19 U.S C.
1602-1631,
does not make sense if one rejects the c o n cu rre n ce 's reading o f subsection (h) (and the plurality s reading o f
subsections (a) and (h)). B uena Vista, 507 U S at 134 (Scalia, J . concurring).
7 The local tax lien cases decided by low er courts since the Suprem e C ourt s decision in B uena Vista do
not alter our conclusion In 2 3 5 0 N .W 187 S t , 996 F 2d 1141, the court vacated the ju d g m en ts in tw o cases
in w hich the district courts had relied on the interpretation o f the relation back doctrine d escrib ed in the
107
Opinions o f the Office o f L eg a l C ounsel
II.
The two federal criminal forfeiture statutes addressed in the Harrison M em o
randum do not contain an innocent owner defense. Those statutes, however, do
provide protection for a “transferee [who] establishes in a hearing [to ‘am end’ an
order o f forfeiture] that he is a bona fide purchaser for value of [the] property
[subject to criminal forfeiture] who at the time of purchase was reasonably without
cause to believe that the property was subject to forfeiture.” 21 U.S.C. § 853(c);
18 U.S.C. § 1963(c) (same). The Harrison M emorandum concluded that this
statutory “bona fide purchaser” defense is not available to a state or locality as
serting a lien for tax liability incurred after the offense that made the property sub
ject to forfeiture.
W e conclude, consistent with the apparent assumption of the Harrison M em o
randum, that such tax liens are “property” or an “interest” in property under the
two crim inal forfeiture statutes. Both statutes define property broadly, as including
all “real property” and all “tangible and intangible personal property, including
rights, privileges, interests, claims and securities.” 21 U.S.C. § 853(b); 18 U.S.C.
§ 1963(b) (same); see also 21 U.S.C. § 853(c), (n)(6); 18 U.S.C. § 1963(c), (1)(6)
(forfeiture and bona fide purchaser defense provisions referring to “interest” in
such property). The legislative history and the courts’ application of this statutory
language also suggest a definition o f property interests broad enough to include
state and local tax liens on real property.8
H a m so n M em orandum , and had granted sum m ary ju d g m e n t ag ain st a county invoking the innocent ow ner
defense in 21 U .S.C . § 8 8 1 (a)(6), (7) to assert liens for properly taxes ow ed for som e o f the p en o d betw een
an o ffen se giving rise to forfeiture and the en try o f a ju d g m en t o f forfeiture. The appellate court rem anded
the cases for fu rth er co n sideratio n in light o f th e Suprem e C o u rt's d ecision in B uena Vista
In U n ite d S ta tes v 7501 S W Virginia St., N o 9 2 -9 2 1 -B E (D O re Aug. 3, 1993), the district court held
that a c o u n ty asserting a lien, for taxes accruing after the offense, in a forfeiture proceeding was an innocent
ow ner un d er § 8 8 1 (a)(6), but that the relation b ack doctrine had vested the title in the U nited States as o f the
date o f the o ffen se and therefore precluded p ay m en t o f the tax lien. T o support this conclusion, the court
quoted the p lu ra lity ’s statem en t in Buena Vista that “ [o]ur d ecisio n d enies the G overnm ent no benefits o f the
relation b ack d o ctrin e " Slip op. at 6 (quoting 507 U.S at 129). T he court has taken this quotation out of
context, in terp retin g it as m eaning, in effect, “ o u r decision denies the G overnm ent no benefits o f the relation
back d o c trin e as it had been understood, erro n eo u sly , in the case law that Buena Vista rejects ” T he district
court sim p ly m isu n d erstan d s o r ignores the S u p rem e C o u rt's holding. T his m isinterpretation does not ap
pear to be w idely shared by courts applying th e Buena Vista analysis o f the relation back d o c tn n e in analo
gous co n te x ts See, e.g , U nited States v D a cca rett, 6 F 3d 37, at 53-54 (2d C ir 1993); U nited States v
41741 N a t 7 Trails W ay, 989 F.2d 1089, 1091 (9th C ir. 1993); 2350 N .W 187 St., 996 F.2d 1141, 1144;
U nited State* v. O ne 1990 L in co ln Town Car, 817 F. Supp. 1575, 1579-80 ( N D G a 1993).
8
S e e S. R ep No. 98 -2 2 5 , at 193, reprinted in 1984 U S C .C A N at 3376 (section enacting current 18
U S C § 1963(c) and 21 U .S C § 853(c) “allo w s the use o f crim inal forfeiture as an alternative to civil for
feiture in all drug felony c ase s’*), id. at 211, rep rin ted in 1984 U .S.C C A N at 3394 (property defined as
subject to crim in al fo rfeiture under 18 U S C . § 1963(a) and 21 U S C . § 853(a) is equivalent to property
subject to civil fo rfeitu re un d er 21 U S C § 8 8 1 (a)), U nited S ta te s v. Reckm eyer, 836 F.2d 200, 205 (4th Cir.
1987) (u n secu red cred ito r w ho has reduced h is claim to ju d g m e n t and acquired a lien could seek an am end
m ent to a fo rfeitu re o rder under 21 U S C § 853(n)); U n ited S ta tes v R obinson, 721 F. Supp. 1541, 1545
(D .R .I. 1989) (a leaseh o ld in terest ordinarily is a real p roperty interest w ithin the definition m 21 U.S C
§ 8 5 3 (b )), se e also U n ited S ta tes v M onsanto, 491 U S. 600, 6 0 6 -09 (1989) (noting breadth o f forfeitable
property u n d e r 21 U S.C . § 853(a))
108
L ia b ility o f U S fo r Slate a n d Local Taxes on Seized and F orfeited P roperty
The Harrison Memorandum suggests two arguments — one based on the rela
tion back doctrine and another based on the definition of bona fide purchaser — to
support its conclusion that the bona fide purchaser defense does not extend to
holders of property interests that consist o f liens for state and local taxes for the
period after the offense and before a judgm ent of forfeiture.
A.
The Harrison M em orandum ’s central argument concerning the relation back
doctrine addresses the bona fide purchaser defense no less than the innocent owner
defense. See Harrison Memorandum, 15 Op. O.L.C. at 72. On the interpretation
set forth in the Harrison Memorandum, the United States has owned the property
since the com m ission of the offense giving rise to the criminal forfeiture, and no
one, including a bona fide purchaser, can later acquire any interest from the former
owner.
Although the question is a closer one than in the civil forfeiture context, we
conclude that the Supreme C ourt’s decision in Buena Vista rejects this argum ent as
well.9 We recognize that the plurality’s holding is based on a reading o f the civil
forfeiture statute (and its innocent owner provisions) and does not address the
criminal forfeiture statutes (and their bona fide purchaser provisions). That hold
ing also does not require the plurality to adopt the interpretation of the common
law relation back doctrine that the opinion sets forth. Nonetheless, the plurality’s
discussion of the common law doctrine makes clear that it agrees with the concur
rence that the relation back doctrine vests ownership retroactively in the United
States only upon entry of a final judgm ent of forfeiture. Under that reading, if a
state or locality establishes that it is a “bona fide purchaser” of an interest in the
property by virtue of a tax lien, and does so before a court orders forfeiture, the
order of forfeiture will not extend to the lien-holder’s interest and, therefore, will
not vest title to that interest in the United States.10
W e also recognize that the concurrence in Buena Vista suggests that the relation
back doctrine precludes a bona fide purchaser defense under the criminal statutes
where it allows an innocent owner defense under the civil statute. As the concur
rence points out, the criminal forfeiture statutes establish a procedure by which a
person asserting a bona fide purchaser defense raises that defense after the court
has entered an order o f forfeiture. See 21 U.S.C. § 853(n); 18 U.S.C. § 1963(1). In
contrast, the civil forfeiture process (on both the plurality’s and the concurrence’s
9 Cf. U nited S ta tes v H arry, 831 F Supp. 679, 686-87 (E D Iow a) (draw ing on B uena Vista d iscussion of
innocent ow ners to resolve bona fide p u rch aser issue under the crim inal forfeiture statute)
10 This conclusion w ould follow rather sim ply from the C o u rt's analysis in Buena Vista w hen the state or
locality asserts its bona fide purchaser defense at or before the proceedings in w hich the court issues an order
o f forfeiture T he con clu sio n is less certain under the procedure set forth in the crim inal forfeiture statutes,
which provides for assertio n o f bona fide purchaser claim s at a hearing held after the court issues an initial
order o f forfeiture T he rem ainder o f this subsection addresses this issue
109
Opinions o f th e O ffice o f L egal C ounsel
reading) contem plates that a person asserting an innocent owner defense will do so
before the court enters an order o f forfeiture. As the concurrence sees it, in the
former case, the court order already has vested title retroactively in the United
States (effective as o f the date o f the offense) before the “transferee” asserts a
claim to be a bona fide purchaser. In the latter case, however, the court will not yet
have issued the order vesting title retroactively when the “owner” asserts an inno
cent ow ner claim. (The concurrence argues that the civil statute’s use of the term
“ow ner” and the criminal statutes’ use of “transferee” reflects this distinction and
suggests its significance.) On this view, if a transferee’s claim to be a bona fide
purchaser succeeds and the court am ends the order of forfeiture, the amendment
does not void, retroactively, the initial retroactive vesting of title in the United
States. The am endm ent to the initial order of forfeiture simply effects a new trans
fer of title to the bona fide purchaser, leaving undisturbed the United States’ own
ership from the time o f the offense to the time o f the amendment to the forfeiture
order. See Buena Vista, 507 U.S. at 136 (Scalia, J., concurring).
The Buena Vista concurrence fails to establish, however, that the criminal for
feiture statutes’ bona fide purchaser defense does not protect liens for state and
local tax liabilities incurred after the offense giving rise to the forfeiture. Only the
concurrence advances the argument. The plurality does not join in it, and nothing
in the dissenting opinion suggests that the dissenters would adopt the concurrence’s
views.
Further, the concurrence’s argum ent reads too much into the actual, multi-step
procedures by which a court adjudicates a criminal forfeiture claim. It thereby
overlooks — or confuses those procedures with — the more fundamental legal
(and fictional) process through which a retroactive transfer o f ownership occurs.
The better interpretation o f the criminal forfeiture statutes is that the procedures of
entering an order of forfeiture, holding a hearing at which transferees assert claims
to be bona fide purchasers, and am ending the order of forfeiture upon successful
presentation o f such a claim are but phases in a single (if protracted) process for
determ ining what property interest vests, retroactively, in the United States when
the court enters its final, amended order of forfeiture. The entire process is the
equivalent o f the single order of forfeiture in the civil context.
This interpretation fits more easily with the statutory language, especially when
that language is read in light of the discussion in Buena Vista of common law rela
tion back doctrine. The criminal forfeiture statutes provide that title in property
subject to forfeiture “shall be ordered forfeited to the United States unless the
transferee establishes” that he is a bona fide purchaser for value, and that “the
United States shall have clear title to [the] property” only “following the court’s
disposition o f all petitions” filed by transferees asserting claims to be bona fide
purchasers. 21 U.S.C. § 853(c), (n)(7); 18 U.S.C. § 1963(c), (1)(7) (emphasis
added). Such language would seem to suggest that the United States never obtains
title from a bona fide purchaser, not that the U nited States first obtains title and
110
L iability o f U S. f o r State an d Local T axes on Seized a n d F orfeited P roperty
then must give it back. Only after the entry o f the final, amended order of forfei
ture would ownership vest retroactively in the United States.11
This conclusion also avoids an incongruity that the concurrence’s interpretation
would create: an innocent owner (under the civil statute) would owe state and lo
cal taxes from the moment he or she acquired the property, but a bona fide pur
chaser for value (under the criminal statutes) would not owe taxes from the time he
or she acquired the property until the time the court amended the order o f forfei
ture.
Finally, the conclusion we reach also is consistent with the statutory distinction
between “ow ner” and “transferee.” A person claiming to be a bona fide purchaser
is nothing more than a transferee until he or she establishes to the court that he or
she is a bona fide purchaser (whether the transferee does so after an initial forfei
ture order, as the statute contemplates, or at some earlier stage). Only after the
transferee has made this showing is he or she recognized as an owner (indeed, an
innocent owner) of a particular type. Similarly, a person claiming to be an inno
cent owner is recognized as an innocent owner only after he or she proves to the
court that he or she meets the standards o f innocent ownership. Before that, such a
person is, in the eyes of the court, merely a transferee. The civil forfeiture laws
simply do not address or refer explicitly to those who assert, but have not yet es
tablished, that they are innocent owners.
For these reasons, we do not believe that the concurrence’s discussion o f the le
gal significance of the differences between the civil and criminal forfeiture statutes
(which, in any case, is unnecessary to its conclusions) is correct.
B.
The Harrison Memorandum also states that state and local tax authorities cannot
“qualify as bona fide purchasers for value” under the criminal forfeiture statutes.
Harrison M emorandum, 15 Op. O.L.C. at 72. The Memorandum does not set forth
the basis for this conclusion. The Buena Vista plurality and concurrence have
nothing to say about this issue and, thus, do not require a reversal o f the Harrison
Memorandum. Although the matter is not free from doubt, we believe that the
stronger argument is that state and local tax lien-holders are not “bona fide pur
chasers.”
11
A lthough the statutory language does not fit perfectly w ith the interpretation adopted here, som ew hat
im precise drafting concerning the sequence o f events leading to a retroactive vesting o f title is, as the B uena
Vista concurrence points out, perhaps to be expected in a legal culture fam iliar with retroactive vesting See
Buena Vista, 507 U S al 134.
M oreover, the legislative history o f the crim inal forfeiture provisions also seem s to su pport the in te rp reta
tion set forth in this M em orandum . It refers to hona fide p u rch aser claim s, raised after the initial forfeiture
order, as “ in essence, . . . challenges to the validity o f the o rder o f forfeiture," and, w hen successful, as
■‘render[ing] that portion o f the o rder o f forfeiture reaching [the bo n a fide p u rc h a se r's] interest in v a lid ” S
Rep. No. 98-225, at 208, reprinted in 1984 U S C .C .A .N . at 3391 (em phasis added)
111
O pinions o f the O ffice o f L egal C ounsel
The courts have not adopted a clear and uniform view of how to interpret “bona
fide purchaser” under the criminal forfeiture statutes. See, e.g., United States v.
Lavin, 942 F.2d 177, 182-89 (3d Cir. 1991) (bona fide purchaser acquires interest
through volitional, advertent and, generally, commercial transaction; victim of em
bezzlem ent acquired interest through unwitting and inadvertent tortious action of
another and therefore was not a bona fide purchaser); Reckmeyer, 836 F.2d at 20608 (bona fide purchaser includes a general, unsecured creditor of defendant who
gave value to defendant in arms’-length transaction with expectation that he would
receive equivalent value in the future, and whose interest must have been in some
part o f the forfeited property because debtor’s entire estate had been forfeited); cf.
United States v. Campos, 859 F.2d 1233, 1237-38 (6th Cir. 1988) (general, unse
cured creditor is not a bona fide purchaser, because he does not have a legal inter
est in the forfeited property); Torres v. $36,256.80 U.S. Currency, 827 F.Supp.
197, 203 (S.D .N .Y . 1993) (similar to Campos', also pointing out significance, for
general, unsecured creditor, of unusual circumstance in Reckmeyer that entire es
tate had been seized); United States v. Mageean, 649 F. Supp. 820, 824, 829 (D.
Nev. 1986) (definition of bona fide purchaser cannot be “stretch[ed]” to include
tort claim ants, but “there is no reason that a good-faith provider o f goods and
services,” although an unsecured creditor, “cannot be a bona fide purchaser”), a ff’d
without opinion, 822 F.2d 62 (9th C ir. 1987); see also United States v. 3181 S. W.
138th Place, 778 F. Supp. 1570, 1574-75 (S.D. Fla. 1991) (civil forfeiture case
stating that locality is not bona fide purchaser by virtue of tax lien), vacated on
other grounds, 996 F.2d 1141 (11th Cir. 1993); S. Rep. No. 98-225, at 201, 209,
reprinted in 1984 U.S.C.C.A.N. at 3384, 3392.
W e are aw are o f no case that has decided the precise question at issue here. We
acknow ledge that some o f the claim s that courts have rejected are weaker than
those presented by tax liens, and that at least one court has pointed to a primary
purpose o f the crim inal forfeiture statutes’ relation back provisions that would not
be served by denying the bona fide purchaser defense to holders o f liens for state
and local taxes. See Reckmeyer, 836 F.2d at 208 (“C ongress’s primary concern in
adopting the relation-back provision was to make it possible for courts to void
sham or fraudulent transfers that w ere aimed at avoiding the consequences of for
feiture”). N onetheless, we have found no authority that has construed bona fide
purchaser broadly enough to encompass such a tax lien-holder.
A state or locality does provide something o f value, in the form of government
services, in return for the interest it acquires in property (ultimately in the form of a
lien) by virtue o f its taxing authority. This exchange, however, does not fit the
transactional, arm s’-length exchange of values contemplated in the case law and
suggested by the statutory phrase “bona fide purchaser for value.” 12
12
See, e g., L a vtn , 942 F 2d at 185-86 (C o n g re ss deriv ed bona fide purchaser exception '‘from hornbook
co m m ercial law ” p rin cip le o f protecting th e ‘“ innocent p u rch aser for valuable c o n sid e ra tio n ’” w hich had
d e v elo p ed at co m m o n law “ in order to p ro m o te finality in com m ercial transactions and thus to . . foster
112
L ia b ility o f U.S. fo r Stale an d Local Taxes on Seized an d F orfeited Property
Therefore, we do not reverse the Harrison Memorandum’s conclusion that the
bona fide purchaser provisions cannot be relied upon to require payment of state
and local tax liens.13
III.
For the reasons set forth above, we reach the following conclusions: In civil
forfeiture proceedings (under 21 U.S.C. § 881), the United States may — and, in
deed, must — 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 o f forfei
ture, 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 pro
ceedings (under 18 U.S.C. § 1963 or 21 U.S.C. § 853), however, 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.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
com m erce” ), Reckm ever, 836 F 2 d at 208 (scope o f bona fide p urchaser provision “construed liberally'* is to
protect “all persons who give value to the defendant in an arm s’-length transaction w ith the expectation that
they w ould receive equivalent value in return” )
The H arrison M em orandum also found that paym ent o f liens for state and local taxes, accruing after the
offense, was not w ithin the A ttorney G e n eral’s discretionary authority under 28 U.S C § 524(c)(1)(D )
(“'paym ent o f valid liens
. against property that has been forfeited") or 28 U .S.C § 524(c)( 1)(E) (paym ents
“in connection w ith rem ission o r m itigation procedures relating to property forfeited” ). W e reach the same
conclusion through a different analysis A tax lien-holder who establishes that he or she is an innocent
ow ner under the civil forfeiture statute or a bona fide purchaser under the crim inal statutes is protected from
the operation o f the relation back doctrine, and need not rely on the A ttorney G e n eral's discretionary pay
m ent o f a valid hen o r rem ission o r m itigation of a forfeiture that has not occurred w ith respect to the lien
h o ld e r's interest S ee S. Rep. No. 98-225, at 207-08, 217, rep rin ted in 1984 U.S C C A .N at 3390-91, 3400,
Lavin, 942 F 2 d at 185 (bona fide purchaser provisions designed to require protection previously left to
discretion o f A ttorney G eneral). If the tax lien-holder fails to establish that he or she is protected by one of
these defenses to forfeiture, there can be no “valid lien” for taxes to be paid and no forfeited interest (in the
form o f tax liabilities) for the A ttorney G eneral to "rem ift] o r m itigat[e] ” B ecause ow nership of the property
will have vested in the U nited States as o f the com m ission o f the offense, state and local authorities cannot
(absent a congressional w aiver o f im m unity from stale and local taxation that we do not find in 28 U .S C.
§ 524 or elsew here) levy taxes on such property after the dale o f the offense any more than they co u ld levy
taxes on a federal courthouse o r post office
113 |
|
Write a legal research memo on the following topic. | Applicability of the Cargo Preference Act to the
Transportation of Alaskan Oil
to the Strategic Petroleum Reserve
Shipments of Alaskan oil for the Strategic Petroleum Reserve, made on commercial United
States-flag ships as required by the Jones Act, 46 U.S.C. § 883, may be counted by the
Department o f Energy towards the 50% United States-flag cargo preference share required by
the Cargo Preference Act, 46 U.S.C. § 1241(b).
The Cargo Preference Act, 46 U.S.C. § 1241(b), applies to both foreign and domestic cargoes
procured by the United States, and is not limited to commerce in which United States-flag
vessels face foreign com petition. In addition, the Act is an “otherwise applicable Federal
procurement statute” that may be waived by the Secretary of Energy under § 804(b) o f the
Energy Security Act, 10 U.S.C. § 7340(k).
September 15, 1983
M
em orandum
O
p in io n f o r t h e
and the
Secretary
Secretary
of
of
T r a n s p o r t a t io n
E nergy
This responds to your joint request to the Attorney General for an opinion on
the following question:
Whether commercial United States-flag oil shipments to the
Strategic Petroleum Reserve from Alaska may be counted to
wards the 50% United States-flag cargo preference share re
quired by the Cargo Preference Act.
Under the terms of an interagency agreement, you agreed to submit this
question to the Attorney General in order to resolve a dispute between your two
Departments. The Attorney General has referred your request to this Office for
decision.
For the reasons set forth below, we conclude that shipments of Alaskan oil
for the Strategic Petroleum Reserve, made on commercial United States-flag
ships as required by the Jones Act, 46 U.S.C. § 883, may be counted towards
the 50% United States- flag cargo preference share required by the Cargo
Preference Act, 46 U.S.C. § 1241(b).
