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Extraterritorial Apprehension by the Federal Bureau of Investigation In th e ab sen ce o f an in tern atio n a l law vio latio n , a federal d istric t c o u rt will not o rd in a rily d iv est itself o f ju risd ic tio n in a crim inal case w h e re th e d e fe n d a n t’s p resen c e has been se cu re d b y his fo rcib le a b d u c tio n from th e te rrito ria l lim its o f a foreign asylum state. A fo rcib le ab d u ctio n , w h en co u p led w ith a p ro te st by th e asylum state, is a v io latio n o f in tern atio n al law ; th e re is, h o w e v e r, som e p re c e d e n t th at c o m p licity o f asylum sta te officials in th e ab d u ctio n co u ld be th e p re d ic a te for a finding o f no actu al v io latio n o f th e asylum sta te ’s so v e reig n ty . C iv il liability o n th e p a rt o f th e U n ited S tates o r p a rtic ip a tin g g o v e rn m e n t officials resu ltin g from a fu g itiv e ’s fo rcib le ap p reh en sio n in a foreign c o u n try w ill d e p e n d on th e sta tu s o f th e o p e ra tio n u n d er in tern atio n a l law ; liability c o u ld be p re d ic a te d on th eo ries o f co n stitu tio n al o r co m m o n law to rt, o r on a v iolation o f in tern atio n a l law . T h e F e d e ra l B ureau o f In v estig atio n has no a u th o rity to a p p re h e n d and ab d u c t a fugitive residing in a fo reig n sta te w ith o u t th e asylum sta te ’s consent. In th e ab sen ce o f asylum sta te co n sen t, fed eral officials m ay be su b je ct to ex trad itio n to th e asylum sta te fo r kid n apping. March 31, 1980 M EMORANDUM OPINION FOR T H E ATTORNEY G E N ER A L You have requested that this Office advise you on the implications of a proposed operation of the Federal Bureau of Investigation (FBI) that might entail entry of American agents into a foreign country and forcible apprehension of a fugitive currently residing there. It is to be assumed that the foreign country (hereinafter “asylum state”) would file a pro forma protest to the fugitive’s apprehension and return to the United States. We also assume that the actual apprehension would be made by FBI agents, although some elements of the local police force might provide physical surveillance and aid in the neutralization of bodyguards during the actual apprehension. The proposed operation raises the following, interrelated legal issues: the implications of the seizure for the pending criminal prosecutions of the fugitive, the legal status of the operation under existing treaties and settled principles of international law, and the possibility of civil liabil­ ity on the part of the United States or participating government offi­ cials. This operation is unorthodox and, therefore, prompts a number of legal questions that are of first impression. Although we will discuss all the above legal questions separately, we think that the fundamental 543 legal issue presented by this operation is under what circumstances does the FBI, as a matter of United States law, have the authority to make an extraterritorial apprehension. Although the question is not free from doubt, we conclude that the FBI only has lawful authority when the asylum state acquiesces to the proposed operation. Since we are to assume that a pro forma protest to the operation would be filed, that fundamental condition would probably not be satisfied here. I. Implications for Criminal Prosecutions of Extraterritorial Apprehension that Is Subject of Protest The Supreme Court has consistently stated “that the power of a court to try a person for crime is not impaired by the fact that he [has] been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ ” Frisbie v. Collins, 342 U.S. 519, 522 (1952).1 It has rejected arguments that such abductions constitute violations of the Due Process Clause, and has reiterated the vitality of this conclusion in a recent Term. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Lower courts, par­ ticularly the Court of Appeals for the Second Circuit, have suggested, however, that under some circumstances a federal court might divest itself of jurisdiction as a result of the manner in which the defendant was brought before it. The most sweeping statement of these circumstances is to be found in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). There the Second Circuit confronted allegations that Toscanino, a citizen of Italy, was kidnapped in Uruguay by agents in American employ, tortured and interrogated for 17 days in Brazil with the knowledge of and sometimes in the presence of United States officials, and finally drugged and put on a commercial flight to the United States where he was convicted of narcotics violations.2 Questioning the current vitality of the Ker-Frisbie 1 These propositions are often referred to as the Ker-Frisbie doctrine. In the leading case, Ker v. Illinois, 119 U.S. 436 (1886), Ker was convicted in the Illinois state courts after being forcibly abducted in Peru. Formal extradition had been arranged among the Governor of Illinois, the U.S. Secretary of State, and Peruvian officials, but the individual who was sent to accompany Ker back to the United States did not present the extradition papers upon arrival in Peru. It was therefore a “clear case of kidnapping within the confines of Peru.*' Id. at 443. Although the apprehending agent might be subject to criminal prosecution in Peru, the Court found that American law afforded the apprehended fugitive no protection. Frisbie v. Collins, 342 U.S. 319 (1952), involved an interstate abduction. Michigan officers forcibly seized Collins in Chicago. Acknowledging that the Michigan officers might be subject to prosecution under the Federal Kidnapping Act, the Court held that as far as Collins was concerned, “due process o f law is satisfied when one present in Court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.’* Id. at 522. See also Mahon v. Justice, 127 U.S. 700, 708 (1888). 2 Toscanino alleged that he was denied sleep and nourishment for days, fed intravenously at survival levels, forced to walk for hours on end, and kicked and beaten. He claimed his fingers were pinched by metal pliers; his eyes, nose, and anus washed in alcohol; and his genitals subjected to electric shock. There had been no attempt by the United States to extradite Toscanino. Toscanino, 500 F.2d at 270. 544 doctrine, the Second Circuit relied on Rochin v. California, 342 U.S. 165 (1952), in concluding that the concept of due process has evolved such that a court must now “divest itself of jurisdiction over the person where it has been acquired as the result of the Government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” 500 F.2d at 275.3 If on remand Toscanino’s allegations were proven true, the Second Circuit saw a due process violation inherent in the bribery of a foreign official, the violence and brutality of the abduction, the violations of international law, and the failure to attempt extradition of Toscanino.4 Subsequent Second Circuit cases have read Toscanino narrowly and other circuits have refused to follow it. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975), the Second Circuit emphasized that Toscanino did not mean that “any irregularity in the circumstances of a defendant’s arrival in the jurisdic­ tion could vitiate the proceedings of the criminal court,” but rather was concerned with the “cruel, inhuman and outrageous treatment” that Toscanino allegedly received.5 Thus the court concluded that although Lujan was forcibly abducted from Bolivia, the lack of any allegation of the type of “shocking governmental conduct” involved in Toscanino obviated any application of the rationale of that case. Lujan, 510 F.2d at 66.6 It did, however, reserve the question whether the fact that an abduction is in violation of international law requires dismissal of the criminal indictment: either because such illegal governmental conduct constitutes a violation of due process or because a federal court should, as a matter of judicial administration, refuse to be a party to official misconduct. Id. at 68.7 The court perceived no international law violation in Lujan because there had been no protest by the foreign governments involved. Id. at 67. Other circuits have resolutely invoked the Ker-Frisbie doctrine to dismiss arguments that American courts should divest themselves of their criminal jurisdiction over a defendant because his presence was 3 The court did not have the benefit of the Supreme Court’s endorsement in Gerstein v. Pugh, 420 U.S. at 119, o f the Ker-Frisbie doctrine. 4 The court of appeals noted that even if the Ker-Frisbie doctrine was still good law, it could make use of its supervisory power over the district court to upset Toscanino’s conviction in order "to prevent district courts from themselves becoming ‘accomplices in willful disobedience of law.’ ” Toscanino, 500 F.2d at 276, quoting McNabb v. United Slates, 318 U.S. 332, 345 (1943). On remand the district court found that Toscanino's allegations had no basis in fact. United States v. Toscanino, 398 F. Supp. 916 (E.D. N.Y. 1975). *510 F.2d at 65 (emphasis in original). See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert, denied. 423 U.S. 847 (1975) ( Toscanino distinguished because no direct United States involvement in torture by Chilean police). 6 Lujan, a licensed pilot, alleged that while residing in Argentina, he was hired by an individual to fly to Bolivia. He claimed that his employer was in fact paid by American agents to lure Lujan out of Argentina. In Bolivia, Lujan was arrested by Bolivian police who were also allegedly paid by American agents. He was ultimately put on a plane by Bolivian and American agents and formally arrested upon his arrival in the United States. Lujan. 510 F.2d at 63. 7 See supra, note 4. 545 procured through a forcible abduction.8 Moreover, a number of those courts have suggested that jurisdiction should be retained even if the abduction violates international law.9 We note, however, that there is apparently no reported case where the abduction was the subject of a formal diplomatic protest by the asylum state. It is our opinion that even where an abduction is a technical violation of international law, a federal district court should not divest itself of jurisdiction over the fugitive’s criminal prosecution.10 We think this position is dictated by logic and precedent. In Frisbie, 342 U.S. 522, the Supreme Court assumed that the conduct of the Michigan authorities who abducted Collins from Chicago constituted a violation of the Federal Kidnapping Act. It concluded, however, that the Kidnapping Act “cannot fairly be construed so as to add to the list of sanctions detailed a sanction barring a state from prosecuting persons wrongfully brought to it by its officers. It may be that Congress could add such a sanction. We cannot.” Frisbie, 342 U.S. at 523. A dismissal remedy for a violation of international law is even less appropriate. The interests protected by international law are those of sovereign nations. Any interest of individuals is at best derivative. See Lujan, 510 F.2d at 67. By contrast, the Federal Kidnapping Act is unquestionably for the protection of individuals; yet under the principles of Frisbie, a forcible 8 E.g., United Slates v. Postal, 589 F.2d 862, 865 (5th C ir). cert, denied, 444 U.S. 832 (1979) (arrest by Coast Guard upon the high seas); United States v. Mariano, 537 F.2d 257, 271-72 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1977) (allegations of unlawful arrest in and forcible abduction from Grand Cayman Island; Toscanino characterized as only departure from Ker-Frisbie doctrine); Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975) (allegedly illegal removal from Canada to New York); United States v. Cotten. 471 F.2d 744, 747-49 (9th Cir.). cert, denied, 411 U.S. 936 (1973) (forcible removal from Vietnam). There is a standard formulation of the Ker-Frisbie doctrine reiterated in these cases: It has long been held that due process has been satisfied when a person is apprised of the charges against him and is given a fair trial. The power of a court to try a person is not affected by the impropriety of the method used to bring the defendant under the jurisdiction of the court [citing Ker and Frisbie). Once the defendant is before the court, the court will not inquire into the circumstances surrounding his presence there. United States v. Mariano. 537 F.2d at 271. 9 E.g., Postal, 589 F.2d at 873 (“This proposition, the so-called Ker-Frisbie doctrine, is equally valid where the illegality results from a breach of international law not codified in a treaty"); United States v. Cadena. 585 F.2d 1252, 1261 (5th Cir. 1978) United States v. Winter, 509 F.2d 975, 984-86 (5th Cir.), cert, denied. 423 U.S. 825 (1975) (Ker-Frisbie doctrine makes it unnecessary to inquire whether arrest by Coast Guard within territorial waters of Bahamas violated international law); Autry v. Wiley, 440 F.2d 799, 802-03 (1st C ir), cert, denied. 404 U.S. 886 (1971). Oftentimes courts simply do not discuss the status of the abduction under international law. E.g.. Marzano, 537 F.2d 257; United States v. Herrera. 504 F.2d 859 (5th Cir. 1974); United States v. Vican, 467 F.2d 452 (5th Cir. 1972), cert, denied. 410 U.S. 967 (1973). 10 Cadena. 585 F.2d at 1261 (“no basis for concluding that violations of these international princi­ ples must or should be remedied . . . by dismissal of the indictment unless Fourth Amendment interests are violated”); Autry v. Wiley. 440 F.2d at 801-02; see also Waits v. McGowan, 516 F.2d 203, 208 (3d Cir. 1975) (“the protections or rights which accrue to the extradited person primarily exist for the benefit of the asylum nation . . ., whereas plaintiffs complaint alleges violation of rights of citizens of the demanding nation (The United States of America)*’). American courts are charged with the vindication of international law principles to the extent those principles are consonant with American law. The Paquete Habana, 175 U.S. 677, 700 (1900). The thrust of the abduction cases is that relinquishing criminal jurisdiction is not the means to vindicate those principles. 546 abduction in violation of that Act does not divest an American court of jurisdiction. In sum, we are of the opinion that in the absence of an international law violation, a federal district court will not ordinarily divest itself of jurisdiction in a criminal case where the defendant’s presence has been secured by forcible abduction from the territorial limits of a foreign asylum state. Nor should it do so where there is an international law violation. However, since you have advised us that you expect a pro forma diplomatic protest by the asylum state and that the fugitive’s prosecution will proceed in the Southern District of New York, it is necessary to examine the international law implications of this operation more closely. As we have noted, the Second Circuit has expressly reserved the question whether a violation of international law should result in relinquishment of criminal jurisdiction over the suspect. II. International Law Implications of the Proposed Operation There is one line of authority in American jurisprudence that does create an exception to the Ker-Frisbie doctrine. As Congress by statute can modify the jurisdiction of federal courts, so too can a treaty. Thus the Supreme Court has held that a treaty can divest federal courts of jurisdiction in certain circumstances if such was the intent of the docu­ ment. Cook v. United States, 288 U.S. 102, 112 (1933); Ford v. United States, 273 U.S. 593, 610-11 (1927). As the Fifth Circuit recently noted, for a treaty to have such an effect, it must be self-executing or imple­ mented by statute.11 There are two arguably relevent treaties between the United States and the asylum state that must be considered in this case. They are the extradition treaty between the two countries and the United Nations Charter. It is well-established that the existence of an extradition treaty simpliciter does not defeat U.S. jurisdiction over a fugitive apprehended outside the extradition mechanism.12 And there is nothing in the terms of the existing extradition treaty that suggests that this government has yielded jurisdiction over U.S. nationals who have committed crimes in this country simply because they obtained refuge in the asylum state.13 The second relevant treaty is the United Nations Charter to which both the United States and the. asylum state are signatories. 11 Postal, 589 F.2d at 875-76. A treaty does not provide rules of decision for American courts unless that is the intent o f the document, Le., the treaty is self-executing. Whitney v. Robertson, 124 U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). Of course, implementing domestic legislation does provide rules of decision capable of judicial enforcement. 12 Ker, \ 19 U.S. at 444 (1886); Waits v. McGowan. 516 F.2d at 206-08; Lujan. 510 F.2d at 66; United States v. Sobell. 244 F.2d 520, 524-25 (2d Cir.), cert, denied, 355 U.S. 873 (1957). 13 By its terms it does not constitute an agreement that extradition will be the exclusive means of obtaining custody o f a fugitive. Nor does it purport to limit the criminal jurisdiction of either sovereign. 547 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. U.N. Charter, art. 2, para. 4. This provision has been at issue in a number o f forcible abduction cases, including Toscanino and Lujan. The leading precedent on forcible ab­ duction’s status under the United Nations Charter is that involving the apprehension of Adolph Eichmann in Argentina by Israeli agents. A r­ gentina objected to the United Nations Security Council, which subse­ quently adopted a resolution: Considering that the violation of the sovereignty of a Member State is incompatible with the Charter of the United Nations . . . [and njoting that the repetition of acts such as that giving rise to this situation would in­ volve a breach of the principles upon which international order is founded creating an atmosphere of insecurity and distrust incompatible with the preservation of peace . . . [the Security Council requests] the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of interna­ tional law .14 Commentators have construed this action to be a definitive construction of the United Nations Charter as proscribing forcible abduction in the absence of acquiescence by the asylum state.15 It is our opinion that even if the operation under consideration is construed to be a violation of the United Nations Charter, the criminal jurisdiction of American courts is unaffected. We base our opinion on the grounds that the United Nations Charter is not a self-executing treaty and that it was not intended by the United States at the time of ratification to affect the criminal jurisdiction of federal courts. There is not a great deal of case law on these points. However, as the Fifth Circuit observed in Postal, 589 F.2d at 876, the self-executing nature of a treaty is a matter of intent. The broad sweep and hortatory tone of Article 2 belies any argument that a binding, self-executing limitation on the criminal jurisdiction of American courts is evident in its term s.16 14 Quoted in W. Bishop, International Law 475 n.52 (1962). 15 E.g., Lujan, 510 F.2d at 66-68; Abramovsky & Eagle, U.S. Policy in Apprehending Alleged Offenders Abroad: Extradition, Abduction, or Irregular Rendition?, 57 Or. L. Rev. 51, 63 (1977); see Silving, In re Eichmann: A Dilemma o f Law and Morality, 55 Am. J. Int’l L. 307 (1961). 16 See generally, L. Goodrich, E. Hambro & A. Simmons, Charter of the United Nations: Commen­ tary and Documents 43-55 (1969). 548 And courts that have considered provisions of the United Nations Charter have concluded that they are not self-executing.17 It is a more difficult question whether the proposed operation is a violation of general international law principles, albeit not a violation of a self-executing treaty. As Judge Kaufmann indicates in his majority opinion in Lujan, it appears to be the case that a forcible abduction, when coupled with a protest by the asylum state, is a violation of international law. Lujan, 510 F.2d at 67. It is regarded as an impermissi­ ble invasion of the territorial integrity of another state. Since the asylum state would hardly attest to the fact that the protest is pro forma, there is little to be gained in the instant case by characterizing it as such. Nor do there appear to be any doctrines of self-help or selfdefense applicable in this context. There may be, however, some precedent in international law for the argument that complicity of asylum state officials in the abduction robs the asylum state’s protest of its import under international law. In 1911 the Permanent Court of Arbitration at The Hague declined to order the return to France of one Savarkar. Savarkar had escaped to France from a British ship, only to be returned to the British by a French policeman. The Court of Arbitration found that the French official’s cooperation avoided any violation of French sovereignty that might otherwise have occurred.18 Likewise, the complicity of the asylum state’s police in the proposed operation could be the predicate for a finding of no actual violation of the asylum state’s sovereignty. One obvious drawback to this argument is that it forces this government to put in issue the identity of its asylum state collaborators. We also note that the Court of Arbitration in the Savarkar case found that the British officials had no reason to know that the French official was not acting with the ap­ proval of the French government. No similar claim of ignorance could be made about the operation under consideration. We conclude that the best assumption for purposes of analyzing the implications of the proposed operation is that although not a violation of a self-executing treaty, it would violate international law. That sig­ nificantly heightens the litigation risks in the Second Circuit, which has explicitly declined to define the implications of an international law violation on criminal jurisdiction. III. Civil Liability We think the case for obtaining at least the acquiescence of the asylum state is compelling when the criminal litigation risks are coupled 17 Sei Fujii v. State, 242 P.2d 617, 620 (Cal. 1952) (human rights provisions of U.N. Charter not self­ executing); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C.), afJTd, 278 F.2d 252 (D.C. Cir.), cert, denied. 364 U.S. 835 (1960) (finding other section? of Charter not self-executing). ,a The case is discussed in Lujan, 510 F.2d at 67, and can be found at Judicial Decisions Involving Questions o f International Law. 5 Am. J. Int’l L. 490, 520 (1911). 549 with the possibility of civil liability.19 Civil liability will turn to a substantial degree on whether the FBI is authorized to conduct this operation and that, in our view, will depend on the status of the operation under international law. In Ker v. Illinois, the penultimate paragraph in the Supreme Court’s opinion reads as follows: It must be remembered that this view of the subject does not leave the prisoner or the Government of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnapping, and on demand from Peru, Julian [the party who abducted Ker], could be surrendered and tried in its courts for this violation of its laws. The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment, and the facts set out in the plea would without doubt sustain the action. W hether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case which we cannot here consider. 119 U.S. at 444. As the above quotation indicates, the question of civil liability is certainly an open one, as is the criminal liability of the apprehending agents and others under asylum state law. We discuss criminal liability in Part IV below. There appear to be three potential civil liability theories: constitu­ tional violations by American agents, common law torts committed by American agents (i.e., false imprisonment), and violation of international law. The potential defendants are the federal government and individ­ ual government officials involved in this operation.20 By virtue of the Federal Tort Claims A ct (FTCA), the United States has waived sovereign immunity with respect to the torts of assault, false imprisonment, and false arrest. 28 U.S.C. §§ 2674, 2680(h). The authori­ ties are split on whether that waiver includes related constitutional torts.21 There is, however, unanimous, albeit limited, authority that even for common law torts, the FTC A is not a total waiver of sover­ eign immunity. In the leading case, the Fourth Circuit has held that 19 By “acquiescence" we do not m6an formal endorsement. It is sufficient that the asylum state agree not to protest the apprehension. 20 Those who authorize, direct, participate in, or ratify the operation are potentially liable. 21 Compare Norton v. United Stoles* 581 F.2d 390 (4th Cir.), cert, denied, 439 U.S. 1003 (1978), with Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). Birnbaum, however, did not have to consider the effects o f the 1973 amendments to the FTCA. We think that the best assumption in light of those amendments is that the FTCA does waive sovereign immunity for damage actions predicated on Fourth Amendment violations. Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497 (1976). 550 immunity that is available to government officers sued in their personal capacities can also be asserted by the government when it is sued in their stead under the FTC A .22 Therefore, the key to analyzing the potential for civil liability is to determine whether government officials involved in this operation would enjoy either an absolute or qualified immunity if sued individually for damages. The Supreme Court has held that federal officials have a qualified immunity from damage actions in cases of constitutional torts, and that immunity at least that great governs common law torts.23 Qualified immunity will be available for the proposed operation if it is within the outer limits of the FBI’s authority and is conducted in good faith with a “ ‘reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted.’ ” 24 For reasons stated below, we think those conditions are satisfied only if the operation is con­ ducted with the acquiescence of the asylum state. Law enforcement officers are acting beyond the “outer limits” of their authority when they act beyond their jurisdiction.25 As the instant operation is presently conceived, the FBI and its agents are likely to be found not acting within these jurisdictional bounds because U.S. agents have no law enforcement authority in another nation unless it is the product of that nation’s consent. We have on prior occasions counseled that the FBI has lawful authority under United States law to conduct investigations in a foreign country provided those investigations relate to a matter within the statutory jurisdiction of the FBI. While no statute explicitly authorizes the FBI to conduct investigations outside of the United States, 28 U.S.C. § 533(1) contains no geographical restric­ tions and its general authorization—to detect and prosecute crimes against the United States—would appear to be broad enough to sanc­ tion activity toward this end no matter where it was undertaken. But we have coupled that opinion with the recommendation that any oper­ ations strictly adhere to local law and function with the knowledge and at least tacit approval of the country involved. We think any argument that § 533 gives the FBI authority to make forcible arrests anywhere in the world is at best tenuous; the sounder interpretation is that its authority is limited, like that of the United States generally, by the sovereignty of foreign nations. As we indicated in Part II, the asylum 22 Norton, 581 F.2d at 394-97; see Daniels v. United States, 470 F. Supp. 64 (E.D.N.C. 1979). **Butz v. Economou, 438 U.S. 478, 506-08 (1978) (holding that only a qualified immunity is available for most constitutional torts); Barr v. Matteo, 360 U.S. 564 (1959) (absolute immunity available for some common law torts); see Expeditions Unlimited, Aquatic Enterprises, Inc. v. Smith­ sonian Institution, 566 F.2d 289 (D.C. Cir. 1977), cert, denied, 438 U.S. 915 (1978); Granger v. Marek, 583 F.2d 781, 784 (6th Cir. 1978). 24Norton v. United States, 581 F.2d at 393 (quoting Bivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972)). Bates v. Clark, 95 U.S. 204, 208-10 (1877) (no official immunity for seizure not made in Indian country because relevant statute only authorized seizure in Indian country). Bates and similar cases are discussed approvingly in Butz v. Economou. 438 U.S. at 489-95. 551 state’s sovereignty would be “violated” for purposes of subsequent litigation if it filed a formal protest. Our conclusion regarding the scope of § 533 is dictated by two distinct but related lines of analysis. A conventional statutory construc­ tion rule regarding the scope of an official’s authority states that where a statute imposes a duty, it authorizes by implication all reasonable and necessary means to effectuate such duty. Given the target’s fugitive status and the inadequacy of extradition,26 it can be forcefully argued that this operation is necessary if the FBI is to carry out its law enforcement mission under § 533. However, the reasonableness of the operation is questionable if it violates international law or United States law. All methods of rendition outside the traditional extradition mecha­ nism have received substantial criticism from international law special­ ists and in academic journals. The tenor of these remarks is that such extraordinary means of apprehension undermine international order and breed disrespect for the traditional means of fostering cooperation and arbitrating disputes among nations.27 Judges in abduction cases have expressed concern that such extraordinary apprehensions denigrate the rule^)f law in the name of upholding it.28 We think that concern, when coupled with a U.S. or international law violation, may well lead courts to conclude that the activity lies beyond the jurisdiction of the FB I.29 The opinion of Chief Justice Marshall in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) suggests a second ap­ proach to defining the limits of the FB I’s jurisdiction under § 533. The FB I’s power cannot extend beyond those of the United States. The de jure authority of the United States is necessarily limited by the sover­ eignty of other nations: 26We are assuming that it can be established that extradition is an inadequate means of apprehension in this case. We emphasize here the importance o f an ability to make such a showing. 11 E.g.. M. Bassiouni, International Extradition and World Public Order 121 -201 (1974); and sources cited supra, note 16. 28Although he concurred in the result in Lira. 515 F.2d at 73, this concern prompted Judge Oakes to observe: “To my mind the Government in the laudable interest of stopping the international drug traffic is by these repeated abductions inviting exercise of [the court's] supervisory power in the interest of the greater good of preserving respect for law.” See also. Toscanino. 500 F.2d at 276. 29 It should be noted that this is to argue that the FBI has the authority to violate the local law of another country as long as that country does not object. We think three doctrines, although none is addressed directly to the question under consideration, conjoin to support this conclusion. First, the “act of state” doctrine evinces “judicial deference to the exclusive power of the Executive over conduct o f relations with other sovereign powers” and “precludes any review whatever of the acts of the government of one sovereign State done within its own territory by the courts of another sovereign State." First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 765 (1972) (opinion of Rehnquist, J.). We think that to say the FBI had no authority to apprehend the fugitive, despite the acquiescence of the asylum state, because such apprehension was in violation of local law is in fact to judge the actions of the asylum state—here its failure to enforce arguably applicable local law. Second, it is tantamount to giving an individual the right to dispute a nation’s conception of its own sovereign interests in violation of the principle that only the sovereign has standing to assert and construe its interest. Third, there is the maxim that the penal laws of a foreign country are not enforced in the courts of this country, but must be enforced in the place where the violation occurs. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-14 (1964). 552 The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restric­ tion, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. 11 U.S. (7 Cranch) at 136. In short, both lines of analysis suggest that in the absence of asylum state consent, the FBI is acting outside the bounds of its statutory authority when it makes an apprehension of the type proposed here— either because § 533 could not contemplate a violation of international law or because the powers of the FBI are delimited by those of the enabling sovereign. Once the “authority” hurdle is surmounted, how­ ever, we think that the other parts of the good faith defense are readily met. There is ample probable cause and a number of outstanding bench warrants. Assuming the operation goes forward without asylum state consent, it is necessary to examine more closely the civil liability theories that may be put forward by the fugitive. There are two constitutional arguments available to him. The first is that he is subject to an unrea­ sonable search and seizure in violation of the Fourth Amendment. The second is the Fifth Amendment due process argument based on the logic of Toscanino. The Bill of Rights does apply to actions of Ameri­ can officials directed at American nationals overseas,30 and it is our view that the proposed operation would have some Fourth Amendment problems due to the absence of asylum state consent. The standard Fourth Amendment requirement for an arrest is that it be based on probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964); Gerstein v. Pugh, 420 U.S. at 111-12. “[WJhile the Court has expressed a preference for the use of arrest warrants when feasible . . . , it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” Id. at 113. Here we have warrants and probable cause. The Fourth Amendment problem stems instead from the FBI’s lack of statutory authority for an extraterritorial apprehension that has not been sanctioned by the asylum state. Where federal officials act without explicit statutory authority, the validity of an arrest in this country turns on whether it meets the 30 Reid v. Covert 354 U.S. 1, 5-6 (1957); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 160-61 (1976). 553 standards for a valid citizen’s arrest under state law.31 If a court extrapolated that reasoning to the international context, the pertinent question would be the standards for a citizen’s arrest in the asylum state.32 The rule in the asylum state is that “[a]ny person may, with or without warrant or other legal process, arrest and detain another person who has committed a felony.” Presumably this is a reference to domestic felonies; otherwise the statute would authorize arrests for crimes that are not punishable in domestic courts and are not the subject of an extradition order. Thus we think this asylum state statute could not afford to U.S. officials authority to arrest for U.S. felonies within the asylum state’s territory. So in the absence of asylum state consent and the § 533 authority to arrest that comes with it, the fugitive has a plausible Fourth Amendment claim. In contrast, for reasons stated in Part I of this memorandum to support the conclusion that, in the absence of the brutality alleged in Toscanino, there is no due process violation warranting divestment of jurisdiction, we conclude that there would be no Fifth Amendment violation warranting a civil remedy. We do not view a violation of international law as a legally sufficient independent basis for a civil action. The reason is the distinct compass of international law. Last February the Fifth Circuit observed in the analogous context of a vessel seizure: Since 1815 it has been established that redress for im­ proper seizure in foreign waters is not due to the owner or crew of the vessel involved, but to the foreign govern­ ment whose territoriality has been infringed by the action.33 The fugitive lacks standing to pursue the violation of international law.34 The final potential bases for civil liability on the part of the federal government and individual federal officials are the common law torts of false imprisonment, false arrest, assault and battery. And to the question of liability must be added the question of forum. S1 See United States v. D i Re. 332 U.S. 581. 589-92 (1948); Alexander v. United States. 390 F.2d 101 (5th Cir. 1968); United States v. Viale. 312 F.2d 595, 601 (2d Cir ), cert, denied. 373 U.S. 903 (1963). 38 O f course, a court could also conclude that federal agents do not have any citizen's arrest privileges in the asylum state and therefore cannot avail themselves of citizen arrest standards to argue the validity of the seizure. 33 United States v. Conroy. S89 F.2d I2S8, 1268 (5th Cir. 1979); see also The Richmond. 13 U.S. (9 Cranch) 102. 103 (1815). 34 Nor does the international law argument add to the fugitive's potential Fourth Amendment claims, except to the extent that it delimits the statutory authority of the FBI. As the Fifth Circuit has noted: W hether the search and seizure were Fourth-Amendment-unreasonable must be estab­ lished by showing that interests to be served by the Fourth Amendment were violated, and not merely by establishing the violation of general principles o f international law. Cadena. 585 F.2d at 1264. We note that by its terms the Federal Kidnapping Act is inapplicable in the context o f the proposed operation. It pertains to abductions “within the special maritime and territorial jurisdiction o f the United States.’* 18 U.S.C. § 1201(aX2). But see Toscanino, 500 F.2d at 276. 554 Although a civil suit in the asylum state against U.S. officials is theoretically possible, it is an unlikely course for the fugitive to take because of the obvious logistical problems, the fact the United States would not be amenable to suit there, and difficulties the asylum state courts would have in obtaining personal jurisdiction over individual government officers. It is much more likely that any action for common law torts would be instituted in the United States, and we think such an action could be maintained in this country. According to private international law, injuries to a person or per­ sonal property of another are transitory and the right to redress follows the defendant to foreign lands.35 This principle has been recognized in the United States.36 All that is necessary is that the defendant be found within a jurisdiction in this country. The law to be applied is normally that of the site of the tortious conduct—the asylum state in this case 37—although we think American law would still govern the ques­ tion of immunity.38 It is always possible that the fugitive would be nonsuited because a court regards the cause of action as repugnant to the policies of the forum state. But the dicta in Ker about damage actions make that result less certain,39 and we think that in the absence of an immunity defense the United States and individual federal officials could be held liable for false imprisonment. The law of the place of the tort also usually governs the damage award.40 Exemplary damages are available under English common law, and consequently asylum state law, as are damages for nervous shock.41 By their very nature, the size of such awards is impossible to predict; we can only advise that exemplary damages would not be available in an action against the United States.42 Although there is no precedent on point, we think that it is unlikely that an American court would be receptive to an argument that a fugitive should be compen­ 35 See, e.g.. G. Cheshire, Private International Law 240-42 (1965). See. e.g.. Slater v. Mexican National R.R. Co.. 194 U.S. 120 (1904); Schertenleib v. Traum. 589 F.2d 1156, 1165 (2d Cir. 1978); Mobil Tankers Co. v. Mene Grande Oil Co.. 363 F.2d 611, 615 (3d Cir ), cert, denied. 385 U.S. 945 (1966). 37 See generally, G. Cheshire, Private International Law 240-57 (1965); M. Hancock, Torts in the Conflict of Laws 54-63 (1942); Restatement (Second) of the Conflict of Laws §§ 10, 145 (1969). Of course, this is not an ironclad rule and the government would be free to argue that a suit between a U.S. citizen and his government created a sufficient nexus with the American forum to dictate the application of its tort liability principles. But those principles are unlikely to vary sufficiently to make a difference in the outcome. 38 Although state law may govern the cause ®f action, federal courts have applied a uniform federal rule in determining whether the defendant enjoys official immunity. Barr v. Matteo, 360 U.S. 564, 56976 (1959). There is no justification for departing from that rule because the cause of action arises under foreign law. 39 Appellate courts have had divergent views on what forum the Supreme Court had in mind when it alluded to damage actions in Ker, 119 U.S. at 444. Compare Waits v. McGowan, 516 F.2d at 207 n.7 (damage actions in state courts) with United States ex rel. Lujan v. Gengler, 510 F.2d at 64-65 n.3 (damage actions in foreign courts). 40 See G. Cheshire, Private International Law 602-04 (1965); M. Hancock, Torts in the Conflict of Laws 113-120 (1942); Restatement (Second) of Conflict of Laws §§ 10, 145, 171 (1969). 41 H. Street, The Law of Torts 114-17, 440 (1976). 42 28 U.S.C. §2674; see. e.g.. Johnson v. United States, 547 F.2d 688, 690 n.5 (D.C. Cir. 1976). 555 sated for his lost opportunity to evade the lawful processes of the United States. Such an argument suggests a personal “right of asylum,” a right explicitly rejected in Ker, and the argument could be properly rebuffed as against the public policy of the forum. Also injunctive relief, ordering that the fugitive be returned to the asylum state, is squarely inconsistent with Ker. We note that there is no provision for indemnification of government officials held liable in an action for false imprisonment.43 IV. Criminal Liability and the Importance of Asylum State Consent The importance of asylum state consent is perhaps most dramatically highlighted by the possibility that federal officials may be extraditable to the asylum state for kidnapping.44 A number of abduction cases, including Ker, have discussed this possibility.45 The only effective safeguard against the diplomatic embarrassment and personal anxiety an extradition request would create is a prior agreement with the asylum state that no extradition request will be made. In sum, asylum state consent appears pivotal to the success of the operation, both as a matter of litigation and public perception. A formal diplomatic protest w6uld force the Second Circuit to decide whether to divest the district court of its criminal jurisdiction as a result of the international law violation. It would make an immunity claim in any civil action difficult to maintain as well as provide the fugitive with a strong argument that the operation violated his Fourth Amendment rights. It would present the possibility of an embarrassing extradition request. Finally, in the current international climate, this country can ill afford an operation that would permit others to argue that the United States does not respect international law. We advise that you not authorize the operation without the asylum state’s tacit consent. V. Miscellaneous Considerations If an apprehension is to be made, we recommend that it be made in the same manner as any professional arrest: with expedition, minimum 43 Torts Branch Monograph, Damage Suits Against Federal Officials, Department of Justice Repre­ sentation, Immunity 10-11 (Nov. 1978). 44 Art. 3, para. 7 of the extradition treaty between the United States and the asylum slate lists kidnapping and false imprisonment as extradition offenses. The penal code of the asylum state provides: A person is guilty of kidnapping— (1) who unlawfully imprisons any person, and takes him out of the jurisdiction of the court, without his consent; or (2) who unlawfully imprisons any person within the jurisdiction of the court, in such a manner as to prevent him from applying to a court for his release or from discover­ ing to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned. 45 E.g., Lujan, 510 F.2d at 64-65 n.3; Villareal v. Hammond, 74 F.2d 503, 505-06 (5th Cir. 1934); Collier v. Vaccaro, 51 F.2d 17, 20-21 (4th Cir. 1931). 556 restraint, and with full sensitivity to the fugitive’s physical needs and constitutional rights. We would recommend that the fugitive be in­ formed of his rights and the presence of outstanding warrants immedi­ ately upon his apprehension in the the asylum state and again immedi­ ately within the territorial confines of the United States. Even if the fugitive waives his rights, we recommend that there be no attempt at interrogation until the fugitive is within the territorial limits of the United States. As far as the participation of asylum state nationals is concerned, we make the following observations: Insofar as foreign nationals are acting at the behest or direction of this government, they will be regarded as American agents by the courts. If they take action outside the ambit of that agency relationship, e.g., resort to torture, this government may successfully maintain that it was not a party to that action.46 But this does not militate in favor of using asylum state nationals because FBI agents are not likely to engage in improper conduct in the first place. We think that the use of foreign nationals raises more questions of strategy than of law. Only if foreign nationals, without U.S. direction or compensation, deposited the fugitive on American soil would the legal problems in this memorandum be obviated by their presence. John M. H arm on Assistant Attorney General Office o f Legal Counsel <a Eg.. Lira. 515 F.2d at 70-71. 557

Write a legal research memo on the following topic.

Extraterritorial Apprehension by the Federal Bureau of Investigation In th e ab sen ce o f an in tern atio n a l law vio latio n , a federal d istric t c o u rt will not o rd in a rily d iv est itself o f ju risd ic tio n in a crim inal case w h e re th e d e fe n d a n t’s p resen c e has been se cu re d b y his fo rcib le a b d u c tio n from th e te rrito ria l lim its o f a foreign asylum state. A fo rcib le ab d u ctio n , w h en co u p led w ith a p ro te st by th e asylum state, is a v io latio n o f in tern atio n al law ; th e re is, h o w e v e r, som e p re c e d e n t th at c o m p licity o f asylum sta te officials in th e ab d u ctio n co u ld be th e p re d ic a te for a finding o f no actu al v io latio n o f th e asylum sta te ’s so v e reig n ty . C iv il liability o n th e p a rt o f th e U n ited S tates o r p a rtic ip a tin g g o v e rn m e n t officials resu ltin g from a fu g itiv e ’s fo rcib le ap p reh en sio n in a foreign c o u n try w ill d e p e n d on th e sta tu s o f th e o p e ra tio n u n d er in tern atio n a l law ; liability c o u ld be p re d ic a te d on th eo ries o f co n stitu tio n al o r co m m o n law to rt, o r on a v iolation o f in tern atio n a l law . T h e F e d e ra l B ureau o f In v estig atio n has no a u th o rity to a p p re h e n d and ab d u c t a fugitive residing in a fo reig n sta te w ith o u t th e asylum sta te ’s consent. In th e ab sen ce o f asylum sta te co n sen t, fed eral officials m ay be su b je ct to ex trad itio n to th e asylum sta te fo r kid n apping. March 31, 1980 M EMORANDUM OPINION FOR T H E ATTORNEY G E N ER A L You have requested that this Office advise you on the implications of a proposed operation of the Federal Bureau of Investigation (FBI) that might entail entry of American agents into a foreign country and forcible apprehension of a fugitive currently residing there. It is to be assumed that the foreign country (hereinafter “asylum state”) would file a pro forma protest to the fugitive’s apprehension and return to the United States. We also assume that the actual apprehension would be made by FBI agents, although some elements of the local police force might provide physical surveillance and aid in the neutralization of bodyguards during the actual apprehension. The proposed operation raises the following, interrelated legal issues: the implications of the seizure for the pending criminal prosecutions of the fugitive, the legal status of the operation under existing treaties and settled principles of international law, and the possibility of civil liabil­ ity on the part of the United States or participating government offi­ cials. This operation is unorthodox and, therefore, prompts a number of legal questions that are of first impression. Although we will discuss all the above legal questions separately, we think that the fundamental 543 legal issue presented by this operation is under what circumstances does the FBI, as a matter of United States law, have the authority to make an extraterritorial apprehension. Although the question is not free from doubt, we conclude that the FBI only has lawful authority when the asylum state acquiesces to the proposed operation. Since we are to assume that a pro forma protest to the operation would be filed, that fundamental condition would probably not be satisfied here. I. Implications for Criminal Prosecutions of Extraterritorial Apprehension that Is Subject of Protest The Supreme Court has consistently stated “that the power of a court to try a person for crime is not impaired by the fact that he [has] been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ ” Frisbie v. Collins, 342 U.S. 519, 522 (1952).1 It has rejected arguments that such abductions constitute violations of the Due Process Clause, and has reiterated the vitality of this conclusion in a recent Term. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Lower courts, par­ ticularly the Court of Appeals for the Second Circuit, have suggested, however, that under some circumstances a federal court might divest itself of jurisdiction as a result of the manner in which the defendant was brought before it. The most sweeping statement of these circumstances is to be found in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). There the Second Circuit confronted allegations that Toscanino, a citizen of Italy, was kidnapped in Uruguay by agents in American employ, tortured and interrogated for 17 days in Brazil with the knowledge of and sometimes in the presence of United States officials, and finally drugged and put on a commercial flight to the United States where he was convicted of narcotics violations.2 Questioning the current vitality of the Ker-Frisbie 1 These propositions are often referred to as the Ker-Frisbie doctrine. In the leading case, Ker v. Illinois, 119 U.S. 436 (1886), Ker was convicted in the Illinois state courts after being forcibly abducted in Peru. Formal extradition had been arranged among the Governor of Illinois, the U.S. Secretary of State, and Peruvian officials, but the individual who was sent to accompany Ker back to the United States did not present the extradition papers upon arrival in Peru. It was therefore a “clear case of kidnapping within the confines of Peru.*' Id. at 443. Although the apprehending agent might be subject to criminal prosecution in Peru, the Court found that American law afforded the apprehended fugitive no protection. Frisbie v. Collins, 342 U.S. 319 (1952), involved an interstate abduction. Michigan officers forcibly seized Collins in Chicago. Acknowledging that the Michigan officers might be subject to prosecution under the Federal Kidnapping Act, the Court held that as far as Collins was concerned, “due process o f law is satisfied when one present in Court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.’* Id. at 522. See also Mahon v. Justice, 127 U.S. 700, 708 (1888). 2 Toscanino alleged that he was denied sleep and nourishment for days, fed intravenously at survival levels, forced to walk for hours on end, and kicked and beaten. He claimed his fingers were pinched by metal pliers; his eyes, nose, and anus washed in alcohol; and his genitals subjected to electric shock. There had been no attempt by the United States to extradite Toscanino. Toscanino, 500 F.2d at 270. 544 doctrine, the Second Circuit relied on Rochin v. California, 342 U.S. 165 (1952), in concluding that the concept of due process has evolved such that a court must now “divest itself of jurisdiction over the person where it has been acquired as the result of the Government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” 500 F.2d at 275.3 If on remand Toscanino’s allegations were proven true, the Second Circuit saw a due process violation inherent in the bribery of a foreign official, the violence and brutality of the abduction, the violations of international law, and the failure to attempt extradition of Toscanino.4 Subsequent Second Circuit cases have read Toscanino narrowly and other circuits have refused to follow it. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975), the Second Circuit emphasized that Toscanino did not mean that “any irregularity in the circumstances of a defendant’s arrival in the jurisdic­ tion could vitiate the proceedings of the criminal court,” but rather was concerned with the “cruel, inhuman and outrageous treatment” that Toscanino allegedly received.5 Thus the court concluded that although Lujan was forcibly abducted from Bolivia, the lack of any allegation of the type of “shocking governmental conduct” involved in Toscanino obviated any application of the rationale of that case. Lujan, 510 F.2d at 66.6 It did, however, reserve the question whether the fact that an abduction is in violation of international law requires dismissal of the criminal indictment: either because such illegal governmental conduct constitutes a violation of due process or because a federal court should, as a matter of judicial administration, refuse to be a party to official misconduct. Id. at 68.7 The court perceived no international law violation in Lujan because there had been no protest by the foreign governments involved. Id. at 67. Other circuits have resolutely invoked the Ker-Frisbie doctrine to dismiss arguments that American courts should divest themselves of their criminal jurisdiction over a defendant because his presence was 3 The court did not have the benefit of the Supreme Court’s endorsement in Gerstein v. Pugh, 420 U.S. at 119, o f the Ker-Frisbie doctrine. 4 The court of appeals noted that even if the Ker-Frisbie doctrine was still good law, it could make use of its supervisory power over the district court to upset Toscanino’s conviction in order "to prevent district courts from themselves becoming ‘accomplices in willful disobedience of law.’ ” Toscanino, 500 F.2d at 276, quoting McNabb v. United Slates, 318 U.S. 332, 345 (1943). On remand the district court found that Toscanino's allegations had no basis in fact. United States v. Toscanino, 398 F. Supp. 916 (E.D. N.Y. 1975). *510 F.2d at 65 (emphasis in original). See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert, denied. 423 U.S. 847 (1975) ( Toscanino distinguished because no direct United States involvement in torture by Chilean police). 6 Lujan, a licensed pilot, alleged that while residing in Argentina, he was hired by an individual to fly to Bolivia. He claimed that his employer was in fact paid by American agents to lure Lujan out of Argentina. In Bolivia, Lujan was arrested by Bolivian police who were also allegedly paid by American agents. He was ultimately put on a plane by Bolivian and American agents and formally arrested upon his arrival in the United States. Lujan. 510 F.2d at 63. 7 See supra, note 4. 545 procured through a forcible abduction.8 Moreover, a number of those courts have suggested that jurisdiction should be retained even if the abduction violates international law.9 We note, however, that there is apparently no reported case where the abduction was the subject of a formal diplomatic protest by the asylum state. It is our opinion that even where an abduction is a technical violation of international law, a federal district court should not divest itself of jurisdiction over the fugitive’s criminal prosecution.10 We think this position is dictated by logic and precedent. In Frisbie, 342 U.S. 522, the Supreme Court assumed that the conduct of the Michigan authorities who abducted Collins from Chicago constituted a violation of the Federal Kidnapping Act. It concluded, however, that the Kidnapping Act “cannot fairly be construed so as to add to the list of sanctions detailed a sanction barring a state from prosecuting persons wrongfully brought to it by its officers. It may be that Congress could add such a sanction. We cannot.” Frisbie, 342 U.S. at 523. A dismissal remedy for a violation of international law is even less appropriate. The interests protected by international law are those of sovereign nations. Any interest of individuals is at best derivative. See Lujan, 510 F.2d at 67. By contrast, the Federal Kidnapping Act is unquestionably for the protection of individuals; yet under the principles of Frisbie, a forcible 8 E.g., United Slates v. Postal, 589 F.2d 862, 865 (5th C ir). cert, denied, 444 U.S. 832 (1979) (arrest by Coast Guard upon the high seas); United States v. Mariano, 537 F.2d 257, 271-72 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1977) (allegations of unlawful arrest in and forcible abduction from Grand Cayman Island; Toscanino characterized as only departure from Ker-Frisbie doctrine); Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975) (allegedly illegal removal from Canada to New York); United States v. Cotten. 471 F.2d 744, 747-49 (9th Cir.). cert, denied, 411 U.S. 936 (1973) (forcible removal from Vietnam). There is a standard formulation of the Ker-Frisbie doctrine reiterated in these cases: It has long been held that due process has been satisfied when a person is apprised of the charges against him and is given a fair trial. The power of a court to try a person is not affected by the impropriety of the method used to bring the defendant under the jurisdiction of the court [citing Ker and Frisbie). Once the defendant is before the court, the court will not inquire into the circumstances surrounding his presence there. United States v. Mariano. 537 F.2d at 271. 9 E.g., Postal, 589 F.2d at 873 (“This proposition, the so-called Ker-Frisbie doctrine, is equally valid where the illegality results from a breach of international law not codified in a treaty"); United States v. Cadena. 585 F.2d 1252, 1261 (5th Cir. 1978) United States v. Winter, 509 F.2d 975, 984-86 (5th Cir.), cert, denied. 423 U.S. 825 (1975) (Ker-Frisbie doctrine makes it unnecessary to inquire whether arrest by Coast Guard within territorial waters of Bahamas violated international law); Autry v. Wiley, 440 F.2d 799, 802-03 (1st C ir), cert, denied. 404 U.S. 886 (1971). Oftentimes courts simply do not discuss the status of the abduction under international law. E.g.. Marzano, 537 F.2d 257; United States v. Herrera. 504 F.2d 859 (5th Cir. 1974); United States v. Vican, 467 F.2d 452 (5th Cir. 1972), cert, denied. 410 U.S. 967 (1973). 10 Cadena. 585 F.2d at 1261 (“no basis for concluding that violations of these international princi­ ples must or should be remedied . . . by dismissal of the indictment unless Fourth Amendment interests are violated”); Autry v. Wiley. 440 F.2d at 801-02; see also Waits v. McGowan, 516 F.2d 203, 208 (3d Cir. 1975) (“the protections or rights which accrue to the extradited person primarily exist for the benefit of the asylum nation . . ., whereas plaintiffs complaint alleges violation of rights of citizens of the demanding nation (The United States of America)*’). American courts are charged with the vindication of international law principles to the extent those principles are consonant with American law. The Paquete Habana, 175 U.S. 677, 700 (1900). The thrust of the abduction cases is that relinquishing criminal jurisdiction is not the means to vindicate those principles. 546 abduction in violation of that Act does not divest an American court of jurisdiction. In sum, we are of the opinion that in the absence of an international law violation, a federal district court will not ordinarily divest itself of jurisdiction in a criminal case where the defendant’s presence has been secured by forcible abduction from the territorial limits of a foreign asylum state. Nor should it do so where there is an international law violation. However, since you have advised us that you expect a pro forma diplomatic protest by the asylum state and that the fugitive’s prosecution will proceed in the Southern District of New York, it is necessary to examine the international law implications of this operation more closely. As we have noted, the Second Circuit has expressly reserved the question whether a violation of international law should result in relinquishment of criminal jurisdiction over the suspect. II. International Law Implications of the Proposed Operation There is one line of authority in American jurisprudence that does create an exception to the Ker-Frisbie doctrine. As Congress by statute can modify the jurisdiction of federal courts, so too can a treaty. Thus the Supreme Court has held that a treaty can divest federal courts of jurisdiction in certain circumstances if such was the intent of the docu­ ment. Cook v. United States, 288 U.S. 102, 112 (1933); Ford v. United States, 273 U.S. 593, 610-11 (1927). As the Fifth Circuit recently noted, for a treaty to have such an effect, it must be self-executing or imple­ mented by statute.11 There are two arguably relevent treaties between the United States and the asylum state that must be considered in this case. They are the extradition treaty between the two countries and the United Nations Charter. It is well-established that the existence of an extradition treaty simpliciter does not defeat U.S. jurisdiction over a fugitive apprehended outside the extradition mechanism.12 And there is nothing in the terms of the existing extradition treaty that suggests that this government has yielded jurisdiction over U.S. nationals who have committed crimes in this country simply because they obtained refuge in the asylum state.13 The second relevant treaty is the United Nations Charter to which both the United States and the. asylum state are signatories. 11 Postal, 589 F.2d at 875-76. A treaty does not provide rules of decision for American courts unless that is the intent o f the document, Le., the treaty is self-executing. Whitney v. Robertson, 124 U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). Of course, implementing domestic legislation does provide rules of decision capable of judicial enforcement. 12 Ker, \ 19 U.S. at 444 (1886); Waits v. McGowan. 516 F.2d at 206-08; Lujan. 510 F.2d at 66; United States v. Sobell. 244 F.2d 520, 524-25 (2d Cir.), cert, denied, 355 U.S. 873 (1957). 13 By its terms it does not constitute an agreement that extradition will be the exclusive means of obtaining custody o f a fugitive. Nor does it purport to limit the criminal jurisdiction of either sovereign. 547 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. U.N. Charter, art. 2, para. 4. This provision has been at issue in a number o f forcible abduction cases, including Toscanino and Lujan. The leading precedent on forcible ab­ duction’s status under the United Nations Charter is that involving the apprehension of Adolph Eichmann in Argentina by Israeli agents. A r­ gentina objected to the United Nations Security Council, which subse­ quently adopted a resolution: Considering that the violation of the sovereignty of a Member State is incompatible with the Charter of the United Nations . . . [and njoting that the repetition of acts such as that giving rise to this situation would in­ volve a breach of the principles upon which international order is founded creating an atmosphere of insecurity and distrust incompatible with the preservation of peace . . . [the Security Council requests] the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of interna­ tional law .14 Commentators have construed this action to be a definitive construction of the United Nations Charter as proscribing forcible abduction in the absence of acquiescence by the asylum state.15 It is our opinion that even if the operation under consideration is construed to be a violation of the United Nations Charter, the criminal jurisdiction of American courts is unaffected. We base our opinion on the grounds that the United Nations Charter is not a self-executing treaty and that it was not intended by the United States at the time of ratification to affect the criminal jurisdiction of federal courts. There is not a great deal of case law on these points. However, as the Fifth Circuit observed in Postal, 589 F.2d at 876, the self-executing nature of a treaty is a matter of intent. The broad sweep and hortatory tone of Article 2 belies any argument that a binding, self-executing limitation on the criminal jurisdiction of American courts is evident in its term s.16 14 Quoted in W. Bishop, International Law 475 n.52 (1962). 15 E.g., Lujan, 510 F.2d at 66-68; Abramovsky & Eagle, U.S. Policy in Apprehending Alleged Offenders Abroad: Extradition, Abduction, or Irregular Rendition?, 57 Or. L. Rev. 51, 63 (1977); see Silving, In re Eichmann: A Dilemma o f Law and Morality, 55 Am. J. Int’l L. 307 (1961). 16 See generally, L. Goodrich, E. Hambro & A. Simmons, Charter of the United Nations: Commen­ tary and Documents 43-55 (1969). 548 And courts that have considered provisions of the United Nations Charter have concluded that they are not self-executing.17 It is a more difficult question whether the proposed operation is a violation of general international law principles, albeit not a violation of a self-executing treaty. As Judge Kaufmann indicates in his majority opinion in Lujan, it appears to be the case that a forcible abduction, when coupled with a protest by the asylum state, is a violation of international law. Lujan, 510 F.2d at 67. It is regarded as an impermissi­ ble invasion of the territorial integrity of another state. Since the asylum state would hardly attest to the fact that the protest is pro forma, there is little to be gained in the instant case by characterizing it as such. Nor do there appear to be any doctrines of self-help or selfdefense applicable in this context. There may be, however, some precedent in international law for the argument that complicity of asylum state officials in the abduction robs the asylum state’s protest of its import under international law. In 1911 the Permanent Court of Arbitration at The Hague declined to order the return to France of one Savarkar. Savarkar had escaped to France from a British ship, only to be returned to the British by a French policeman. The Court of Arbitration found that the French official’s cooperation avoided any violation of French sovereignty that might otherwise have occurred.18 Likewise, the complicity of the asylum state’s police in the proposed operation could be the predicate for a finding of no actual violation of the asylum state’s sovereignty. One obvious drawback to this argument is that it forces this government to put in issue the identity of its asylum state collaborators. We also note that the Court of Arbitration in the Savarkar case found that the British officials had no reason to know that the French official was not acting with the ap­ proval of the French government. No similar claim of ignorance could be made about the operation under consideration. We conclude that the best assumption for purposes of analyzing the implications of the proposed operation is that although not a violation of a self-executing treaty, it would violate international law. That sig­ nificantly heightens the litigation risks in the Second Circuit, which has explicitly declined to define the implications of an international law violation on criminal jurisdiction. III. Civil Liability We think the case for obtaining at least the acquiescence of the asylum state is compelling when the criminal litigation risks are coupled 17 Sei Fujii v. State, 242 P.2d 617, 620 (Cal. 1952) (human rights provisions of U.N. Charter not self­ executing); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C.), afJTd, 278 F.2d 252 (D.C. Cir.), cert, denied. 364 U.S. 835 (1960) (finding other section? of Charter not self-executing). ,a The case is discussed in Lujan, 510 F.2d at 67, and can be found at Judicial Decisions Involving Questions o f International Law. 5 Am. J. Int’l L. 490, 520 (1911). 549 with the possibility of civil liability.19 Civil liability will turn to a substantial degree on whether the FBI is authorized to conduct this operation and that, in our view, will depend on the status of the operation under international law. In Ker v. Illinois, the penultimate paragraph in the Supreme Court’s opinion reads as follows: It must be remembered that this view of the subject does not leave the prisoner or the Government of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnapping, and on demand from Peru, Julian [the party who abducted Ker], could be surrendered and tried in its courts for this violation of its laws. The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment, and the facts set out in the plea would without doubt sustain the action. W hether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case which we cannot here consider. 