In addition, the Department of Energy (DOE) has asked us to address two
related questions:
Where oil produced from the Naval Petroleum Reserves is ex
changed for other oil to be delivered to the Strategic Petroleum
139
Reserve, pursuant to § 804(b) of the Energy Security Act, 10
U.S.C. § 7430(k), may the exchange be conducted without re
gard to the Cargo Preference Act, and the deliveries excluded from
the 50% United States-flag compliance calculation under that Act?
Does the Cargo Preference Act require that the Department of
Energy and its procurement agents at the Department of De
fense, in future oil deliveries to the Strategic Petroleum Reserve,
make up any past year shortfalls from the Act’s 50% United
States-flag standard?
The Department of Transportation (DOT) takes the view that the two additional
questions submitted by DOE are covered by the interagency agreement be
tween DOT and DOE, and therefore no outstanding dispute exists between the
two agencies with respect to those questions. In an effort to provide as much
guidance as possible to both agencies, we address below the strictly legal issues
raised by DOE’s separate questions. That legal analysis, however, does not
dispose of the problem, because your agencies take different views as to the
scope and intent of their obligations as agreed upon in the interagency agree
ment. We are not in a position to interpret that agreement and do not attempt to
do so here. We recommend that, if you cannot resolve your differing interpreta
tions of the agreement, the matter be referred to appropriate higher levels in the
Executive Branch.
In analyzing the questions presented to us, we have examined the views of
each of your departments, the views of the Office of Management and Budget,
and our independent research.
I
The questions we consider here arise out of the interplay between DOE’s
obligation to comply with congressional mandates to fill the Strategic Petro
leum Reserve (SPR), a stockpile of crude oil intended to provide protection
against interruption in energy supplies to the United States, and its obligations
and authority under three other statutes: (a) the Cargo Preference Act, 46
U.S.C. § 1241(b); (b) the Jones Act, 46 U.S.C. § 883; and (c) the Energy
Security Act, 10 U.S.C. § 7430(k). We outline below the relevant portions of
each of those statutes.1
1 T he SPR w as authorized by Title I, P a rt B, o f the Energy Policy and C onservation Act, Pub. L. No. 9 4 163, 89 Stat. 8 8 1 -9 0 (1975) (codified at 4 2 U.S.C. §§ 6 2 3 1 -6422). C ongress has repeatedly legislated with
resp ect to the fill rate fo r the SPR. See P ub. L. No. 9 7 -3 5 , T itle X, 95 Stat. 619 (1981); Pub. L. No. 96-294,
§ 8 0 1 , 94 Stat. 775 (1980); Pub. L. N o. 9 6 -5 1 4 , 94 Stat. 2964 (1980). Most recently, in the Energy
E m ergency Preparedness A ct o f 1982, Pub. L. No. 9 7 -2 2 9 , § 4 , 96 Stat. 250-52, Congress required the
P resident to fill the SPR at a rate o f 300,000 barrels per day unless he finds that this rate is not in the national
interest, in w hich ev en t the minimum req u ired fill rate is 220,000 barrels per day if appropriations are
availab le to achieve this rate, o r the highest practicable fill rate that would fully use available appropriations.
D O E is resp o n sib le fo r administration o f the SPR, including the acquisition, transportation, and storage o f
crud e oil. See 42 U .S.C. §§ 6233, 6240. Pursuant to an interagency agreem ent, the Defense Fuel Supply
C en ter acts as the D epartm ent of E n e rg y 's procurem ent ag en t and actually solicits offers and awards
contracts (w ith D O E’s approval) for the acquisition o f oil.
140
A. Cargo Preference Act
Ocean shipments of crude oil for the SPR are generally subject to the
requirements of the Cargo Preference Act, Pub. L. No. 83-664, 68 Stat. 832
(1954) (codified as amended at 46 U.S.C. § 1241(b)).2 The Act provides in
pertinent part that:
Whenever the United States shall procure, contract for, or
otherwise obtain for its own account, or shall furnish to or for
the account of any foreign nation without provision for reim
bursement, any equipment, materials, or commodities, within or
without the United States, or shall advance funds or credits or
guarantee the convertibility of foreign currencies in connection
with the furnishing of such equipment, materials, or commodi
ties, the appropriate agency or agencies shall take such steps as
may be necessary and practicable to assure that at least 50 per
centum of the gross tonnage of such equipment, materials, or
commodities . . . which may be transported on ocean vessels
shall be transported on privately owned United States-flag com
mercial vessels, to the extent such vessels are available at fair
and reasonable rates for United States-flag commercial vessels,
in such manner as will insure a fair and reasonable participation
of United States-flag commercial vessels in such cargoes by
geographic areas.
Thus, the Cargo Preference Act requires DOE to take “such steps as may be
necessary and practicable to assure that at least 50 per centum” of oil for the
SPR that is transported on ocean vessels be transported on United States-flag
commercial vessels, if such vessels are available at fair and reasonable rates for
United States-flag commercial vessels.
B. Jones A ct
Although most of the oil shipped to the SPR has been obtained from foreign
sources, such as the Persian Gulf, the North Sea, North Africa, and the Carib
bean, a substantial volume was shipped, particularly in 1981, from the Alaskan
North Slope Fields via Valdez, Alaska, to SPR receiving docks in Texas and
Louisiana.3 Because these shipments of Alaskan oil took place between United
States ports, they were subject to the Jones Act, Act of June 5,1920, ch. 250,41
Stat. 988, 999 (codified as amended at 46 U.S.C. § 883).4 The Jones Act
provides in relevant part that:
2 The C argo Preference Act added a new subparagraph (b) to § 901 o f the M erchant M arine Act o f 1936,
Pub. L. No. 7 4 -8 3 5 , 49 Stat. 1985.
3 DOE has inform ed us that approxim ately 10 7 percent o f oil stored in the SPR as of D ecem ber 31, 1982,
was produced in Alaska.
4 The Jones Act is one in a series o f statutes, beginning in 1789, w hich have im posed general restrictions on
the transportation o f freight in coastw ise traffic by vessels not ow ned by citizens o f the U nited States. See
Central Vermont Co. v. D u m in g , 294 U.S. 33, 38 & n .l (1935).
141
No merchandise shall be transported by water, or by land and
water, on penalty of forfeiture thereof, between points in the
United States, including Districts, Territories, and possessions
thereof embraced within the coastwise laws, either directly or
via a foreign port, or for any part of the transportation, in any
other vessel than a vessel built in and documented under the
laws of the United States and owned by persons who are citizens
of the United States, or vessels to which the privilege of engag
ing in the coastwise trade is extended by section 13 or 808 of
this title.
46 U.S.C. § 883. In accordance with the terms of the Jones Act, we understand
that shipments of Alaskan oil for the SPR have been made entirely in United
States-flag commercial vessels.
C. E nergy Security A ct
The Energy Security Act (ESA), Pub. L. No. 96-294, 94 Stat. 611 (1980),
was passed in the aftermath o f the 1979 Iranian supply disruption, when efforts
to fill the SPR fell behind the approved fill schedule and oil purchases for the
SPR came to a halt. In the ESA, passed in June 1980, Congress required that the
SPR oil fill be resumed and sustained at an average rate of at least 100,000
barrels per day. In order to facilitate this fill rate, Congress authorized the
Secretary of Energy to store oil from the Naval Petroleum Reserves (NPR)5 in
the SPR, or to:
(B) exchange, directly or indirectly, that petroleum [from the
NPR] for other petroleum to be placed in the Strategic Petroleum
Reserve under such terms and conditions and by such methods as
the Secretary determines to be appropriate, without regard to other
wise applicable Federal procurement statutes and regulations.
Pub. L. No. 96-294, § 804(b), 94 Stat. 777 (1980) (codified at 10 U.S.C.
§ 7430(k)(l)). In 1980 and 1981 DOE used the authority in the ESA to place in
the SPR a substantial amount of crude oil that had been exchanged for NPR oil.
II
A. A p p licability o f the Cargo Preference A ct to Jones Act Cargoes
The question you have jointly referred to us for decision is whether ship
ments of Alaskan oil — 100 percent of which were made in United States-flag
commercial vessels pursuant to the Jones Act — may be counted towards the
50 percent Cargo Preference Act share for the SPR program. DOT takes the
5 The N aval Petroleum Reserves in c lu d e several specific crude oil or petroleum reserves designated
originally by executive o rd er and now specifically authorized by 10 U .S.C. §§ 7420-7438. In general, the
reserves may be used for production o f petroleum only if specifically authorized by joint resolution of
C ongress and approved by the President. Id. § 7422(b).
142
position that the Cargo Preference Act reserves 50 percent of foreign oil
transported to the SPR for United States-flag tankers, and asserts that DOE
must base its Cargo Preference Act compliance calculation only on foreign
shipments. DOT maintains that the purpose and legislative intent of the Cargo
Preference Act is to reserve 50 percent of government-generated cargo for
United States-flag vessels in commerce in which the United States vessels face
competition from foreign-flag vessels, i.e., import or export foreign commerce.
Because foreign-flag vessels are already excluded by operation of the Jones
Act from domestic trade, DOT contends that government-procured or owned
cargoes shipped in such commerce should not be included in the calculation of
Cargo Preference Act compliance. DOT points out that the effect of allowing
Jones Act cargoes to be included in the Cargo Preference Act calculation would
be to reduce the share of foreign trade that must be reserved to United Statesflag commercial ships — a result DOT contends is “entirely inconsistent” with
the purpose of the Cargo Preference Act.
DOE’s position is that the plain language of the Cargo Preference Act covers
all government-procured or owned cargoes, which would include Alaskan oil
shipments, and that, while the Act may have been passed primarily to deal with
foreign cargoes exported from or imported into the United States, the legisla
tive history of the Act does not demonstrate any clear congressional intent to
limit that language to foreign cargoes. As a policy matter, DOE maintains that
exclusion of Alaskan oil shipments from the calculation of its Cargo Preference
Act share for the SPR program would substantially increase the overall cost of
acquisition of oil for the SPR, inconsistently with the goal of minimizing the
cost of the SPR, see 42 U.S.C. § 6231,6 particularly if DOE is required to make
up shortfalls from the 50 percent level for prior years.7
The question is a close and novel one, and the arguments made in support of
both positions have been skillfully presented and have considerable merit.
After a careful review of the memoranda provided to us, an independent review
of the legislative history of the Cargo Preference Act, and additional research,
we conclude that DOE may include Jones Act shipments of Alaskan oil in the
calculation of its overall 50 percent Cargo Preference Act compliance level for
the SPR program.
6 A lthough DOE notes that “ m inim ization o f the cost o f the Reserve” is an objective set forth in the Energy
Policy and Conservation A ct, 4 2 U.S.C. §§ 6231-6422, it does not assert that the SPR program itse lf has been
exem pted from the C argo Preference Act.
7 For calendar year 1982 alone, DOE calculates that it would be in com pliance w ith the Cargo Preference
Act, whether or not A laskan oil shipm ents are counted. For the years 1981-82, DOE states that it would be in
compliance with the C argo Preference A ct SO percent share if A laskan oil shipm ents were included; if such
shipments w ere excluded, the share o f SPR oil shipm ents carried in United States flag-com m ercial vessels
would fall to roughly 39 percent. For the period 1977-1982, covenng m ost o f the acquisition for the SPR, the
Cargo Preference Act com pliance percentage including Alaskan shipments would be either 48.9 percent (if
Naval Petroleum Reserve exchanges are excluded, see below) o r 46.3 percent (if N aval Petroleum Reserve
exchanges are included); w ithout Alaskan oil shipments, the compliance figure would be 41.9 percent
(excluding N aval Petroleum R eserve exchanges) or 38.6 percent (including Naval Petroleum R eserve ex
changes). To the extent D OE is required to make up any shortfall from the 50 percent level, it w ould have to
do so by using relatively expensive U nited States com m ercial vessels, which w ould increase the overall cost
o f SPR acquisitions.
143
Our touchstone in reaching that conclusion is “the familiar canon of statu
tory construction that the starting point for interpreting a statute is the language
of the statute itself. Absent a clearly expressed legislative intention to the
contrary, that language must ordinarily be regarded as conclusive.” Consumer
P roduct Safety C om m ’n v. G T E Sylvania, 447 U.S. 102, 108 (1980); see also
U nited States v. Turkette, 452 U.S. 576,580 (1981); United States Lines, Inc. v.
Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982).
On its face the language o f the Cargo Preference Act covers all governmentprocured or owned cargoes transported on ocean vessels, which would include
government cargoes transported between United States ports, as well as car
goes transported to or from a foreign port. The Act applies “/ w jhenever the
United States shall procure . . . equipment, materials, or commodities within or
without the United States.” 46 U.S.C. § 1241(b) (emphasis added). The Act
carves out certain explicit exceptions to the 50 percent United States-flag
vessel requirement, but does not make any specific exception for cargo that is
subject to the Jones Act 100 percent United States-flag requirement, or any
general exception for cargoes transported in trades in which there is, by
operation of statute, no foreign competition.8
DOT urges that we must interpret that language in light of the Act’s legisla
tive history, which DOT maintains demonstrates a clear congressional intent
that the 50 percent United States-flag requirement should apply only to cargoes
shipped in trades in which the United States vessels face foreign competition.
In order to reach the conclusion advocated by DOT, we would have to infer a
further exception, in addition to the explicit exceptions in the Act, for Jones Act
cargoes. DOT suggests that the implied exception would cover only cargoes
that must be transported in United States vessels pursuant to the first clause of
the Jones Act; DOT takes the position that domestic shipments that may be
made in foreign vessels, pursuant to the third proviso of the Jones Act, would
be covered by the general language of the Cargo Preference Act.9
In general, we find the legislative history of the Cargo Preference Act to be
inconclusive on the question of congressional intent. We are unwilling on the
basis of that history to infer a specific exception, from the broad language used
by Congress, for government cargoes that are otherwise subject to the Jones Act.10
8 Specifically, the A ct does not ap p ly to cargoes carried in vessels o f the Panam a Canal C om pany, or to
certain vessels rebuilt abroad, if the o w n e r notified the M aritim e A dm inistration prior to Septem ber 21, 1961,
o f its intent to docum ent the vessel u n d e r United States registry. 4 6 U.S.C. § 1241(b).
9 T he th ird proviso o f the Jones A ct exem pts from the exclusive U nited States-flag transportation require
m ent “m erchandise transported betw een points w ithin the continental United States, including Alaska, over
through r o u te s . . . recognized by the In terstate C om m erce C om m ission for which routes rate tariffs have been
o r s h a ll. . . be filed w ith [the ICC] w hen such routes are in part over C anadian rail lines and their own or other
connecting w ater fa cilities.” 46 U .S.C. § 883.
10 W e note that, as a general matter o f statutory construction, im plied exceptions are disfavored, especially
if the statute contains an express ex cep tio n . See, e.g.. C onsum er Product Safety C om m ’n v. GTE Sylvania,
447 U .S. at 108; A n dru s v. Glover C onstr. Co., 446 U.S. 608, 6 1 6 -1 7 (1980); see generally 2A Sands,
S u th erla n d on Statutory Construction (4th ed. 1973). T his principle would not necessarily preclude us, in a
p ro p er case, from reading particular statutory language narrow ly in order to im plem ent clear congressional
intent. H ow ever, as w e discuss above, the legislative history o f the C argo Preference Act is not clear on this
point, and w e are therefore unwilling to infer the exception DOT suggests.
144
As DOT points out and DOE acknowledges, the primary impetus for passage
of the Cargo Preference Act was to promote the United States shipping industry
against low-cost competition from foreign flag vessels, by reserving to United
States-flag vessels a “substantial portion” of cargoes over which the United
States has some control. DOT notes that the congressional debates and reports
on S. 3233, which became the Cargo Preference Act, contain numerous state
ments emphasizing that the purpose of the bill was to assure to privately owned
United States merchant flag vessels a “substantial portion of the water-borne
export and import foreign commerce,” in which those vessels faced massive
foreign competition. See, e.g., S. Rep. No. 1584, 83d Cong., 2d Sess. 1 (1954);
H.R. Rep. No. 2329, 83d Cong., 2d Sess. 1 (1954); 100 Cong. Rec. 4158-59
(1954) (remarks of Sen. Butler).
These statements, however, do not necessarily indicate that Congress in
tended that the bill, despite its broad language, would apply only to commerce
in which United States-flag vessels face foreign competition.11 We find it
significant that the bill was intended to apply to two distinct types of cargoes:
foreign-aid cargoes that are furnished or financed by the United States for the
benefit of another nation, which necessarily will be “foreign” cargoes, and
cargoes procured by the United States for its own use, which as a practical
matter could be foreign or domestic. Most of the legislative history focuses on
the first type of cargo, and therefore emphasizes that the primary applicability
of the bill would be with respect to foreign- cargoes.12
The language used in the legislative history to describe the obligations
imposed with respect to cargoes obtained by the United States for its own use,
however, is not restricted to foreign cargoes. For example, the House Report
states that the bill would apply in four situations:
(1) Where the United States procures, contracts, or otherwise ob
tains for its own account equipment, materials, or commodities;
11 In support o f its reading o f the legislative history and purpose o f the Cargo Preference A ct, DOE cites
recent statem ents made by S enator Slade Gorton, C hairm an o f the Senate Commerce C om m ittee’s M erchant
M arine Subcommittee, during the S ubcom m ittee's June 16, 1982 oversight hearings on adm inistration of the
Act, as well as recent correspondence from the chairm an and ranking mem ber o f the House M erchant Marine
and Fisheries Com m ittee and the chairm en o f the H ouse Committee on Energy and Commerce Subcom m ittee
on Fossil and Synthetic Fuels. Although these statem ents m ight reflect the view s of those particular
legislators on w hether Jones Act shipm ents should, as a m atter o f current legislative policy, be included in
C argo Preference A ct calculations, they may not be accorded significant w eight in determ ining C ongress'
intent when it passed the C argo Preference Act in 1954. Even contem poraneous remarks o f individual
legislators are not controlling in analyzing legislative intent. M oreover, the “views o f a subsequent Congress
form a hazardous basis for inferring the intent o f an earlier one.” C onsum er P roduct Safety Com m 'n v GTE
Sylvania, 447 U.S. at 117 (quoting United States v. Price, 361 U.S. 304, 313 (I960)).
12 For exam ple, the legislative history behind inclusion o f the phrase “w ithin or w ithout the U nited States”
em phasizes that C ongress’ prim ary purpose was to reach “off-shore procurem ent” foreign-aid c argoes — i.e.,
situations in which the U nited States purchased o r financed the purchase of cargoes in one foreign country,
for shipment to another foreign country. See, e.g., 100 C ong. Rec. 41 5 8 -5 9 (1954) (remarks o f Sen. Butler).
The language “ without the U nited States” was intended to assure that the transportation o f such cargoes
w ould be subject to the 50 percent preference requirem ent. This legislative history is not, how ever, necessar
ily inconsistent with the conclusion that the 50% preference share m ight also apply to domestic cargoes, but
rather reflects C ongress’ principal focus on foreign aid-type cargoes. See generally United States Lines, Inc.
v. Baldridge, 677 F.2d at 944.
145
(2) furnishes equipment, materials, or commodities to or for the
account of any foreign nation without provision for reimbursement;
(3) advances funds or credits; or
(4) guarantees the convertibility of foreign currencies in con
nection with the furnishing of such equipment, materials, or
commodities.
H.R. Rep. No. 2329, supra, at 1-2. There is no suggestion in the language used
to describe government-procured or owned cargoes that the reach of the Act
must be limited to foreign cargoes procured by the United States.
In fact, there is some indication in the legislative history that Congress was
aware that the Act could apply to cargoes acquired domestically by the United
States for its own use. The Senate Report notes that the bill affirmed the
principle established by Congress in 1904, when it required that “vessels of the
United States or belonging to the United States, and no others, shall be
employed in the transportation by sea of coal, provisions, fodder, or supplies of
any description, purchased pursuant to law, for the use of the Army or Navy,”
Act of Apr. 28, 1904, ch. 1766, 33 Stat. 518, as amended, 70A Stat. 146 (1956)
(codified at 10 U.S.C. § 2631). See S. Rep. No. 1584, supra, at 2. The 1904
legislation, which was not repealed by the 1954 Cargo Preference Act, is
clearly not limited to transportation of foreign cargoes, but applies also to
cargoes acquired domestically by the Army or Navy. See generally 38 Cong.
Rec. 2464-65 (1904) (remarks of Rep. Perkins) (quoted in 43 Comp. Gen. 792,
797-98 (1964)).
Our conclusion that the language of the Cargo Preference Act applies to
domestic, as well as foreign, cargoes has some support in a 1964 decision of the
Comptroller General with respect to application of the 1904 act cited above, the
Cargo Preference Act, and the Jones Act to a proposed trainship service
between the United States and Alaska, via Canada. With respect to the applica
bility of the Cargo Preference Act, the Comptroller General stated that:
The 1954 Cargo Preference Act by amending section 901 of
the Merchant Marine Act of 1936, 49 Stat. 2015, 46 U.S.C.
§ 1241, provided permanent legislation covering the transporta
tion of a substantial portion of waterborne cargoes in United
States-flag vessels. In H. Rept. No. 80, Administration of Cargo
Preference Act, 84th Congress, 1st Sess., page 2, it is stated that
the 50-percent provisions of the 1954 Cargo Preference Act are
to apply “in four kinds of situations” the first being where the
United States “procures, contracts or otherwise obtains for its
own account equipment, materials, or commodities,” and the
remaining three covering transactions involving foreign sub
jects or nations. This fir s t situation is not restricted in terms to
either fo reig n or dom estic commerce. In harmony with the basic
maritime policy of the United States as stated in section 101 of
146
the Merchant Marine Act of 1936,46 U.S.C. § 1101, and on the
basis of the language alone, the 1954 act might be regarded as
relating to Government waterborne cargo transported between
p oin ts in the United States.
43 Comp. Gen. 792, 802 (1964) (emphasis added). The Comptroller General
did not, however, find it necessary in that decision to determine whether the
Act covers transportation in domestic, as well as foreign commerce.
We do not find persuasive DOT’s further argument that inclusion of Jones
Act cargoes in the calculation of DOE’s Cargo Preference Act share for the
SPR program would be so inconsistent with the purpose of the Cargo Prefer
ence Act that we must imply an exception from that Act for Jones Act ship
ments. The purpose of both acts, however it may be characterized, is the same:
to reserve cargoes for United States-flag vessels in order to promote and protect
the United States shipping industry, which may be called upon in times of war
or national emergency to play a vital sealift role in supplying American forces.
The Cargo Preference Act achieves this purpose by requiring United States
agencies to reserve a substantial portion of their cargoes for United States-flag
commercial vessels. The Jones Act achieves that purpose by reserving all
domestic coastwise trade to United States vessels.13 In practical terms, we
understand that allowing Jones Act cargoes of Alaskan oil to be counted in
DOE’s Cargo Preference Act share for the SPR program may disadvantage
United States-flag tankers in the foreign crude oil trades, because inclusion of
Jones Act shipments would lower the ;percentage of foreign oil cargoes that
must be shipped on United States vessels in order to reach the 50 percent Cargo
Preference Act share. However, we do not understand that the effect of inclu
sion of the Jones Act shipments will be so great as to undermine or frustrate the
purposes served by the Cargo Preference Act, and we cannot say that this result
is so contrary to Congress’ intent in enacting the Cargo Preference Act that it
would justify an Executive Branch revision of the statutory language. See
generally United States v. American Trucking A s s ’n, 310 U.S. 534,543 (1940).
DOT has also argued that, as a matter of statutory construction, the Cargo
Preference Act must be interpreted to cover only cargoes transported in trades
in which United States-flag ships face foreign competition, because the Act
would be unnecessary in a domestic trade from which foreign-flag vessels are
already excluded. Therefore, DOT contends, it would be “inconsistent with
accepted norms of statutory construction to interpret the Cargo Preference Act
to apply to a trade where it was unneeded.” The question we address here,
however, is not whether, when the United States procures cargoes that are
13 W e see no reason here to address the effect o f the A ttorney G en eral's opinion in 1907 that a predecessor
statute to the Jones Act did not apply to governm ent-ow ned cargoes. See 26 Op. A tt’y Gen. 415 (1907). The
applicability o f that opinion to the Jones Act and its continued validity is, as D OT notes, open to some
question. DO E states, how ever, that the A laskan oil acquired for the SPR was bought on an f.o.b. destination
basis, so that title was held during the transportation by the private ow ner and not by the U nited States
Governm ent. The Jones A ct clearly applies to transportation o f privately ow ned cargoes, and therefore
applied to the transportation o f SPR oil.
147
subject to the Jones Act, it must also comply with the Cargo Preference Act. If
that were the question, we might concur with DOT’s analysis, because it would
arguably be superfluous to require compliance with the Cargo Preference Act’s
50 percent United States-flag ship requirement in a situation in which the Jones
Act already requires 100 percent United States-flag ship carriage. However, the
question we address is whether, when the United States engages in a program
of acquisition that includes both Jones Act and non-Jones Act shipments, it
may count the Jones Act shipments towards its overall Cargo Preference Act
share. Seen in that light, we do not believe the Cargo Preference Act can be
regarded as superfluous, because it would still require the agency to take
necessary and practicable steps to reach an overall 50 percent compliance
level.14
In sum, while the arguments made by DOT in support of its interpretation of
the Cargo Preference Act have considerable merit, we believe in this case that
the plain language of the statute should prevail. Therefore, it is our opinion that
shipments of Alaskan oil by or on behalf of DOE for the SPR may be counted in
calculation of DOE’s Cargo Preference Act share for the SPR program.
B. Exchange o f NPR Oil
The first of the two questions posed separately by DOE also arises out of the
SPR program, but involves interpretation of the language of § 804(b) of the
Energy Security Act (ESA), codified at 10 U.S.C. § 7430(k), that allows the
Secretary of Energy to exchange oil from the NPR for oil to be placed in the
SPR “without regard to otherwise applicable Federal procurement statutes and
regulations.” The question posed by DOE is whether the Cargo Preference Act
may be considered to be an “otherwise applicable Federal procurement statute”
within the meaning of § 804(b) of the ESA, which may therefore be waived by
the Secretary of Energy.
We concur with DOE’s legal conclusion that, at least for the purpose of
§ 804(b), the Cargo Preference Act would be an “otherwise applicable Federal
procurement statute,” which may be waived by the Secretary of Energy if he
determines that application of the Cargo Preference Act would hamper efforts
to exchange NPR oil for other oil to be placed in the SPR.15 Although the terms
of the Cargo Preference Act do not expressly characterize the Act as a “pro
curement” statute, the Act applies, inter alia, when the United States “pro
cures” goods to be transported by ocean vessels. See 46 U.S.C. § 1241(b).
Certainly in practical terms the Cargo Preference Act regulates the government’s
procurement of ocean transportation services and the transportation by vessel
14 In fact, it appears to us to be possible that some shipm ents m ade betw een dom estic ports could be carried
on fo reig n -flag vessels, pursuant to th e third proviso o f the Jones Act or to w aivers o f the Jones Act
requirem ents. D O T has noted that, upon occasion, Jones Act w aivers have been granted for governm entow ned cargo. In that event, it would c learly not be superfluous to apply the Cargo Preference Act to those
dom estic cargoes, in o rd er to assure a 50 percent overall share to U nited States-flag vessels.
15 W e do not suggest here that the C arg o Preference A ct w ould necessarily also be considered a “Federal
procurem ent statute” under a different statutory schem e.
148
of commodities procured by the government, and is an integral part of the
acquisition process.16
In addition, the purpose of the waiver authority in § 804(b) supports the
conclusion that the Cargo Preference Act can be considered a “procurement
statute” for the purpose of exchanges of NPR oil. Although the legislative
history of the ESA does not list or otherwise describe in detail what is included
in the term “Federal procurement statutes and regulations,” the purpose of the
waiver authority is clearly to grant the Secretary of Energy sufficient flexibility
to use the exchange authority effectively to meet the pressing need to increase
the fill rate of the SPR. See H.R. Rep. No. 1104, 96th Cong., 2d Sess. 317-18
(1980). To the extent that it regulates some aspect of the acquisition process,
and could substantially frustrate efforts by the Secretary of Energy to use the
authority granted in the ESA to exchange NPR oil, we believe the Cargo
Preference Act is a “procurement” statute covered by the ESA. Therefore if, in
the Secretary of Energy’s judgment, limiting the NPR exchange in order to
assure 50 percent Cargo Preference Act shipping would have frustrated the
objectives of the ESA, reliance on the waiver authority in § 804(b) to permit
the exchange without regard to the Cargo Preference Act would be consistent
with the letter and the spirit of the ESA. Any resulting shortfall in meeting
Cargo Preference Act requirements for the NPR exchange should thus not be
counted as a Cargo Preference Act deficiency.
We take no view, however, as to whether the Secretary of Energy has
actually waived or could yet waive applicability of the Cargo Preference Act to
NPR exchanges that have already taken place. DOT takes the position that the
ocean transportation of foreign oil delivered to the SPR in exchange for NPR
oil was included in calculating DOE’s existing obligations under the inter
agency agreement, and therefore DOE cannot now maintain that such ex
changes should be excluded from calculation of its Cargo Preference Act
compliance for past years. DOE asserts that the agreement does not address
treatment of NPR exchanges, and therefore that the Secretary of Energy is not
barred by the agreement from exercising his waiver authority.17
16 The definition o f the term “procurem ent” as used in the Federal Procurem ent Policy Act A m endm ents o f
1979, Pub. L. No. 9 6 -8 3 , § 3, 93 Stat. 649 (41 U.S.C. § 403(b)), is certainly broad enough to cover the C argo
Preference Act. That definition reads as follows:
As used in this ch ap ter the term “procurem ent” includes all stages of the acquisition process,
beginning w ith the process for determ ining a need for property and services through to the
Federal G overnm ent’s disposition o f such property and services.
Sim ilarly, the definition o f “procurem ent” contained in the Federal Procurem ent Regulations includes the
“acquisition (and directly related m a tte rs ). . . o f personal property and non-personal services,” which w ould
also appear broad enough to cover C argo Preference Act requirem ents. FPR § 1-1.209. Finally, w e note that
rules governing Cargo Preference Act com pliance are included in the Federal Procurem ent Regulations and
the Defense Acquisition R egulations. FPR § 1 -19.108-2; DAR § 1-1404.
17 DO E does not address w hether the Secretary has m fact exercised that authority for som e or all NPR
exchanges, o r what action w ould be necessary to exercise that authority. We understand from conversations
with DOE that no official w aiver action was taken at the tim e the NPR exchange cargoes w ere acquired.
Section 804(b) o f the ESA does not explicitly require such form al action and, to o u r know ledge, there are no
regulations that establish particular procedures o r prerequisites for such w aivers. As a m atter of logic,
how ever, it seems to us that the w aiver authority should be exercised at the time o f acquisition o f the cargoes.
Continued
149
As we were not privy to the negotiations that led to the interagency agree
ment, we are not in a position to determine whether the treatment of past NPR
oil exchanges was resolved during those negotiations. We recommend that this
issue be addressed again by DOE and DOT and, if necessary, resolved at a
higher level within the Executive Branch.
C. R em edies f o r Shortfalls in Cargo Preference A ct Compliance
The second question posed separately by DOE concerns the available rem
edies under the Cargo Preference Act for a calendar year shortfall in United
States-flag vessel shipments. We understand that the Maritime Administration
(MarAd), which is the component of DOT responsible for administering the
Cargo Preference Act, see 46 U.S.C. § § 1 1 14(b), 1122(d), took the position in
discussions and correspondence with DOE, prior to negotiation of the inter
agency agreement, that annual shortfalls in meeting the 50 percent United
States-flag ship share must be made up in succeeding years. DOT now also
asserts that in the interagency agreement DOE agreed, independently of its
undertaking to make up its 1981 Cargo Preference Act deficiency and to
transport at least 50 percent of foreign oil delivered to the SPR on United
States-flag tankers — both o f which are contingent to some degree on issuance
of our opinion here — that it would carry forward calendar year deficits or
surpluses in calculating Cargo Preference Act requirements for United Statesflag vessels in future years.
For its part, DOE asserts that it is not required, as a matter of law, to carry
deficiencies forward from one year to the next in order to reach the 50 percent
level, and that there had been, at least prior to 1980, a “longstanding” agree
ment between MarAd and DOE that Cargo Preference Act compliance would
be measured on a calendar year basis, without carrying forward either a surplus
or a deficiency from one year to the next. With respect to the effect of the
interagency agreement, DOE maintains that its obligation to carry forward
deficits and surpluses is contingent on the issuance of an opinion on the
question jointly referred to the Attorney General, and therefore ceases with the
issuance of that opinion.
The fundamental disagreement between DOE and DOT as to what they
agreed upon in the interagency agreement makes it impossible for us to provide
specific guidance to either agency with respect to remedying shortfalls in
Cargo Preference Act compliance.18 Obviously, the method of complying with
17 (. . . continued)
w heo the Secretary can make a determ ination that com pliance w ith the C argo Preference Act fo r those
p a rtic u la r cargoes w ould frustrate the D ep artm en t's ability to m aintain or increase the SPR fill rate to levels
m andated by C ongress. W e have some d o u b t that the w aiver authority in the ESA w as intended to provide a
post hoc rationalization fo r overall program m atic shortfalls in an a g en cy 's Cargo Preference Act compliance.
18 A t best, the interagency agreement is am biguous on this point. Subparagraph 1(D) of the agreem ent
recites in p art that “commencing w ith calendar year 1981, deficits from and surpluses over 50% in the
calculation o f the SP R ’s cargo preference obligation w ill be cum ulative, to be carried forward in calculating
the requirem ents for U nited States-flag vessels in future years." DOG m aintains that this obligation is subject
C ontinued
150
the Act can be a proper matter for negotiation and agreement between MarAd,
which is charged with administering the Act, and a federal agency, such as
DOE, that ships cargoes subject to the Act. We would not disturb such an
agreement unless it were predicated on an incorrect reading of the applicable
law and regulations — a conclusion we could not draw with respect to either
interpretation advanced here.19 We are not the appropriate office within the
Executive Branch to resolve the questions of fact and policy that should have
been addressed by both agencies in the course of negotiation of the interagency
agreement, or that must be addressed now in order to resolve the outstanding
disagreement between those agencies. We suggest therefore that DOT and
DOE attempt to resolve that disagreement in further discussions between the
two agencies or, if need be, with the participation of other appropriate Execu
tive Branch officials.
Ill
We have considered carefully the thorough presentations by both agencies
with respect to the application of the Cargo Preference Act to SPR shipments of
18 (. . . continued)
to the general condition in paragraph 1 that the obligations each agency undertakes last “until such tim e as the
A ttorney General may rule affirm atively” on the issue presented by both agencies for decision. A lthough the
structure o f the agreem ent appears to support D O E’s position that this general condition was intended to
apply to all obligations undertaken in subparagraph (A) through (D) o f the agreem ent, the language used in
subparagraph (D) suggests an independent obligation. In addition, if DOE is correct in its interpretation of
subparagraph (D), it appears that the subparagraph is largely redundant with subparagraphs (B) and (C),
which outline specific rem edies for D O E 's 1981 Cargo Preference Act shortfall.
19 We can provide some guidance to both agencies on the issue w hether an agency, as a m atter o f law, is
required to reach the SO percent United States-flag ship level established in the Cargo Preference Act. We
believe it is clear that the Act does not impose an absolute duty on federal agencies to ship 50 percent o f the
cargo of a particular program (or o f the agency) in United States-flag vessels, regardless o f the availability of
such vessels or o f unforeseen circum stances that might prevent an agency from reaching the 50 percent level.
An early version o f S. 3233 w ould have set 50 percent as a mandatory minimum com pliance level, by
requiring that “a t lea st 50 p er centum o f the gross tonnage . . which may be transported on ocean vessels
shall be transported on privately-ow ned United States-flag com m ercial vessels.” S. Rep. No. 1584, supra , at
2 (em phasis added). The bill w as subsequently am ended, however, to require only that agencies “take such
steps as may be necessary and practicable to assure that at least 50 per centum . . . ” Id. (em phasis added). In
discussing this am endm ent. Senator Butler, the sponsor o f the bill, specifically noted that the “unequivocal
provision for shipm ent o f at least 50 percent o f all aid or federally ow ned or financed cargoes was softened to
require only such steps as may be reasonable and practicable to assure shipm ent o f at least 50 percent in
American bottom s.” 100 Cong. Rec. 8228 (1954) (remarks o f Sen. Butler). M oreover, the Act by its terms
requires 50 percent shipm ent in U nited States-flag vessels only “to the extent such vessels are available at fair
and reasonable rates for U nited States-flag com m ercial vessels.” 46 U.S.C. § 1241(b).
T he language o f the statute, particularly when read in light o f its legislative history, therefore clearly
contem plates that agencies may not be able to meet the 50 percent level — i.e., if, despite the best efforts of
the agency, it could not arrange for 50 percent shipment o f its cargo on U nited States-flag vessels, or if United
States-flag vessels were not available for particular shipm ents at fair and reasonable rates for such vessels.
Therefore, we do not believe that, as a m atter o f law, a federal agency is required to m eet an absolute 50
percent m inimum in its shipm ents o f cargo subject to the C argo Preference Act.
If M ar A d 's position on D O E’s obligation to remedy C argo Preference Act deficits were predicated on the
legal assum ption that the Act requires DOE to reach a m inimum 50 percent United States-flag vessel share
for the SPR program , we believe it would have to be revised to reflect the legal conclusion we have ju st
outlined. However, w e do not understand that to be M arA d’s position, and therefore cannot provide addi
tional guidance on the issue raised by DOE.
151
Alaskan oil, and have concluded that the plain language of the Cargo Prefer
ence Act allows such shipments to be included in DOE’s calculation of its
Cargo Preference Act compliance for the SPR program. We understand that
our analysis of this issue will resolve much of the actual dispute between DOT
and DOE with respect to DOE’s Cargo Preference Act compliance obligations.
With respect to the two questions raised independently by DOE, however, we
cannot fully resolve the disagreement between DOT and DOE, because of the
continuing controversy between those agencies as to the intent and effect of
their interagency agreement.
T h eo d o r e B. O lso n
Assistant Attorney General
Office o f Legal Counsel
152 |
|
Write a legal research memo on the following topic. | Constitutionality of Allowing Punishment of Misdemeanor
by a Sentence Exceeding One Year
T h e Fifth A m endm ent to the Constitution requires th at offenses punishable by im prison
m ent for m ore than one year be prosecuted by an indictm ent presented to a grand jury.
Proposed am endm ents to the L acey A ct, by w hich m isdem eanor violations o f the A c t
could result in up to five years’ im prisonm ent if the defendant w ere designated a
“special offender,” must be construed to require prosecution by indictm ent in all cases.
March 30, 1981
M EM ORANDUM O PIN IO N FO R T H E C H IE F, W IL D L IFE
SECTION, LA N D A N D N A TU R A L RESOURCES D IVISION
This responds to your request for our views regarding a proposed
amendment to the Lacey A ct (Act), 18 U.S.C. §43. According to
information you have provided us, the Safari Club International, an
organization of “sportsmen,” has proposed an amendment whereby
criminal violations of the Act would be misdemeanors, unless the de
fendant were designated a “special offender.” A court could sentence a
“special offender” to a term o f imprisonment up to five years. You
have asked us to comment on the constitutionality of sentencing a
defendant to a felony penalty when the underlying violation is a misde
meanor prosecuted by way of information rather than indictment. For
reasons explained below, we conclude that such a statutory scheme
would require that all offenses under the statute be brought before a
grand jury.
The proposed amendment is patterned after the “dangerous special
offender” criminal statute, which authorizes a prosecutor in a felony
case to file a notice that the defendant is a “dangerous special of
fender.” 18 U.S.C. § 3575(a). If, after the defendant is convicted by a
plea of guilty or otherwise, it appears at a hearing the defendant is a
“dangerous special offender,” an increased penalty may be authorized.
18 U.S.C. § 3575(b). T he proposed Lacey A ct amendment in question
here similarly would authorize an attorney prosecuting alleged violators
of the A ct to file a notice specifying that the defendant is a “special
offender.” A defendant could be adjudged a “special offender” if any
one of three conditions is met: (1) the defendant has been convicted for
three or more offenses involving illegal taking of fish and wildlife, or of
plants; (2) the defendant committed the violation as part of a pattern of
87
criminal conduct which constituted a substantial source of his income
and in w hich he manifested special skill or expertise; or (3) the defend
ant was engaged in a conspiracy with five o r more persons. Other than
increasing the threshold requirements for special offender status, these
categories are almost identical to the categories o f § 3575(c).
T he Fifth Amendment provides in part as follows:
N o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a G rand Jury . . . .
W hen faced with the necessity of defining the words “otherwise infa
mous crime,” the Supreme Court in 1886 looked for the answer in
English, Irish, and early American law, and concluded:
[WJhether a man shall be put upon his trial for crime
without a presentment or indictment by a grand jury of
his fellow citizens depends upon the consequences to him
self if he shall be found guilty.
. . . W hen the accused is in danger of being subjected to
an infamous punishment if convicted, he has the right to
insist that he shall not be put upon his trial, except on the
accusation of a grand jury.
E x Parte Wilson, 114 U.S. 417, 423, 426 (1885). The Court decided that
a crim e punishable by imprisonment for a term of years at hard labor
was an infamous crime within the meaning of the Fifth Amendment. Id.
at 429. In a series of subsequent decisions, it was established that an
infamous crime is one punishable by imprisonment in a penitentiary or
at hard labor. See United States v. Moreland, 258 U.S. 433 (1922); In Re
Claasen, 140 U.S. 200 (1891); Mackin v. United States, 117 U.S. 348
(1886). Since imprisonment in a penitentiary may be imposed only if a
crim e is punishable by imprisonment exceeding one year, 18 U.S.C.
§ 4083, the rule has come to be stated that a crime is infamous if it is
punishable by imprisonment for more than one year. See Duke v. United
States, 301 U.S. 492 (1937).
Rule 7(a) o f the Federal Rules o f Criminal Procedure gives effect to
this Fifth Amendment requirement by providing:
An offense which may be punished by imprisonment for a
term exceeding one year or at hard labor shall be pros
ecuted by indictment . . . [unless waived].
T he Rule does not enlarge the requirement of an indictment beyond the
“capital, or otherwise infamous crime” of the Fifth Amendment. It
simply incorporates the criteria which have been established by the
Supreme Court. Harvin v. United States, 445 F.2d 675, 678 (D.C. Cir.
1971).
Applying these criteria to the question at hand, it is apparent that if
the defendant qualifies for treatment as a “special offender,” prosecu
tion must be by indictment.1 The closest analogy to this situation we
found in decided cases is the lengthened sentence authorized for youth
ful offenders under the Youth Corrections Act, 18 U.S.C. §§ 5005-5025.
Under that Act, a defendant under the age of 26 years may be commit
ted to the custody of the Attorney General for a period up to six years,
even if the offense for which he is convicted is a misdemeanor. 18
U.S.C. §§4216, 5010(b), 5017(c). Many defendants prosecuted by way
of informations have challenged their convictions, alleging that they
were entitled to grand jury indictments. Those cases which have held
that an indictment is required include United States v. Ramirez, 556
F.2d 909 (9th Cir. 1976); 2 United States v. Davis, 430 F.Supp. 1263 (D.