119 U.S. at 444. As the above quotation indicates, the question of civil liability is certainly an open one, as is the criminal liability of the apprehending agents and others under asylum state law. We discuss criminal liability in Part IV below. There appear to be three potential civil liability theories: constitu­ tional violations by American agents, common law torts committed by American agents (i.e., false imprisonment), and violation of international law. The potential defendants are the federal government and individ­ ual government officials involved in this operation.20 By virtue of the Federal Tort Claims A ct (FTCA), the United States has waived sovereign immunity with respect to the torts of assault, false imprisonment, and false arrest. 28 U.S.C. §§ 2674, 2680(h). The authori­ ties are split on whether that waiver includes related constitutional torts.21 There is, however, unanimous, albeit limited, authority that even for common law torts, the FTC A is not a total waiver of sover­ eign immunity. In the leading case, the Fourth Circuit has held that 19 By “acquiescence" we do not m6an formal endorsement. It is sufficient that the asylum state agree not to protest the apprehension. 20 Those who authorize, direct, participate in, or ratify the operation are potentially liable. 21 Compare Norton v. United Stoles* 581 F.2d 390 (4th Cir.), cert, denied, 439 U.S. 1003 (1978), with Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). Birnbaum, however, did not have to consider the effects o f the 1973 amendments to the FTCA. We think that the best assumption in light of those amendments is that the FTCA does waive sovereign immunity for damage actions predicated on Fourth Amendment violations. Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497 (1976). 550 immunity that is available to government officers sued in their personal capacities can also be asserted by the government when it is sued in their stead under the FTC A .22 Therefore, the key to analyzing the potential for civil liability is to determine whether government officials involved in this operation would enjoy either an absolute or qualified immunity if sued individually for damages. The Supreme Court has held that federal officials have a qualified immunity from damage actions in cases of constitutional torts, and that immunity at least that great governs common law torts.23 Qualified immunity will be available for the proposed operation if it is within the outer limits of the FBI’s authority and is conducted in good faith with a “ ‘reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted.’ ” 24 For reasons stated below, we think those conditions are satisfied only if the operation is con­ ducted with the acquiescence of the asylum state. Law enforcement officers are acting beyond the “outer limits” of their authority when they act beyond their jurisdiction.25 As the instant operation is presently conceived, the FBI and its agents are likely to be found not acting within these jurisdictional bounds because U.S. agents have no law enforcement authority in another nation unless it is the product of that nation’s consent. We have on prior occasions counseled that the FBI has lawful authority under United States law to conduct investigations in a foreign country provided those investigations relate to a matter within the statutory jurisdiction of the FBI. While no statute explicitly authorizes the FBI to conduct investigations outside of the United States, 28 U.S.C. § 533(1) contains no geographical restric­ tions and its general authorization—to detect and prosecute crimes against the United States—would appear to be broad enough to sanc­ tion activity toward this end no matter where it was undertaken. But we have coupled that opinion with the recommendation that any oper­ ations strictly adhere to local law and function with the knowledge and at least tacit approval of the country involved. We think any argument that § 533 gives the FBI authority to make forcible arrests anywhere in the world is at best tenuous; the sounder interpretation is that its authority is limited, like that of the United States generally, by the sovereignty of foreign nations. As we indicated in Part II, the asylum 22 Norton, 581 F.2d at 394-97; see Daniels v. United States, 470 F. Supp. 64 (E.D.N.C. 1979). **Butz v. Economou, 438 U.S. 478, 506-08 (1978) (holding that only a qualified immunity is available for most constitutional torts); Barr v. Matteo, 360 U.S. 564 (1959) (absolute immunity available for some common law torts); see Expeditions Unlimited, Aquatic Enterprises, Inc. v. Smith­ sonian Institution, 566 F.2d 289 (D.C. Cir. 1977), cert, denied, 438 U.S. 915 (1978); Granger v. Marek, 583 F.2d 781, 784 (6th Cir. 1978). 24Norton v. United States, 581 F.2d at 393 (quoting Bivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972)). Bates v. Clark, 95 U.S. 204, 208-10 (1877) (no official immunity for seizure not made in Indian country because relevant statute only authorized seizure in Indian country). Bates and similar cases are discussed approvingly in Butz v. Economou. 438 U.S. at 489-95. 551 state’s sovereignty would be “violated” for purposes of subsequent litigation if it filed a formal protest. Our conclusion regarding the scope of § 533 is dictated by two distinct but related lines of analysis. A conventional statutory construc­ tion rule regarding the scope of an official’s authority states that where a statute imposes a duty, it authorizes by implication all reasonable and necessary means to effectuate such duty. Given the target’s fugitive status and the inadequacy of extradition,26 it can be forcefully argued that this operation is necessary if the FBI is to carry out its law enforcement mission under § 533. However, the reasonableness of the operation is questionable if it violates international law or United States law. All methods of rendition outside the traditional extradition mecha­ nism have received substantial criticism from international law special­ ists and in academic journals. The tenor of these remarks is that such extraordinary means of apprehension undermine international order and breed disrespect for the traditional means of fostering cooperation and arbitrating disputes among nations.27 Judges in abduction cases have expressed concern that such extraordinary apprehensions denigrate the rule^)f law in the name of upholding it.28 We think that concern, when coupled with a U.S. or international law violation, may well lead courts to conclude that the activity lies beyond the jurisdiction of the FB I.29 The opinion of Chief Justice Marshall in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) suggests a second ap­ proach to defining the limits of the FB I’s jurisdiction under § 533. The FB I’s power cannot extend beyond those of the United States. The de jure authority of the United States is necessarily limited by the sover­ eignty of other nations: 26We are assuming that it can be established that extradition is an inadequate means of apprehension in this case. We emphasize here the importance o f an ability to make such a showing. 11 E.g.. M. Bassiouni, International Extradition and World Public Order 121 -201 (1974); and sources cited supra, note 16. 28Although he concurred in the result in Lira. 515 F.2d at 73, this concern prompted Judge Oakes to observe: “To my mind the Government in the laudable interest of stopping the international drug traffic is by these repeated abductions inviting exercise of [the court's] supervisory power in the interest of the greater good of preserving respect for law.” See also. Toscanino. 500 F.2d at 276. 29 It should be noted that this is to argue that the FBI has the authority to violate the local law of another country as long as that country does not object. We think three doctrines, although none is addressed directly to the question under consideration, conjoin to support this conclusion. First, the “act of state” doctrine evinces “judicial deference to the exclusive power of the Executive over conduct o f relations with other sovereign powers” and “precludes any review whatever of the acts of the government of one sovereign State done within its own territory by the courts of another sovereign State." First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 765 (1972) (opinion of Rehnquist, J.). We think that to say the FBI had no authority to apprehend the fugitive, despite the acquiescence of the asylum state, because such apprehension was in violation of local law is in fact to judge the actions of the asylum state—here its failure to enforce arguably applicable local law. Second, it is tantamount to giving an individual the right to dispute a nation’s conception of its own sovereign interests in violation of the principle that only the sovereign has standing to assert and construe its interest. Third, there is the maxim that the penal laws of a foreign country are not enforced in the courts of this country, but must be enforced in the place where the violation occurs. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 413-14 (1964). 552 The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restric­ tion, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. 11 U.S. (7 Cranch) at 136. In short, both lines of analysis suggest that in the absence of asylum state consent, the FBI is acting outside the bounds of its statutory authority when it makes an apprehension of the type proposed here— either because § 533 could not contemplate a violation of international law or because the powers of the FBI are delimited by those of the enabling sovereign. Once the “authority” hurdle is surmounted, how­ ever, we think that the other parts of the good faith defense are readily met. There is ample probable cause and a number of outstanding bench warrants. Assuming the operation goes forward without asylum state consent, it is necessary to examine more closely the civil liability theories that may be put forward by the fugitive. There are two constitutional arguments available to him. The first is that he is subject to an unrea­ sonable search and seizure in violation of the Fourth Amendment. The second is the Fifth Amendment due process argument based on the logic of Toscanino. The Bill of Rights does apply to actions of Ameri­ can officials directed at American nationals overseas,30 and it is our view that the proposed operation would have some Fourth Amendment problems due to the absence of asylum state consent. The standard Fourth Amendment requirement for an arrest is that it be based on probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964); Gerstein v. Pugh, 420 U.S. at 111-12. “[WJhile the Court has expressed a preference for the use of arrest warrants when feasible . . . , it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” Id. at 113. Here we have warrants and probable cause. The Fourth Amendment problem stems instead from the FBI’s lack of statutory authority for an extraterritorial apprehension that has not been sanctioned by the asylum state. Where federal officials act without explicit statutory authority, the validity of an arrest in this country turns on whether it meets the 30 Reid v. Covert 354 U.S. 1, 5-6 (1957); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 160-61 (1976). 553 standards for a valid citizen’s arrest under state law.31 If a court extrapolated that reasoning to the international context, the pertinent question would be the standards for a citizen’s arrest in the asylum state.32 The rule in the asylum state is that “[a]ny person may, with or without warrant or other legal process, arrest and detain another person who has committed a felony.” Presumably this is a reference to domestic felonies; otherwise the statute would authorize arrests for crimes that are not punishable in domestic courts and are not the subject of an extradition order. Thus we think this asylum state statute could not afford to U.S. officials authority to arrest for U.S. felonies within the asylum state’s territory. So in the absence of asylum state consent and the § 533 authority to arrest that comes with it, the fugitive has a plausible Fourth Amendment claim. In contrast, for reasons stated in Part I of this memorandum to support the conclusion that, in the absence of the brutality alleged in Toscanino, there is no due process violation warranting divestment of jurisdiction, we conclude that there would be no Fifth Amendment violation warranting a civil remedy. We do not view a violation of international law as a legally sufficient independent basis for a civil action. The reason is the distinct compass of international law. Last February the Fifth Circuit observed in the analogous context of a vessel seizure: Since 1815 it has been established that redress for im­ proper seizure in foreign waters is not due to the owner or crew of the vessel involved, but to the foreign govern­ ment whose territoriality has been infringed by the action.33 The fugitive lacks standing to pursue the violation of international law.34 The final potential bases for civil liability on the part of the federal government and individual federal officials are the common law torts of false imprisonment, false arrest, assault and battery. And to the question of liability must be added the question of forum. S1 See United States v. D i Re. 332 U.S. 581. 589-92 (1948); Alexander v. United States. 390 F.2d 101 (5th Cir. 1968); United States v. Viale. 312 F.2d 595, 601 (2d Cir ), cert, denied. 373 U.S. 903 (1963). 38 O f course, a court could also conclude that federal agents do not have any citizen's arrest privileges in the asylum state and therefore cannot avail themselves of citizen arrest standards to argue the validity of the seizure. 33 United States v. Conroy. S89 F.2d I2S8, 1268 (5th Cir. 1979); see also The Richmond. 13 U.S. (9 Cranch) 102. 103 (1815). 34 Nor does the international law argument add to the fugitive's potential Fourth Amendment claims, except to the extent that it delimits the statutory authority of the FBI. As the Fifth Circuit has noted: W hether the search and seizure were Fourth-Amendment-unreasonable must be estab­ lished by showing that interests to be served by the Fourth Amendment were violated, and not merely by establishing the violation of general principles o f international law. Cadena. 585 F.2d at 1264. We note that by its terms the Federal Kidnapping Act is inapplicable in the context o f the proposed operation. It pertains to abductions “within the special maritime and territorial jurisdiction o f the United States.’* 18 U.S.C. § 1201(aX2). But see Toscanino, 500 F.2d at 276. 554 Although a civil suit in the asylum state against U.S. officials is theoretically possible, it is an unlikely course for the fugitive to take because of the obvious logistical problems, the fact the United States would not be amenable to suit there, and difficulties the asylum state courts would have in obtaining personal jurisdiction over individual government officers. It is much more likely that any action for common law torts would be instituted in the United States, and we think such an action could be maintained in this country. According to private international law, injuries to a person or per­ sonal property of another are transitory and the right to redress follows the defendant to foreign lands.35 This principle has been recognized in the United States.36 All that is necessary is that the defendant be found within a jurisdiction in this country. The law to be applied is normally that of the site of the tortious conduct—the asylum state in this case 37—although we think American law would still govern the ques­ tion of immunity.38 It is always possible that the fugitive would be nonsuited because a court regards the cause of action as repugnant to the policies of the forum state. But the dicta in Ker about damage actions make that result less certain,39 and we think that in the absence of an immunity defense the United States and individual federal officials could be held liable for false imprisonment. The law of the place of the tort also usually governs the damage award.40 Exemplary damages are available under English common law, and consequently asylum state law, as are damages for nervous shock.41 By their very nature, the size of such awards is impossible to predict; we can only advise that exemplary damages would not be available in an action against the United States.42 Although there is no precedent on point, we think that it is unlikely that an American court would be receptive to an argument that a fugitive should be compen­ 35 See, e.g.. G. Cheshire, Private International Law 240-42 (1965). See. e.g.. Slater v. Mexican National R.R. Co.. 194 U.S. 120 (1904); Schertenleib v. Traum. 589 F.2d 1156, 1165 (2d Cir. 1978); Mobil Tankers Co. v. Mene Grande Oil Co.. 363 F.2d 611, 615 (3d Cir ), cert, denied. 385 U.S. 945 (1966). 37 See generally, G. Cheshire, Private International Law 240-57 (1965); M. Hancock, Torts in the Conflict of Laws 54-63 (1942); Restatement (Second) of the Conflict of Laws §§ 10, 145 (1969). Of course, this is not an ironclad rule and the government would be free to argue that a suit between a U.S. citizen and his government created a sufficient nexus with the American forum to dictate the application of its tort liability principles. But those principles are unlikely to vary sufficiently to make a difference in the outcome. 38 Although state law may govern the cause ®f action, federal courts have applied a uniform federal rule in determining whether the defendant enjoys official immunity. Barr v. Matteo, 360 U.S. 564, 56976 (1959). There is no justification for departing from that rule because the cause of action arises under foreign law. 39 Appellate courts have had divergent views on what forum the Supreme Court had in mind when it alluded to damage actions in Ker, 119 U.S. at 444. Compare Waits v. McGowan, 516 F.2d at 207 n.7 (damage actions in state courts) with United States ex rel. Lujan v. Gengler, 510 F.2d at 64-65 n.3 (damage actions in foreign courts). 40 See G. Cheshire, Private International Law 602-04 (1965); M. Hancock, Torts in the Conflict of Laws 113-120 (1942); Restatement (Second) of Conflict of Laws §§ 10, 145, 171 (1969). 41 H. Street, The Law of Torts 114-17, 440 (1976). 42 28 U.S.C. §2674; see. e.g.. Johnson v. United States, 547 F.2d 688, 690 n.5 (D.C. Cir. 1976). 555 sated for his lost opportunity to evade the lawful processes of the United States. Such an argument suggests a personal “right of asylum,” a right explicitly rejected in Ker, and the argument could be properly rebuffed as against the public policy of the forum. Also injunctive relief, ordering that the fugitive be returned to the asylum state, is squarely inconsistent with Ker. We note that there is no provision for indemnification of government officials held liable in an action for false imprisonment.43 IV. Criminal Liability and the Importance of Asylum State Consent The importance of asylum state consent is perhaps most dramatically highlighted by the possibility that federal officials may be extraditable to the asylum state for kidnapping.44 A number of abduction cases, including Ker, have discussed this possibility.45 The only effective safeguard against the diplomatic embarrassment and personal anxiety an extradition request would create is a prior agreement with the asylum state that no extradition request will be made. In sum, asylum state consent appears pivotal to the success of the operation, both as a matter of litigation and public perception. A formal diplomatic protest w6uld force the Second Circuit to decide whether to divest the district court of its criminal jurisdiction as a result of the international law violation. It would make an immunity claim in any civil action difficult to maintain as well as provide the fugitive with a strong argument that the operation violated his Fourth Amendment rights. It would present the possibility of an embarrassing extradition request. Finally, in the current international climate, this country can ill afford an operation that would permit others to argue that the United States does not respect international law. We advise that you not authorize the operation without the asylum state’s tacit consent. V. Miscellaneous Considerations If an apprehension is to be made, we recommend that it be made in the same manner as any professional arrest: with expedition, minimum 43 Torts Branch Monograph, Damage Suits Against Federal Officials, Department of Justice Repre­ sentation, Immunity 10-11 (Nov. 1978). 44 Art. 3, para. 7 of the extradition treaty between the United States and the asylum slate lists kidnapping and false imprisonment as extradition offenses. The penal code of the asylum state provides: A person is guilty of kidnapping— (1) who unlawfully imprisons any person, and takes him out of the jurisdiction of the court, without his consent; or (2) who unlawfully imprisons any person within the jurisdiction of the court, in such a manner as to prevent him from applying to a court for his release or from discover­ ing to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned. 45 E.g., Lujan, 510 F.2d at 64-65 n.3; Villareal v. Hammond, 74 F.2d 503, 505-06 (5th Cir. 1934); Collier v. Vaccaro, 51 F.2d 17, 20-21 (4th Cir. 1931). 556 restraint, and with full sensitivity to the fugitive’s physical needs and constitutional rights. We would recommend that the fugitive be in­ formed of his rights and the presence of outstanding warrants immedi­ ately upon his apprehension in the the asylum state and again immedi­ ately within the territorial confines of the United States. Even if the fugitive waives his rights, we recommend that there be no attempt at interrogation until the fugitive is within the territorial limits of the United States. As far as the participation of asylum state nationals is concerned, we make the following observations: Insofar as foreign nationals are acting at the behest or direction of this government, they will be regarded as American agents by the courts. If they take action outside the ambit of that agency relationship, e.g., resort to torture, this government may successfully maintain that it was not a party to that action.46 But this does not militate in favor of using asylum state nationals because FBI agents are not likely to engage in improper conduct in the first place. We think that the use of foreign nationals raises more questions of strategy than of law. Only if foreign nationals, without U.S. direction or compensation, deposited the fugitive on American soil would the legal problems in this memorandum be obviated by their presence. John M. H arm on Assistant Attorney General Office o f Legal Counsel <a Eg.. Lira. 515 F.2d at 70-71. 557