Haw. 1977; United States v. Neve, 357 F. Supp. 1 (W.D. Wise. 1973),
affd, 492 F.2d 465 (7th Cir. 1974); United States v. Reef, 268 F. Supp.
1015 (D. Colo. 1967). Conversely, the District of Columbia Circuit
Court of Appeals ruled, in an en banc 6-4 decision, that an indictment is
not necessary for prosecutions under the Youth Corrections Act.
Harvin v. United States, 445 F.2d 675 (D.C. Cir. 1971). This ruling was
based on the fact that the purpose of the extended sentence for a
youthful offender was to insure proper treatment and was not a reflec
tion of the prevailing views o f society as to the infamous or noninfamous character of the crime. Id. at 678. It was also based on the
court’s finding that the Youth Corrections A ct does not permit a
sentence under it to be served in a penitentiary.3 Neither of these bases
is applicable to the proposed “special offender” amendment to the
Lacey Act. The increased penalty would reflect societal judgment of
the crime and the sentence probably would be served in a penitentiary.
Even as to a defendant who does not qualify as a “special offender,”
an indictment may be required. If a defendant under this proposed
amendment did not satisfy one of the three conditions of “special
offender” status noted above, he or she could be imprisoned no more
than one year. The proposed amendment does not require, however,
that the facts justifying such status be alleged in the charging document
so the maximum sentence would not be initially apparent. Under some
w hat different but analogous facts, the Supreme Court has required an
indictment. In Smith v. United States, 360 U.S. 1 (1959), the petitioner
was charged with a violation of the Federal Kidnapping Act, 18 U.S.C.
§ 1201, which was punishable by death if the victim was not liberated
1 The mere designation of a crime as a felony or misdemeanor is not itself determinative. See E x
Parte Brede, 279 F. 147 (E.D.N.Y. 1922), a ffd sub nom. Brede v. Powers, 263 U.S. 4 (1923)
2 This opinion was withdrawn when the court was later informed that an indictment had been filed.
United States v. Ramirez, 556 F 2d 909, 926 (9th Cir. 1976). In United States v. Indian Boy X, 565 F 2d
585 (9th Cir. 1977), the court points out that Ramirez was withdrawn and rules that juvenile
proceedings under Federal Juvenile Delinquency Act, 18 U S C . §§5031-5042 may be initiated by
information.
3 This finding was disputed by the dissenting judges in Harvin and by the Ninth Circuit in Ramirez.
89
unharmed. He had waived indictment and was prosecuted by informa
tion. T he information did not state w hether the victim was released
harm ed or unharmed. T h e Court held that the waiver of indictment
was not valid.4 The C ourt’s reasoning is equally applicable to the
proposal here. The Court explained its reasoning as follows:
Under the statute, that offense is punishable by death if
certain proof is introduced at trial. When an accused is
charged, as here, with transporting a kidnapping victim
across state lines, he is charged and will be tried for an
offense which m ay be punished by death. Although the
imposition of that penalty will depend on whether suffi
cient proof of harm is introduced during the trial, that
circumstance does not alter the fact that the offense itself
is one which may be punished by death and thus must be
prosecuted by indictment. In other words, when the of
fense as charged is sufficiently broad to justify a capital
verdict, the trial must proceed on that basis, even though
the evidence later establishes that such a verdict cannot
be sustained because the victim was released unharmed. It
is neither procedurally correct nor practical to await the
conclusion of the evidence to determine whether the ac
cused is being prosecuted for a capital offense. For the
trial judge must make informed decisions prior to trial
which will depend on whether the offense may be so
punished.
360 U.S. at 8. For similar reasons, the Court likely would conclude
here that w here an indictment is not waived, the government must
proceed by way of the grand jury.
W e conclude that the Fifth Amendment would impose a constitu
tional barrier against the use o f informations to prosecute violations
under this proposed amendment to the Lacey A ct.5
L
arry
L . S im m s
Acting Assistant Attorney General
Office o f Legal Counsel
4 Indictment may not be waived in capital cases. See Fed. R. Crim. P. 7(a).
5 You also ask w hether we have any experience with other statutes that might require misdemean
ors to proceed by indictment. We d o not.
90 |
|
Write a legal research memo on the following topic. | Eligibility of Involuntary Wartime Relocatees to Japan for
Redress Under the Civil Liberties Act of 1988
T h e p ro p o s e d D e p a rtm e n t o f J u s tic e change in its in te rp re ta tio n o f the C iv il L ib e rtie s A c t o f 1988 to
e x te n d re d re s s u n d e r th e A c t to m inors w h o a c c o m p a n ie d th e ir p aren ts to Jap a n d u rin g W o rld W a r
II a n d to a d u lts w h o a re a b le to show th a t th e ir re lo c a tio n to J a p a n d u rin g th at p e rio d w as in v o lu n
tary is a re a so n a b le a n d p e rm is sib le in te rp re ta tio n o f th e s ta tu te
A lth o u g h an a g e n c y in te rp re ta tio n th a t has b e e n m o d ifie d o r re v e rs e d is lik e ly to re c eiv e le ss d e fe re n c e
b y a re v ie w in g c o u rt th a n a c o n siste n t an d c o n te m p o ra n e o u s in te rp re ta tio n , the fact o f m o d ific a tio n
d o e s n o t p re c lu d e th e c o u rt fro m g ran tin g d e fe re n c e to th e n e w in te rp reta tio n
M ay 10, 1994
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 i v il R i g h t s D i v i s i o n
This memorandum is in response to your request for this Office’s review of the
proposed change in eligibility determinations under the Civil Liberties Act of
1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 U.S.C. app. § 1989
(1988)) (“the Act”). The proposed change would 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 involun
tary. We conclude that the proposed change is a reasonable and permissible inter
pretation of the statute.
We also have analyzed the implications of this,change as to the deference the
Department can expect from a reviewing court in the event of a challenge. An
agency interpretation that has been modified or reversed is likely to receive less
deference than a consistent and contemporaneous interpretation, but the fact of
modification does not preclude a court from granting deference to the new inter
pretation.
1.
The Civil Liberties Act of 1988 enacts into law the recommendations of the
Commission on Wartime Relocation and Internment of Civilians established by
Congress in 1980. H.R. Conf. Rep. No. 100-785, at 1 (1988). The Commission
submitted a unanimous report to Congress in 1983, entitled Personal Justice D e
nied , “which extensively reviewed the history and circumstances of the decision to
exclude, remove,” and ultimately to intern “Japanese Americans and Japanese resi
dent aliens from the West Coast, as well as the treatment of the Aleuts during
World War II.” Redress Provisions for Persons of Japanese Ancestry, 54 Fed.
Reg. 34,157 (1989). The final part of the Commission’s report, Personal Justice
Denied 2: Recommendations, concluded that these events were influenced by ra
94
E lig ib ility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the
C ivil Liberies A ct o f 1988
cial prejudice, war hysteria, and a failure of political leadership and recommended
that Congress and the President take remedial action. Id.
The Civil Liberties Act of 1988 was signed into law by President Reagan on
August 10, 1988. The purposes of the Act are to acknowledge and apologize for
the fundamental injustice of the evacuation, relocation, and internment of Japanese
Americans and permanent resident aliens of Japanese ancestry; to make restitution
to the individuals who were interned; and to fund a public education program to
prevent the occurrence of any similar event in the future. 50 U.S.C. app. §§ 19891989a. Any “eligible individual” living on the date of enactment is entitled to a
restitution payment of $20,000. 50 U.S.C. app. § 1989b-4(a)(l).
The Attorney General is responsible for identifying, locating, and authorizing
payment to all eligible individuals. 50 U.S.C. app. § 1989b-4. The Attorney Gen
eral delegated the responsibilities and duties assigned by the Act to the Assistant
Attorney General for Civil Rights, who created the Office of Redress Administra
tion in the Civil Rights Division (the “Division”) to execute the duties of the De
partment under the Act. The regulations governing eligibility and restitution were
drafted in the Office of Redress Administration and published under the authority
of the Department in 1989. 54 Fed. Reg. 34,157 (1989) (final rule) (codified at ,28
C.F.R. § 74).
Section 108(2) of the Act defines the individuals eligible for redress payments
as any United States citizen or permanent resident alien of Japanese ancestry who
was evacuated, relocated, or interned during World War II.1 This provision spe
cifically excludes from eligibility “any individual who, during the period beginning
on December 7, 1941, and ending on September 2, 1945, relocated to another
country while the United States was at war with that country.” 50 U.S.C. app. §
1989b-7(2) (“the relocation exclusion”). The relocation exclusion in the regula
tions governing eligibility determinations under the Act uses precisely the same
language. 28 C.F.R. § 74.4.
The regulations do not specifically address the eligibility of minors who accom
panied their parents to Japan during this period or of adults who claim that their
relocation was involuntary. However, the notice accompanying the publication of
the final regulations noted that the Department had received sixty-one comments
supporting eligibility for the minors. After considering these comments, the De
partment determined that “the exclusionary language of the Act would preclude
from eligibility the minors, as well as [the] adults, who were relocated to Japan
during that particular time period.” 54 Fed. Reg. at 34,160.
In a 1989 memorandum outlining the eligibility determinations, the Civil Rights
Division considered the claims of the minor evacuees. The Division noted that
1
As enacted in 1988. the A ct lim ited eligibility to those o f Japanese descent T he 1992 am endm ents
added language ex ten d in g eligibility to any spouse o r parent o f an individual o f Japanese descent w ho ac
com panied her sp o u se o r child through the evacuation, internm ent, or relocation
C ivil L iberties Act
A m endm ents o f 1992, Pub L N o 102-371, 106 Stat. 1 i67 The question o f the eligibility of the m inor and
involuntary adult relocatees was not considered o r discussed in the debates on the 1992 am endm ents.
95
O pinions o f the O ffice o f L egal C ounsel
minor children were not in a position to make their own choice regarding emigra
tion. However, in light of the language excluding any individual who relocated to
Japan during the period and the lack of any expression of legislative intent to dis
tinguish the minor relocatees from adults, the Division took the position that these
minors were ineligible. Memorandum for Douglas W. Kmiec, Assistant Attorney
General, Office of Legal Counsel, from James P. Turner, Acting Assistant Attorney
General, Civil Rights Division at 11-12 (Feb. 27, 1989). OLC concurred in this
determination without exposition. Memorandum for James P. Turner, Acting As
sistant Attorney General, Civil Rights Division, from Douglas W. Kmiec, Assistant
Attorney General, Office of Legal Counsel (Apr. 17, 1989).
In litigation challenging the Division’s current eligibility standards, counsel for
the plaintiffs have advanced an analysis that was not considered by the Department
in 1989. In that analysis, claimants’ counsel contend that the use of the active
voice in the language of the relocation exclusion provision renders the statute am
biguous as to the eligibility of relocatees who were involuntarily returned to Japan.
Given this ambiguity, counsel argue, an interpretation which allows involuntary
relocatees to recover under the Act is reasonable. The Division is persuaded by
this analysis and takes the position that while its original interpretation of the stat
ute deeming involuntary relocatees ineligible was reasonable, the proposed new
interpretation is equally reasonable. The proposed change in eligibility determina
tions is thus a change in the Department’s interpretation of its own regulation.
Since the language of the regulation is identical to the language of the statute, the
Department would effectively be changing its interpretation of the statute as well.
2.
In reviewing the Division’s proposed modification to the interpretation of the
regulation, this Office’s task is to determine whether the construction adopted by
the Civil Rights Division is a permissible one. As the Supreme Court stated in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984):
If the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambigu
ously expressed intent of Congress. If, however, the court deter
mines Congress has not directly addressed the precise question at
issue, . . . the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.
Id. at 842-43 (footnotes omitted). The Department cannot revise its interpretation
of the Act’s eligibility exclusion if the original interpretation is mandated by the
plain language of the statute. If, however, the statutory language is ambiguous and
the proposed modification is reasonable, the Division’s proposed interpretation is
permissible.
96
E ligibility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the
C ivil Liberies A ct o f 1988
3.
As enacted, section 108(2)(B)(ii) of the Act expressly excludes from eligi
bility “any individual who, during the period beginning on December 7, 1941, and
ending on September 2, 1945, relocated to [another] country while the United
States was at war with that country” (emphasis added). This language does not
specifically address the eligibility of minor relocatees who accompanied their par
ents, or the voluntariness of these repatriations.
While the statute uses the active voice in this exclusion clause, the eligibility
clauses of the statute use the passive voice. For example, section 108 begins by
defining an “eligible individual” as a person of Japanese ancestry “who, during the
evacuation, relocation and internment period — . . . was confined, held in custody,
relocated, or otherwise deprived of liberty or property as a result of . . . [various
Executive Orders and Acts].” 50 U.S.C. app. § 1989b-7(2) (emphasis added).
Title II of the Act, which provides reparations to Aleuts evacuated from their home
islands during World War II, similarly defines an eligible Aleut as a person “who,
as a civilian, was relocated by authority of the United States from his or her home
village . . . to an internment camp.” 50 U.S.C. app. § 1989c-1(5) (emphasis
added). The use of the active voice in the exclusion clause suggests the possibility
that Congress intended to exclude only those individuals who voluntarily relocated
to an enemy country during the war.
We agree that this language creates an ambiguity which provides a reasonable
basis for distinguishing between voluntary relocatees, who are ineligible under the
statute, and involuntary relocatees. The U.S. Courts of Appeals for the District of
Columbia and the Ninth Circuits have deemed the use of the active as opposed to
the passive voice relevant for purposes of statutory interpretation. Dickson v. Of
fice o f Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated use of
passive voice in phrase defining liability is significant and allows suit against OPM
whenever an adverse determination “is made,” even if by another agency); United
States v. Arrellano, 812 F.2d 1209, 1212 (9th Cir.) (clause of statute defining
criminal intent phrased in active voice applies to conduct of the accused, while
second clause phrased in passive voice applies only to the conduct of others), as
amended, 835 F.2d 235 (9th Cir. 1987).
The legislative history of the Act does not provide any insight into congres
sional intent regarding the eligibility of involuntary relocatees. As originally intro
duced, neither the House or the Senate bill included a relocation exclusion
provision in the section defining eligible individuals. Entering conference, the
House version of the Act contained the exclusion, while the Senate version had no
such provision. The conferees agreed to adopt the House provision, which ex
cluded “those individuals who, during the period from December 7, 1941, through
September 2, 1945, relocated to a country at war with the United States.” H.R.
Conf. Rep. No. 100-785, at 22. There is no additional discussion of the relocation
97
O pinions o f llie O ffice o f Legal C ounsel
exclusion or of the circumstances surrounding the relocation of internees to Japan
in the conference report.2
While the Civil Rights Division’s proposed interpretation is not the only possi
ble interpretation of the statute, it is neither precluded by the plain language of the
statute nor unreasonable. Since minor relocatees below a certain age lacked the
legal capacity to consent to relocation, their relocation was involuntary per se.3
The statute does not bar the Civil Rights Division from declaring these minors eli
gible for relief. Similarly, it is reasonable to conclude that the statute does not bar
from relief claimants who can provide evidence that their relocation was in fact
involuntary.
Arguably, the Civil Rights Division’s proposed narrowing of the breadth of the
relocation exclusion is more reasonable than its earlier interpretation. Generally,
remedial statutes should be interpreted broadly to effectuate their remedial pur
pose. Any exceptions should be interpreted narrowly. Norman J. Singer, Suther
land Statutory Construction §60.01 (5th ed. 1992). While courts have generally
held that waivers of sovereign immunity granting rights of action against the
United States must be strictly construed, they “have on occasion narrowly con
strued exceptions to waivers of sovereign immunity where that was consistent with
Congress’ clear intent.” See United States v. Nordic Village, Inc., 503 U.S. 30, 34
(1992) (citing, e.g., Franchise Tax Bd. o f Calif, v. United States Postal Serv., 467
U.S. 512, 517-19 (1984) (statute authorizing Postal Service to “sue and be sued”
waives immunity from orders to garnish wages issued by state administrative
boards); Block v. Neal, 460 U.S. 289, 298 (1983) (plaintiff’s claim under Federal
2 T h e sole discu ssio n o f w h eth er individuals w ho w ere returned to Japan should be included in the d e fin i
tion o f ‘‘e lig ib le in d iv id u als” is contained in tw o w itness statem ents subm itted to the H ouse and S enate
su b co m m itte es co n sid erin g the legislation In testim ony o p p o sin g the enactm ent o f the bill, the A ssistant
A ttorney G en eral for the C iv il D ivision, R ichard K W illard, no ted lhat as then w ritten (w ithout the re lo c a
tion exclu sio n ), the bread th o f the definition w o u ld cover any individual w ho had been su b ject to exclusion,
relocatio n , o r in tern m en t in clu d in g persons liv in g outside the U nited States In the D epartm ent s view , this
o v erlo o k ed the fact that at least several hundred o f the d etainees w ere "fanatical pro-Japanese, . . and [had]
vo luntarily sought rep atriatio n to Japan after the end o f the w a r.” T he D epartm ent believed that allow ing
these dislo y al individuals to receive the benefit o f the legislation would be unfair to the U nited Slates and to
loyal perso n s o f Jap an ese d escen t To A ccept th e Findings a n d to Im plem ent the R ecom m endations oj the
C om m issio n on W artim e R elo ca tio n and In tern m en t o f C ivilians. H earing on S 1009 B efore the Suhcom m .
on F e d e ra l Services, P ost O ffice, a n d Civil S e rv ic e o f the S e n a te Com m, on G overnm ental A ffa irs, 100th
C o n g , 1st Sess 281, 2 9 6 (1 9 8 7 ) (“ H earings”).
R e sp o n d in g to the D e p artm e n t's objections, an o th er w itness argued that many o f these repatriates acted
as they did for reasons un related to disloyalty to the U nited States, nam ely, their sheer frustration at being
in c a rc erate d in prison cam p s like com m on c rim in a ls and su m m arily deprived o f their personal and c o n stitu
tional rig h ts H earings at 145, 196-97 (statem en t o f M ike M asaoka, representing the G o For B roke Nisei
V eteran s A ssn ) N eith er o f th ese statem ents reveals, o r ev en suggests, an intention to exclude persons who
in v o lu n ta rily relocated lo an enem y country.
3 Y o ung ch ild ren are not cap ab le of ex ercisin g the ju d g m e n t required to m anifest legal consent F urther
m ore, a m in o r g enerally has no right to leave th e custody and control of his parents until he reaches m ajority
or is gran ted em an cip atio n C f Pierce v S o c ie t\’ o f Sisters, 268 U S 510, 518 (1925) (p a re n ts 'c o n s titu tio n
ally p ro te c te d liberty in clu d es the right to d ire c t the upbringing o f their children), G im lett v G im lett, 629
P 2d 4 5 0 , 4 5 2 (W ash 1981) (upon em ancipation o r m ajority a person is released from parental authority and
beco m es sui ju ris); In re L u s c ie r 's Welfare, 5 2 4 P 2d 906, 9 0 8 (W ash. 1974) (the interest o f a parent in the
custo d y and control o f his m in o r child is reco g n ized as a sacred right).
98
E ligib ility o f Involuntary W artime R elocatees to Japan fo r R edress U nder the
C ivil Liberies Act o f 1988
Tort Claims Act for negligent inspection not barred by exception disallowing
claims for negligent misrepresentation); United States v. Yellow Cab Co., 340 U.S.
543, 554-55 (1951) (FTCA waives immunity where U.S. impleaded as third-party
defendant)). The compensatory character of the Act’s grant of reparations to spe
cific individuals of Japanese descent interned by the government is of a different
nature than a general waiver of immunity in actions that will be brought by un
known plaintiffs. It is appropriate to narrowly construe an exception to this Act.
4.
There are potentially two groups of plaintiffs who would have standing to
challenge the proposed modified interpretation in court. Because section 104 of
the Act provides for payments to be made in order of date of birth, with no more
than $500 million to be paid in any year, the newly eligible claimants could
“bump” other eligible claimants, delaying or jeopardizing their payments. The age
and relatively low number of minor relocatees (as estimated by the Department)
make it unlikely that the minor relocatees would significantly affect the payment
schedule, but the number and age of involuntary adult relocatees is harder to as
certain.4 The second group of potential plaintiffs consists of relocatees who are
unable to prove that their relocations were involuntary. This second type of chal
lenge is more likely to focus upon the burden of proof and the definition of
“voluntary” than upon the reasonableness of the Department’s interpretation of the
regulation.5
It is true that a contemporaneous, consistent interpretation of a regulation or
statute by the agency charged with its enforcement will be accorded the greatest
deference by the courts, while “[a]n agency interpretation of a relevant provision
which conflicts with the agency’s earlier interpretation is ‘entitled to considerably
4
Under ihe Act, the o rd er o f paym ent is determ ined by date o f birth, w ith the oldest eligible individuals
receiving paym ent first 50 U S C app § I989b-4(b) Paym ent from the trust established by the A ct is
authorized until A ugust 1998 o r until the funds appropriated are depleted. 50 U.S C. app ^ I989b-3(d) The
1992 am endm ents placed an additional $400 m illion in the trust because the D epartm ent had already located
more eligible individuals than originally estim ated
Estim ates o f the num ber o f m inors w ho w ere relocated to Japan vary w idely P laintiffs counsel in a suit
seeking restitution paym ents for fourteen m inor relocatees cite a D epartm ent estim ate ’‘that as m any as 135
m inor children w ere relocated to Japan" w ith their parents during the w ar M em orandum for Jam es P
Turner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision from G en Fujioka, A sian Law C aucus, Jim
M cCabe & O w en C lem ents, M orrison & Foerster at 3-4 (Sept 22, 1993). In contrast, a w itness before the
Senate relying on figures published in a m onograph by the form er director o f the W ar R elocation A uthority
testified that betw een 1942 and 1946 a total o f 4724 repatriates and expatriates sailed for Japan O f this
total, 1659 were alien repatriates, 1949 w ere A m erican citizens, virtually all children under 20 years o f age
accom panying their alien parents, and 11 16 w ere form er A m erican citizens w ho had renounced th eir citiz en
ship. H earings at 197 (statem ent o f M ike M asaoka, representing the G o For Broke N isei V eterans A s s n )
(citing D illon S. M eyer, U prooted A m ericans The Japanese A m ericans and the W ar R elocation A uthority
D unng W orld W ar II)
A pproxim ately 75 adult relocatees have filed claim s with the O ffice o f Redress A dm inistration alleging
that their relocations w ere not voluntary M em orandum for W alter D ellinger, A ssistant A ttorney G eneral,
O ffice o f Legal C ounsel, from Jam es P T urner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision at
4 (M ar 16, 1994)
3 T he 1992 am endm ents require that individual claim ants receive the benefit o f the doubt w here ’‘there is
an approxim ate balance o f positive and negative evidence regarding the m erits of an issue m aterial to (a]
determ ination o f eligibility ' 50 U S C app & I989b-4(a)(3)
99
Opinions o f the O ffice o f L egal C ounsel
less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca,
480 U.S. 421, 446 n.30 (1987) (citation omitted); see also General Elec. Co. v.
Gilbert, 429 U.S. 125, 143 (1976). However, in both Cardoza and General Elec
tric, the Court concluded that the agency’s revised interpretation was in conflict
with the plain language of the statute in question. The underlying rationale for
judicial deference to agency interpretations is as applicable to a modified interpre
tation of a statute as to the agency’s initial construction. See Chevron, 467 U.S. at
865 (“it is entirely appropriate” for the agency “to make . . . policy choices”).