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Withdrawal of Opinion on CIA Interrogations A previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office. June 11, 2009 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Sections 3(a) and 3(b) of Executive Order 13491, 3 C.F.R. 199 (2009 comp.), set forth restrictions on the use of interrogation methods. In section 3(c) of that order, the President further directed that “unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.” We have previously noted that this direction encompasses, among other things, four opinions of the Office of Legal Counsel, which we withdrew on April 15, 2009. See Withdrawal of Four Opinions on CIA Interrogations, 33 Op. O.L.C. 191 (2009). We have now determined that it also encompasses another opinion of our Office. See Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques That May Be Used by the CIA in the Interrogation of High-Value al Qaeda Detainees (July 20, 2007). In connection with the consideration of this opinion for possible public release, the Office has now reviewed this additional opinion and has decided to withdraw it. It no longer represents the views of the Office of Legal Counsel. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 239

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Withdrawal of Opinion on CIA Interrogations A previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office. June 11, 2009 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Sections 3(a) and 3(b) of Executive Order 13491, 3 C.F.R. 199 (2009 comp.), set forth restrictions on the use of interrogation methods. In section 3(c) of that order, the President further directed that “unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.” We have previously noted that this direction encompasses, among other things, four opinions of the Office of Legal Counsel, which we withdrew on April 15, 2009. See Withdrawal of Four Opinions on CIA Interrogations, 33 Op. O.L.C. 191 (2009). We have now determined that it also encompasses another opinion of our Office. See Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques That May Be Used by the CIA in the Interrogation of High-Value al Qaeda Detainees (July 20, 2007). In connection with the consideration of this opinion for possible public release, the Office has now reviewed this additional opinion and has decided to withdraw it. It no longer represents the views of the Office of Legal Counsel. DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 239

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Applicability of the Civil Service Provisions of Title 5 of the United States Code to the United States Enrichment Corporation The United States E nrichm ent C orporation is exem pt from the civil service provisions o f title 5 o f the U nited S tates Code Ju n e 22, 1993 M e m o r a n d u m O p in io n for th e G eneral C o unsel U n it e d S t a t e s E n r ic h m e n t C o r p o r a t io n You have requested our opinion on whether the United States Enrichm ent C or­ poration (“USEC”) is subject to the civil service provisions of title 5 of the United States Code. We have concluded that, under the statute establishing USEC, title IX o f the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 2923 (codified at 42 U.S.C. §§ 2297-2297e-7) (“the Act”), USEC is exempt from the civil service provisions o f title 5. I. Before USEC was established, the Department o f Energy (“D OE”) produced enriched uranium for use as fuel for commercial nuclear power plants. Congress decided that the DOE program was inefficient; the problems included increasing international competition, declining global market share, and billions of dollars in unrecovered costs of production. In response to these problems, Congress decided to transfer the DOE program to a government corporation that could eventually be sold to the private sector, in order to ensure that the program would be operated in a more business-like fashion. See, e.g., H.R. Rep. No. 102-474, pt. VIII, at 75-76 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2293-94; see also 42 U.S.C. § 2297a(l), (7) (identifying purposes of USEC, including “[t]o operate as a busi­ ness enterprise on a profitable and efficient basis” and “[t]o conduct the business as a self-financing corporation and eliminate the need for Federal Government appro­ priations or [most] sources of Federal financing”). The rules regulating USEC’s employees are set forth in 42 U.S.C. § 2297b-4. This provision authorizes the Board of Directors of USEC to “appoint such offi­ cers and employees as are necessary for the transaction o f its business.” 42 U.S.C. § 2297b-4(a). In addition, 42 U.S.C. § 2297b-4(b) provides: The Board shall, without regard to section 5301 of title 5, fix the com pensation o f all officers and employees of the Corporation, de­ fine their duties, and provide a system of organization to fix respon­ 27 O pinions o f the O ffice o f L egal C ounsel sibility and prom ote efficiency. Any officer or employee of the Corporation may be removed in the discretion of the Board. By granting the Board broad discretion to make decisions regarding hiring and employm ent, including decisions on wage rates and removal of employees, these provisions suggest a congressional intent to exem pt USEC from the civil service laws regulating such decisions, including the statutory pay system embodied in 5 U.S.C. §§ 5301-5392. W e recognize that, arguably, the use in § 2297b-4(b) o f the phrase “without re­ gard to section 5301 o f title 5” reveals an intent not to exempt USEC from any provisions o f title 5 other than § 5301. However, under the traditional rules of statutory construction, this is not a plausible interpretation of the Act, and the Act should be read as fully exempting U SEC from the civil service laws, including title 5 ’s provisions regarding pay rates. II. A. In interpreting the Act we “must look to the particular statutory language at is­ sue, as well as the language and design o f the statute as a whole,” K M art Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), and we m ust interpret the specific statu­ tory language identified above in the context o f the “remainder of the statutory schem e,” United Savings A ss’n v. Tim bers o f Inw ood Forest Assocs., 484 U.S. 365, 371 (1988). Section 5301 o f title 5 establishes general policy criteria for setting pay rates for federal em ployees under the General Schedule; the specific rules regulating federal pay rates and system s, in turn, are set forth in the subsequent sections o f chapter 53 of title 5. A ccordingly, construing the Act to exem pt USEC from § 5301 but not the im plem enting provisions of chapter 53 would create an anomaly: the Board would be authorized to make em ploym ent decisions without complying with the basic policy provision o f chapter 53, but would have to comply with the specific statutory and regulatory provisions intended to effectuate that policy. It would not make sense to interpret the Act as containing this contradiction, especially because all the other relevant evidence shows that Congress intended to exempt USEC from all o f title 5 ’s civil service provisions.1 W hen 42 U.S.C. § 2297b-4(b) is read in the context o f the other employee pro­ visions in § 2297b-4 and the rest o f the Act as a whole, it becomes even clearer that U SEC is exem pt from the civil service provisions of title 5, including all the 1 This reasoning is sufficient to defeat the expressio unius est exclusio alterius maxim on which the argument for a contrary interpretation would be based. See 2A Norman J. Singer, Sutherland Statutory Construction § 47 25 (5th ed 1992) (expressio untus maxim should not be applied if its application would result in a contradiction o r would noi serve the purpose for which the statute was enacted) 28 A p p licability o f the Civil Service P rovisions o f Title 5 o f the U nited States Code to the U nited States E nrichm ent C orporation rules regarding pay in chapter 53. First, the other provisions in 42 U.S.C. § 2297b-4 demonstrate that Congress authorized USEC to make employmentrelated decisions w ithout regard to the civil service laws. For example, subsection 2297b-4(c) provides that USEC is to follow certain general principles set forth in title 5 governing personnel matters, but also expressly exempts USEC from the specific requirements o f title 5 in making these decisions: Applicable criteria. The Board shall ensure that the personnel function and organization is consistent with the principles o f section 2301(b) of title 5, relating to merit system principles. Officers and employees shall be appointed, promoted, and assigned on the basis of merit and fitness, and other personnel actions shall be consistent with the principles of fairness and due process but without regard to those provisions o f title 5 governing appointments and other p e r­ sonnel actions in the competitive service. 42 U.S.C. § 2297b-4(c) (emphasis added). Furthermore, 42 U.S.C. § 2297b-4 contains certain provisions relating to the rights of employees transferred to USEC from DOE and other governm ent posi­ tions. These provisions indicate that Congress contemplated that USEC employees would not be protected by the civil service laws. For example, [c]ompensation, benefits, and other terms and conditions of em ­ ployment in effect immediately prior to the transition date, whether provided by statute or by rules of the Department or the executive branch, shall continue to apply to officers and employees who trans­ fer to the Corporation from other Federal employment until changed by the Board. 42 U.S.C. § 2297b-4(d) (emphasis added). This provision reflects C ongress’s as­ sumption that USEC would be free to set the terms and conditions of employment for its employees, because if USEC were bound by civil service statutes Congress would not have needed to guarantee transferred employees their existing em ploy­ ment terms and conditions. Furthermore, the protection is merely temporary, for it lasts only “until changed by the Board.” Thus, Congress provided that USEC would be authorized to change the terms and conditions of employment for trans­ ferred government employees without regard to civil service laws. The natural inference from this authorization is that Congress assumed it had given USEC the same authority with respect to new hires and other non-governmental employees. In addition, the part o f the Act that governs the benefits o f transferees and detailees reflects C ongress’s assumption that USEC would retain discretion to set 29 O pinions o f the O ffice o f Legal C ounsel pension and other benefits without regard to the statutory civil service benefit re­ quirem ents. That provision states: At the request o f the Board and subject to the approval of the Sec­ retary, an em ployee of the [DOE] may be transferred or detailed as provided for in section 2297b-14 o f this title, to the Corporation without any loss in accrued benefits or standing within the Civil Service System. For those em ployees who accept transfer to the C orporation, it shall be their option as to whether to have any ac­ crued retirem ent benefits transferred to a retirement system estab­ lished by the Corporation o r to retain their coverage under either the Civil Service Retirement System or the Federal Em ployees’ Re­ tirem ent System, as applicable, in lieu of coverage by the Corpora­ tio n ’s retirem ent system. F or those employees electing to remain with one o f the Federal retirem ent systems, the Corporation shall withhold pay and make such payments as are required under the Federal retirem ent system. For those [DOE] employees detailed, the [DOE] shall offer those employees a position of like grade, com pensation, and proximity to their official duty station after their services are no longer required by the Corporation. 42 U.S.C. § 2297b-4(e)(4) (emphasis added). If Congress had intended that USEC would generally be subject to the civil service laws, it would not have been neces­ sary for the Act to state that employees transferred or detailed from government jobs to USEC would retain “accrued benefits [and] standing within the Civil Serv­ ice System .” Furtherm ore, subsection 2297b-4(e)(4) constitutes congressional authorization for USEC to establish its own retirement system in lieu of one of the two retirem ent systems established in title 5.2 Finally, 42 U.S.C. § 2297b-4(e)(3) states that USEC is subject to the National Labor Relations A ct (“NLRA”), 29 U.S.C. §§ 151-169. This provision also reflects C ongress’s intent to treat USEC more like a private employer than a governm ent em ployer for purposes o f em ploym ent guidelines. Government agen­ cies and departm ents subject generally to the civil service system of title 5 are not covered by the N LRA ; instead, these governm ent entities are subject to the Labor-M anagem ent and Employee Relations subpart o f title 5. See 5 U.S.C. §§ 7101-7135. Thus, when read together, the employee provisions of the Act require the conclusion that the Act exempts USEC from all of title 5 ’s pay provisions. This interpretation is also consistent w ith the general purposes of USEC’s enabling stat­ ute as a whole. As discussed above, Congress established USEC so that it could 2 See 5 U.S C. §§ 8331-8351 (Civil Service Retirement System ), id. §§ 8401-8479 (Federal Employees’ Retirement System) 30 A pplicability o f the Civil Service P rovisions o f Title 5 o f the U nited States Code to the U nited States E nrichm ent Corporation implement the uranium enrichm ent program in a more efficient and com petitive manner. USEC was created in order to “operate as a business enterprise on a profitable and efficient basis,” 42 U.S.C. § 2297a(l); see id. § 2297a(7) (citing as one purpose of USEC, to “conduct the business as a self-financing corporation and eliminate the need for Federal Government appropriations or sources o f Federal financing”),3 and accordingly was authorized to have “all the powers o f a private corporation incorporated under the District of Columbia B usiness Corporation Act,” id. § 2297b-2(l). The flexibility to make employment decisions without regard to the civil service laws, and particularly to attract highly qualified business executives without regard to federal salary caps, constitutes the sort of competitive advantage that USEC needs to carry out the purpose o f the Act. Our conclusion is also supported by the fact that Congress contem plated that USEC would start out as a government corporation but would eventually be pri­ vatized without further action by Congress. Under 42 U.S.C. § 2297d(a), USEC is required to “prepare a strategic plan for transferring ownership of the C orporation to private investors” within two years after the date D O E’s uranium enrichm ent program is transferred to USEC. The privatization plan must be transmitted to the President and Congress, id. § 2297d(d); USEC is authorized to implement the plan without additional legislation, so long as the President approves the plan and USEC notifies Congress of its intent to implement the plan and then waits 60 days, id. § 2297d-l. Thus, if the Act were interpreted to subject USEC to title 5 ’s civil service provisions and USEC is then privatized, USEC as a private corporation would be covered by the civil service laws. This would produce a very odd result, and one that contradicts the purpose of the Act — namely, to enable USEC to take advantage of the added flexibility a private corporation has to compete in interna­ tional markets. B. The sparse legislative history of the Act supports the above analysis, because it shows that Congress rejected the Senate’s language, which would have subjected USEC to most of the civil service laws. The original Senate and House versions o f 3 See also H.R. Rep. No. 102-474, pt. II, at 77, reprinted in 1992 U S.C C A N at 2084 ( ‘A Government corporation, with a clearly defined mission to operate as a commercial enterprise on a profitable and efficient basis, will provide the enrichment program with the businesslike structure and flexibility that is crucial to the survival of the program "), H R. Rep No. 102-474, pt VIII, at 76, reprinted in 1992 U.S.C.C.A.N. at 2294 (“This proposal [establishing USEC] addresses the current problems of the DOE program through the estab­ lishment of a Government Corporation which eventually could be sold to the private sector However, it is critical that the new Government Corporation operate according to certain principles in order to be success­ ful The first principle is that the Government Corporation must be treated like a private corporation to the fullest extent practicable In order for the Government Corporation to become attractive to private investors, it will have to be competitive in the marketplace This will require freedom from bureaucratic behavior and weaning from special government favoritism ") (emphasis added). 31 Opinions o f the O ffice o f L egal C ounsel the Act treated U S E C ’s employees quite differently. Section 1504 of S. 2166, 102d Cong. (1992), the bill first passed by the Senate,4 provided: (a) O fficers and employees o f the Corporation shall be officers and em ployees of the United States. (b) The Administrator [o f USEC] shall appoint all officers, em ­ ployees and agents of the Corporation as are deemed necessary to effect the provisions of this title without regard to any administra­ tively imposed limits on personnel, and any such officer, employee or agent shall only be subject to the supervision of the Administra­ tor. The Administrator shall fix all com pensation in accordance with the com parable pay provisions o f section 5301 o f title 5, U nited States Code, with com pensation levels not to exceed Execu­ tive Level II, as defined in section 5313 o f title 5, United States Code\ Provided, That the A dm inistrator may, upon recommenda­ tion by the Secretary and the Corporate Board . . . and approval by the President, appoint up to ten officers whose compensation shall not exceed an amount which is 20 per centum less than the compen­ sation received by the Adm inistrator, but not less than Executive Level II. (Em phasis added.) The Senate bill also provided that USEC employees were to be included in one of the two federal civil service retirement systems, S. 2166, § 1504(c), and it explicitly subjected USEC em ployees to federal laws restricting em ployee conduct such as the Hatch Act, id. § 1504(e). As explained in the com­ mittee report accom panying S. 210, 102d Cong. (1991), a bill with identical em­ ployee provisions introduced the previous year, the Senate bill would have “su b je c te d ] USEC employees to all civil service laws except as otherwise provided” in the bill. S. Rep. N o. 102-63, at 29 (1991) (discussing effect of § 1504(a)). Thus, the Senate bill would have explicitly subjected USEC to the compensa­ tion provisions of title 5, including the pay cap provision. By contrast, the bill first passed by the H ouse o f Representatives, H.R. 776, 102d Cong. (1992), specifically provided that the “ [o]fficers and em ployees of the Corporation shall not be officers and em ployees o f the United States.” Id. § 1305(a) (emphasis added). This lan­ guage would have unambiguously exem pted USEC from all civil service laws.5 4 See 138 Cong Rec. 2567 (1992) 3 The only oiher employee-related provisions in the bill protected the existing rights of employees at facilities performing functions vested in USEC and subjected USEC to the NLRA. H.R 776, § 1305(b). Similar provisions were incorporated into the legislation ultimately enacted into law. See 42 U S.C. § 2297b-4(e)( l)-(3). 32 A p p licability o f the Civil Service P rovisions o f Title 5 o f the U nited States Code to the U nited States E nrichm ent Corporation H.R. 776 was passed by the House on May 27, 1992 and sent on to the Senate. 138 Cong. Rec. at 12,725. The Senate amended H.R. 776 and replaced the House language regarding USEC employees with the language contained in its own bill, S. 2166 (quoted above); the Senate passed the amended bill on July 30, 1992. 138 Cong. Rec. at 20,430. No legislative history explains the differences between the House and Senate versions o f the employee provisions and the language produced by the House-Senate conference and enacted into law. However, a comparison o f the House and Senate bills makes clear that the provisions agreed upon effected a compromise under which USEC was exempted from all of the civil service laws relating to employee pay and benefits, but was required to implement “merit sys­ tem principles” and apply fairness and due process in carrying out personnel ac­ tions under 42 U.S.C. § 2297b-4(c).6 Thus, unlike the Senate version, the Act specifically exempts USEC from 5 U.S.C. § 5301 and authorizes it to fix the com ­ pensation o f employees, take personnel actions without regard to the relevant title 5 rules, and establish its own pension plan. Furthermore, the Act provides that the “[b]oard shall appoint such officers and employees as are necessary for the trans­ action of its business,” 42 U.S.C. § 2297b-4(a), in contrast to the original Senate version of the bill, which provided that officers and employees would be officers and employees of the United States. III. Based on the foregoing analysis of the Act and its legislative history, we have concluded that USEC is exempt from the civil service provisions of title 5 o f the United States Code. DANIEL L. KOFFSKY Acting Assistant Attorney General Office o f Legal Counsel 6 See Letter for Honorable James B. King, Director, Office of Personnel Management, from J. Bennett Johnston, Chairman, Senate Committee on Energy and Natural Resources (May 6, 1991) (explaining the Senator's view of the legislative history, based on informal sources that did not become part of the official recorded legislative history) We merely note that this letter supports the theory explaining the change in the b ill's language, because the letter is a post-enactment interpretation by one Member of Congress, we do not rely on K in any way for our interpretation. See, e.g , Sullivan v. Fmkelstein, 496 U S. 617, 631-32 (1990) (Scaha, J , concurring in part); Tataranowicz v Sullivan, 959 F 2d 268, 278 n 6 (D C. Cir 1992), cert de­ nied, 506 U S. 1048 (1993), Multnomah Legal Servs Workers Union v. Legal Servs. Corp., 936 F 2d 1547, 1555 (9th Cir 1991). 33

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Applicability of Executive Privilege to Deliberations Regarding Assertion of Privilege Docum ents reflecting and constituting deliberative communications within the White House Counsel’s Office and between that Office and the Department o f Justice relating to advice and recommenda­ tions to the President on the assertion o f executive privilege are themselves a proper subject of a claim o f executive privilege. September 11, 1996 L e t t e r O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t Y o u have asked whether certain predecisional deliberative documents in the pos­ session of the White House Counsel’s Office may properly be the subject of an assertion of executive privilege. These documents reflect and constitute deliberative communications within the White House Counsel’s Office and between that Office and the Department of Justice relating to the advice and recommendations presented to the President ear­ lier this year with respect to the assertion of executive privilege in response to a subpoena from the House Committee on Government Reform and Oversight. We believe that the deliberative process concerning the President’s assertion of his constitutional privilege is at the heart o f the interests protected by the privi­ lege — not only because of the heightened confidentiality interests regarding such deliberations, but also because of the severe separation of powers concerns raised by a congressional intrusion on that process. Based on our review of these documents, we conclude that they are clearly protected by executive privilege and may properly be the subject of an executive privilege claim. The Supreme Court has expressly (and unanimously) recognized that the Constitution gives the President the power to protect the confidentiality of White House deliberations. This power is rooted in the “ need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” United States v. Nixon, 418 U.S. 683, 705 (1974). “ A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” Id. at 708. The Court has also stressed the separation of powers nature of executive privilege, stating that “ [t]he privilege is fundamental to the operation of Govern­ ment and inextricably rooted in the separation of powers under the Constitution.” Id. 324 Applicability o f Executive Privilege to Deliberations Regarding Assertion o f Privilege You have not inquired concerning whether executive privilege could properly be asserted in the context of any specific congressional demand for these docu­ ments. CHRISTOPHER H. SCHROEDER Acting Assistant Attorney General Office o f Legal Counsel 325

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Whether a State May Elect Its United States Senators From Single-Member Districts Rather Than At-Large U n d e r th e S ev en teenth Am endm ent to the C onstitution, a State m ay not constitutionally elect its U n ited S tates S enators from tw o single-m em ber districts rather than at large. August 20, 1992 M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l C i v i l R ig h t s D iv is io n The National Association for the Advancement of Colored People, Inc., (“NAACP”) has filed suit challenging the method by which Mississippi se­ lects its Senators. The NAACP claims that Mississippi has violated the Voting Rights Act o f 1965, as amended, 42 U.S.C. §§ 1971-1974e, and the 14th and 15th Amendments to the Constitution, by electing its Senators atlarge, rather than from two single-member districts. You have asked for our views on the issue of whether a State constitutionally may elect its Senators from single-member districts, rather than at-large. We conclude that it may not. The analysis begins with the text of the Seventeenth Amendment, which provides that “[t]he Senate o f the United States shall be composed of two Senators from each State, elected by the people thereof.” U.S. Const, amend. 17. Because States of the Union are distinct, unitary political entities, in order for a Senator to be from a State he or she must be from the entire State, not some part of it. Similarly, because of the nature of the States, election by “the people” of the State implies election by the whole people of the State, not some smaller set of citizens. The election of Senators from sm aller districts instead of the entire State would result in Senators elected by only a part of the people o f a State. Such a plan would be inconsistent with the Constitution’s text.1 1This conclusion is fully consistent with the Constitution’s provision concerning the election of Repre­ sentatives, which also refers to election by the people, stating that the “House of Representatives shall be com posed of M em bers chosen every second Year by the People o f the several Slates." U.S. Const, art. I, § 2, cl. I (em phasis added). This formulation was adopted by the Constitution’s original framers to make clear that the low er house of Congress was to be elected proportionally by popular vote. See The F ed er­ a list N o. 39, at 254-55 (Jam es M adison) (Jacob E. C ooke ed. 1961). R epresentatives, th erefo re, re p re se n t people. A lthough it requires p opular election. A rticle I, Section 2 for this reason need Continued 132 The history of the Seventeenth Amendment confirms that Senators are to be selected by the people of the whole State. The report accompanying S.J. Res. 134, which eventually became the Seventeenth Amendment, explained that the character of the Senate as representative of the States would be enhanced by popular election because, henceforth, a Senator would be se­ lected by all o f the people of a State, instead of just the members of the State’s legislature: “It might change his relations to certain interests and certain forces within the State, but if we are to suppose that a State consists of all the people and of all the interests, will he not still be its representative in every sense when his election comes from all the people o f his State!" Election o f Senators by Popular Vote, S. Rep. No. 961, 61st Cong., 3d Sess. 4-5 (1911) (emphasis added) (“Senate Report”). The Constitution elsewhere confirms that the role o f Senators is to repre­ sent States considered as integral political units. As Madison explained, the bicameral structure of Congress reflects a decision to have one body in which the people are directly represented and one in which they are repre­ sented in their capacity as state citizens — i.e., one in which the States are represented. “The Senate . . . will derive its powers from the States, as political and co-equal societies; and these will be represented on the prin­ ciple of equality in the Senate, as they now are in the existing [Confederation] Congress.” Federalist No. 39, supra note 1, at 255. His remarks were later echoed by Justice Joseph Story, who contrasted the Senate with the House of Representatives and wrote that: “[E]ach state in its political capacity is represented [in the Senate] upon a footing of perfect equality, like a con­ gress of sovereigns, or ambassadors, or like an assembly of peers.” Joseph Story, Commentaries on the Constitution o f the United States § 352, at 252 (Carolina Academic Pr. ed. 1987).2 Accordingly, Article I, Section 3 pro­ vided that: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . . ” U.S. Const, art. I, § 3, cl.' 1. Article V of the Constitution also recognizes the role of Senators as rep­ resentatives of their respective States. In creating a process of constitutional amendment. Article V both confirms that the Senate is a body representing States, and assures that it will continue as such. The provision describes the structure of the Senate as one of suffrage for the States, providing “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” U.S. Const, art. V. The Seventeenth Amendment did not change the fundamental character ‘ (....continued) not and does not address the question of how the people are to choose Representatives, whether by dis­ tricts, at-large, or otherwise. Senators, by contrast, represent States, and are elected, not by the people of the several States — that is, the people at large — but by the people o f the States — that is, the people of each State in their separate capacities. It is therefore not surprising that the requirements of the Seven­ teenth Amendment for apportionment are different from those of Article I. 2See also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551-53 (1985) (citations om itted) (States as such are represented in the Senate both to reflect and to protect their remaining sovereignty). 133 of the Senate. Indeed, as noted above, the framers of the Seventeenth Amend­ ment maintained that the change they were proposing would make the Senate more representative of the States: It was undoubtedly in the minds of the fathers that the Sena­ tors should in a peculiar sense represent the State something as an ambassador. That idea naturally arose out of the fact that the States had been separate and independent sovereign­ ties, and regarded each other to a great extent as wholly independent States. . . . This amendment does not propose in any way to interfere with the fundamental law save and ex­ cept the method or mode of choosing the Senators. It will still be the duty of the Senator to see that the States respec­ tively are not denied any of the rights to which they are justly entitled under our system of government. It will still be the duty and the pride of the Senator to see that the Common­ w ealth w hich he represents in its entirety has that full representation to which it is entitled under the fundamental law. The change will consist in bringing him more thoroughly in touch with all the interests and all that makes up a great State, and that is certainly desired. Senate Report, at 4-5 (emphasis added). If Senators were elected from districts smaller than States, and not by the whole people of each State, they would represent and be accountable only to parts o f States, not to the States as the Constitution requires. Indeed, the Senate would cease to be a body representing the States, and would become an assembly, like the House of Representatives, representing individuals living in certain areas of a State. The Constitution would no longer be the one de­ scribed in Article V, in which the States themselves enjoy suffrage in the Senate. Finally, the election of Senators from districts would deprive the people o f the States o f their constitutional right to elect both of their State’s Sena­ tors. The Supreme Court has recognized that the Constitution’s popular election provisions vest constitutionally protected rights in the people. United States v. Classic, 313 U.S. 299, 314 (1941) (Article I, Section 2 creates a right in the people to choose their representatives).3 3 C lassic involved a federal prosecution under sections 19 and 20 of the federal criminal code (now codified at 18 U.S.C. §§ 241, 242), forbidding conspiracies to interfere with the enjoyment o f rights secured by the C onstitution, and the deprivation o f such rights under color of state law. The defendants w ere indicted for w illfully altering and falsifying ballots voters had cast in a Louisiana Democratic Party primary. In resolving the case, the C ourt was faced with the issue o f "whether the right o f quali­ fied voters to vote in the Louisiana primary and to have their ballots counted is a right 'secured by the C o n stitu tio n .'” Id. at 307. The Court concluded that it was. 134 The Seventeenth Amendment, then, grants to each State’s qualified voters a constitutional right to participate in senatorial elections. At-large election of Senators is mandatory if that individual right is understood as either the right to participate in all senatorial elections or the right to vote for both Senators. It is difficult to see how it could be understood otherwise. The Seventeenth Amendment, which provides that each State shall have two Sena­ tors and that the people shall elect them, nowhere suggests that there is any difference between the two Senators, nor that the right of the people it creates attaches to anything other than the two Senators given to each State. In the absence of any indication to the contrary, the only conclusion is that there is no disjunction between the individual right established by the amend­ ment and the two senatorial offices the amendment refers to. It follows that if Senators were elected from districts smaller than States, the people o f the State would be deprived of their constitutionally protected right to vote for each of their State’s Senators. This can be accomplished, if it is to be accomplished, only by an amendment to the Constitution. TIMOTHY E. FLANIGAN Assistant Attorney General Office o f Legal Counsel 135

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Constitutionality of Bill Creating an Office of Congressional Legal Counsel Congressional officers representing the combined power of both houses of Congress—in contrast to officers of either house—who perform significant governmental duties must be appointed as provided in the Appointments Clause of the Constitution. The authority to bring a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States is an exclusive executive function that must be exercised by an executive officer who must be appointed as provided for in the Appointments Clause and be subject to the President’s unlimited removal power. February 13, 1976 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL CIVIL DIVISION This is in response to your memorandum of January 12, 1976, in which you ask for information designed to assist you in complying with a request of the Subcommittee on Separation of Powers of the Senate Judiciary Committee for “Materials to be Submitted for the Record” in connection with your recent testimony before that Subcommittee. The two topics assigned to us are: I. Statements Submitted to Congress in Which the Department of Justice Opposed Congressional Attempts to Provide for a Counsel of Its Own Since the Office of Legislative Affairs is the clearing house for reports submitted to Congress, we checked with that Office in order to answer this question. The Office of Legislative Affairs advised us that there have been only two instances in which statements relating to congressional attempts to provide for a counsel of its own were submitted to the Congress by the Department of Justice. They were your own statement of December 12, 1975, before the Senate Judiciary Committee, of which you, of course, are aware (Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 94th Cong. 4 (1976) (testimony of Rex. E. Lee, Assistant Attorney General, Civil Division)), and Assistant Attorney General Uhlmann’s testimony of December 3, 1975, before the Senate Committee on Government Operations on S. 495, on pages 15–21 of the prepared text (Watergate Reorganization and Reform Act of 1975: Hearings on S. 495 and S. 2036 Before the S. Comm. on Government Operations, 94th Cong. pt. 2, at 15–21 (1976)). 384 Constitutionality of Bill Creating an Office of Congressional Legal Counsel This Office is not aware of any other instances in which the Department submitted to Congress any statements pertinent to this issue. For your information, I may point out that this problem came up in connection with S. 1384, 90th Cong. (as introduced Mar. 23, 1967) (“To establish the Office of Legislative Attorney General”). The comments prepared in this Office, however, were not submitted to Congress. The late Professor Bickel, however, commented adversely on the proposal. Separation of Powers: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 90th Cong., pt. 1, at 248–50 (1967). II. Comments on the Constitutionality of S. 2731, 94th Cong., 1st Sess. This rather complex bill would establish the Office of the Congressional Legal Counsel as an office of the Congress. S. 2731, 94th Cong. § 4(a)(1) (as introduced Dec. 2, 1975)). The Congressional Legal Counsel would be appointed jointly by the President pro tempore of the Senate and the Speaker of the House of Representatives, subject to approval by a concurrent resolution of the Senate and the House of Representatives. Id. The appointment would be for a term which would expire at the end of the Congress following the Congress in which the Congressional Legal Counsel was appointed; he could be removed by concurrent resolution for misconduct, incapacity, or incompetence. Id. § 4(a)(2). Sections 5 and 6 would provide that the Congressional Legal Counsel shall prosecute and defend certain civil litigation in which Congress has an interest. Briefly those actions fall into the following categories: (a) Defense of either house or of congressional agencies, members, officers, or employees in any civil action in which such house, etc., is a party defendant in which there is placed in issue the validity of (i) any proceeding of, or action taken, including any subpoena or order issued, by such house, joint committee, subcommittee, member, officer, employee, office, or agency; or (ii) any subpoena directed to such house, joint committee, committee, subcommittee, member, officer, employee, office, or agency (id. §§ 5(a)(1), 6(2)). (b) Prosecution of civil actions on behalf of Congress, etc., (i) to secure a declaratory judgment concerning the validity of any subpoena directed to, or subpoena or order issued by, Congress, 385 Supplemental Opinions of the Office of Legal Counsel in Volume 1 or such house, joint committee, committee, subcommittee, member, officer, employee, office, or agency (id. §§ 5(a)(2)(B); 6(1)); or (ii) to require an officer or employee of the executive branch of the Government to act in accordance with the Constitution and laws of the United States (id. § 5(a)(2)(A)). Under section 7(a), the Congressional Legal Counsel would make recommendations as to whether a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States should be brought. Section 8(a) would provide for the intervention or appearance as amicus curiae by the Congressional Legal Counsel in any legal action in which (1) the constitutionality of any law of the United States is challenged and the United States is a party to such action, or a Member, officer, or employee of Congress does not consent to representation by the Congressional Legal Counsel under section 5 of this Act; and (2) the powers and responsibilities of Congress under article I of the Constitution of the United States are placed in issue. Section 9 would confer on the Congressional Legal Counsel certain advisory and consultative functions. Section 10 would implement the responsibilities of the Congressional Legal Counsel under the preceding sections. Sections 11 and 12 deal with internal procedural matters. Section 13 would provide for the supersedure of the Attorney General by the Congressional Legal Counsel if the latter undertakes any representational service. We assume that this provision is not intended to apply to proceedings under section 5(a)(2)(A), i.e., where the Congressional Legal Counsel institutes a civil action to require a officer of the Executive Branch “to act in accordance with the Constitution and laws of the United States.” The remainder of the bill contains provisions mainly of a procedural nature. Section 15(f), however, would put on a permanent general basis Public Law 93-190, 87 Stat. 736 (1973), which authorized the Senate Select Committee on Presidential Campaign Activities to enforce its subpoenas or orders in judicial proceedings. It may be briefly mentioned that the reference to section 6 or 7 on page 18, line 10 of the bill should probably be section 5 or 6. In commenting on the constitutionality of the bill it must be recognized, first, that the bill represents a conscious effort to obviate certain constitutional obstacles inherent in other bills providing for a Congressional Legal Counsel by limiting his activities to the fields of civil litigation and the giving of advice and the making of 386 Constitutionality of Bill Creating an Office of Congressional Legal Counsel recommendations. And, second, that the pertinent law has been substantially clarified by the decision in Buckley v. Valeo, 424 U.S. 1 (1976), which was rendered after the introduction of the bill. Provisions for a congressional officer charged on a permanent basis with the function of representing Congress, its agencies, members and employees in judicial proceedings, raise two questions: (a) whether the appointment of a joint congressional officer performing only legislative functions must comply with Article II, Section 2, Clause 2 of the Constitution, and (b) whether, assuming that the answer to (a) is no, the functions of the counsel envisaged in the bill are sufficiently of an executive nature to require his appointment pursuant to Article II, Section 2, Clause 2 for that reason. Further serious problems are raised by section 5(a)(2)(A) which would confer upon the Congressional Legal Counsel the power to bring a civil action against an executive officer in order to require him “to act in accordance with the Constitution and the laws of the United States.” 1. Article II, Section 2, Clause 2 of the Constitution provides that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments 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 Heads of Departments. It will be noted that this constitutional provision is not limited to executive officers. Judicial officers are appointed pursuant to it, and, as will be presently shown, also a number of important congressional officers. United States v. Hartwell defines an office as a public station or employment which “embraces the ideas of tenure, duration, emolument, and duties,” to distinguish it from relationships of a purely occasional or contractual nature. 73 U.S. (6 Wall.) 385, 393 (1867). The elements of tenure, duration, emoluments, and duties relating to the office of the Congressional Legal Counsel are spelled out in detail in the bill, as has been shown above.1 In United States v. Germaine, the Court held: That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be inclined within one or the other of these modes of appointment there can be but little doubt. 1 Since the definition of office includes the elements of duration and tenure, the subsequent discussion is not concerned with the representation of Congress, etc., by counsel retained on a case by case basis in the rare situations in which the Executive Branch is unable to represent it. 387 Supplemental Opinions of the Office of Legal Counsel in Volume 1 99 U.S. 508, 510 (1878). And most recently the Court amplified on this in Buckley v. Valeo: We think its fair import is that any appointee exercising significant authority pursuant to the laws of 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. 424 U.S at 126. The functions to be conferred on the Congressional Legal Counsel clearly vest in him significant authority under the laws of the United States; they are not limited to an internal advisory nature. The provisions for his appointment therefore are unconstitutional unless the Constitution “otherwise provides” for his appointment. In our view there is no such alternative provision for his appointment. Article I, Sections 2 and 3 of the Constitution provide that the House of Representatives and the Senate choose their respective officers. There is, however, no provision in the Constitution “otherwise providing” for the appointment of officers serving Congress as such rather than its components. Buckley v. Valeo demonstrates that the failure of the Constitution to authorize Congress to appoint officers who are not officers of the respective houses but of Congress as a whole was no oversight. 424 U.S. at 124–31. This conclusion is supported by the consideration that the Constitutional Convention deliberately split the Legislative Branch into two houses lest it overwhelm the other two branches of the government. As James Madison stated in The Federalist No. 51: In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. . . . [T]he weight of the legislative authority requires that it should be thus divided . . . . Id. at 322 (Clinton Rossiter ed., 1961) (emphasis added). John Adams’ three volumes in the Defence of the Constitutions of Government of the United States of America (1794), based on a formidable amount of historical research, were compiled in order to establish the proposition that, in order to be viable, a republican form of government must be based not only on the principle of the separation of powers but also on that of bicameralism. Hence, it must be concluded that the Constitutional Convention deliberately denied Congress the power to appoint joint congressional officers, in order to hold “connections” between the two Houses of Congress to a minimum. Such officers, therefore, like all other officers of the United States, have to be appointed pursuant to Article II, Section 2 of the Constitution. 388 Constitutionality of Bill Creating an Office of Congressional Legal Counsel Legislative precedent supports this conclusion. The principal joint congressional officers have been traditionally appointed in this manner: the Comptroller General (31 U.S.C. § 42 (Supp. III 1973)); the Librarian of Congress (2 U.S.C. § 136 (Supp. III 1973)); and the Public Printer (44 U.S.C. § 301 (Supp. III 1973)) are appointed by the President by and with the advice and consent of the Senate; the Architect of the Capitol is appointed by the President alone (40 U.S.C. § 162 (1970)). Significantly, the legislative counsel appointed by the President pro tempore of the Senate and by the Speaker of the House of Representatives, respectively (2 U.S.C. § 272 (1970)), are officers of the house to which they have been appointed and not officers of Congress at large (2 U.S.C. §§ 271, 281 (1970)). This is not to say that there may not be some congressional officials—such as joint committee staffs—who are not appointed pursuant to Article II, Section 2, Clause 2. But their functions are purely internal and advisory; they do not carry out any significant authority outside the limits of the Capitol. It is therefore concluded that congressional officers—in contrast to officers of either house—who perform significant governmental duties must be appointed as provided in Article II, Section 2 of the Constitution. In other words, if Congress provides for an officer representing the combined power of both houses of Congress, it must pay the price by giving the President the authority of selection. 2. This portion of the discussion is based on the assumption arguendo that congressional officers, even if they do perform significant governmental functions, need not be appointed according to the procedures set forth in Article II, Section 2, Clause 2 of the Constitution provided their functions are not of an executive or administrative nature. The principal pertinent functions of the Congressional Legal Counsel would lie in the field of litigation. The kind of proceedings in which he would be involved fall into three categories: i. Generally, to defend Congress, its agencies, members and employees in cases involving the validity of congressional action, congressional subpoenas, or orders issued by or directed against Congress. ii. To bring civil actions for declaratory relief concerning the validity of a subpoena issued by or directed against Congress or to enforce any congressional subpoena or order. iii. To bring civil actions requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States. The last category quite obviously and uncontrovertibly involves an exclusively executive function. To require an officer to act in accordance with the Constitution 389 Supplemental Opinions of the Office of Legal Counsel in Volume 1 and laws of the United States is nothing but a paraphrase of the constitutional text to “take Care that the Laws be faithfully executed.” That responsibility is vested, pursuant to Article II, Section 3 of the Constitution, in the President and not in Congress. An officer whose duty it is to compel action in accordance with the requirements of the Constitution and laws of the United States, therefore, is an executive officer who must be appointed as provided for in Article II, Section 2, Clause 2 of the Constitution and be subject to the President’s unlimited removal power. Buckley v. Valeo, 424 U.S. at 134–41. In view of this recent pertinent ruling in Buckley v. Valeo, we do not consider it necessary to discuss here the alternative consideration whether Congress or a member has standing in court to require an officer to act in accordance with the Constitution and laws of the United States. We merely refer to the recent holding of the U.S. Court of Appeals for the Fourth Circuit in Harrington v. Schlesinger, decided on October 8, 1975: A legislator may sue to prevent dilution of his voting power in the legislature. In Kennedy v. Sampson, D.C. Cir., 511 F.2d 430 [(1974)], the Court decided that a Senator had standing to challenge a President’s “pocket veto” of a bill for which he had voted. The Senator was challenging the diminution of his voting power in the legislative process. By analogy, the four congressmen in this action claim that they have an interest in ensuring enforcement of laws for which they voted. Once a bill has become law, however, their interest is indistinguishable from that of any other citizen. They cannot claim dilution of their legislative voting power because the legislation they favored became law. .... . . . The plaintiffs’ status as congressmen does not give them standing to sue for a declaration that Executive activities are illegal. The congressmen’s interest seems little different from that of any citizen who might find a court’s advice useful in casting his votes in presidential or congressional elections. In both instances the interest is too generalized to provide a basis for standing. .... While we hold that none of the plaintiffs has standing to seek a judicial resolution of the controversy, they are not without a remedy, for the controversy is subject to legislative resolution. If there is a difference between a majority of the members of both houses of Congress and the President as to the interpretation and application of the statutes, the Congress has the resources through its committees to 390 Constitutionality of Bill Creating an Office of Congressional Legal Counsel ascertain the facts. With the facts before it, it may tighten the statutory restrictions, if that be the congressional will. The fact that the Congress has done nothing suggests that the Executive’s interpretation of the statutes is in agreement with the congressional intent, but that is an issue in this case which we do not reach. 528 F.2d 455, 459 (4th Cir. 1975) (footnote omitted). In other words, while a congressman may have standing to determine whether or not legislation which had passed both Houses of Congress has become law (Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)),* once a statute has been approved by the President, the congressional power over it becomes functus officio. See Cong. Globe, 39th Cong., 1st Sess. 186 (Jan. 11, 1866) (statement of Sen. Davis). In this connection it should be remembered that “standing to sue” is a constitutional requirement flowing from the limitation of the jurisdiction of the federal courts to cases and controversies in Article III, Section 2, Clause 1 of the Constitution. It therefore cannot be waived by statute, which is apparently what section 14(a) of the bill seeks to accomplish. Portions of the litigating functions conferred upon the Congressional Legal Counsel in categories (i) and (ii) described above—notably the defense of actions against individual congressmen with respect to the performance of their legislative functions, and the defense or prosecution of suits relating to congressional subpoenas—are less exclusively executive in nature; it is our view, however, that the lodging of any of them in a non-executive officer is subject to serious constitutional doubt. Litigation is basically an executive function. This conclusion is supported by section 14(c) of the bill, which would vest in the Congressional Legal Counsel the powers conferred by law upon the Attorney General, which powers, of course, are of a preeminently executive nature. It is also significant that the responsibility of defending congressional officers has been vested in the Attorney General for more than a century. See 2 U.S.C. § 118 (1970) (derived from Act of Mar. 3, 1875, ch. 130, § 8, 18 Stat. 371, 401). The Supreme Court suggested in Buckley v. Valeo that legislative power may come to an end at the courtroom door: “[The] discretionary power to seek judicial relief . . . cannot possibly be regarded as merely in aid of the legislative function of Congress.” 424 U.S. at 138. Kennedy v. Sampson is of course not in point, since that involved the standing of individual members of Congress rather than the power of the Congress, as an institution, to represent individual members, or the Congress itself, in litigation. * Editor’s Note: In Chenoweth v. Clinton, 181 F.3d 112, 115–17 (D.C. Cir. 1999), the Court of Appeals expressed doubt about the continuing viability of Kennedy v. Sampson in light of Raines v. Byrd, 521 U.S. 811 (1997). 391 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The preceding discussion encompasses the constitutional objections to the bill which appear to us to be the most serious ones. While we realize that there are others lurking in it, space and time preclude us from dealing with all of them. For the above reasons, it is our conclusion that the bill is subject to substantial constitutional infirmities. ANTONIN SCALIA Assistant Attorney General Office of Legal Counsel 392

Write a legal research memo on the following topic.