Accordingly, the Court of Appeals for the D.C. Circuit has held that the principle
of deferring to an agency’s reasonable construction of an open-ended statutory
provision “appliefs] equally where . . . we review modification of a previous pol
icy.” Office o f Communication of the United Church o f Christ v. FCC, 590 F.2d
1062, 1068-69 (D.C. Cir. 1978). Cf. Phoenix Hydro Corp. v. FERC, 775 F.2d
1187, 1191 (D.C. Cir. 1985) (an administrative agency is entitled to change its
prior erroneous interpretation of a statute).
Conclusion
The Civil Rights Division’s proposed interpretation of the regulation governing
eligibility for redress payments is a reasonable interpretation of the regulation and
of the Act. The language of the exclusion provision is ambiguous as to whether
Congress intended to prevent involuntary relocatees from receiving restitution.
The proposed interpretation does not contradict the language of the statute or the
statute’s legislative history and is consistent with the strong remedial purpose un
derlying the Act. Although there is a litigation risk associated with this modifica
tion, it is unlikely that a court would overturn the proposed interpretation. While
this modification does not require formal rulemaking procedures, it would be ad
visable for the Department to publish a notice of the change and the underlying
reasons in the Federal Register.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
100 |
|
Write a legal research memo on the following topic. | Eligibility of Involuntary Wartime Relocatees to Japan for
Redress Under the Civil Liberties Act of 1988
T h e p ro p o s e d D e p a rtm e n t o f J u s tic e change in its in te rp re ta tio n o f the C iv il L ib e rtie s A c t o f 1988 to
e x te n d re d re s s u n d e r th e A c t to m inors w h o a c c o m p a n ie d th e ir p aren ts to Jap a n d u rin g W o rld W a r
II a n d to a d u lts w h o a re a b le to show th a t th e ir re lo c a tio n to J a p a n d u rin g th at p e rio d w as in v o lu n
tary is a re a so n a b le a n d p e rm is sib le in te rp re ta tio n o f th e s ta tu te
A lth o u g h an a g e n c y in te rp re ta tio n th a t has b e e n m o d ifie d o r re v e rs e d is lik e ly to re c eiv e le ss d e fe re n c e
b y a re v ie w in g c o u rt th a n a c o n siste n t an d c o n te m p o ra n e o u s in te rp re ta tio n , the fact o f m o d ific a tio n
d o e s n o t p re c lu d e th e c o u rt fro m g ran tin g d e fe re n c e to th e n e w in te rp reta tio n
M ay 10, 1994
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 i v il R i g h t s D i v i s i o n
This memorandum is in response to your request for this Office’s review of the
proposed change in eligibility determinations under the Civil Liberties Act of
1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 U.S.C. app. § 1989
(1988)) (“the Act”). The proposed change would 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 involun
tary. We conclude that the proposed change is a reasonable and permissible inter
pretation of the statute.
We also have analyzed the implications of this,change as to the deference the
Department can expect from a reviewing court in the event of a challenge. An
agency interpretation that has been modified or reversed is likely to receive less
deference than a consistent and contemporaneous interpretation, but the fact of
modification does not preclude a court from granting deference to the new inter
pretation.
1.
The Civil Liberties Act of 1988 enacts into law the recommendations of the
Commission on Wartime Relocation and Internment of Civilians established by
Congress in 1980. H.R. Conf. Rep. No. 100-785, at 1 (1988). The Commission
submitted a unanimous report to Congress in 1983, entitled Personal Justice D e
nied , “which extensively reviewed the history and circumstances of the decision to
exclude, remove,” and ultimately to intern “Japanese Americans and Japanese resi
dent aliens from the West Coast, as well as the treatment of the Aleuts during
World War II.” Redress Provisions for Persons of Japanese Ancestry, 54 Fed.
Reg. 34,157 (1989). The final part of the Commission’s report, Personal Justice
Denied 2: Recommendations, concluded that these events were influenced by ra
94
E lig ib ility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the
C ivil Liberies A ct o f 1988
cial prejudice, war hysteria, and a failure of political leadership and recommended
that Congress and the President take remedial action. Id.
The Civil Liberties Act of 1988 was signed into law by President Reagan on
August 10, 1988. The purposes of the Act are to acknowledge and apologize for
the fundamental injustice of the evacuation, relocation, and internment of Japanese
Americans and permanent resident aliens of Japanese ancestry; to make restitution
to the individuals who were interned; and to fund a public education program to
prevent the occurrence of any similar event in the future. 50 U.S.C. app. §§ 19891989a. Any “eligible individual” living on the date of enactment is entitled to a
restitution payment of $20,000. 50 U.S.C. app. § 1989b-4(a)(l).
The Attorney General is responsible for identifying, locating, and authorizing
payment to all eligible individuals. 50 U.S.C. app. § 1989b-4. The Attorney Gen
eral delegated the responsibilities and duties assigned by the Act to the Assistant
Attorney General for Civil Rights, who created the Office of Redress Administra
tion in the Civil Rights Division (the “Division”) to execute the duties of the De
partment under the Act. The regulations governing eligibility and restitution were
drafted in the Office of Redress Administration and published under the authority
of the Department in 1989. 54 Fed. Reg. 34,157 (1989) (final rule) (codified at ,28
C.F.R. § 74).
Section 108(2) of the Act defines the individuals eligible for redress payments
as any United States citizen or permanent resident alien of Japanese ancestry who
was evacuated, relocated, or interned during World War II.1 This provision spe
cifically excludes from eligibility “any individual who, during the period beginning
on December 7, 1941, and ending on September 2, 1945, relocated to another
country while the United States was at war with that country.” 50 U.S.C. app. §
1989b-7(2) (“the relocation exclusion”). The relocation exclusion in the regula
tions governing eligibility determinations under the Act uses precisely the same
language. 28 C.F.R. § 74.4.
The regulations do not specifically address the eligibility of minors who accom
panied their parents to Japan during this period or of adults who claim that their
relocation was involuntary. However, the notice accompanying the publication of
the final regulations noted that the Department had received sixty-one comments
supporting eligibility for the minors. After considering these comments, the De
partment determined that “the exclusionary language of the Act would preclude
from eligibility the minors, as well as [the] adults, who were relocated to Japan
during that particular time period.” 54 Fed. Reg. at 34,160.
In a 1989 memorandum outlining the eligibility determinations, the Civil Rights
Division considered the claims of the minor evacuees. The Division noted that
1
As enacted in 1988. the A ct lim ited eligibility to those o f Japanese descent T he 1992 am endm ents
added language ex ten d in g eligibility to any spouse o r parent o f an individual o f Japanese descent w ho ac
com panied her sp o u se o r child through the evacuation, internm ent, or relocation
C ivil L iberties Act
A m endm ents o f 1992, Pub L N o 102-371, 106 Stat. 1 i67 The question o f the eligibility of the m inor and
involuntary adult relocatees was not considered o r discussed in the debates on the 1992 am endm ents.
95
O pinions o f the O ffice o f L egal C ounsel
minor children were not in a position to make their own choice regarding emigra
tion. However, in light of the language excluding any individual who relocated to
Japan during the period and the lack of any expression of legislative intent to dis
tinguish the minor relocatees from adults, the Division took the position that these
minors were ineligible. Memorandum for Douglas W. Kmiec, Assistant Attorney
General, Office of Legal Counsel, from James P. Turner, Acting Assistant Attorney
General, Civil Rights Division at 11-12 (Feb. 27, 1989). OLC concurred in this
determination without exposition. Memorandum for James P. Turner, Acting As
sistant Attorney General, Civil Rights Division, from Douglas W. Kmiec, Assistant
Attorney General, Office of Legal Counsel (Apr. 17, 1989).
In litigation challenging the Division’s current eligibility standards, counsel for
the plaintiffs have advanced an analysis that was not considered by the Department
in 1989. In that analysis, claimants’ counsel contend that the use of the active
voice in the language of the relocation exclusion provision renders the statute am
biguous as to the eligibility of relocatees who were involuntarily returned to Japan.
Given this ambiguity, counsel argue, an interpretation which allows involuntary
relocatees to recover under the Act is reasonable. The Division is persuaded by
this analysis and takes the position that while its original interpretation of the stat
ute deeming involuntary relocatees ineligible was reasonable, the proposed new
interpretation is equally reasonable. The proposed change in eligibility determina
tions is thus a change in the Department’s interpretation of its own regulation.
Since the language of the regulation is identical to the language of the statute, the
Department would effectively be changing its interpretation of the statute as well.
2.
In reviewing the Division’s proposed modification to the interpretation of the
regulation, this Office’s task is to determine whether the construction adopted by
the Civil Rights Division is a permissible one. As the Supreme Court stated in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984):
If the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambigu
ously expressed intent of Congress. If, however, the court deter
mines Congress has not directly addressed the precise question at
issue, . . . the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.
Id. at 842-43 (footnotes omitted). The Department cannot revise its interpretation
of the Act’s eligibility exclusion if the original interpretation is mandated by the
plain language of the statute. If, however, the statutory language is ambiguous and
the proposed modification is reasonable, the Division’s proposed interpretation is
permissible.
96
E ligibility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the
C ivil Liberies A ct o f 1988
3.
As enacted, section 108(2)(B)(ii) of the Act expressly excludes from eligi
bility “any individual who, during the period beginning on December 7, 1941, and
ending on September 2, 1945, relocated to [another] country while the United
States was at war with that country” (emphasis added). This language does not
specifically address the eligibility of minor relocatees who accompanied their par
ents, or the voluntariness of these repatriations.
While the statute uses the active voice in this exclusion clause, the eligibility
clauses of the statute use the passive voice. For example, section 108 begins by
defining an “eligible individual” as a person of Japanese ancestry “who, during the
evacuation, relocation and internment period — . . . was confined, held in custody,
relocated, or otherwise deprived of liberty or property as a result of . . . [various
Executive Orders and Acts].” 50 U.S.C. app. § 1989b-7(2) (emphasis added).
Title II of the Act, which provides reparations to Aleuts evacuated from their home
islands during World War II, similarly defines an eligible Aleut as a person “who,
as a civilian, was relocated by authority of the United States from his or her home
village . . . to an internment camp.” 50 U.S.C. app. § 1989c-1(5) (emphasis
added). The use of the active voice in the exclusion clause suggests the possibility
that Congress intended to exclude only those individuals who voluntarily relocated
to an enemy country during the war.
We agree that this language creates an ambiguity which provides a reasonable
basis for distinguishing between voluntary relocatees, who are ineligible under the
statute, and involuntary relocatees. The U.S. Courts of Appeals for the District of
Columbia and the Ninth Circuits have deemed the use of the active as opposed to
the passive voice relevant for purposes of statutory interpretation. Dickson v. Of
fice o f Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated use of
passive voice in phrase defining liability is significant and allows suit against OPM
whenever an adverse determination “is made,” even if by another agency); United
States v. Arrellano, 812 F.2d 1209, 1212 (9th Cir.) (clause of statute defining
criminal intent phrased in active voice applies to conduct of the accused, while
second clause phrased in passive voice applies only to the conduct of others), as
amended, 835 F.2d 235 (9th Cir. 1987).
The legislative history of the Act does not provide any insight into congres
sional intent regarding the eligibility of involuntary relocatees. As originally intro
duced, neither the House or the Senate bill included a relocation exclusion
provision in the section defining eligible individuals. Entering conference, the
House version of the Act contained the exclusion, while the Senate version had no
such provision. The conferees agreed to adopt the House provision, which ex
cluded “those individuals who, during the period from December 7, 1941, through
September 2, 1945, relocated to a country at war with the United States.” H.R.
Conf. Rep. No. 100-785, at 22. There is no additional discussion of the relocation
97
O pinions o f llie O ffice o f Legal C ounsel
exclusion or of the circumstances surrounding the relocation of internees to Japan
in the conference report.2
While the Civil Rights Division’s proposed interpretation is not the only possi
ble interpretation of the statute, it is neither precluded by the plain language of the
statute nor unreasonable. Since minor relocatees below a certain age lacked the
legal capacity to consent to relocation, their relocation was involuntary per se.3
The statute does not bar the Civil Rights Division from declaring these minors eli
gible for relief. Similarly, it is reasonable to conclude that the statute does not bar
from relief claimants who can provide evidence that their relocation was in fact
involuntary.
Arguably, the Civil Rights Division’s proposed narrowing of the breadth of the
relocation exclusion is more reasonable than its earlier interpretation. Generally,
remedial statutes should be interpreted broadly to effectuate their remedial pur
pose. Any exceptions should be interpreted narrowly. Norman J. Singer, Suther
land Statutory Construction §60.01 (5th ed. 1992). While courts have generally
held that waivers of sovereign immunity granting rights of action against the
United States must be strictly construed, they “have on occasion narrowly con
strued exceptions to waivers of sovereign immunity where that was consistent with
Congress’ clear intent.” See United States v. Nordic Village, Inc., 503 U.S. 30, 34
(1992) (citing, e.g., Franchise Tax Bd. o f Calif, v. United States Postal Serv., 467
U.S. 512, 517-19 (1984) (statute authorizing Postal Service to “sue and be sued”
waives immunity from orders to garnish wages issued by state administrative
boards); Block v. Neal, 460 U.S. 289, 298 (1983) (plaintiff’s claim under Federal
2 T h e sole discu ssio n o f w h eth er individuals w ho w ere returned to Japan should be included in the d e fin i
tion o f ‘‘e lig ib le in d iv id u als” is contained in tw o w itness statem ents subm itted to the H ouse and S enate
su b co m m itte es co n sid erin g the legislation In testim ony o p p o sin g the enactm ent o f the bill, the A ssistant
A ttorney G en eral for the C iv il D ivision, R ichard K W illard, no ted lhat as then w ritten (w ithout the re lo c a
tion exclu sio n ), the bread th o f the definition w o u ld cover any individual w ho had been su b ject to exclusion,
relocatio n , o r in tern m en t in clu d in g persons liv in g outside the U nited States In the D epartm ent s view , this
o v erlo o k ed the fact that at least several hundred o f the d etainees w ere "fanatical pro-Japanese, . . and [had]
vo luntarily sought rep atriatio n to Japan after the end o f the w a r.” T he D epartm ent believed that allow ing
these dislo y al individuals to receive the benefit o f the legislation would be unfair to the U nited Slates and to
loyal perso n s o f Jap an ese d escen t To A ccept th e Findings a n d to Im plem ent the R ecom m endations oj the
C om m issio n on W artim e R elo ca tio n and In tern m en t o f C ivilians. H earing on S 1009 B efore the Suhcom m .
on F e d e ra l Services, P ost O ffice, a n d Civil S e rv ic e o f the S e n a te Com m, on G overnm ental A ffa irs, 100th
C o n g , 1st Sess 281, 2 9 6 (1 9 8 7 ) (“ H earings”).
R e sp o n d in g to the D e p artm e n t's objections, an o th er w itness argued that many o f these repatriates acted
as they did for reasons un related to disloyalty to the U nited States, nam ely, their sheer frustration at being
in c a rc erate d in prison cam p s like com m on c rim in a ls and su m m arily deprived o f their personal and c o n stitu
tional rig h ts H earings at 145, 196-97 (statem en t o f M ike M asaoka, representing the G o For B roke Nisei
V eteran s A ssn ) N eith er o f th ese statem ents reveals, o r ev en suggests, an intention to exclude persons who
in v o lu n ta rily relocated lo an enem y country.
3 Y o ung ch ild ren are not cap ab le of ex ercisin g the ju d g m e n t required to m anifest legal consent F urther
m ore, a m in o r g enerally has no right to leave th e custody and control of his parents until he reaches m ajority
or is gran ted em an cip atio n C f Pierce v S o c ie t\’ o f Sisters, 268 U S 510, 518 (1925) (p a re n ts 'c o n s titu tio n
ally p ro te c te d liberty in clu d es the right to d ire c t the upbringing o f their children), G im lett v G im lett, 629
P 2d 4 5 0 , 4 5 2 (W ash 1981) (upon em ancipation o r m ajority a person is released from parental authority and
beco m es sui ju ris); In re L u s c ie r 's Welfare, 5 2 4 P 2d 906, 9 0 8 (W ash. 1974) (the interest o f a parent in the
custo d y and control o f his m in o r child is reco g n ized as a sacred right).
98
E ligib ility o f Involuntary W artime R elocatees to Japan fo r R edress U nder the
C ivil Liberies Act o f 1988
Tort Claims Act for negligent inspection not barred by exception disallowing
claims for negligent misrepresentation); United States v. Yellow Cab Co., 340 U.S.
543, 554-55 (1951) (FTCA waives immunity where U.S. impleaded as third-party
defendant)). The compensatory character of the Act’s grant of reparations to spe
cific individuals of Japanese descent interned by the government is of a different
nature than a general waiver of immunity in actions that will be brought by un
known plaintiffs. It is appropriate to narrowly construe an exception to this Act.
4.
There are potentially two groups of plaintiffs who would have standing to
challenge the proposed modified interpretation in court. Because section 104 of
the Act provides for payments to be made in order of date of birth, with no more
than $500 million to be paid in any year, the newly eligible claimants could
“bump” other eligible claimants, delaying or jeopardizing their payments. The age
and relatively low number of minor relocatees (as estimated by the Department)
make it unlikely that the minor relocatees would significantly affect the payment
schedule, but the number and age of involuntary adult relocatees is harder to as
certain.4 The second group of potential plaintiffs consists of relocatees who are
unable to prove that their relocations were involuntary. This second type of chal
lenge is more likely to focus upon the burden of proof and the definition of
“voluntary” than upon the reasonableness of the Department’s interpretation of the
regulation.5
It is true that a contemporaneous, consistent interpretation of a regulation or
statute by the agency charged with its enforcement will be accorded the greatest
deference by the courts, while “[a]n agency interpretation of a relevant provision
which conflicts with the agency’s earlier interpretation is ‘entitled to considerably
4
Under ihe Act, the o rd er o f paym ent is determ ined by date o f birth, w ith the oldest eligible individuals
receiving paym ent first 50 U S C app § I989b-4(b) Paym ent from the trust established by the A ct is
authorized until A ugust 1998 o r until the funds appropriated are depleted. 50 U.S C. app ^ I989b-3(d) The
1992 am endm ents placed an additional $400 m illion in the trust because the D epartm ent had already located
more eligible individuals than originally estim ated
Estim ates o f the num ber o f m inors w ho w ere relocated to Japan vary w idely P laintiffs counsel in a suit
seeking restitution paym ents for fourteen m inor relocatees cite a D epartm ent estim ate ’‘that as m any as 135
m inor children w ere relocated to Japan" w ith their parents during the w ar M em orandum for Jam es P
Turner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision from G en Fujioka, A sian Law C aucus, Jim
M cCabe & O w en C lem ents, M orrison & Foerster at 3-4 (Sept 22, 1993). In contrast, a w itness before the
Senate relying on figures published in a m onograph by the form er director o f the W ar R elocation A uthority
testified that betw een 1942 and 1946 a total o f 4724 repatriates and expatriates sailed for Japan O f this
total, 1659 were alien repatriates, 1949 w ere A m erican citizens, virtually all children under 20 years o f age
accom panying their alien parents, and 11 16 w ere form er A m erican citizens w ho had renounced th eir citiz en
ship. H earings at 197 (statem ent o f M ike M asaoka, representing the G o For Broke N isei V eterans A s s n )
(citing D illon S. M eyer, U prooted A m ericans The Japanese A m ericans and the W ar R elocation A uthority
D unng W orld W ar II)
A pproxim ately 75 adult relocatees have filed claim s with the O ffice o f Redress A dm inistration alleging
that their relocations w ere not voluntary M em orandum for W alter D ellinger, A ssistant A ttorney G eneral,
O ffice o f Legal C ounsel, from Jam es P T urner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision at
4 (M ar 16, 1994)
3 T he 1992 am endm ents require that individual claim ants receive the benefit o f the doubt w here ’‘there is
an approxim ate balance o f positive and negative evidence regarding the m erits of an issue m aterial to (a]
determ ination o f eligibility ' 50 U S C app & I989b-4(a)(3)
99
Opinions o f the O ffice o f L egal C ounsel
less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca,
480 U.S. 421, 446 n.30 (1987) (citation omitted); see also General Elec. Co. v.
Gilbert, 429 U.S. 125, 143 (1976). However, in both Cardoza and General Elec
tric, the Court concluded that the agency’s revised interpretation was in conflict
with the plain language of the statute in question. The underlying rationale for
judicial deference to agency interpretations is as applicable to a modified interpre
tation of a statute as to the agency’s initial construction. See Chevron, 467 U.S. at
865 (“it is entirely appropriate” for the agency “to make . . . policy choices”).