Constitutionality of Bill Creating an Office of Congressional Legal Counsel Congressional officers representing the combined power of both houses of Congress—in contrast to officers of either house—who perform significant governmental duties must be appointed as provided in the Appointments Clause of the Constitution. The authority to bring a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States is an exclusive executive function that must be exercised by an executive officer who must be appointed as provided for in the Appointments Clause and be subject to the President’s unlimited removal power. February 13, 1976 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL CIVIL DIVISION This is in response to your memorandum of January 12, 1976, in which you ask for information designed to assist you in complying with a request of the Subcommittee on Separation of Powers of the Senate Judiciary Committee for “Materials to be Submitted for the Record” in connection with your recent testimony before that Subcommittee. The two topics assigned to us are: I. Statements Submitted to Congress in Which the Department of Justice Opposed Congressional Attempts to Provide for a Counsel of Its Own Since the Office of Legislative Affairs is the clearing house for reports submitted to Congress, we checked with that Office in order to answer this question. The Office of Legislative Affairs advised us that there have been only two instances in which statements relating to congressional attempts to provide for a counsel of its own were submitted to the Congress by the Department of Justice. They were your own statement of December 12, 1975, before the Senate Judiciary Committee, of which you, of course, are aware (Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 94th Cong. 4 (1976) (testimony of Rex. E. Lee, Assistant Attorney General, Civil Division)), and Assistant Attorney General Uhlmann’s testimony of December 3, 1975, before the Senate Committee on Government Operations on S. 495, on pages 15–21 of the prepared text (Watergate Reorganization and Reform Act of 1975: Hearings on S. 495 and S. 2036 Before the S. Comm. on Government Operations, 94th Cong. pt. 2, at 15–21 (1976)). 384 Constitutionality of Bill Creating an Office of Congressional Legal Counsel This Office is not aware of any other instances in which the Department submitted to Congress any statements pertinent to this issue. For your information, I may point out that this problem came up in connection with S. 1384, 90th Cong. (as introduced Mar. 23, 1967) (“To establish the Office of Legislative Attorney General”). The comments prepared in this Office, however, were not submitted to Congress. The late Professor Bickel, however, commented adversely on the proposal. Separation of Powers: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 90th Cong., pt. 1, at 248–50 (1967). II. Comments on the Constitutionality of S. 2731, 94th Cong., 1st Sess. This rather complex bill would establish the Office of the Congressional Legal Counsel as an office of the Congress. S. 2731, 94th Cong. § 4(a)(1) (as introduced Dec. 2, 1975)). The Congressional Legal Counsel would be appointed jointly by the President pro tempore of the Senate and the Speaker of the House of Representatives, subject to approval by a concurrent resolution of the Senate and the House of Representatives. Id. The appointment would be for a term which would expire at the end of the Congress following the Congress in which the Congressional Legal Counsel was appointed; he could be removed by concurrent resolution for misconduct, incapacity, or incompetence. Id. § 4(a)(2). Sections 5 and 6 would provide that the Congressional Legal Counsel shall prosecute and defend certain civil litigation in which Congress has an interest. Briefly those actions fall into the following categories: (a) Defense of either house or of congressional agencies, members, officers, or employees in any civil action in which such house, etc., is a party defendant in which there is placed in issue the validity of (i) any proceeding of, or action taken, including any subpoena or order issued, by such house, joint committee, subcommittee, member, officer, employee, office, or agency; or (ii) any subpoena directed to such house, joint committee, committee, subcommittee, member, officer, employee, office, or agency (id. §§ 5(a)(1), 6(2)). (b) Prosecution of civil actions on behalf of Congress, etc., (i) to secure a declaratory judgment concerning the validity of any subpoena directed to, or subpoena or order issued by, Congress, 385 Supplemental Opinions of the Office of Legal Counsel in Volume 1 or such house, joint committee, committee, subcommittee, member, officer, employee, office, or agency (id. §§ 5(a)(2)(B); 6(1)); or (ii) to require an officer or employee of the executive branch of the Government to act in accordance with the Constitution and laws of the United States (id. § 5(a)(2)(A)). Under section 7(a), the Congressional Legal Counsel would make recommendations as to whether a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States should be brought. Section 8(a) would provide for the intervention or appearance as amicus curiae by the Congressional Legal Counsel in any legal action in which (1) the constitutionality of any law of the United States is challenged and the United States is a party to such action, or a Member, officer, or employee of Congress does not consent to representation by the Congressional Legal Counsel under section 5 of this Act; and (2) the powers and responsibilities of Congress under article I of the Constitution of the United States are placed in issue. Section 9 would confer on the Congressional Legal Counsel certain advisory and consultative functions. Section 10 would implement the responsibilities of the Congressional Legal Counsel under the preceding sections. Sections 11 and 12 deal with internal procedural matters. Section 13 would provide for the supersedure of the Attorney General by the Congressional Legal Counsel if the latter undertakes any representational service. We assume that this provision is not intended to apply to proceedings under section 5(a)(2)(A), i.e., where the Congressional Legal Counsel institutes a civil action to require a officer of the Executive Branch “to act in accordance with the Constitution and laws of the United States.” The remainder of the bill contains provisions mainly of a procedural nature. Section 15(f), however, would put on a permanent general basis Public Law 93-190, 87 Stat. 736 (1973), which authorized the Senate Select Committee on Presidential Campaign Activities to enforce its subpoenas or orders in judicial proceedings. It may be briefly mentioned that the reference to section 6 or 7 on page 18, line 10 of the bill should probably be section 5 or 6. In commenting on the constitutionality of the bill it must be recognized, first, that the bill represents a conscious effort to obviate certain constitutional obstacles inherent in other bills providing for a Congressional Legal Counsel by limiting his activities to the fields of civil litigation and the giving of advice and the making of 386 Constitutionality of Bill Creating an Office of Congressional Legal Counsel recommendations. And, second, that the pertinent law has been substantially clarified by the decision in Buckley v. Valeo, 424 U.S. 1 (1976), which was rendered after the introduction of the bill. Provisions for a congressional officer charged on a permanent basis with the function of representing Congress, its agencies, members and employees in judicial proceedings, raise two questions: (a) whether the appointment of a joint congressional officer performing only legislative functions must comply with Article II, Section 2, Clause 2 of the Constitution, and (b) whether, assuming that the answer to (a) is no, the functions of the counsel envisaged in the bill are sufficiently of an executive nature to require his appointment pursuant to Article II, Section 2, Clause 2 for that reason. Further serious problems are raised by section 5(a)(2)(A) which would confer upon the Congressional Legal Counsel the power to bring a civil action against an executive officer in order to require him “to act in accordance with the Constitution and the laws of the United States.” 1. Article II, Section 2, Clause 2 of the Constitution provides that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments 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 Heads of Departments. It will be noted that this constitutional provision is not limited to executive officers. Judicial officers are appointed pursuant to it, and, as will be presently shown, also a number of important congressional officers. United States v. Hartwell defines an office as a public station or employment which “embraces the ideas of tenure, duration, emolument, and duties,” to distinguish it from relationships of a purely occasional or contractual nature. 73 U.S. (6 Wall.) 385, 393 (1867). The elements of tenure, duration, emoluments, and duties relating to the office of the Congressional Legal Counsel are spelled out in detail in the bill, as has been shown above.1 In United States v. Germaine, the Court held: That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be inclined within one or the other of these modes of appointment there can be but little doubt. 1 Since the definition of office includes the elements of duration and tenure, the subsequent discussion is not concerned with the representation of Congress, etc., by counsel retained on a case by case basis in the rare situations in which the Executive Branch is unable to represent it. 387 Supplemental Opinions of the Office of Legal Counsel in Volume 1 99 U.S. 508, 510 (1878). And most recently the Court amplified on this in Buckley v. Valeo: We think its fair import is that any appointee exercising significant authority pursuant to the laws of 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. 424 U.S at 126. The functions to be conferred on the Congressional Legal Counsel clearly vest in him significant authority under the laws of the United States; they are not limited to an internal advisory nature. The provisions for his appointment therefore are unconstitutional unless the Constitution “otherwise provides” for his appointment. In our view there is no such alternative provision for his appointment. Article I, Sections 2 and 3 of the Constitution provide that the House of Representatives and the Senate choose their respective officers. There is, however, no provision in the Constitution “otherwise providing” for the appointment of officers serving Congress as such rather than its components. Buckley v. Valeo demonstrates that the failure of the Constitution to authorize Congress to appoint officers who are not officers of the respective houses but of Congress as a whole was no oversight. 424 U.S. at 124–31. This conclusion is supported by the consideration that the Constitutional Convention deliberately split the Legislative Branch into two houses lest it overwhelm the other two branches of the government. As James Madison stated in The Federalist No. 51: In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. . . . [T]he weight of the legislative authority requires that it should be thus divided . . . . Id. at 322 (Clinton Rossiter ed., 1961) (emphasis added). John Adams’ three volumes in the Defence of the Constitutions of Government of the United States of America (1794), based on a formidable amount of historical research, were compiled in order to establish the proposition that, in order to be viable, a republican form of government must be based not only on the principle of the separation of powers but also on that of bicameralism. Hence, it must be concluded that the Constitutional Convention deliberately denied Congress the power to appoint joint congressional officers, in order to hold “connections” between the two Houses of Congress to a minimum. Such officers, therefore, like all other officers of the United States, have to be appointed pursuant to Article II, Section 2 of the Constitution. 388 Constitutionality of Bill Creating an Office of Congressional Legal Counsel Legislative precedent supports this conclusion. The principal joint congressional officers have been traditionally appointed in this manner: the Comptroller General (31 U.S.C. § 42 (Supp. III 1973)); the Librarian of Congress (2 U.S.C. § 136 (Supp. III 1973)); and the Public Printer (44 U.S.C. § 301 (Supp. III 1973)) are appointed by the President by and with the advice and consent of the Senate; the Architect of the Capitol is appointed by the President alone (40 U.S.C. § 162 (1970)). Significantly, the legislative counsel appointed by the President pro tempore of the Senate and by the Speaker of the House of Representatives, respectively (2 U.S.C. § 272 (1970)), are officers of the house to which they have been appointed and not officers of Congress at large (2 U.S.C. §§ 271, 281 (1970)). This is not to say that there may not be some congressional officials—such as joint committee staffs—who are not appointed pursuant to Article II, Section 2, Clause 2. But their functions are purely internal and advisory; they do not carry out any significant authority outside the limits of the Capitol. It is therefore concluded that congressional officers—in contrast to officers of either house—who perform significant governmental duties must be appointed as provided in Article II, Section 2 of the Constitution. In other words, if Congress provides for an officer representing the combined power of both houses of Congress, it must pay the price by giving the President the authority of selection. 2. This portion of the discussion is based on the assumption arguendo that congressional officers, even if they do perform significant governmental functions, need not be appointed according to the procedures set forth in Article II, Section 2, Clause 2 of the Constitution provided their functions are not of an executive or administrative nature. The principal pertinent functions of the Congressional Legal Counsel would lie in the field of litigation. The kind of proceedings in which he would be involved fall into three categories: i. Generally, to defend Congress, its agencies, members and employees in cases involving the validity of congressional action, congressional subpoenas, or orders issued by or directed against Congress. ii. To bring civil actions for declaratory relief concerning the validity of a subpoena issued by or directed against Congress or to enforce any congressional subpoena or order. iii. To bring civil actions requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States. The last category quite obviously and uncontrovertibly involves an exclusively executive function. To require an officer to act in accordance with the Constitution 389 Supplemental Opinions of the Office of Legal Counsel in Volume 1 and laws of the United States is nothing but a paraphrase of the constitutional text to “take Care that the Laws be faithfully executed.” That responsibility is vested, pursuant to Article II, Section 3 of the Constitution, in the President and not in Congress. An officer whose duty it is to compel action in accordance with the requirements of the Constitution and laws of the United States, therefore, is an executive officer who must be appointed as provided for in Article II, Section 2, Clause 2 of the Constitution and be subject to the President’s unlimited removal power. Buckley v. Valeo, 424 U.S. at 134–41. In view of this recent pertinent ruling in Buckley v. Valeo, we do not consider it necessary to discuss here the alternative consideration whether Congress or a member has standing in court to require an officer to act in accordance with the Constitution and laws of the United States. We merely refer to the recent holding of the U.S. Court of Appeals for the Fourth Circuit in Harrington v. Schlesinger, decided on October 8, 1975: A legislator may sue to prevent dilution of his voting power in the legislature. In Kennedy v. Sampson, D.C. Cir., 511 F.2d 430 [(1974)], the Court decided that a Senator had standing to challenge a President’s “pocket veto” of a bill for which he had voted. The Senator was challenging the diminution of his voting power in the legislative process. By analogy, the four congressmen in this action claim that they have an interest in ensuring enforcement of laws for which they voted. Once a bill has become law, however, their interest is indistinguishable from that of any other citizen. They cannot claim dilution of their legislative voting power because the legislation they favored became law. .... . . . The plaintiffs’ status as congressmen does not give them standing to sue for a declaration that Executive activities are illegal. The congressmen’s interest seems little different from that of any citizen who might find a court’s advice useful in casting his votes in presidential or congressional elections. In both instances the interest is too generalized to provide a basis for standing. .... While we hold that none of the plaintiffs has standing to seek a judicial resolution of the controversy, they are not without a remedy, for the controversy is subject to legislative resolution. If there is a difference between a majority of the members of both houses of Congress and the President as to the interpretation and application of the statutes, the Congress has the resources through its committees to 390 Constitutionality of Bill Creating an Office of Congressional Legal Counsel ascertain the facts. With the facts before it, it may tighten the statutory restrictions, if that be the congressional will. The fact that the Congress has done nothing suggests that the Executive’s interpretation of the statutes is in agreement with the congressional intent, but that is an issue in this case which we do not reach. 528 F.2d 455, 459 (4th Cir. 1975) (footnote omitted). In other words, while a congressman may have standing to determine whether or not legislation which had passed both Houses of Congress has become law (Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)),* once a statute has been approved by the President, the congressional power over it becomes functus officio. See Cong. Globe, 39th Cong., 1st Sess. 186 (Jan. 11, 1866) (statement of Sen. Davis). In this connection it should be remembered that “standing to sue” is a constitutional requirement flowing from the limitation of the jurisdiction of the federal courts to cases and controversies in Article III, Section 2, Clause 1 of the Constitution. It therefore cannot be waived by statute, which is apparently what section 14(a) of the bill seeks to accomplish. Portions of the litigating functions conferred upon the Congressional Legal Counsel in categories (i) and (ii) described above—notably the defense of actions against individual congressmen with respect to the performance of their legislative functions, and the defense or prosecution of suits relating to congressional subpoenas—are less exclusively executive in nature; it is our view, however, that the lodging of any of them in a non-executive officer is subject to serious constitutional doubt. Litigation is basically an executive function. This conclusion is supported by section 14(c) of the bill, which would vest in the Congressional Legal Counsel the powers conferred by law upon the Attorney General, which powers, of course, are of a preeminently executive nature. It is also significant that the responsibility of defending congressional officers has been vested in the Attorney General for more than a century. See 2 U.S.C. § 118 (1970) (derived from Act of Mar. 3, 1875, ch. 130, § 8, 18 Stat. 371, 401). The Supreme Court suggested in Buckley v. Valeo that legislative power may come to an end at the courtroom door: “[The] discretionary power to seek judicial relief . . . cannot possibly be regarded as merely in aid of the legislative function of Congress.” 424 U.S. at 138. Kennedy v. Sampson is of course not in point, since that involved the standing of individual members of Congress rather than the power of the Congress, as an institution, to represent individual members, or the Congress itself, in litigation. * Editor’s Note: In Chenoweth v. Clinton, 181 F.3d 112, 115–17 (D.C. Cir. 1999), the Court of Appeals expressed doubt about the continuing viability of Kennedy v. Sampson in light of Raines v. Byrd, 521 U.S. 811 (1997). 391 Supplemental Opinions of the Office of Legal Counsel in Volume 1 The preceding discussion encompasses the constitutional objections to the bill which appear to us to be the most serious ones. While we realize that there are others lurking in it, space and time preclude us from dealing with all of them. For the above reasons, it is our conclusion that the bill is subject to substantial constitutional infirmities. ANTONIN SCALIA Assistant Attorney General Office of Legal Counsel 392

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Constitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification for Certain CIA Covert Actions A proposed statutory provision that would oblige the President to notify Congress of any and all covert actions (other than those for the purpose of intelligence-gathering) to be funded out of the Reserve for Contingencies, regardless of the circumstances, would unconstitutionally infringe upon the President’s constitutional responsibilities, including his duty to safeguard the lives and interests of Americans abroad. July 31, 1989 M emorandum O p in io n for the Attorney G en eral This is in response to your request for our opinion on the constitu­ tionality o f a proposed amendment to section 502 o f the National Security Act, 50 U.S.C. § 414. That amendment would prohibit the expenditure or obligation o f any funds from the “Reserve for Con­ tingencies” for any covert action in a foreign country (other than for the purpose o f intelligence-gathering) if the President has not first notified the appropriate congressional committees o f the proposed expenditure. For the reasons stated below, we believe such a requirement is an un­ constitutional condition on the President’s authority to conduct covert activities abroad pursuant to the President’s constitutional responsibil­ ities, including his responsibility to safeguard the lives and interests o f Americans abroad. Title 22, section 2422, of the United States Code, prohibits the expen­ diture o f funds by or on behalf of the Central Intelligence Agency for oper­ ations in foreign countries, other than activities intended solely for obtaining necessary intelligence, unless and until the President finds that each such operation is important to the national security o f the United States. The proposed amendment would further limit the President’s ability to conduct certain intelligence activities important to the national security o f the United States. It would add as a proviso to section 502 o f the 258 National Security Act, 50 U.S.C. § 414, a requirement that “no funds from the Reserve for Contingencies may be expended for any operation or activity for which the approval o f the President is required by section 662 o f the Foreign Assistance Act o f 1961 (22 U.S.C. § 2422), or for any sig­ nificant change to such operation or activity, for which prior notice has been withheld.” We believe the proposed amendment is unconstitutional because it would oblige the President to notify Congress o f any and all covert actions to be funded out o f the Reserve for Contingencies, regardless o f the circumstances. It would apply even if the President is directing an extremely sensitive national security activity within his exclusive respon­ sibility under the Constitution. We need not define all that is compre­ hended within the grant to the President o f “the executive Power ... o f the United States o f America,” U.S. Const, art. II, § 1. At a minimum, that power encompasses the authority to direct certain covert actions without first disclosing them to Congress, among which are those actions neces­ sary to protect the lives and property o f Americans abroad. Early judicial recognition o f this authority o f the President to take action to protect Americans abroad came during a mid-nineteenth century revolution in Nicaragua. On the President’s orders, a naval gunship bombarded a town where a revolutionary government had engaged in violence against Americans and their property. Of this action it was said: As 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 or negotiations with foreign nations, in matters concerning the interests o f the country or o f its citizens. It is to him, also, the citizens abroad must look for protection of person and o f property .... Now, as it respects the interposition o f the executive abroad, fo r the protection o f the lives or property of the cit­ izen, the duty must, of necessity, rest in the discretion of the president. Durand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. 1860) (No. 4186) (emphasis added). At least to the extent the amendment would limit that authority, it is unconstitutional. The courts have also recognized that the President must be able to act secretly in order to meet his constitutional responsibilities in foreign affairs. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320-21 (1936), the Court expressly endorsed President Washington’s refusal to provide the House o f Representatives with information about treaty negotiations even after the negotiations had been concluded. A for­ tiori, such information could be withheld during the negotiations. 259 The Court has more recently emphasized that the core presidential responsibility for protecting confidential national security interests extends beyond matters concerning treaties and into diplomatic and mil­ itary secrets such as covert actions. United States v. Nixon, 418 U.S. 683, 712 n.19 (1974) (recognizing the “President’s interest in preserving state secrets”). This conclusion is rooted in the original conception o f the President’s Office, as described by John Jay in the Federalist. There, he spoke o f the need for “perfect secrecy and immediate dispatch” in the field o f diplomacy and intelligence gathering.1He continued: The convention have done well, therefore, in so disposing o f the power o f making treaties that although the President must, in forming them, act by the advice and consent o f the Senate, yet he will be able to manage the business o f intel­ ligence in such manner as prudence may suggest. Id. at 392-93 (emphasis added). We believe that because the Constitution permits the President, where necessary, to act secretly to achieve vital national security objectives abroad, a rigid requirement o f prior notice for covert operations imper­ missibly intrudes upon his constitutional authority. As the Durand court recognized, the grant o f executive power is the principal textual source of the President’s discretion to act for the Nation in foreign affairs. From the First Congress on, this grant has been con­ strued to afford the President discretion to act in the field o f foreign affairs. This broad power in matters o f foreign policy stands in contrast to his comparatively limited authority to act alone in the domestic con­ text. President Washington, fo r example, asserted the President’s prerog­ ative to communicate with Citizen Genet when he sought something for a consul, and addressed that request to “the Congress o f the United States.” It was President Washington who asserted the President’s author­ ity to determine the status o f foreign representatives when he later demanded Citizen Genet’s recall. President Washington also determined, without consulting Congress, that the United States would remain impar­ tial in the war between France and Great Britain; he also refused to share with the House o f Representatives sensitive information about the nego­ tiation o f the Jay Treaty with Great Britain. The First Congress recog­ nized that the conduct o f our foreign affairs was to be primarily the responsibility o f the President, and for that reason located the State Department in the executive branch. The Supreme Court has recognized that the President alone is empowered to negotiate with foreign countries on behalf o f the United States. In Curtiss-Wright, 299 U.S. at 319, the Court stated: 1The Federalist , N o 64, at 392 (John J a y) (Clinton Rossiter ed , 1961). 260 Not only ... is the federal power over external affairs in origin and essential character different from that over inter­ nal affairs, but participation in the exercise o f the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative o f the nation. He makes treaties with the advice and consent o f the Senate; but he alone negotiates. Into the field o f negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. Id. These examples could be expanded upon, but all buttress the conclu­ sion that the President’s authority with respect to foreign affairs is very broad, and that certain foreign affairs powers, such as the power to act (secretly if need be) to protect Americans abroad, inhere in his Office. Congress attempts to justify under its power o f the purse requiring prior notification o f all covert actions to be paid for out o f the Reserve for Contingencies. Congress’s authority incident to its power over the purse is broad, and generally includes the power to attach conditions to appro­ priations, but its power is by no means limitless. For example, Congress appropriates money for all federal agencies in all three branches o f gov­ ernment. But the fact that Congress appropriates money for the Army does not mean that it can constitutionally condition an appropriation on allowing its armed services committees to have tactical control o f the armed forces. Nor does it follow from Congress’ legislative establishment o f executive branch departments and its appropriation o f money to pay the salaries o f federal officials that Congress can constitutionally condi­ tion creation o f a department or the funding o f an officer’s salary on being allowed to appoint the officer. Interpreting the appropriations power in this manner would in effect transfer to Congress all powers o f the branches o f government. The Framers’ carefully worked out scheme o f separation o f powers, o f checks and balances, would be rendered mean­ ingless. Accordingly, however broad the Congress’ appropriations power may be, the power may not be exercised in ways that violate constitu­ tional restrictions on its own authority or that invade the constitutional prerogatives o f other branches. As the Supreme Court has said, “Lacking the judicial power given to the Judiciary, [Congress] cannot inquire into matters that are exclusively the concern o f the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive .” Barenblatt v. United States, 360 U.S. 109, 112 (1959) (emphasis added). This well-established doctrine o f unconstitutional conditions further prevents Congress from using its power over the appropriation o f public funds to attach conditions to executive branch appropriations requiring the President to relinquish his constitutional discretion in foreign affairs. Just as an individual may not be required to waive his constitutional 261 rights as a condition o f accepting public employment or benefits, so the President cannot be compelled to give up the authority o f his Office as a condition o f receiving the funds necessary to carrying out the duties of his office.2 Congress has also justified such reporting requirements on the basis o f its need for information to carry out its legislative function. This over­ sight power, however, is neither explicit, McGrain v. Daugherty, 273 U.S. 135, 161 (1927), nor “unlimited,” Watkins v. United States 354 U.S. 178, 187 (1957). It can be exercised only to further a legitimate legislative function traceable to one of Congress’ enumerated powers. See McGrain, 273 U.S. at 173-74. There is no enumerated power in the Constitution giv­ ing Congress the authority to require the President first to report to a con­ gressional committee prior to undertaking covert activities which are exclusively within his province. Any legislative purpose that would be served by informing Congress about a covert action can be served by notice after the covert action has been initiated or completed.3 Moreover, even in cases in which it can be assumed that Congress has a legitimate legislative basis for the requested information, it does not fol­ low that the President invariably should give Congress prior notice o f cer­ tain covert actions. As President Tyier recognized in 1843, “ [i]t can not be that the only test is whether the information relates to a legitimate sub­ je ct o f [congressional] deliberation.” 4 James D. Richardson, Messages and Papers o f the Presidents 220, 223 (1897). A President is under no obligation to communicate information to Congress if to do so would impair his ability to execute his own constitutional duties. United States v. Nixon, 418 U.S. 683, 710 (1974). Under some circumstances, prior notice to Congress could well frustrate the President’s ability to dis­ charge those duties. In concluding that the amendment is unconstitutional, we are not deny­ ing that Congress has a legitimate role in the formulation o f American for­ eign policy. Nor are we denigrating the value o f consulting with members o f Congress prior to the initiation o f a covert operation. We simply believe Congress does not require prior notification o f all intelligence activities paid for out of the Reserve for Contingencies in order to per­ form its legislative function. Therefore, it lacks the constitutional author­ ity to impose a rigid requirement of notice in all circumstances. 2The doctrine o f unconstitutional conditions has w ide application throughout the law For a good gen­ eral statement o f the doctrine, see Frost & Frost Trucking Co v. Railroad C om m ission, 271 U.S. 583, 594 (1926) I f the state may compel the surrender o f one constitutional nght as a condition o f its favor, it may, m like manner, compel the surrender o f all It is inconceivable that guaranties embed­ 3 ded in the Constitution o f the United States may thus be manipulated out o f existence. For instance, post-action notification w ill suffice to inform Congress about actions o f foreign nations and merchants so that it may regulate “foreign comm erce ” 262 Conclusion We conclude that a requirement o f prior notice for all covert operations funded from the Reserve for Contingencies unconstitutionally infringes on the President’s constitutional responsibilities, including his duty to safeguard the lives and interests o f Americans abroad. WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel 263

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Employment Status of the Members of the Board of Directors of the Federal Housing Finance Board T h e F in a n c ia l In s titu tio n s R e fo rm , R ec o v e ry , an d E n fo rc e m e n t A c t o f 1989, w h ic h c re a te d th e F e d e ra l H o u sin g F in a n c e B o a rd , p e rm its th e m e m b e rs o f th e B o a rd o f D ire c to rs o f th e F H F B to serv e o n a p a rt-tim e b asis. July 11, 1990 M e m o r a n d u m O p in io n f o r t h e C h a ir m a n F e d e r a l H o u s i n g Fi n a n c e B o a r d This memorandum responds to your request for a summary which could be made available to the Congress, of the reasoning underlying our January 31, 1990, opinion for the White House Counsel’s Office regarding the service of the members of the Board of Directors of the Federal Housing Finance Board. I. BACKGROUND The Federal Housing Finance Board (“FHFB”) was established by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub. L. No. 101-73, § 702(a), 103 Stat. 183, 413 (codified at 12 U.S.C. § 1422a(a)), for the purpose of overseeing and regulating the Federal Home Loan Banks. The Federal Home Loan Bank Board (“FHLBB”) had previously supervised the Federal Home Loan Banks. The FHLBB also exercised regulatory supervision over federally insured savings and loan as­ sociations. See 12 U.S.C. §§ 1437, 1464-1470, & 1724-1730i (1988). FIRREA abolished the FHLBB and distributed its duties among several agen­ cies. The Office of Thrift Supervision (“OTS”) was assigned prim ary regulatory authority over the savings and loan industry, see 12 U.S.C. § 1462a(e), as added by FIRREA, § 301, 103 Stat. at 278-79, and the FHFB was given regulatory authority over the Federal Home Loan Banks. See 12 U.S.C. § 1422a & 1422b, as added by FIRREA, § 702(a), 103 Stat. at 41314. Other functions previously performed by the FHLBB relating to the management of deposit insurance and the resolution of cases were transferred 127 respectively to the Federal Deposit Insurance Corporation (“FDIC”) and the Resolution Trust Corporation (“RTC”). FIRREA, §§ 202 & 501(a), 103 Stat. at 188, 363-93, (codified at 12 U.S.C. §§ 1811 & 1441a). The FHFB is to be managed by a Board of Directors comprising five members: the Secretary of Housing and Urban Development and four indi­ viduals appointed by the President with the advice and consent of the Senate. 12 U.S.C. § 1422a(b)(l).‘ The four directors appointed by the President are required to have, among other qualifications, “extensive experience or train­ ing in housing finance” or “a commitment to providing specialized housing credit.” Id. § 1422a(b)(2)(A). At least one of these four directors must be chosen “from an organization with more than a 2-year history of represent­ ing consum er or community interests on banking services, credit needs, housing, or financial consumer protections.” Id. § 1422a(b)(2)(B). These four directors may not hold any other appointed office or serve as an officer or director of a Federal Home Loan Bank or of any member of any such Bank, nor may they have any financial interest in any such member. Id. § 1422a(b)(2)(A) & (C). II. DISCUSSION No provision o f FIRREA expressly or impliedly requires that the mem­ bers o f the Board of Directors of the FHFB serve on either a full-time or a part-tim e basis. Accordingly, the employment status of the members must be determined by construing the relevant provision of FIRREA, as a whole, in light of the Act’s legislative history.2 There is little legislative history on this question. From the legislative history that does exist, however, it appears that Congress contemplated that members of the Board of Directors would serve on a part-time basis. The conference report and the Senate report on the bill that became law are silent on the part-time or full-time status of the members of Board of Direc­ tors. See H.R. Conf. Rep. No. 222, 101st Cong., 1st Sess. 423-24 (1989), reprinted in 1989 U.S.C.C.A.N. 432, 462-63; S. Rep. No. 19, 101st Cong., 1st Sess. 364-65 (1989) (discussing proposed “Federal Home Loan Bank ' R eg a rd less o f w h e th er the directors se rv e on a p art-tim e o r a fu ll-tim e basis, this schem e com ports w ith th e A p p o in tm e n ts C la u se o f the C o n stitu tio n , A rticle II, Section 2, pursuant to w hich the P resident a p p o in ts o ffic e rs o f th e U n ite d States w ith the ad v ice and co n sen t o f the Senate. 5 W e d o not b e lie v e th a t th e m atter m ay be reso lv ed by a p p ly ing a presum ption that C o n g ress w ould h a v e e x p re ss ly sp e c ifie d p art-tim e em p lo y m en t had it so intended. W hile such a presu m p tio n m ight be a p p ro p ria te w h ere th e d u tie s o f the office a re such that fu ll-tim e em ploym ent m ust have been intended, th a t is n o t th e c a s e here. See infra pp. 128-29. M oreover, on a num ber o f occasions C ongress has been e q u a lly c le a r in e x p re ssly requiring/ii//-»/m e em ploym ent. See, e.g., 16 U .S .C . § 83 la (e ) ( “N o m em ber o f th e [T en n essee V alley A u th o rity Board o f D irecto rs] shall, d u rin g his continuance in office, be engaged in a n y o th e r b u sin ess, b u t each m em ber sh all d evote h im se lf to the w ork o f the C o rp o ra tio n .” ); 42 U .S.C . § 5 8 4 1 (e ) (“ N o m e m b e r o f the [Nuclear R eg u lato ry C o m m ission] shall engage in any b u siness, v oca­ tio n , o r e m p lo y m e n t o th e r th an that o f serv in g as a m em b er o f the C om m issio n .” ). T hus, there is no m o re re a so n in th is c o n te x t to indulge a p resu m p tio n that C o n g ress intended for the D irectors to serve fu ll-tim e , th a n th ere is th a t it intended fo r them to serve part-tim e. 128 Agency”). However, the House report on the bill reported by the House Banking, Finance and Urban Affairs Committee does address this issue, and there is no relevant difference between the applicable provisions in that bill and those contained in the bill that was enacted into law.3 The House report unequivocally states that “members of the Board of Directors will not serve on a full-time basis.” H.R. Rep. No. 54(1), 101st Cong., 1st Sess. 455 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 251. An analysis of the provisions of FIRREA that created the FHFB and defined its duties supports the conclusion that Congress expected that mem­ bers of the FHFB Board of Directors may serve on a part-time basis. Although the members of the FHLBB served on a full-time basis, FIRREA divided the duties of the FHLBB among at least four different agencies and assigned the five members of the FHFB substantially fewer functions than had been per­ formed by the three members of the FHLBB. In particular, the burdensome tasks of supervising thrift institutions and of managing case resolutions were assigned to OTS and RTC respectively, not to the FHFB. Also, oversight of deposit insurance was transferred to the Federal Deposit Insurance Corpora­ tion. The House report thus described the FHFB as “a small, effective and efficient governing body.” H.R. Rep. No. 54(1), at 455, 1989 U.S.C.C.A.N. at 251. In light of the fact that the FHFB is to perform substantially fewer tasks with a greater number of members, it was fully reasonable for Con­ gress to conclude that full-time service would not be essential for members of the FHFB Board. We also note that FIRREA authorizes the FHFB to “employ, direct, and fix the compensation and number of employees, attorneys, and agents of the Federal Housing Finance Board.” FIRREA, § 702(a), 103 Stat. at 414 (codi­ fied at 12 U.S.C. § 1422b(b)(l)). This provision permits the FHFB members to employ a staff to whom it may delegate various functions.4 Congress’ 5It has b een argued that the p roposed status o f the B oard ch an g ed from part-tim e to fu ll-tim e w hen the p roposed com p o sitio n o f the B oard in the H ouse bill w as ch an g ed to elim inate the tw o F ederal H om e Loan B ank p residents. N ot only is there no evidence that the proposed part-tim e status w as a ttrib u tab le to the in c lu sio n o f these bank presid en ts; there is no evidence, affirm ative o r inferential, th at C o n g ress in te n d e d the statu s o f th e B oard to ch an g e fro m p a rt-tim e to fu ll-tim e as a c o n se q u e n c e o f the reco m p o sitio n . If an y th in g , the ev id en ce is to the contrary becau se the S ecretary o f H o using and U rb an D e v elop m en t is one o f the five m em bers o f the B oard o f D irectors. 1 2 U S .C .§ 1 4 2 2 a (b )(l)(A ). O b v i­ ously, C o n g ress did not expect the Secretary to serve full-tim e as a FH FB D irector. 4 In its M ay 9, 1990, m em orandum on this subject, the A m erican Law D ivision o f the C o n g re ssio n a l R esearch Service app eared to suggest that FIR R E A generally p rohibits the d elegation o f d iscretio n ary d u ties by the FH FB . T h is suggestion is incorrect. FIRR EA m erely states that “in n o e v e n t shall the B oard d e le g ate any fu n ctio n to any em ployee, ad m in istrativ e unit o f any B ank, or jo in t office o f the Federal Home Loan Bank System " FIR R E A , § 702(a), 103 Stat at 414-15 (codified at 12 U .S C . § 14 2 2 b (b )( 1)) (em phasis added). Section 701 o f FIR R EA defin es the term “ Federal H om e L oan B ank S y ste m ” to m ean “the Federal H om e Loan Banks under the superv ision o f the B oard ” 103 Stat at 412 (c o d ified at 12 U .S .C § 1422(2)(B )). A ccordingly, the nondelegation provision only o p e ra te s to p re ­ vent the FH FB from d eleg atin g discretionary supervisory duties to the Federal H om e L o a n B anks, th e ir e m p lo y e es, o r th eir o ffices - the e n tities being regulated. It d oes not prohibit the FH FB fro m d eleg atin g fu n c tio n s to its ow n em p lo y ees T his construction o f section 702 is confirm ed by the co m m en ts on the S enate bill, from w hich this provision originated. See S. R ep. No. 19, at 364 ( “T h e A gency [la te r ren am ed the FH FB ] m ay not delegate any o f its functions to any em ployee or ad m in istrativ e unit o f any FHL B a n k") (em phasis added). 129 decision to empower the FHFB both to employ however many employees it needs and to delegate to those employees many of its functions is consistent with C ongress’ apparent belief that part-time service would be permissible. Accordingly, we conclude that the members of the Board of Directors may serve on a part-time basis. Indeed, the only available direct evidence is that Congress expected that the Directors would serve part-time. We do not believe that any of the provisions of FIRREA are inconsistent with this conclusion. In particular, the fact that FIRREA provides for the Chairperson and other members of the Board of Directors to be compen­ sated respectively at Levels III and IV of the Executive Schedule, see FIRREA, § 702(a), 103 Stat. at 415 (codified at 12 U.S.C. § 1422b(b)(l)), does not imply that these individuals must serve in a full-time capacity. This provi­ sion merely fixes the rate of compensation. Federal law provides the formula for calculating the salary of a part-time employee from the Executive Sched­ ule if the annual rate of compensation is known. See 5 U.S.C. § 5505. M oreover, the original House bill established the same rates of compensa­ tion for these officials, see H.R. 1278, § 723, 101st Cong., 1st Sess. (as reported by the House Comm, on Banking, Finance and Urban Affairs), reprinted in H.R. Rep. No. 54(1), at 190, at the same time that the House report expressly acknowledged that these individuals would not serve full­ time. Id. at 455, 1989 U.S.C.C.A.N. at 251. Finally, we do not believe that the fact that FIRREA contains conflict-ofinterest and incompatibility provisions applicable to the FHFB implies that the members o f the Board o f Directors must serve on a full-time basis. Section 702 of FIRREA provides that each of the appointed members of the Board of Directors of the FHFB may not “hold any other appointed office during his or her term as director” and may not “serve as a director or officer o f any Federal Home Loan Bank or any member of any Bank” or “hold shares of, or any other financial interest, in, any member of any such Bank.” 103 Stat. at 413 (codified at 12 U.S.C. § 1422a(b)(2)(A) & (C)). These provisions serve purposes that are wholly independent of the employ­ ment status of the Board of Directors and do not in any way suggest that Congress intended for these members to serve on a full-time basis. The purpose o f the conflict-of-interest provisions is to ensure the impartiality and objectivity o f the members of the Board. The incompatibility provision ensures the FHFB’s status as an “independent agency in the executive branch,” 12 U.S.C. § 1422a(a)(2), by forbidding the simultaneous appointment of, for example, a Treasury Department official to the Board of Directors of the FHFB.5 The need for such restrictions exists regardless of whether the mem­ bers serve full-time or part-time. Indeed, if anything, the need for these 3 T h e le g isla tiv e h isto ry indicates that C o n g ress w as co n cerned th at the FH FB not com e u n d e r the in d ire c t c o n tro l o f o th e r executive b ra n c h ag en cies. See, e.g., H .R . Rep. N o. 54(1), at 4 5 4 , 1989 U .S .C .C .A .N . at 250 (“ The Treasury D epartm ent’s oversight and direction o f the D irector o f the O ffice o f T hrift S u pervision shall not extend, directly o r indirectly, to the Federal H ousing Finance Board . . . ” ). 130 provisions is greater when members serve on a part-time basis and therefore have more time available to engage in the kind of activities that Congress wished to foreclose. The House report appears to have recognized as much when it stated that “[although members of the Board of Directors will not serve on a full-time basis, no appointive member o f the Federal Housing Finance Board may hold any other federally appointive office.” H.R. Rep. No. 54(1), at 455, 1989 U.S.C.C.A.N. at 251. CONCLUSION Construing the relevant provisions of FIRREA in light of the A ct's legis­ lative history, we conclude that the members of the Board of Directors of the FHFB may serve on a part-time basis. Indeed, the House report ex­ pressly states that the members would not serve full-time service. Part-time service appears fully consistent with the reduced duties and increased m em ­ bership of the FHFB as compared with its predecessor, the FHLBB. J. MICHAEL LUTTIG Acting Assistant Attorney General Office o f Legal Counsel 131

Write a legal research memo on the following topic.