Accordingly, the Court of Appeals for the D.C. Circuit has held that the principle
of deferring to an agency’s reasonable construction of an open-ended statutory
provision “appliefs] equally where . . . we review modification of a previous pol
icy.” Office o f Communication of the United Church o f Christ v. FCC, 590 F.2d
1062, 1068-69 (D.C. Cir. 1978). Cf. Phoenix Hydro Corp. v. FERC, 775 F.2d
1187, 1191 (D.C. Cir. 1985) (an administrative agency is entitled to change its
prior erroneous interpretation of a statute).
Conclusion
The Civil Rights Division’s proposed interpretation of the regulation governing
eligibility for redress payments is a reasonable interpretation of the regulation and
of the Act. The language of the exclusion provision is ambiguous as to whether
Congress intended to prevent involuntary relocatees from receiving restitution.
The proposed interpretation does not contradict the language of the statute or the
statute’s legislative history and is consistent with the strong remedial purpose un
derlying the Act. Although there is a litigation risk associated with this modifica
tion, it is unlikely that a court would overturn the proposed interpretation. While
this modification does not require formal rulemaking procedures, it would be ad
visable for the Department to publish a notice of the change and the underlying
reasons in the Federal Register.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
100 |
|
Write a legal research memo on the following topic. | Presidential Authority to Make Recess Appointments
While Incumbents Hold Over
The President may make recess appointments to the Interstate Commerce Commission and to the
Board of Directors of the Reconstruction Finance Corporation while members of those entities
continue to serve in office under holdover statutes.
October 2, 1950
MEMORANDUM FOR THE DIRECTOR OF PERSONNEL
RECONSTRUCTION FINANCE CORPORATION*
You request information as to whether the President may make recess appointments to the Interstate Commerce Commission and the Board of Directors of the
Reconstruction Finance Corporation in cases in which incumbents are still serving
under provisions of law which permit them to continue to serve until their
successors are appointed and qualified.
The appointment, term, and qualifications of a member of the Interstate Commerce Commission are governed by the provisions of section 11 of title 49 of the
United States Code (1946). That section provides for terms of office of seven
years and that “[u]pon the expiration of his term of office a Commissioner shall
continue to serve until his successor is appointed and shall have qualified.”
The appointment, qualifications, and tenure of directors of the Reconstruction
Finance Corporation, appointed on and after July 1, 1950, are controlled by 15
U.S.C. § 602 (1946 Supp. II) (codifying Act of May 25, 1948, Pub. L. No. 80-548,
§ 2, 62 Stat. 261, 262), which provides that the terms of the directors in office
when the Act of May 25, 1948 was enacted shall be extended until June 30, 1950,
and also provides, after initial staggered appointments, for terms of three years,
“but they may continue in office until their successors are appointed and qualified.” Present incumbents now holding over, however, were appointed under a
previous statute (15 U.S.C. § 603 (1946) (codifying Pub. L. No. 72-2, § 3, 47 Stat.
5, 5–6 (Jan. 22, 1932)), which provided that “[t]he terms of the directors appointed
by the President of the United States shall be two years and run from January 22,
1932, and until their successors are appointed and qualified.”
The authority of the President to make recess appointments is found in Article II, Section 2, Clause 3 of the Constitution, which provides that “[t]he President
*
Editor’s Note: This memorandum was addressed to “the Honorable Donald S. Dawson,” without
indication of his office or title. At the time of this opinion, it appears that Mr. Dawson was serving as
Director of Personnel for the Reconstruction Finance Corporation—an inference supported by the fact
that the opinion addresses recess appointments to the Board of Directors of the Reconstruction Finance
Corporation. See Wolfgang Saxon, Donald Dawson, 97, Dies; Master of Truman Whistle-Stop, N.Y.
Times, Dec. 29, 2005, at A25, available at http://www.nytimes.com/2005/12/29/politics/29DAWSON.
html (last visited Aug. 24, 2012).
464
Presidential Authority to Make Recess Appointments While Incumbents Hold Over
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.”
A number of decisions in the state courts have dealt with the question whether
expiration of the prescribed term, in the case of an officer authorized to hold over
until his successor is appointed and qualified, creates a vacancy. The decisions
have not been uniform as there are holdings both ways.
No decision under the applicable provision of the federal Constitution has been
found. In a number of instances involving United States Marshals and United
States Attorneys affected by “hold over” provisions, recess appointments have
been given upon expiration of the prescribed term without, apparently, any formal
removal or resignation of the incumbent. See Memorandum for the Attorney
General, from George C. Todd, Assistant to the Attorney General, D.J. File
No. 175,594 (Dec. 21, 1914). These officers, by express provision of the law, hold
over until their successors are appointed and qualified. The question does not
appear to have been raised, however, as to whether a formal removal was necessary.
The President has removal authority with respect to a Director of the Reconstruction Finance Corporation, who appears to be clearly an administrative officer
in the Executive Branch. Myers v. United States, 272 U.S. 52 (1926). Members of
the Interstate Commerce Commission, however, can probably be removed only
“for inefficiency, neglect of duty, or malfeasance in office.” 49 U.S.C. § 11; see
also Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Power of the President to Remove Members of the Tennessee Valley Authority from Office, 39 Op.
Att’y Gen. 145 (1938) (Jackson, A.G.). Thus, at least insofar as the Reconstruction
Finance Corporation is concerned, there is an analogy with the case of United
States Marshals.
The Attorney General in District Attorney—Temporary Appointment, 16 Op.
Att’y Gen. 538 (1880) (Devens, A.G.), held that the President might make a recess
appointment to the office of United States Attorney even though the appointee of
the court as United States Attorney held the office. He stated that
The authority given to fill the office to the circuit justice is an
authority only to fill it until action is taken by the President. The
office in no respect ceases to be vacant in the sense of the Constitution because of this appointment, for the reason that the appointment
itself contemplates only a temporary mode of having the duties of
the office performed . . . .
Id. at 539–40. Likewise it may be said with respect to the commissioners of the
Interstate Commerce Commission that where they hold over under the statute after
their regular term, it is contemplated that such a holdover is only a temporary
mode of having the duties of the position performed and a vacancy does exist in
465
Supplemental Opinions of the Office of Legal Counsel in Volume 1
the sense of the Constitution. Indeed, the statutory authorization for an incumbent
to remain in office after the expiration of his term undoubtedly was provided for
the purpose of insuring that the duties of such important offices would not go
unattended, and obviously was not designed to nullify the provisions of law with
respect to the terms of such offices. If the expiration of the term of the individual
holding the office does not create a vacancy in the office, it would seem that the
President could not, without first removing the incumbent, send to the Senate a
nomination for the office.* Such, of course, is not the case and the President
frequently sends to the Senate a nomination for an office occupied by an incumbent whose term has expired. To hold that there is no vacancy, merely because the
incumbent, whose term has expired, is continuing to serve under statutory
authority, would lead to the result that no nomination or appointment could be
made until the incumbent resigned or died. Such a conclusion would render
entirely meaningless the express statutory provisions which limit the terms of the
offices in question to a specified number of years, and obviously is unsound.
In a memorandum for the Attorney General by the Assistant to the Attorney
General George C. Todd of December 21, 1914, the question here under consideration was discussed and the conclusion reached that there is a vacancy in office for
the purpose of a recess appointment under the circumstances indicated, as set forth
in the memorandum:
John Lord O’Brian was appointed on March 4, 1909 for four years
and until his successor should qualify. On December 1, 1914, the
Senate being then in recess, the President appointed Mr. Lynn by a
commission expiring at the end of the present session of the Senate.
Mr. Lynn qualified on December 2, 1914. On December 7, 1914, the
Senate convened, and on December 9, 1914, Mr. Lynn was nominated for a full term. On December 14, 1914, the Senate rejected the
nomination.
The questions are:
1. In view of the fact that Mr. Lynn’s predecessor did not resign
and was not removed, but ceased to be District Attorney only be
reason of the appointment and qualification of his successor, was
there any “vacancy” within the meaning of the provision of the
Constitution authorizing the President to “fill up all vacancies that
may happen during the recess of the Senate?”
*
Editor’s Note: In Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C.
108, 109 (1986), the Office reached a different conclusion, stating that “as a constitutional matter, nothing precludes the nomination and confirmation of a successor while the incumbent still holds office.”
466
Presidential Authority to Make Recess Appointments While Incumbents Hold Over
This objection to Mr. Lynn’s appointment would seem to be overrefined. Mr. O’Brian held office subject to the absolute power of the
removal of the President. [In re Hennen, 38 U.S. (13 Pet.) 230, 259
(1839); Blake v. United States, 103 U.S. (13 Otto) 227 (1880); Parsons v. United States, 167 U.S. 324 (1897); Shurtleff v. United
States, 189 U.S. 311 (1903).] The reasonable view would be that the
action of the President in appointing a successor ipso facto created a
vacancy in the office. It was equivalent to a removal.
Mr. Todd in this memorandum refers in supporting his conclusion to In re
Marshalship, 20 F. 379 (M.D. Ala. 1884), and to an opinion of the Comptroller of
the Treasury, 5 Comp. Gen. 594 (1926).
In conclusion, it would appear that the President’s power to make recess appointments exists with respect to the positions here under consideration.*
PEYTON FORD
Deputy Attorney General
*
Editor’s Note: Apart from the sentence identified in the previous Editor’s Note, the Office continues to take the position articulated in this opinion. See Memorandum for Robert G. Damus, General
Counsel, Office of Management and Budget, from Beth Nolan, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Reporting Obligation under the Federal Vacancies Reform Act for PAS
Officers Serving Under Statutory Holdover Provisions (July 30, 1999) (“As a matter of constitutional
law, the executive branch consistently has taken the position that there is a vacancy for purposes of the
Recess Appointments Clause when an appointment for a term of years expires and the officer continues
serving under a holdover provision”).
Federal courts, however, have taken conflicting positions on the issue. Compare Staebler v. Carter,
464 F. Supp. 585, 589 (D.D.C. 1979) (upholding recess appointment to position on Federal Election
Commission still occupied by incumbent, on ground that expiration of incumbent’s formal statutory
term created immediate vacancy), with Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C.
1994) (invalidating termination of inspector general by recess appointees on Board of Directors of
Legal Services Corporation, on grounds that holdover provision in Legal Services Corporation Act was
mandatory and that Board positions were therefore not vacant at time of recess appointments), rev’d on
other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 58 (D.D.C. 1993),
vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir.) (per curiam) (invalidating
recess appointment to position on Postal Service Board of Governors still occupied by incumbent, on
ground that statute entitled incumbent to hold position for one year after expiration of formal term). In
Swan v. Clinton, 100 F.3d 973, 986 (1996), the D.C. Circuit refused to infer tenure protection for
holdover members of the National Credit Union Administration “absent clear evidence that this was
Congress’ intent,” because doing so would “preclude[] the President from exercising [the] constitutionally granted power” of recess appointment.
467 |
|
Write a legal research memo on the following topic. | Extension of District Court Jurisdiction Under § 1110 of the
Federal Aviation Act
Section 1110 of the Federal Aviation A ct authorizes the President to extend that A ct to
areas outside the United States, but does not authorize an analogous extension o f the
geographic jurisdiction of a district court for purposes o f enforcing certain o f the A ct’s
provisions. An executive o rd er extending the Act to the Trust Territory o f the Pacific
Islands (T T PI) would make its provisions part of the law of the T TPI, and enforceable
through the T T P I judicial system.
August 27, 1981
MEMORANDUM OPINION FOR TH E ASSISTANT CHIEF
COUNSEL, FEDERAL AVIATION ADMINISTRATION
This responds to your request for the guidance of this Office on the
question whether the President has authority under § 1110 of the Fed
eral Aviation Act of 1958, as amended (49 U.S.C. § 1510) (Act), to
extend by executive order a judicial district of the United States in
support of a geographical extension of the Act by executive order. You
understand that our response to your inquiry was delayed in view of
the difficulties you had in ascertaining the manner under which similar
problems were solved under Executive Order No. 11,326, 3 C.F.R. 617
(1966-1970 Comp.), which extended parts of the Federal Aviation Act
to the Ryukyu Islands. We have been advised now that the issue did
not arise at that time because the provisions of the Federal Aviation
Act under which this problem becomes critical were not extended to
the Ryukyu Islands.
Section 1110 of the Federal Aviation Act, 49 U.S.C. § 1510, provides:
Whenever the President determines that such action
would be in the national interest, he may, to the extent, in
the manner, and for such periods of time as he may
consider necessary, extend the application of this Act to
any areas of land or water outside of the United States
and the overlying airspace thereof in which the Federal
Government of the United States, under international
treaty, agreement or other lawful arrangement has the
necessary legal authority to take such action.
Under the authority of this section, Titles III and XII of the Act
already have been extended by Executive Order No. 10,854, 3 C.F.R.
276
389 (1959-1963 Comp.), “to those areas of land or water outside the
United States and the overlying airspace thereof over or in which the
Federal Government of the United States . . . has appropriate jurisdic
tion and control.” This definition, as pointed out in your memorandum,
includes the Trust Territory of the Pacific Islands (TTPI). It is now
contemplated to extend most of the titles of the Act to the TTPI in
order to enable aircraft owned by citizens of the Micronesian entities to
be registered in the United States. Your agency feels that such exten
sion of the Act to the TTPI is feasible only if the Act and the
regulations of the Federal Aviation Administration can be fully en
forced with respect to persons located in the violations occurring in the
TTPI.
The Act provides for its enforcement largely through civil and crimi
nal proceedings in the district courts in which the offense or violations
are committed, or where the person committing a violation of the Act
carries on his business. §§ 903, 904, 1007 (49 U.S.C. §§ 1473, 1474,
1487). Because the TTPI is not within any federal judicial district, the
question arises how the Act can be effectively enforced in the T T P I.1
This gives rise to the question whether the President’s authority under
§ 1110 of the Act includes the power both to extend the Act to areas
outside the United States and the power to extend the geographic
jurisdiction of a district court to an area outside the United States to
which the Act has been made applicable.
In our view this question must be answered in the negative. The
jurisdiction of the federal district courts is purely statutory. Section
1110 does not expressly confer on the President the power to extend
the geographical jurisdiction of the district courts, and such power is
not easily implied from the language of that section. Moreover, it
cannot be said that this power follows by necessary implication because
§1110 would be nugatory in the absence of a judicial forum in which
the extension of the Act could be enforced. The experience of Execu
tive Order Nos. 10,854 and 11,326 shows that some titles of the Act can
be extended without a concomitant extension of the jurisdiction of a
federal court. In addition, § 903(a) provides for a forum for some
violations of the Act outside the United States. See supra note 1.
Our conclusion that § 1110 of the Act does not confer on the Presi
dent the power to enlarge the geographic jurisdiction of a federal
district court, however, does not mean that there is no available means
of enforcing the provisions of the Act in the event it is extended to the
1Section 903 provides that where an “offense is committed out o f the jurisdiction of any particular
State o r district, the trial shall be in the district where the offender. . . is arrested or is first brought ”
This provision does not appear to be sufficiently effective in the case o f non-resident aliens.
277
TTPI. According to § 101(2) of Title I of the Trust Territory Code
(1970):
(2) such laws of the United States, as shall, by their own
force, be in effect in the Trust Territory, including the
Executive Orders o f the President and orders of the Sec
retary of the Interior
have the effect of law in the TTPI. An executive order extending the
Act to the TT PI therefore would be a part of the law of the TTPI and
judicially enforceable there. However, since the judicial system of the
TT PI is controlled by orders of the Secretary of the Interior, we would
suggest that you consult with the Office of the Solicitor of the Interior
on the best method of conferring enforcement jurisdiction on the TTPI
High Court.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
278 |
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Write a legal research memo on the following topic. | Authority of Senate Committee Staff to Depose
Executive Branch Officers
There is no authority in the rules o f the Senate, o r in relevant statutes, for the Senate C om m ittee on
Labor and Hum an Resources to direct its sta ff to depose certain Executive Branch officials. R ecent
practice establishes that such depositions m ay be taken by Senate com m ittee staff only w hen
sp ecifically auth o rized by a resolution o f the full Senate in connection w ith a p a rtic u la r
investigation.
August 4, 1982
MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL
This responds to your request for our opinion whether the Senate Committee
on Labor and Human Resources may, without specific authority conferred by a
resolution adopted by the Senate, authorize its staff to take depositions of
Executive Branch officials in the course of that Committee’s inquiry into the
confirmation of Secretary [of Labor Raymond J.] Donovan.
On July 22, 1982, the Senate Committee on Labor and Human Resources
adopted a resolution authorizing an investigation into whether “ the Committee
received full, complete and timely disclosure of all information in the [Donovan]
confirmation [proceedings].” On the afternoon of July 29,1982, Messrs. Francis
M. Mullen, formerly Executive Assistant Director of the FBI, FBI Special Agent
Anthony Adamski, Jr., and Fred F. Fielding, Counsel to the President, received
Notices of Deposition purporting to require them to appear for depositions at 7:30
a.m. on August 3, 6, and 9, 1982, respectively. Each Notice of Deposition states
that it is authorized “ pursuant to Committee resolution and the Committee
rules. . . .” We have examined the Committee resolution and rules, and, in
addition, the Standing Rules of the Senate, the Standing Orders and Resolutions
Affecting the Business of the Senate, and relevant statutes and have found no
authority, express or implied, for the depositions which are demanded of Messrs.
Mullen, Adamski, and Fielding.
I. The Committee’s Rules of Procedure
The Rules of Procedure of the Committee, which are attached to each of the
Notices of Deposition, do not authorize the taking of depositions. In fact, the
word “ deposition” nowhere appears in the rules of the Committee, and no
503
language appears in the rules from which power in the staff to take depositions
could reasonably be inferred.1
II. The Committee’s Resolution
The Committee’s resolution o f July 22, 1982, purports to authorize swom
depositions “ anywhere in the continental United States” to be taken by Commit
tee staff members, provided only that a Senator be present when the deposition
commences. The resolution states that “ under Senate rule XXVI and section
1364(a) of title 28, United States Code, a committee may authorize the issuance
of subpoenas and the taking of depositions. . . .” No other authority for taking
depositions is cited in the resolution.
Rule XXVI governs Senate com m ittee and subcommittee procedure. It
provides broad authority to conduct hearings, to take testimony, to require “ by
subpena or otherwise” the attendance of witnesses, and to conduct investiga
tions. Yet nowhere in the rule is there language expressly or implicitly authoriz
ing the taking of depositions by committee staff. As with the rules of the
Committee itself, the word “deposition” nowhere appears in Senate Rule XXVI.
Indeed, none of the Standing Rules of the Senate contain so much as a single
reference to depositions.
The statutory provision cited by the resolution, 28 U.S.C. § 1364(a) (Supp. V
1981) added by Pub. L. No. 95-521,92 Stat. 1879, establishes jurisdiction in the
United States District Court for the District of Columbia to hear certain civil
actions brought by the Senate Legal Counsel, including actions to require
compliance with an order of a committee seeking answers to “ any deposition or
interrogatory.” This provision, however, is by its express language inapplicable
to the taking of depositions of Executive Branch officials:
This section shall not apply to an action to enforce, to secure a
declaratory judgment concerning the validity of, or to prevent a
threatened refusal to comply with, any subpena or order issued to
an officer or employee of the Federal Government acting within
his official capacity.
28 U .S.C . § 1364(a); see S. Rep. No. 170, 95th Cong., 2d Sess. 89 (1977) (this
section does not apply to Executive Branch officers). We are unaware of any other
statutory provision authorizing the taking of depositions by Senate committee
staff.
We have examined the Standing Orders and Resolutions of the Senate set out in
the Senate Manual, S. Doc. No. 1, 96th Cong., IstSess., and have discovered no
general standing authority for the taking of depositions by the staff of a Senate
committee. It thus appears that the Committee’s resolution purporting to autho
rize the taking of depositions by its staff was entirely without legal basis in statute
or Senate rule.
1 We note that if the C om m ittee’s rules provided for the taking of depositions of Executive Branch officials by
C ommittee staff, such a provision might well establish customary practice of the Committee, it would not, however,
establish a source of power for the adoption of the provision itself.
504
III. The Flannery Memorandum
On July 12, 1982, John P. Flannery II, Special Counsel to the Labor Commit
tee, and George Pritts, the Committee’s Chief Counsel, addressed to the mem
bers of the Committee a memorandum concerning the resolution which was
eventually adopted on July 22. The bulk of that memorandum discusses the
nature and advantages of deposing witnesses prior to holding any public hear
ings. The memorandum informed the members as follows regarding the au
thority for the staff’s taking depositions:
As you may not be familiar with Senate staff depositions, a few
explanatory remarks about their history and use follow. Senate
staff depositions, first authorized in 1928,* and expressly
provided for by statute,* * have been used in recent Congressional
investigations.*** They are similar to the depositions of a nonparty witness in a civil case.****
* S. Res. 118, 70th Congress, 1st Session.
** Title 28, United States Code, Section 1364(a).
*** See H. Res. 803, 93rd Congress (House Judiciary Commit
tee, during impeachment investigation for Richard Nixon); H.
Res. 222, 95th Congress (House Select Committee on Assassina
tions); S. Res. 495, 96th Congress, 2nd Session (Senate Billy
C arter inquiry); S. Res. 4, 95th C ongress, 1st Session
§§ 104(c)(1)(G) (Aging Committee), 105(c)(1)(G) (Indian Af
fairs), 106(b)(7) (Nutrition); S. Res. 400, 94th Congress, 2nd
Session, § 5(a)(7) (Intelligence).
**** See Rule 30 of the Federal Rules of Civil Procedure.
This statement of authority is without any foundation in the law for the
following reasons:
(A) S. Res. 118 was passed in 1928 and provides:
Resolved, That the President of the Senate be, and he hereby is,
authorized, on the request of the chairman of any of the commit
tees of the Senate, to issue commissions to take testimony within
the United States or elsewhere.
69 Cong. Rec. 1926 (1928). This resolution provides authorization only for the
President of the Senate (i.e., the Vice President of the United States) to commis
sion the taking of testimony; it provides no authority for the staff of committees to
take testimony simply on the strength of a committee resolution. Further, it
provides no basis for committee staff to take depositions of Executive Branch
officials.2
2 We note that S Res 118 may not represent a current source of authonty for committees of the Senate to take
“ testimony” outside Washington The Resolution does not appear in the Senate Manual, and there is nothing in the
Flannery memorandum suggesting that that Resolution is not in a state of desuetude. In addition, assuming
arguendo that the Resolution could be read to authorize the taking of testimony from Executive Branch officials, it
implicitly recognizes the sensitivity of Senate committee requests for testimony of Executive Branch officials by
providing that the Vice President, a member of the Executive Branch, must authorize all such requests
505
(B ) Section 1364(a) of Title 28, U.S. Code, simply does not stand from the
proposition cited. As stated above, § 1364 on its face does not apply to commit
tee subpoenas or orders directed to Executive Branch officers.
(C) The five prior House and Senate resolutions authorizing the taking of
depositions by the staff of various committees in no way provides authority for
the taking of depositions by the staff of the Senate Committee on Labor and
Human Resources because—among other reasons— none of the cited resolutions
authorized action by this Committee or its staff, nor are they phrased in language
that is even arguably applicable to Senate committees generally. On the contrary,
the recent historical practice established by these five resolutions is that deposi
tions may be taken by the staff of Senate committees only when expressly
authorized by a resolution of the full Senate in connection with a particular
investigation, not by a simple resolution adopted by a Senate committee sua
sponte.
(D ) Finally, Rule 30 of the Federal Rules of Civil Procedure lends no support to
the committee resolution at issue here, since that rule applies only “ after
commencement of [a civil] action” in the courts of the United States. Needless to
say, it provides no authority, express or implied, for depositions to be taken by
Senate committee staff.
IV. Conclusion
On the basis of the references relied upon in the Committee material available
to us, we find no authority for the compelled deposition of Messrs. Mullen,
Adamski, and Fielding. In addition, our research into the Standing Rules of the
Senate has uncovered no authority that would support the deposition power
asserted in the Committee Resolution. Finally, the more recent precedents relied
upon in the Committee material suggest quite strongly that older precedents
which may be supportive of such standing committee power, even if they exist,
have been abandoned in favor of passage of Senate resolutions authorizing the
taking of depositions by committee staff in specific circumstances. At least until
some more persuasive precedents are proffered, however, we are firmly con
vinced that there is no support in law or Senate rules for the staff of the Senate
Committee on Labor and Human Resources to take the depositions of Executive
Branch officials.3
T
heodore
B. O
lson
Assistant Attorney General
Office c f Legal Counsel
3 Although this opinion is confined to the facts presented, we would emphasize that we have found no plenary
authority for the taking o f depositions of even private persons by the staff of Senate committees absent a specific
resolution passed by the Senate authonzing such action W hether an established practice as regards deposing of
private persons would, w ithout more, legitimate the deposing of Executive Branch officials is doubtful, given the
co-equal status o f the Legislative and Executive Branches under our Constitution.
506 |
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Write a legal research memo on the following topic. | Enforcement by Federal Magistrates of Summonses Issued
by the Federal Bureau of Investigation in Aid of Criminal
Investigations and Foreign Intelligence Activities
Certain proposed legislation would have granted the Federal Bureau of Investigation pow er to
issue sum m onses ordering the production of physical and documentary evidence in aid of
federal crim inal investigations and foreign intelligence activities. A provision of that legisla
tion allowing United States magistrates to enter orders enforcing such summonses would raise
problems under Article HI of the Constitution, because it could entail the exercise o f the
judicial power by officials lacking life tenure and guaranteed non'dim inution o f com pensa
tion.
The Article III problem s presented by the foregoing provision could be eliminated by providing
that the m agistrate's order would be treated as a report of findings and recom mendations,
subject to de novo review by a United States district judge with respect to findings and
recom mendations of the magistrate as to which objection is m ade by any party, whereby the
judge could accept, reject, or modify the findings or recommendations of the magistrate.
A provision in the proposed legislation would permit the ex parte issuance of an order prohibit
ing disclosure o f such FBI summonses upon a showing that such disclosure might endanger
life or property; cause the flight of a suspect; result in the destruction of or tampering with
evidence, or the intimidation of potential witnesses; or defeat federal remedies or penalties.
Under the standard articulated in M athews v. Eldridge, 424 U.S. 319 (1976), the absence o f a
predeprivation hearing in this provision would not appear to violate the requirements of the
Due Process Clause.
December 11, 1986
M
em orandum
O
p in io n f o r t h e
O
f f ic e o f
A s s is t a n t A t t o r n e y G
eneral,
L e g is l a t iv e A f f a ir s
You have requested the comments of this Office on a proposed bill to grant
the Federal Bureau of Investigation the power to issue a summons to acquire
physical and documentary evidence in aid of criminal investigations and for
eign intelligence activities.
The authority will reside in the Director of the FBI, who may delegate it to
supervisory level Special Agents. The summons must be issued in writing,
must describe the materials sought with reasonable specificity, and must pro
vide sufficient time to assemble and make available the materials requested.
The Attorney General, in consultation with the Director of the FBI, is to
promulgate regulations governing the issuance of a summons. Service of the
summons on a natural person must be by personal service. For a corporation,
partnership, or other association, service may be by personal service or by
145
registered or. certified mail. Service may be national. United States District
Courts have jurisdiction to enforce or to modify or vacate a summons on
petition of the government or of the person served, respectively.1 A magistrate
or district judge may enter an order enforcing a summons or granting relief
from a summons; disobedience of such an order is punishable by contempt. All
petitions relating to foreign intelligence are to be heard in the Foreign Intelli
gence Surveillance Court.
The proposed bill contains certain limitations on summons authority, includ
ing a provision proscribing the required production of materials that could not
be obtained under the standards governing a subpoena duces tecum issued in
aid of a grand jury investigation. Finally, the bill allows a court, per a district
judge or magistrate, to issue an ex parte order prohibiting disclosure of the
existence of a summons where such disclosure would jeopardize life or physi
cal safety or would interfere with various law enforcement objectives. Such an
order may be challenged in district court, and a district judge or magistrate may
set it aside or modify it. Where the Director of the FBI, a Special Agent, or a
designated Assistant Special Agent certifies that the summons is being issued
for foreign intelligence purposes, the statute prohibits disclosure of its exist
ence. This prohibition against disclosure may be challenged in the Foreign
Intelligence Surveillance Court.
This Office has comments with respect to three aspects of the bill. First, we
believe that the provision allowing magistrates to enter final district court
orders enforcing the summons poses a constitutional problem, because Article
III requires that the judicial power of the United States be exercised by an
official with life tenure and guaranteed non-diminution of compensation. Sec
ond, the non-disclosure provisions impinge on the summoned party’s liberty
interests and, therefore, raise questions about due process of law. Third, the
provision limiting the request for materials to those obtainable under a sub
poena duces tecum issued in aid of a grand jury investigation seems to be at
odds with part of the rationale for proposing the legislation. We address each
issue in turn.
L TIhe Use off Magistrates to Enforce the Sunnimoinis
The proposed bill poses a potential constitutional problem with respect to the
enforcement authority that it appears to confer upon United States magistrates.
Insofar as § 1(d)(3) gives the district court “jurisdiction to hear and determine”
a petition for enforcement of the administrative summons or for relief from the
summons, no issue of constitutionality arises. Section 1(d)(3) continues, how
ever, by stating: “The petition may be heard and an order entered by a district
judge or United States Magistrate for the district in which the petition was
filed. Any failure to obey the order of the court may be punished as a contempt
1 V enue lies in the ju d ic ia l district in w hich the sum m ons is served, in w hich the investigation is pending, or
in w hich the sum m oned person resides o r carries on business o r may be found.
146
thereof.”2 This provision appears on its face to empower United States magis
trates to enter final orders of the district court, punishable by contempt of court.
If so, any such attempt to delegate this inherently judicial function to a United
States Magistrate, an office not endowed with the attributes of guaranteed non
diminution of salary or life tenure,3 may run afoul of Article Ill’s requirement
that “the judicial Power of the United States” be exercised by judges with
undiminishable compensation and tenure “during good Behaviour.” U.S. Const,
art. Ill, § 1.
The starting point for analysis is ICC v. Brimson, 154 U.S. 447 (1894), in
which the parties against whom the agency had issued a summons resisted
enforcement in federal court on the ground that permitting or requiring courts
of the United States to “use their process in aid of inquiries before” a federal
agency failed to meet the case or controversy requirement of Article III. Id. at
468. In rejecting this argument, the Court noted that Congress has the power to
regulate interstate commerce and that it would “go far towards defeating the
object” of giving Congress the commerce power if the Court held that Congress
could not “establish an administrative body with authority . . . to call witnesses
before it, and to require the production of books, documents, and papers . . .
relating to the subject.” Id. at 474. The Brimson Court found that Congress’ use
of the courts of the United States was an appropriate means to effectuate this
power because
[t]he inquiry whether a witness before [an agency] is bound to
answer a particular question propounded to him, or to produce
books, papers, etc., in his possession and called for by that body,
is one that cannot be committed to a subordinate administrative
or executive tribunal for final determination. Such a body could
not, under our system of government, and consistently with due
process of law, be invested with authority to compel obedience
to its orders by a judgment of fine or imprisonment.
Id. at 485. Analogizing the enforcement proceedings to the prosecution of a
person indicted under a statute requiring that person to appear or to produce
certain materials, the Court further stated that “[t]he performance of the duty
which, according to the contention of the government, rests upon the defen
dants, cannot be directly enforced except by judicial process.” Id. at 487. In this
vein, the Court added that summons enforcement involved “questions judicial
2 This provision seem s to apply equally lo petitions for enforcem ent by the governm ent and petitions for
relief by the parties. The analysis w ith respect to both kinds o f petition is the same, for the result o f either
petition w ill be an o rd er enforcing the sum m ons if valid and enforceable or an order denying enforcem ent if
not.
3 Under 28 U .S.C . § 631(e), a full-tim e m agistrate has a term o f eight years and a part-tim e m agistrate
serves for four years. A m agistrate may be rem oved before the end o f his term for “incom petency, m iscon
duct, neglect o f d u ty , o r physical o r mental d isability” and a “m agistrate’s office may be term inated if the
judicial conference determ ines that the services performed by his office are no longer needed.” Id. § 631(i).
A lthough 28 U .S.C . § 634(b) provides that “ the salary o f a full-tim e m agistrate shall not be reduced, during
the term in which he is serving, below the salary fixed for him at the beginning o f that term ,” this guarantee is
not o f constitutional dim ension, and Congress can revoke this provision sim ply by am ending Title 28.
147
in their nature, and presented in the customary forms of judicial proceedings.”
Id. at 487.
B rim son' s statement that the power to enforce an administrative summons
cannot be committed to an administrative or executive “tribunal,” created
pursuant to Congress’ Article I powers, necessarily suggests that such enforce
ment constitutes a part of the “judicial Power of the United States” and that
only an official endowed with Article Ill’s guarantees of undiminished com
pensation and tenure during “good Behavior” could constitutionally compel
compliance with a summons. Given Congress’ power to create Article I tribu
nals with significant judicial attributes short of these Article III characteristics,
no other rationale for the Court’s conclusion suggests itself. Indeed, the Brimson
Court’s explicit reliance on “our system of government” shows that the Court
was employing a separation o f powers analysis, which, insofar as it addressed
the proper forum for “questions judicial in their nature,” necessarily implicated
Article III.4 Thus, the Brimson Court’s conclusion that the duty to obey a
summons “cannot be enforced except by judicial process” must be taken as a
constitutional pronouncement that commits such enforcement to Article IE courts.5
Some lower courts have questioned the continuing vitality of this aspect of
Brimson. For example, in Federal Maritime Comm ’n v. New York Terminal
Conference, 373 F.2d 424, 426 n.2 (2d Cir. 1967), Judge Friendly suggested
that “Congress might well consider whether the long record of frustration and
less restrictive modem notions of the separation of powers might not make it
wise to empower at least some administrative agencies to enforce subpoenas
without having to resort to the courts in every case.” Presumably, Judge
Friendly’s conception of “less restrictive modem notions of the separation of
powers” is a reference to the rise of the modem administrative state and the fact
that it has now become a commonplace for Article I agencies to adjudicate socalled “public rights.” Cf. Atlantic Richfield Co. v. D ep’t o f Energy, 769 F.2d
771, 793-94 (D.C. Cir. 1984) (relying on the advent of the modem administra
tive state and on the public rights doctrine to uphold the application of discov
ery sanctions by an agency in response to a party’s disobeying a subpoena).
The concept of “public rights” is, at best, elusive and, at worst, unfathom
able. The essence of the “public rights” doctrine is that Congress itself has the
power to decide, or may delegate to an executive agency the authority to
decide, “cases . . . which arise between the Government and private persons in
connection with the performance of the constitutional functions of the execu
4 Cf. In Re Croban, 352 U .S. 330 (1957), in which the Suprem e Court im plied by way o f dictum that a state
execu tiv e o fficer co u ld issue a subpoena a n d punish non-com pliance by contem pt. T here is nothing to suggest
th a t this dictum has any application to the federal level o r otherw ise lim its Brimson.
5 S om e ju d g es have suggested doubt as to w hether Brimson' s pronouncem ents on sum m ons enforcem ent
w ere o f con stitu tio n al m agnitude. See, e.g., Penfield Company o f California v. Securities & Exchange
Commission , 330 U .S. 5 8 5 ,6 0 3 -0 4 (1 9 4 7 ) (Frankfurter, J., jo in e d by Jackson, J., dissenting); United States v.
Zuskar. 237 F.2d 5 2 8 k533 (7th Cir. 1956) (“ Since Brimson C ongress has customarily provided foi [the] resort
to the courts by [adm inistrative] agencies fo r orders com pelling obedience to subpoenas.") (emphasis added).
In light o f Brimson* s reference to “our sy stem o f governm ent” and to “due process o f law ” in announcing the
principle that sum m ons enforcem ent cannot be com m itted to an Article I tribunal, it is difficult to understand
the basis fo r any such conclusion.
148
tive and legislative departments.” Crowell v. Benson, 285 U.S. 22, 50 (1932).
Because Congress has plenary power to determine these “public rights” issues
or to delegate their determination to executive officers, it may, therefore, also
take the expedient of committing such determinations to Article I tribunals not
meeting the dictates of Article III.6 Id.
The theory that this doctrine undercuts Brimson presumably depends on the
notion that, insofar as an agency summons relates to “public rights,” Congress
can commit its enforcement to a non-Article III tribunal. But because the
“public rights” doctrine antedates Brimson, see, e.g., Murray’s Lessee v. Hoboken
Land and Improvement Co., 59 U.S. (18 How.) 272 (1856), and because the
Court in Brimson recognized that the Interstate Commerce Commission’s
summons power related to matters of public rights, see 154 U.S. at 475-77, and
nonetheless proclaimed that the enforcement of the Commission’s summons
could not be committed to a subordinate executive or legislative tribunal, id. at
485, any such theory must be dismissed. The Brimson Court, in fact, explicitly
remarked that the legislative purpose for which the summons was sought did
not affect the conclusion that summons enforcement was an inherently judicial
function. See id. at 487 (“[The enforcement of a summons] is none the less the
judgment of a judicial tribunal dealing with questions judicial in . .. nature,
and presented in the customary forms of judicial proceedings, because its effect
may be to aid . .. the performance of duties legally imposed . . . by Congress in
execution o f . .. power granted by the Constitution.”).
Thus, we conclude now, as we have concluded previously, see, e.g., “Pro
posed Legislation to Grant Additional Power to the President’s Commission on
Organized Crime,” 7 Op. O.L.C. 128 (1983), that Brimson remains good law,
see 1 K. Davis, Administrative Law Treatise § 4:6, at 240 (2d ed. 1978), at least
as to the enforcement of a summons through criminal penalties. There are
apparent exceptions related to Congress,7 the application of civil penalties,8
6 Although the concept o f w hat constitutes a “public right" has undergone some recent expansion, see
Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 5 8 8 -8 9 (1985) (holding that a dispute
between private individuals may constitute a “public rights" case insofar as “C ongress has the power, under
Article I, to authorize an agency adm inistering a com plex statutory schem e to allocate costs and benefits
among voluntary participants in the program "), the m ere fact o f its broader application cannot supply a
principled basis for concluding that Brimson is no longer good law.
7 E ither House o f C ongress may compel docum entary o r oral testimony under pain of crim inal contempt.
See Jumey v. MacCracken, 294 U.S. 125, 148 (1935). The basis for this exception to the Brimson rule is
rooted in the historical pow ers o f the H ouse o f Commons, the colonial assem blies, the C ontinental C ongress,
and the state legislatures to m ete out crim inal punishm ent for contempt, see id. at 148-49, a practice that the
Supreme Court upheld as constitutional as early as 1821. See Anderson v. Dunn , 19 U.S. (6 W heat.) 204
(1821). This power is narrow and lim ited to punishing acts that “obstruct the performance o f the duties o f the
legislature." Jum ey , 294 U.S. at 148. In effect, therefore, Brimson m ust be read as establishing a general rule
that the use of crim inal contem pt to compel testimony fo r the implem entation and enforcem ent of law s is
inherently judicial and m ust be com m itted to an A rticle III court, but that C ongress may, according to
historical practice, itself use the pow ers o f crim inal contem pt to safeguard the integrity o f the legislative
process as such. This lim ited exception, how ever, does not suggest that C ongress may delegate to an A rticle
I tribunal the pow er to enforce com pelled production o f testim ony by citing persons for c nm inal contempt.
8 W ith respect to civil penalties, the Suprem e Court has sustained schem es in which “C ongress has . . .
created new statutory obligations, provided for civil penalties for their violation, and com m itted exclusively
C ontinued
149
and various monetary claims enforceable in certain Article I courts of limited
jurisdiction where the party presumably consents to a waiver of his right to an
Article III forum.9
The ability of a magistrate under the proposed legislation to enter a final
judgment enforcing a summons poses a potential constitutional objection pre
cisely because it exposes the summoned party to possible criminal contempt
before any Article III determination of his or her right not to have the summons
enforced.10 Under the proposed legislation, a non-Article III magistrate may
initially determine the validity of the summons in light of whatever constitu
tional or other objections the party may assert.11At that point, if the magistrate
enters a final order of the district court directing the party to comply with the
summons and to produce the “books, records, papers, documents, or other
tangible things” that may be reached by § 1(a) of the proposed bill, two choices
exist. The party can seek appellate review of this final order of the court,
perhaps asking for a stay of the order, or the party can disobey the order and
risk a citation for contempt in district court. Neither option preserves the
party’s right to resist enforcement of a summons in an Article III court without
incurring criminal liability.
If the party seeks appellate review, the Article III appellate court does not
conduct a de novo review of the magistrate’s order, but applies a less searching
standard of review. See, e.g., FTC v. Brown & Williamson Tobacco Corp., 778
F.2d 35, 41 (D.C. Cir. 1985) (upholding a district court’s findings in a civil
action because they were not “clearly erroneous”). In these circumstances,
there will be no determination by an Article III tribunal of the enforceability of
the summons, but merely a determination of the adequacy of the non-Article III
magistrate’s conclusions in that regard.
By the same token, if the party chooses to disobey the magistrate’s order, the
magistrate can secure a contempt citation against the recalcitrant party by
8 ( . . . continued)
to an adm inistrative agency the function o f deciding w hether a violation has . . . occurred.” Atlas Roofing Co.
v. Occupational Safety and Health Review Comm’n, 430 U .S. 442, 450 (1977). Thus, in asserting the
continuing vitality o f the “w ell-established p rinciple” that A rticle I tribunals do not have the pow er to enforce
a sum m ons ‘“ by a ju d g m en t o f fine o r im prisonm ent,” ’ see Atlantic Richfield Co. v. Dep't o f Energy , 769
F.2d 771, 793 (D.C. C ir. 1984), it appears necessary to append the caveat that this principle is limited to
m atters involving enforcem ent through crim inal contem pt. But see NLRB v. International Medication
Systems Ltd., 640 F.2d 1110, 1115-16 (9 th Cir. 1981) (holding that, because Brimson requires that “chal
lenges to agency subpoenas . . . be resolved by the judiciary before com pliance can be com pelled,” an agency
c a n n o t a p p ly d is c o v e ry sanctions in re sp o n se to a p a rty 's re fu sa l to com ply w ith a subpoena).
9 See, e.g., 26 U.S.C. § 7456(e) (Tax C ourt).
10 T he follow ing analysis assumes th at § 1(d)(3) o f the bill does not actually perm it the magistrate to cite
the party fo r contem pt. B ecause the language provides that “ [a]ny failure to obey [an] order o f the court may
be punished as a contem pt thereof,” an d does not specify w hich authority or authorities may apply such a
m easure, w e assum e that, w ith respect to contem pt o f m ag istrate's orders, the substantive grant o f contem pt
pow er m ay b e exercised only pursuant to 28 U.S.C. § 636(e), which governs “acts or conduct” before a
m agistrate th at “shall co n stitu te a contem pt o f the district co u rt.”
11A party m ay oppose the enforcem ent o f a sum m ons on a num ber o f distinct bases, including First, Fourth,
and F ifth A m endm ent objections, attom ey-client privilege, reasonableness, and a variety o f other substantive
and procedural grounds. See 3 B. M ezines, J. Stein, & J. G ru ff, Administrative Law § 21.01 [2], at 21-5 to 2 1 16 (1 9 8 5 ).
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certifying facts to the district court that show “disobedience or resistance to any
lawful order” of the magistrate or “failure to produce, after having been
ordered to do so, any pertinent document.” 28 U.S.C. § 636(e)(1), (3). Even if
the district judge at this point undertook a de novo review of the validity of the
underlying order, the party would nonetheless have been deprived of his or her
right to an Article III tribunal. Because the magistrate’s decision about the
validity of the summons would be entered as a judgment of the court, any de
novo determination by an Article III judge would be available only after the
point at which the party had already disobeyed an order of the court. In other
words, under the proposed legislation, criminal liability for contempt could
become fixed before an Article III tribunal became available, even though the
citation for contempt could be entered only by the district judge. The party
would, therefore, have to risk criminal penalties in order to obtain a de novo
determination of his or her rights by the Article III judge. Subjecting a party to
the Hobson’s choice of incurring potential criminal contempt penalties or
foregoing the right to an Article III tribunal arguably places an impermissible
burden on the Brimson right to be free of liability for criminal contempt short of
an Article III court’s determination that the summons sought to be enforced is
valid and enforceable.
By contrast, treating the order of the magistrate as a mere recommendation
that could not become final until the district court judge undertook a de novo
review of the magistrate’s conclusions would pose no constitutional problem.
See 28 U.S.C. § 636(b). Under these circumstances, with no final order of the
court to disobey at the point of the magistrate’s decision, criminal liability for
contempt could not become fixed until after the district judge undertook de
novo review of the magistrate’s determinations. Because such criminal liability
could attach, therefore, only for resistance to an order as to which the district
judge had been the “ultimate decisionmaker,” such a scheme would not offend
the Brimson rule. See United States v. Raddatz, 447 U.S. 667, 682 (1980)
(approving the use of magistrates as adjuncts to Article III judges, provided
that the judges exercise supervisory control over the magistrates and remain the
“ultimate decisionmaker[s]”).
In this respect, the Internal Revenue Service’s statutory summons power is
instructive. Under the Internal Revenue Code, the district courts have “jurisdic
tion” to compel compliance with a summons, see 26 U.S.C. § 7602(a), yet
magistrates,12 as well as district judges, have the authority to enter “such
order[s] as [the judges or magistrates] shall deem proper, not inconsistent with
the law . . . of contempts, to enforce obedience to the requirements of the
summons and to punish such person for his default or disobedience.” 26 U.S.C.
§ 7604(b). The courts have construed this power narrowly, holding that the
Code does not empower a magistrate to enter an enforcement order as a final
judgment of the court, see, e.g.. United States v. Cline, 566 F.2d 1220, 1221
12 The Internal Revenue Code refers to U nited States com m issioners, instead o f magistrates. 26 U.S.C.
§ 7604(b). U nited States com m issioners w ere the predecessors to United States m agistrates, and the Federal
M agistrate’s Act transferred the totality o f powers and duties o f the form er to the latter. 28 U.S.C. § 636(a)(1).
151
(5th Cir. 1978); United States v. Haley, 541 F. 2d 678 (8th Cir. 1974), and
treating any magistrate’s order as a mere recommendation subject to review by
the district court according to the strictures of the Federal Magistrate’s Act,
see, e.g., United States v. First N a t’l Bank o f Atlanta, 628 F.2d 871, 873 (5th
Cir. 1980); United States v. Wisnowski, 580 F.2d 149, 150 (5th Cir. 1978);
United States v. First N at’l Bank o f Rush Springs, 576 F.2d 852, 853 (10th Cir.
1978); United States v. Zuskar, 237 F.2d 528, 533 (7th Cir. 1956).
As a Departmental proposal, however, it is prudent to avoid the constitu
tional defect posed if the bill were to be construed as permitting the entry of a
final order by a magistrate. Accordingly, this Office strongly recommends that
the following language be added to § (l)(d)(3) of the proposed bill:
Any order entered by a United States magistrate pursuant to
authority conferred by this Act shall be treated as a report
containing proposed findings of fact and a recommendation for
the district judge. Within ten days after being served with a
copy, any party may serve and file written objections to such
proposed findings and recommendations as provided by rules of
the court. A judge of the court shall make a de novo determina
tion of those portions of the report or specified proposed find
ings or recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate. The judge
may also receive further evidence or recommit the matter to the
magistrate with instructions.
This language would, under the test set out in United States v. Raddatz, 447
U.S. 667,681-84 (1980), ensure the constitutionality of the magistrate’s role in
the enforcement of the FBI summons by retaining the district judge as the
“ultimate decision-maker.”13
It bears noting that the language proposed forecloses magistrates’ authority
to enter final orders only insofar as that authority derives from the proposed
bill. Thus, a magistrate could still enter a final order enforcing an FBI summons
pursuant to the independent authority granted in the Federal Magistrates Act.
Specifically, 28 U.S.C. § 636(c) provides that
[u]pon the consent of the parties, a full-time United States
magistrate or a part-time United States magistrate who serves as
13 T he proposed language would also apply to any petition under § 1(d)(3) for “an order m odifying or
setting aside . . . a prohibition o f disclosure” o f the summons. A lthough Brimson does not address the issue o f
prohibiting disclo su re o f the existence o f a sum m ons, it seems as if the rule set out in Brimson should apply
w ith equal force to this m atter. First, the prohibition o f d isclosure o f a sum m ons is itself an integral part of
sum m ons enforcem ent, for non-disclosure o f a third-party sum m ons m ay be essential to prevent the thwarting
o f the investigatory purposes o f the sum m ons or may be necessary to preclude otherwise unacceptable costs
related to the issuance o f a summons (i.e., endangering life o r physical safety). Second, many sim ilar issues,
such as First A m endm ent and reasonableness objections, govern the validity o f a non-disclosure order. Thus,
we believe th at the decision whether to o rd e r non-disclosure o f a sum m ons is an inherently judicial function
that m ust be com m itted to an Article III tribunal.
152
a full-time judicial officer may conduct any or all proceedings in
a jury or nonjury civil matter and order the entry of judgment in
the case, when specially designated to exercise such jurisdiction
by the district court or courts he serves. Upon the consent of the
parties, pursuant to their specific written request, any other parttime magistrate may exercise such jurisdiction, if such magis
trate meets the bar membership requirements set forth in
§ 631(b)(1) and the chief judge of the district court certifies that
a full-time magistrate is not reasonably available in accordance
with [the] guidelines established by the judicial council of the
circuit.
Although the Supreme Court has never spoken to the constitutionality of this
provision, the Courts of Appeals have overwhelmingly endorsed it as constitu
tional insofar as it is dependent on the consent of the parties. See, e.g.. Fields v.
Washington Metropolitan Area Transit Authority, 743 F.2d 890 (D.C. Cir.
1984); Collins v. Foreman, 729 F.2d 108 (2d Cir.), cert, denied, 469 U.S. 870
(1984); Goldstein v. Kelleher, 728 F.2d 32 (1st Cir.), cert, denied, 469 U.S. 852
(1984); Pacemaker Diagnostic Clinic o f America, Inc. v. Instromedix, Inc., 725
F.2d 537 (9th Cir.) (en banc), cert, denied, 469 U.S. 824 (1984). The Depart
ment, therefore, would appear to have little cause to consider including lan
guage that would explicitly negate § 636(c)’s power of consensual reference to
magistrates as applied to petitions for enforcement of or relief from an FBI
summons.
,
A word of caution on this point is in order, however. All of the circuit court
cases upholding 28 U.S.C. § 636(c) antedate the Supreme Court’s recent opin
ion in CFTC v. Schor, 478 U.S. 833 (1986). Although Schor upheld a scheme
in which, with the consent of the parties, the Commodity Futures Trading
Commission (CFTC) could exercise pendent or ancillary jurisdiction over
common law counterclaims arising out of the transaction or occurrence that
formed the basis for the underlying statutory claim, portions of Schor' s ratio
nale raises doubts as to the continuing validity of § 636(c). To the extent that
Schor held that the parties could waive the “personal right” to an Article III
tribunal, the decision is highly favorable to the consensual reference provisions
contained in the Federal Magistrate’s Act. But as to structural concerns involv
ing the separation of powers, the Court found it significant that (1) the scheme
involved the exercise of non-Article III power only in the ‘“ particularized
area’” of commodities exchange law; (2) CFTC orders were not self-executing
and could only be enforced by district courts; (3) orders were reviewed under
the “weight of the evidence” standard rather than the “clearly erroneous”
standard; (4) the district court had de novo review of questions of law; and
(5) the CFTC could not exercise all the “ordinary” functions of a district court,
such as presiding over a jury trial or issuing writs of habeas corpus. Id. at 854-56.
The consensual reference scheme under 28 U.S.C. § 636(c) does not share
many of the characteristics that the Schor Court found comforting from a
153
separation of powers standpoint. First, the exercise of a magistrate’s authority
under the consensual reference provision extends to any “civil matter.” 28
U.S.C. § 636(c)(1). Second, although only the district judge can issue a con
tempt citation to enforce the magistrate’s order, see 28 U.S.C. § 636(e), that
order is nonetheless a final judgment of the district court and, as such, is self
executing. Third, because the judgment entered by the magistrate is appealable
“in the same manner as an appeal from any other judgment of [the] district
court,” 28 U.S.C. § 636(c)(3),(4), the standard of review of factual findings is
the “clearly erroneous” standard. See Fed. R. Civ. P. 52(a).
Indeed, the consensual reference scheme enjoys only two of the characteris
tics found significant by the Schor Court. First, the Article III court that
reviews the magistrate’s decision has de novo review of all questions of law.
Second, while the magistrate can exercise many of the “ordinary functions” of
the district court, including the conduct of a jury trial and, presumably, the
power to issue a writ of habeas corpus, there remain significant functions, such
as the ability to cite a party for contempt, that the magistrate does not possess
even under the consensual reference scheme.
Yet, despite the dissimilarities between the CFTC’s counterclaim mecha
nism in Schor sad the consensual reference provision of the Federal Magistrate’s
Act, there is reason to believe that the latter still passes constitutional muster.
The Schor Court found the five factors listed above to be relevant in determin
ing whether the “congressional scheme. . . impermissibly intruded on the
province of the judiciary,” 478 U.S. at 851-52, but in no way purported to
make such factors an exhaustive and exclusive list of the safeguards that could
justify the consensual resort to a non-Article III tribunal for matters that would
otherwise require adjudication in an Article III court. Indeed, Schor may
actually buttress the conclusion reached by the Courts of Appeals insofar as it
endorses the mode of analysis widely employed in the lower court cases
regarding consensual reference.
Under this analytical framework, the parties’ consent serves as a waiver of
any personal right to an Article III tribunal, and the acceptability of the
consensual reference depends on the extent to which the statutory scheme
protects the judiciary from “impermissibl[e] intrusion]” by the executive and
legislative branches.
The question of what constitutes an “impermissibl[e] intrusion] on the
province of the judiciary” involves matters of degree, making it difficult to
predict with any confidence how the Supreme Court will react to the consen
sual reference scheme found in 28 U.S.C. § 636(c). The Courts of Appeals,
however, have identified several features of the Federal Magistrate’s Act as
significant protections against the encroachment of the executive and legisla
tive branches on the independence of the judiciary,14 and, given the widespread
14 F irst, the m agistrates are appointed by district judges and are subject to removal only by the district
ju d g e s or, in som e circum stances, by th e circuit judicial council. See, e.g., Geras v. Lafayette Display
Fixtures Inc., 742 F.2d 1037, 1043 (7 th Cir. 1984); Pacemaker Diagnostic Clinic o f America , Inc v.
Continued
154
concurrence of the Courts of Appeals,15 it may reasonably be predicted that
these features may suffice to sustain the scheme in the Supreme Court under
the kind of analysis set out Schor.
II. Ex Parte Prohibition Against Disclosure
Section 1(f)(1) of the proposed legislation permits the ex parte issuance of an
order prohibiting disclosure of an FBI summons upon a showing that “the
materials being sought may be relevant to a legitimate law enforcement inquiry
and that there is reason to believe that such disclosure may result in: (A)
endangering the life or physical property of any person; (B) flight from pros
ecution; (C) destruction or tampering with evidence; (D) intimidation of poten
tial witnesses; or (E) defeating any remedy or penalty provided for violation of
the laws of the United States.” The order may be issued by a magistrate or
district judge, and the person against whom the prohibition is directed may
obtain relief by filing a petition in the district court pursuant to § 1(d)(2) of the
proposed bill.16 Because the prohibition against disclosure of the summons
constitutes a clear deprivation of liberty, the issuance of the ex parte order must
comport with the requirements of the due process clause of the Fifth Amend
ment. With respect to § 1(f)(2), the issue is thus whether a prompt postdeprivation
hearing is sufficient to meet the dictates of due process.
Under Mathews v. Eldridge, 424 U.S. 319, 335 (1976):
[Identification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private
interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and ad
ministrative burdens that the additional or substitute procedural
requirement would entail.
14 (Continued)
Instromedix, Inc., 725 F.2d 537, 545 (9th C ir.) (en banc), cert, denied, 469 U.S. 824 (1984). Second, the
district judge m ust specially designate the m agistrate to exercise jurisdiction. See, e.g., Collins v. Foreman,
729 F.2d 108, 115 (2d C ir.), cert, denied, 469 U.S. 870 (1984). Third, the district court retains the pow er to
withdraw the reference o f the case from the magistrate. See, e.g., Collins, 729 F.2d at 115; Pacemaker, 725 F.2d at
545. Fourth, the magistrate lacks any power to cite the parties for contempt. See, e.g., Geras, 742 F.2d at 1043.
15 See Note, The Boundaries o f Article III: Delegation o f Final Decisionmaking Authority to Magistrates,
52 U. Chi. L. Rev. 1032, 1034 n.16 (1985).
16 Section 1(0(1) em pow ers a m agistrate to enter an ex parte order im posing the prohibition. Because this
order is presum ably punishable by crim inal contem pt pursuant to 28 U.S.C. § 636(e), this O ffice believes that
the same principles that govern summons enforcem ent under Brimson should apply to the entry o f a
prohibition order, and that language should be added to indicate that an order entered by a m agistrate under
§ 1(0(1) has no binding effect o f its own. B ecause the proceedings m ust proceed ex parte to serve the
interests o f prohibiting disclosure, and because review by the district judge prior to entry o f judgm ent cannot
proceed, therefore, upon the objections o f the party to be bound, language should be added treating every
m agistrate's order under § 1 ( 0 ( 0 as a m ere recom m endation to be given de novo review ex parte by the
district judge before it can becom e an order o f the court.
155
Under this test, it appears that the absence of a pre-deprivation hearing under
§ 1(f)(1) would pass constitutional muster.
In this case, the First factor appears to favor the constitutionality of § 1(f)(1),
for a “claim to a predeprivation hearing as a matter of constitutional right rests
on the proposition that full relief cannot be obtained at a postdeprivation
hearing.” Id. at 331. Because the party against whom the summons and prohibi
tion order are directed can immediately go into court and seek relief from the
order, that party’s liberty interest in speech is only minimally impaired. No
irreparable harm will occur if a party must simply wait to disclose the existence
of a summons until after a court has heard the party’s petition for relief; if the
party has a protectible First Amendment or statutory right to disclose the
existence of the summons, the use of the ex parte procedures set out in the
proposed legislation will only delay, and not defeat, that right. This temporary
interference with a protected interest will not threaten the very subsistence or
well-being of the party, as in Goldberg v. Kelly, 397 U.S. 254 (1970), a case
involving eligibility for welfare benefits, or in Memphis Light, Gas & Water
Division v. Craft, 436 U.S. 1 (1978), a case involving the termination of utility
services. Although a permanent or extended deprivation without any hearing
might pose serious constitutional problems, the availability of prompt
postdeprivation review reduces the harm to the protected interest of the party.
See M itchell v. W.T. Grant Co., 416 U.S. 600 (1974).
The possibility of wrongful deprivation also seems slight. Section 1(0(1) of
the proposed bill has set out very narrow and specific bases upon which a non
disclosure order may be issued, and the government must presumably supply
concrete evidence showing why it has reason to believe that disclosure would
lead to endangerment of life, flight from prosecution, and the like. And the fact
that a judge or judicial adjunct makes the initial determination and the judge is
the ultimate decisionmaker minimizes the possibility that the deprivation will
be in error.17 See Mitchell, 416U.S. at 616-17 (“The . . . law [at issue] provides
for judicial control of the [property sequestration] process from beginning to
end. This control is one of the measures adopted . . . to minimize the risk that
the ex parte procedure will lead to a wrongful taking.”).
Finally, the government has a strong interest in the procedure being em
ployed. Disclosure of a summons is an all or nothing proposition. Once it
occurs, it cannot be undone. Thus, it is imperative that the government be able
to present the summoned party with a prohibition against disclosure under pain
of contempt at the time the party becomes aware of the summons. If no legal
compulsion existed to preclude disclosure ab initio, and the government could
not secure the non-disclosure order until notice and hearing were provided, no
such prohibition could ever occur, for the party could make any desired
disclosures pending the hearing on the prohibition.
Thus, given the important governmental interest in preventing endangerment
of health, see, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594
17 T his presum es that the bill will be changed to reflect o u r recom m endation to make the m agistrate's non
disclo su re o rder m erely advisory.
156
(1950) (allowing seizure without a predeprivation hearing where necessary to
protect the public from misbranded drugs), in apprehending and convicting
criminals, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 93-94 n.30 (1972), and in
preserving and discovering the evidence of crimes, see, e.g., id., the government’s
ability to prohibit disclosure of a summons ex parte under the circumstances
provided for in the proposed bill seems well grounded.
The bill contains another non-disclosure provision that merits brief attention
as well. Section 1(f)(2) prohibits disclosure of a summons whenever the FBI
Director, a Special Agent, or designated Assistant Special Agents-In-Charge
certify that the summons was issued for the purpose of collecting positive
foreign intelligence or counterintelligence. This Office believes that this sec
tion also satisfies the due process requirements of the Constitution. The liberty
interest of the summoned party is the same as in § 1(f)(1). And although the
application of the prohibition against disclosure is not subject to judicial
supervision under this subsection, the factual predicate for prohibition is very
narrow and specific and the possibility of wrongful deprivation seems very
slim. Moreover, the government’s interest in excluding judicial participation at
the point of the initial determination of prohibition in this case seems very
strong, insofar as the foreign intelligence interests of the United States require
that as few people as possible be aware of ongoing intelligence operations.
Finally, it is clear that national security is an important governmental interest
that can justify the delay of an available hearing until after the deprivation of a
protectible interest. See , e.g., Stoehr v. Wallace, 255 U.S. 239, 245 (1921);
Central Union Trust v. Garvan, 254 U.S. 554, 566 (1921).
Section 1(f)(2), moreover, presents no Brimson problem, for none of the
executive officers designated to act has the power to enter any kind of enforce
able order, and, therefore, no non-Article III official is empowered to perform
any such inherently judicial function.18 The officials certify a summons as
being for the purpose of collecting foreign intelligence and then a self-operative statutory prohibition takes effect. Violation of this prohibition presumably
can be punished only by virtue of judicial process.
One problem with the proposed bill, however, is that it specifies no penalties
for violating the statutory prohibition contained in § 1(f)(2). This deficiency
should be rectified before submitting the bill to Congress.
III. Subpoena Duces Tecum
Section 1(e)(2) states that “[n]o summons shall require the production of any
materials, if such materials would be protected from production under the
standards applicable to a subpoena duces tecum entered in aid of a grand jury
investigation.” The inclusion of this provision is somewhat curious insofar as
18There is a distinction betw een certifying a fact that triggers a statutory prohibition that is enforceable by
judicial process and entering a ju d icial order enforceable by criminal contem pt after determ ining a case or
controversy The latter is inherently a judicial function and must, according to Brimson , be undertaken only
by an Article 111 tribunal.
157
one of the avowed purposes of proposing the legislation is to allow the FBI
greater scope in locating fugitives for the purposes of turning them over to state
and local authorities and in gathering data for foreign intelligence purposes,
rather than for purposes of federal investigation and indictment. Since it would
normally be considered improper to use a grand jury subpoena for such pur
poses, § 1(e)(2) may be subject to judicial interpretation that could thwart part
of the legislative purpose. Accordingly, § 1(e)(2) should be made clearer to
ensure that it will not be used to preclude the gathering of information for
locating fugitive felons and conducting foreign intelligence functions.
Conclusion
For the above reasons, we conclude that the provisions of §§ 1(d)(3) and
1(f)(1) require modification to ensure the statute’s constitutionality. The inser
tion we propose which treats a magistrate’s order as a recommendation for the
district judge for the purposes of the Act should, we believe, satisfy this
objection. In addition, § 1(0(2), providing for nondisclosure in the context of a
summons for positive foreign intelligence or counterintelligence information,
should specify a legal method of enforcement. Finally, the reference to the
grand jury standard in § 1(c)(2) seems contrary to the avowed purpose of the
bill without further explanation.
D o u g la s W. K m iec
Deputy Assistant Attorney General
Office o f Legal Counsel
158 |