Applicability of the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank T he U n ited Slates E xecutive D irector and th e A lternate U nited States E xecutive D irector at the Inter­ national M onetary F und and the World B ank are not part o f an E xecutive agency, and therefore vacancies in those offices are not covered by the Federal V acancies Reform Act. May 11, 2000 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 r tm en t o f th e T r ea su r y You have requested our opinion whether the Federal Vacancies Reform Act (“ Vacancies Reform Act” or “ Act” ), 5 U.S.C. §§3341-3349d (Supp. IV 1998), applies to vacancies in the offices of the United States Executive Director (“ USED” ) and the Alternate United States Executive Director ( “ Alternate USED” ) at the International Monetary Fund (“ IM F” ).1 This memorandum con­ firms our oral advice that the Act does not apply to these offices. By its terms, the Act applies only to a Senate-confirmed office “ of an Executive agency.” We believe that the better view, based on the information provided by the Treasury Department, is that the U.S. representatives are not part of an “ Executive agency” and are therefore not covered by the Act. After our oral advice about the U.S. representatives to the IMF, you asked for our opinion whether the Vacancies Reform Act applies to vacancies in the offices of the United States Executive Director and the Alternate United States Executive Director at the International Bank for Reconstruction and Development ( “ World Bank” ). The Treasury Department has informed us that the USEDs and Alternate USEDs at the IMF and the World Bank are similar with regard to the relevant facts discussed in this opinion. On that basis, we conclude that the USED and Alternate USED at the World Bank are similarly outside the scope of the Vacan­ cies Reform Act because they are not part of an “ Executive agency.” I. The United States Representatives to the IMF A. The United States Executive D irector and Alternate United States Executive D irector The IMF was established under an agreement negotiated at the 1944 Bretton Woods Conference. See IMF, What is the International Monetary Fund?, available at http://www.imf.org/extemal/pubs/ft/exrp/what.htm (visited Mar. 29, 2000) (“ IM F Website Summary” ). The United States agreed to join the IMF in 1945 1 In this memorandum, the USED and the Alternate USED at the IMF are referred to jointly as the “ U.S. represent­ atives to the IM F” or, simply, the “ U.S representatives.” 58 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank under the authority of the Bretton Woods Agreements Act. See 22 U.S.C. §286 (1994). An international organization currently made up of 182 member countries, the IMF promotes international monetary cooperation, facilitates the expansion and balanced growth of international trade, and promotes exchange stability. See IMF Website Summary; Articles of Agreement of the International Monetary Fund, art. I, available at http://www.imf.org/extemal/pubs/ft/aa (visited Mar. 29, 2000) (“ Articles of Agreement” ). The authority of the IMF is vested in a Board of Governors, consisting of a Governor and an alternate Governor from each member country. See Articles of Agreement, art. XII, §2; IMF Website Summary. The Board of Governors has delegated substantial authority to the IMF’s Executive Board, and it is the Execu­ tive Board that carries out the IMF’s day-to-day operations and makes most of its decisions. See Articles of Agreement, art. XII, §§2 & 3; By-Laws, Rules, and Regulations of the International Monetary Fund, § 15, available at http:// www.imf.org/extemal/pubs/ft/bl (visited Mar. 29, 2000); William N. Gianaris, Weighted Voting in the International Monetary Fund and the World Bank, 14 Fordham Int’l L.J. 910, 913-14 (1990/1991). The Executive Board is made up of 24 Executive Directors, with a Managing Director serving as chairperson. Arti­ cles of Agreement, art. XII, § 3(b). Eight of these Executive Directors represent individual member countries, including the United States, and each of these eight Executive Directors is appointed by the country that he or she represents. The remaining sixteen are elected by the Governors and represent groupings of the remaining member countries. See id. Sched. E; IMF Website Summary. The Executive Director and the Alternate Executive Director for the United States are appointed by the President, by and with the advice and consent of the Senate, to two-year terms, with the right to hold over in office until a successor has been appointed. 22 U.S.C. §286a(a), (b) (1994). The USED and Alternate USED serve as representatives of the United States and present this Government’s views at the IMF. See IMF Website Summary; Letter for David R. Brennan, Deputy General Counsel, Department of the Treasury, from Margery Waxman, General Counsel, Office of Personnel Management, Re: Whether the U.S. A lter­ nate Executive D irector o f IMF is Within the Executive Branch fo r the Purpose o f Qualifying fo r SES Benefits under 5 U.S.C. § 3392(c), at 4 (Nov. 4, 1980) ( “ OPM Opinion” ) (“ [T]hese positions are designed to serve the President in the exercise of his Executive branch functions concerning the implementation of for­ eign policy.” ). The Secretary of the Treasury (“ Secretary” ) has principal respon­ sibility for instructing the U.S. representatives to the IMF on the positions and votes of the United States. See, e.g., Exec. Order No. 11269, at §3(a), reprinted as amended in 22 U.S.C. §286b note (1994); 22 U.S.C. §§262h, 262k(b), 262m 2(b), 286a(d)(3); 286e-8; 286e-13 (1994). 59 Opinions o f the Office o f Legal Counsel m Volume 24 B. The Federal Vacancies Reform A ct Except for those offices expressly exempted by 5 U.S.C. § 3349c, the Vacancies Reform Act applies to any vacancy in an office of an “ Executive agency” to which appointment is required to be made by the President, with the advice and consent of the Senate.2 The USED and the Alternate USED are both appointed by the President, with the Senate’s advice and consent, 22 U.S.C. §286a(a), (b), and neither office is expressly excluded from coverage by 5 U.S.C. § 3349c. Accordingly, the critical issue in determining whether the Vacancies Reform Act applies to the USED and the Alternate USED is whether they are officers “ of an Executive agency’ ’ within the Act. The use of the phrase “ of an Executive agency” imposes a meaningful limita­ tion on the scope of the Act. “ Executive agency” is a specific, defined term in title 5, and is narrower than the executive branch as a whole. See Haddon v. W alters, 43 F.3d 1488 (D.C. Cir. 1995). The Vacancies Reform Act incorporates the title 5 definition of an “ Executive agency,” except that the Act adds the Executive Office of the President to the definition and excludes the General Accounting Office. See 5 U.S.C. § 3345(a); see also S. Rep. No. 105-250, at 12 (1998) (“ ‘Executive agency’ is defined at 5 U.S.C. § 105.” ); Guidance on Application o f Federal Vacancies Reform A ct o f 1998, 23 Op. O.L.C. 60, 6162 (1999). By its plain language, therefore, the Act does not necessarily reach all Senate-confirmed offices, but only those in “ an Executive agency.” To be sure, at least one statement in the legislative history of the Act could support the proposition that Congress intended to cover all Senate-confirmed offices in the executive branch, except for those offices expressly excluded by § 3349c: Section 3345 states that the provisions of the Act will apply to any officer in any executive agency, other than the General Accounting Office, if that officer’s appointment is made by the President, sub­ ject to the advice and consent of the Senate. Unlike current law, this change w ill make clea r that the Vacancies Act, as amended by this legislation, applies to all executive branch officers whose appointm ent requires Senate confirmation, except fo r those officers described in Section 3349c. 144 Cong. Rec. S12,824 (daily ed. Oct. 21, 1998) (statement of Sen. Byrd) (emphasis added). Nevertheless, this remark in a floor statement, which does not even specifically address the possibility that a Senate-confirmed office in the 2 The Vacancies Reform A ct is not necessarily the only method, however, of filling such offices on a temporary basis. The Act also expressly preserves o th er statutory authorities that designate a specific officer to serve as the acting officer for a vacant office or that authorize the President, a court, or the head of an Executive department to designate an acting officer 5 U.S.C § 3347(a)(1). 60 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank Executive branch might be outside any “ Executive agency,” cannot overcome the plain language defining the reach of the Act. Section 105 defines an “ Executive agency” as “ an Executive department, a Government corporation, and an independent establishment.” 5 U.S.C. § 105 (1994). These three terms are defined in §§ 101, 103, and 104 of title 5. Neither the IMF nor the office of the U.S. representatives to the IMF is a “ Government corporation.” Accordingly, whether the USED and the Alternate USED are offi­ cers of an Executive agency turns on whether they are in either (i) an Executive department or (ii) an independent establishment. C. Are the United States Executive D irector and Alternate United States Executive D irector Part o f the Department o f the Treasury? Because the Department of the Treasury is an Executive department, see 5 U.S.C. § 101, an officer in the Department of the Treasury is an officer of an Executive agency within the Act. Cf. Memorandum for Files, from Daniel L. Koffsky, Acting Deputy Assistant Attorney General, Office of Legal Counsel, Re: Permanent Representative to the United Nations (July 14, 1998) (“ 1998 UN Memo” ) (concluding that the United States Permanent Representative to the United Nations is in the State Department and therefore an officer of an Executive agency). The information provided to us by the Treasury Department indicates that the Treasury Department has a more direct and substantial relationship with the U.S. representatives to the IMF than does any other Executive department. If the U.S. representatives are within any Executive department, that department would be the Treasury Department. Although the issue is not entirely free from doubt, we conclude that, on balance, the better view is that the USED and the Alternate USED are not in the Depart­ ment of the Treasury. In an Appendix, we set out the factors relevant to the anal­ ysis. Some of these factors strongly indicate that the U.S. representatives are not part of the Treasury Department. Although others might suggest that the U.S. representatives are in the Treasury Department, a closer examination reveals that the relationship of the U.S. representatives to the Treasury Department is quite limited in scope and frequently ambiguous even within that limited area. For some of the most central elements of personnel administration, the U.S. representatives are unconnected to the Department o f the Treasury. The Treasury Department is not responsible for setting or paying the salaries of the U.S. rep­ resentatives. See 22 U.S.C. §286a(d). Nor does the Treasury Department carry the U.S. representatives on its employment rolls. Furthermore, the staff for the U.S. representatives are not Treasury Department employees, but instead are employees of the IMF; and if they come to the IMF from the Treasury Depart­ ment, they are officially separated from the Treasury Department, removed from 61 Opinions o f the Office o f Legal Counsel in Volume 24 the Treasury Department’s employment rolls, and transferred to the employment of the IM F.3 The Vacancies Reform Act appears in Title 5 and uses Title 5’s definition of “ Executive agency.” Title 5 largely deals with personnel matters. If, for these essential aspects of personnel administration, the U.S. representatives have no connection to the Treasury Department, the compelling implication is that the U.S. representatives are not located in the Treasury Department. The strongest factor potentially arguing in favor of the view that the U.S. rep­ resentatives to the IMF are part o f the Treasury Department is that they receive their instructions through the Secretary of the Treasury. See, e.g., Exec. Order No. 11269, at §3(a), reprinted in 22 U.S.C. §286b note (delegating to the Sec­ retary the President’s authority to instruct United States representatives to the international financial organizations). This factor alone, however, does not mean that the U.S. representatives to the IMF are part of the Treasury Department. By statute, the power to instruct is vested in the President, not the Secretary of Treasury. As a practical matter, the President cannot personally perform all of the duties for which he is ultimately responsible, and here he has chosen to dele­ gate the task of conveying the Government’s instructions. That the President has determined that the Secretary of Treasury is best suited to be principally respon­ sible for providing the instructions to the U.S. representatives cannot, as a legal matter, make the U.S. representatives part of the Treasury Department. Moreover, the history by which the Secretary became responsible for instructing the U.S. representatives to the IM F is consistent with the view that they are not part of the Treasury Department. Originally, in the Bretton Woods Agreements Act of 1945, Congress made the National Advisory Council on International Monetary and Financial Problems responsible for instructing the U.S. representa­ tives, under the general direction of the President. 22 U.S.C. § 286b(b)(4). In 1965, President Johnson abolished the Council and transferred to himself all of its func­ tions, including the responsibility for instructing the U.S. representatives to the IMF. Reorg. Plan No. 4 of 1965, at §§ 1(b) & 3(a), reprinted in 5 U.S.C. app. at 1519 (1994). In a 1966 Executive Order, the President delegated to the Sec­ retary of Treasury the authority to instruct the representatives. Exec. Order No. 11269, at §3(a), reprinted in 22 U.S.C. §286b note. It thus seems quite unlikely that the U.S. representatives would originally have been considered within the Department of the Treasury; and nothing in the later history of the President’s delegation to the Secretary o f his authority to instruct the U.S. representatives indicates that, in addition to delegating the authority to instruct, the President 3 On rare occasions, additional Treasury employees, beyond the usual staff of the U.S. representatives, may be detailed to the IMF. U nder such details, the individual would remain a Treasury employee Such details may be, and are, also made to a range of international organizations under the same authonty and conditions as they are m ade to the IMF. As details o f Treasury employees to the UN Secretariat would not suggest that the UN Secretariat is part o f the Treasury Department, details to the IMF also do not suggest that the U.S. representatives are part o f the Treasury Department 62 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International M onetary Fund and the World Bank intended to transfer the legal, administrative location of the U.S. representatives to the Treasury Department. Nor does Congress’s passage, after the Executive Order, of statutes directing or authorizing the Secretary to instruct the U.S. rep­ resentatives as to certain specific issues, see, e.g., 22 U.S.C. §§262h, 262k(b), 262m-2(b), 286a(d)(3), 286e-8, 286e-13, show any intent to alter the administra­ tive location of the U.S. representatives. These statutes appear to reflect the reality of the delegation made by the Executive Order, rather than any unstated intent to move the U.S. representatives into the Treasury Department. The Treasury Department has some responsibility for the bookkeeping and agency contributions associated with the U.S. representatives’s receipt of certain employment benefits, see 22 U.S.C. §276c-2 (Supp. IV 1998), but the provision assigning this task ultimately serves to demonstrate that the U.S. representatives are not otherwise part of the Treasury Department. Under §276c-2, “ [t]he Treasury Department shall serve as the employing office” in administering the employment benefits. If the U.S. representatives were already part of the Treasury Department, there would be no need for the statute to specifically denominate Treasury as the employing office, because it would already be the employing office as a result of the administrative location of the U.S. representatives.4 Finally, although the Treasury Department gives ethics advice to the U.S. rep­ resentatives, we have been informed that it does not do so as a result of any determination that it is legally required to take this role. Furthermore, the Secretary of Treasury, we understand, probably has never been asked to grant the U.S. rep­ resentatives a waiver under the authority of 18 U.S.C. § 208 (1994), as delegated by the President to agency heads with respect to Presidential appointees in their agencies, see Exec. Order No. 12731, §401, 3 C.F.R. 306 (1991). As these factors show, the determination whether the U.S. representatives are part of the Treasury Department requires fact-specific analysis, and the limited situations in which this Office has previously addressed whether an officer or entity is part of an Executive department do not present perfect analogies. Never­ theless, we believe that our prior advice in those cases is consistent with the conclusion here that the U.S. representatives are not part of the Treasury Depart­ ment. We have twice before considered the somewhat analogous question of whether the United States Mission to the United Nations ( “ Mission” ) is in the Department 4 It could also be argued, more generally, that no separate provision would be needed to provide these benefits, which are available generally to members of the civil service within the Treasury Department, if the U.S. representa­ tives were already employed there. Further, §27 6 c-2 places “ in the discretion of the Secretary of the Treasury” the decision whether to provide these benefits to the U.S. representatives It would arguably be anomalous for Con­ gress to vest the Secretary with such discretion regarding the benefits of U.S. representatives if they were part of Treasury, since that discretion does not exist as to other employees and officers of the Treasury Department While we tend to think that this is further evidence that the U.S representatives are not within the Treasury Depart­ ment, we also recognize that there is a counter argument to this line o f reasoning — namely, that an express grant of benefits was necessary to overcome the prohibition in 22 U S C §286a(d)(l) on any person’s receiving “ any salary or other compensation from the United States” for serving as an Executive Director or Alternate at the IMF or World Bank. As a result, we do not place any reliance on this argument in concluding that the U.S representatives are not part o f the Treasury Department. 63 Opinions o f the Office o f Legal Counsel in Volume 24 of State. In the first of these matters, the status o f the Mission determined both whether a vacancy in a Senate-confirmed position in the Mission could be filled under the old Vacancies Act and whether a Senate-confirmed officer, also in the Mission, could be the officer designated by the President to fill that vacancy. See Memorandum for Files, from Daniel L. Koffsky, Special Counsel, Office of Legal Counsel, Re: Vacancy at United States M ission to the United Nations at 1 (Apr. 8, 1996) ( “ 1996 UN Memo” ). In the second of these matters, we re­ affirmed our conclusion that the Mission was in the State Department and con­ cluded that therefore the United States Permanent Representative to the United Nations could be detailed under the unamended Vacancies Act to fill a vacancy in the Department of Energy. See 1998 UN Memo at 1. Although a significant factor in the Office’s conclusion that the Mission is in the State Department was that instructions for the Permanent Representative were sent through the Secretary of State, there the Secretary’s power to give instructions was statutory, and in any event that power was not the sole or determinative factor. See 1996 UN Memo at 1-2; 1998 UN Memo at 2. To the contrary, the conclusion was premised on a significant number of additional factors demonstrating the Mission’s administra­ tive location within the State Department. We noted, among other factors, that the State Department exercises fiscal control over the Mission through control of the M ission’s appropriations; the Permanent Representative is carried on the State Department’s employment rolls; there is a “ home desk” for the Mission within the State Department; the administrative officers within the State Depart­ ment treat the Permanent Representative as an official of the Department; the State Department handles the FOIA, whistleblower, and ethics work for the Mission; and the Inspector General for the State Department exercises jurisdiction over the Mission. See 1996 UN Memo at 2; 1998 UN Memo at 2. As demonstrated above and in the information in the Appendix, these factors are generally not present with regard to the U.S. representatives. Moreover, unlike the situation with the U.S. representatives and Treasury, there were no significant factors indicating that the Mission was not part of the State Department.5 See also, e.g., Memorandum for Ginger Lew, General Counsel, Department of Commerce, from Dawn Johnsen, Deputy Assistant Attorney General, Office of Legal Counsel, Re: ADEA and Regional Fishery Management Councils at 4 & n.l (Mar. 14, 1995) (“ Regional Fishery Management Councils O pin.” ); Memorandum for Frank K. Richardson, Solicitor, Department of the Interior, et al., from Larry L. Simms, Deputy Assist­ ant Attorney General, Office of Legal Counsel, Re: Status o f the Navajo and Hopi 5 The only potentially contrary factor identified was an inconsistency among State Department wire diagrams; som e clearly identified the Permanent Representative as part o f the State Department, whereas other wire diagrams appeared to suggest that the Mission had a relationship to State more akin to an independent agency. 1998 UN M em o at 2 n 1. The Treasury organizational charts and wire diagrams, in contrast, are consistent in not including the U.S representatives as part o f the Treasury Department 64 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International M onetary Fund and the World Bank Indian Relocation Commission and Removability o f its Commissioners at 10-11 (Jan. 17, 1985).6 D. Do the United States Representatives to the IMF Constitute an Independent Establishment? Because the U.S. representatives to the IMF are neither in a Government cor­ poration nor part of an executive department, they are part of an Executive agency only if they are an independent establishment. Section 104 defines an independent establishment as follows: “ For the purpose of this title, ‘independent establish­ ment’ means — (1) an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and (2) the General Accounting Office.” 5 U.S.C. § 104. While this definition is quite broad, its plain language requires that a collection of offices meet three requirements in order to constitute an inde­ pendent establishment: (1) it must be an “ establishment” ; (2) it must be “ in the executive branch” ; and (3) it must not be a part of an Executive department, military department, Government corporation, or another independent establish­ ment. The U.S. representatives to the IMF can satisfy the third requirement, but not the first two. Accordingly, we conclude that they are not an independent establishment within the meaning of § 104. To the extent that the U.S. representatives are an indivisible part of the IMF, they would only be part of an independent establishment if the IMF is itself an independent establishment. The IMF, however, is not within the executive branch. It is instead an international institution made up of representatives from over 180 member countries. See OPM Opin. at 3 (“ IMF clearly is not within the Executive Branch” ). As a result, IMF as a whole cannot constitute an independent establish­ ment. Further, while the U.S. representatives may be officers in the executive branch, see OPM Opin., their “ office” at IMF does not constitute an “ establishment.” The term “ establishment” embodies the idea of a free-standing entity with its own structure and unity. For example, one dictionary defines “ establishment,” in relevant part, as follows: c: a permanent civil or military force or organization; d: a more or less fixed and usu. sizable place of business or residence together with all the things that are an essential part of it (as grounds, fur­ 6 Nor is our conclusion here inconsistent with O PM ’s conclusion that the Alternate USED is within the executive branch for the purpose of qualifying for SES benefits OPM Opin at 3-5. The question whether a position is within the executive branch is different from whether it is within the Treasury Department or whether the U.S representa­ tives constitute an independent establishment. Moreover, OPM, in discussing persons who went from Treasury to be the Alternate USEDs, states that, although they never left the executive branch, they left the Treasury Department. Id. at 4-5. 65 Opinions o f the Office o f Legal Counsel in Volume 24 niture, fixtures, retinue, employees); e: a public or private institution (as a school or hospital) W ebster’s Third New International Dictionary of the English Language, Unabridged 778 (1993). The office of the U.S. representatives is not of this char­ acter. It is not in any sense an independent, free-standing establishment. It is instead a component part of the IMF. The office is fully funded by the IMF, with the IMF setting and paying the compensation of the U.S. representatives and their staff, as well as the office’s operating expenses. The office, moreover, with the exception of the U.S. representatives, is staffed by employees of the IMF who owe their principal obligations to the IMF, rather than the federal government. See By Laws of the IMF, Rule N -3 (employees of the IMF, in con­ trast to representatives of the member nations, owe their exclusive loyalty to the IMF); OPM Opin. at 4 ( “ [W]e would make the distinction between [U.S. rep­ resentatives] and United States employees who transfer to international organiza­ tions to serve the organizations in their area of expertise without any direct accountability to the United States.” ). Beyond the language of the statute, there is little relevant guidance in OLC opinions, case law, or the legislative history o f § 104. On a few occasions, we have considered whether an entity is an independent establishment. These matters, however, generally involved situations in which it was clear that the entity was an establishment and was in the executive branch; the only question was whether it was independent or a part of an Executive department. For example, we con­ cluded that the Commission on Fine Arts is an independent establishment because it is a congressionally created, free-standing entity entirely financed by the federal government. Memorandum for Charles H. Atherton, Secretary, Commission of Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: A pplication of Executive O rder 11988, entitled “ Floodplain Management, ” to the Commission o f Fine A rts at 2-3 (Nov. 14, 1980); see also, e.g., Memorandum for Edward A. Frankie, General Counsel, NASA, from J. M ichael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: D epart­ ment o f Transportation Licensing Under the Commercial Space Launch A ct at 16 (Nov. 15, 1990) (concluding NASA is an independent establishment because it has a presidentially appointed head who is responsible for exercise of all powers o f NASA under only the supervision and direction of the President); Regional Fishery Management Councils Opin. at 4 & n .l (the Councils are part of Com­ merce because their primary purpose is to advise the Secretary, the majority of voting members are appointed by the Secretary, the Secretary controls what administrative staff Councils may have and the procedures the Councils follow, and Commerce pays the compensation and expenses of the Councils and their staffs). 66 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank With regard to the definition of “ executive agency” set out in 40 U.S.C. § 472(a) (1994), which we compared to the “ nearly identical language in the defi­ nition of ‘executive agency’ in title 5 ’s general provision (5 U.S.C. § 105),” we noted that certain less substantial and well delineated entities within the Executive Office of the President might not constitute independent establishments. Memo­ randum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting Assistant Attorney General, Re: Use o f GSA Authority to Accept Gift o f Equipment at 5 -6 (Aug. 3, 1993). In particular, we concluded that while the Executive Office of the President and some of its principal components, such as the Office of Management and Budget, appear to fall within the ordinary meaning of an independent establishment, “ [i]t is much less certain whether more ad hoc and less formal entities under the [Executive Office of the President] would meet this definition.” Id. at 5; see also H adden , 43 F.3d at 1489-90 (staff of the Execu­ tive Residence are not employees within an Executive agency).7 E. Conclusion We recognize that Congress may not have had any specific intent to exclude these offices from the scope of the Vacancies Reform Act. By its terms, however, the Vacancies Reform Act applies only to vacancies in Senate confirmed offices that are part of an “ Executive agency.” While this defined term is quite broad and includes almost all Senate confirmed, executive branch offices, its use in the Act has the consequence that, to be covered by the Act, an office must be not just an office in the executive branch, but an office in an Executive department, Government corporation, or independent establishment. Because the U.S. rep­ resentatives to the IMF are not part of an Executive department, Government cor­ poration, or independent establishment, vacancies in those offices are not covered by the Vacancies Reform Act. We stress, however, that the category of executive branch offices that are not part of an Executive agency is extremely narrow. In fact, that category may well be limited to a set of offices within international financial institutions that are similarly situated to the United States Executive Director and Alternate United States Executive Director at the IMF. II. The United States Representatives to the World Bank The Department o f the Treasury has informed us that the United States Execu­ tive Director and the Alternate United States Executive Director at the World Bank are similarly situated to the USED and Alternate USED at the IMF with regard to the factors relevant to our determination that the USED and Alternate USED 7 Section 104 of title 5 was added as a new provision to the United States Code as part of the codification of title 5. See Pub L. No 89-554, 80 Stat. 378, 379 (1966). The revision notes on § 104 contained in the House and Senate reports are brief and do not shed light on the issue considered in this memorandum See H.R. Rep. No. 89-901, at 6 (1965), S Rep No 89-1380, at 22-23 (1966). 67 Opinions of the Office o f Legal Counsel in Volume 24 at the IMF are not covered by the Vacancies Reform Act. Accordingly, for the reasons discussed in part I of this memorandum, vacancies in the offices of the United States Executive Director and the Alternate United States Executive Director at the World Bank also are outside the coverage of the Vacancies Reform Act. Conclusion Because the United States Executive Directors and the Alternate United States Executive Directors at the IMF and the World Bank are not part of an ‘‘Executive agency,” vacancies in those offices are not covered by the Vacancies Reform Act. DANIEL L. KOFFSKY Acting Deputy Assistant Attorney General Office o f Legal Counsel 68 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank APPENDIX Our conclusion is based on the following information about the U.S. representa­ tives to the IMF and their relationship with the Treasury Department:8 * The U.S. representatives receive instructions on voting and policy matters from the Secretary of the Treasury. See, e.g., Exec. Order No. 11269, at §3(a), reprinted as amended in 22 U.S.C. § 286b note; 22 U.S.C. §§262h, 262k(b), 286a(d)(3). * The U.S. representatives are eligible, in the discretion of the Secretary of the Treasury, to receive employee benefits: “ Notwith­ standing the provisions of any other law, [U.S. representatives at international financial organizations] shall, if they are citizens of the United States, in the discretion of the Secretary of the Treasury, each be eligible on the basis of such service and the total compensa­ tion received therefor, for all employee benefits afforded employees in the civil service of the United States.” 22 U.S.C. §276c-2; see also OPM Opinion, at 3 n.2 (Alternate USED eligible, in the discre­ tion of the Secretary, for SES retirement benefits and health, life, and disability coverage). * Section 276c-2 further provides: “ The Treasury Department shall serve as the employing office fo r collecting, accounting for, and depositing in the Civil Service Retirement and Disability Fund, Employees Life Insurance Fund, and Employees Health Benefits Fund, all retirement and health insurance benefits payments made by these employees, and shall make any necessary agency contribu­ tions from funds appropriated to the Department of the Treasury.” 22 U.S.C. § 276c-2 (emphasis added). * Treasury provides ethics advice to the U.S. representatives, since the U.S. representatives do not have an internal source for such advice, and the U.S. representatives are directed to file disclo­ sure forms and generally to comport themselves as if covered by the ethics rules. Nevertheless, the Treasury Department does not perform these functions as a result of any determination that it is legally required to take this role, and Treasury seriously doubts that it has ever been asked to provide a § 208(b) waiver to any USED or Alternate USED. 8 Except for various of the statutory references, this information was provided to us by the Department of the Treasury 69 Opinions o f the Office o f Legal Counsel in Volume 24 * The salaries of the U.S. representatives are set and paid by the IMF. See 22 U.S.C. §286a(d)(l) ( “ No person shall be entitled to receive any salary or other compensation from the United States for services as a Governor, executive director, councillor, alternate, or associate.” ). Federal law limits the salaries that IMF may pay the U.S. representatives, capping them at the rate of a level IV of the Executive Schedule for the USED and a level V for the Alter­ nate USED. Id. § 286a(d)(2). See also Foreign Operations, Export Financing, and Related Agencies Appropriations Act, 1999, Pub. L. No. 105-277, §534, 112 Stat. 2681, 2681-181 (1998) (annual appropriations rider prohibiting payment of appropriate funds to an international financial institution if statutory pay prohibitions are violated). * IMF is similarly responsible for the salaries of the staff and other expenses of the office of the U.S. representatives. * The office of the U.S. representatives is typically staffed by four to six additional people. The secretaries who work in the office are employed by the IMF. The office also typically includes an advisor and two or three assistants who are usually from Treasury. These individuals are transferred to the IMF under 5 U.S.C. § 3582 (1994 & Supp. IV 1998). Upon being transferred to the IMF, these individuals are separated from Treasury and are no longer Treasury employees. They are not carried on Treasury’s books and are not covered by the conflict-of-interest rules or standards of conduct applicable to Treasury employees. The only elements of employ­ ment that they retain are re-employment rights and the right to count their years of service at the IMF toward retirement eligi­ bility.9 * In a few instances, Treasury employees have also been detailed to the office of the U.S. representatives under 5 U.S.C. §3343 (1994) when there was a pressing need for additional assistance. These details are rare and have generally only been for short periods of time. * The IMF receives an annual lump-sum contribution from the United States. These contributions flow through Treasury, but 9 See also OPM Opin. at 4 (distinguishing staff transferred from Treasury to assist the U S representatives from the representatives because the staff are “ without any direct accountability to the United States” and “ are separated from their United States employment for the penod o f their international service, and by statute, under prescnbed conditions, are given reemployment rights to their former positions” ). 70 Applicability o f the Federal Vacancies Reform A ct to Vacancies at the International M onetary Fund and the World Bank Treasury does not exercise any discretion over the payment or how the funds will be used by the IMF. * Treasury does not consider the U.S. representatives to the IMF to be part of Treasury for purposes of FOIA. More specifically, Treasury indicated that it does not ask the U.S. representatives for documents in responding to FOIA requests addressed to Treasury if, e.g., the request concerns questions about the international finan­ cial organizations. As a matter of interbranch cooperation, Treasury does provide information about the IMF in response to inquiries from Congress and the General Accounting Office. * The U.S. representatives are not treated as part of the Treasury Department in the Department’s organizational charts and wire dia­ grams. 71

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Exchange Authority for Kaloko Honokohau National Historical Park T he Departm ent o f the Interior is authorized to acquire privately held land for the K aloko Honokohau National H istorical f t r k by exchanging it for surplus federal land of equivalent value w ithin the State of Hawaii. Its exchange authority does not, however, extend to excess as well as surplus federal land, nor to land outside the State of Hawaii. T he power to d ispose o f property of the United States is com m itted under the C onstitution to C ongress, and the E x ecutive’s disposition of federal land in any particular case m ust be undertaken in accordance w ith w hatever rules C ongress has established for this purpose. In this ca se , the D epartm ent o f the Interior’s specific exchange authority in connection with the Park is pre­ sum ptively lim ited by the otherwise applicable general legal restrictions on federal land exchange transactions. May 20, 1982 MEMORANDUM OPINION FOR THE UNDERSECRETARY OF THE INTERIOR This responds to your request for the Department’s legal opinion on two issues relating to your authority to acquire land for the Kaloko Honokohau National Historical Park in Hawaii. Both issues involve Interior’s authority under the 1980 provision in its appropriations act to acquire what is now privately owned land by exchanging it for federal land of equivalent value. The first question is whether both “ surplus” and “ excess” federal real properties are available for such an exchange under the 1980 law. The second question is whether federal land in other states may be exchanged for the privately held Hawaiian land in question. The General Services Administration (GSA), in an opinion of its General Counsel dated August 25, 1981, takes the position that only intrastate exchanges of surplus real property are authorized. The Assistant Solicitor of the Interior and counsel for the private property owners disagree, taking the position that the 1980 law authorizes interstate exchanges of both surplus and excess property.1 For reasons stated below, we believe that the result reached by the GSA is correct, 1 See A ug. 14, 1981, M em orandum to the A ssistant S ecretary for Fish and W ildlife and f c r k s , and the letter of S ept. 14, 1981, from C arla A H ills to Stephen Thayer, A ssistant to the A dm inistrator o f G SA T h e legal opin io n s cited are confined to the issue raised by the proposed exchange of land in differen t states, and d o not d iscu ss the question w hether both “ surplus” and “ excess” property m ay be exchanged. We gather that d isag reem en t with respect to the latter question arose som etim e after these opinions were w ritten, and we have not been made aw are of the argum ents advanced in support of either position 251 and that the only land authorized for exchange by the 1980 law is federal surplus land within the State of Hawaii. I. Legislative Background The Kaloko Honokohau National Historical Park was established by the National Kirks and Recreation Act of 1978 (1978 Act), Pub. L. No. 95-625, 92 Stat. 3499, “ to provide a center for the preservation, interpretation, and per­ petuation of traditional native Hawaiian activities and culture . . . .” See § 505(a) of the 1978 Act, 16 U .S.C . § 396d(a) (Supp. II 1978). Authority to acquire land for the Park was given to the Secretary of the Interior in § 505(b) of the 1978 Act: Except for any lands owned by the State of Hawaii or its subdivisions, which may be acquired only by donation, the Secre­ tary is authorized to acquire the lands described above by dona­ tion, exchange, or purchase through the use of donated or appro­ priated funds, notwithstanding any prior restriction of law. 16 U.S.C. § 396d(b) (Supp. II 1978). Since the Park’s establishment, Congress has failed to appropriate any funds to acquire privately held land for the Park. Nor, apparently, has it been possible otherwise to acquire the particular property in question. In 1980, additional legislation was passed to augment the Secretary’s authority to acquire land under the 1978 Act. This legislation, enacted as a floor amend­ ment to your Department’s appropriation act for fiscal 1981, Pub. L. No. 96-514, 94 Stat. 2960, reads in its entirety as follows: Notwithstanding any other provision of law, the Secretary is authorized and shall seek to acquire the lands described in Section 505(a) of the Act of November 10, 1978 (92 Stat. 3467) by first acquiring Federal surplus lands of equivalent value from the General Services Administration and then exchanging such sur­ plus lands for the lands described in Section 505(a) of that Act with the land owners. Exchanges shall be on the basis of equal value, and any party to the exchange may pay or accept cash in order to equalize the value of the property exchanged. II. Whether Excess Property as Well as Surplus Property Is Available for Exchange With respect to your first question, we find no support in the terms of the 1980 appropriation act or its legislative history for an argument that “ excess” as well as “ surplus” real property should be available for an exchange transaction. By its terms, the 1980 provision refers only to “ federal surplus lands” held by the General Services Administration. Under the Federal Property and Administrative Services Act of 1949, 40 U .S.C . §§ 471-514, the law pursuant to which the 252 GSA holds and administers federal property, the terms “ surplus” and “ excess” denote two quite distinct categories of property.2 Property determined by one agency to be in “ excess” of its needs can be sold or otherwise disposed of outside the federal government as “ surplus” only when and if the Administrator of General Services determines that no other executive agency needs it. See 40 U.S.C. § 483(a)(1) and 41 C.F.R. § 101^7.201-1. When the 1980 legislation speaks of the acquisition of “ surplus” property from the GSA, we believe it reasonable to assume that Congress intended that term to have its ordinary meaning under the Property Act. See 2A Sutherland Statutes and Statutory Construction § 47.27 (4th ed. 1973). See also Watt v. Alaska, 451 U.S. 259, 267 (1981) (two statutes dealing with the same subject must be read to give effect to each other if possible “ while preserving their sense and purpose” ). This assumption is confirmed by the legislative history of the 1980 provision. In explaining the legislation he had introduced, Senator Hatfield stated that “ [a]ll this does is to give, in effect, authorization to the GSA and the Forest Service [sic] under existing rules, regulations, and laws” to attempt to acquire the private property through an exchange transaction. 126 Cong. Rec. 29665 (1980).3 III. Whether Interstate Land Exchanges Are Authorized by the 1980 Provision As a general matter, the power to dispose of property of the United States is committed to Congress by Article IV, section 3, clause 2 of the Constitution. This power of Congress is “ exclusive,” and “ only through its exercise in some form can rights in lands belonging to the United States be acquired.” Utah Power and Light Co. v. United States, 243 U.S. 389, 404—05 (1917). It follows that Congress may “ prescribe the conditions upon which others may obtain rights in them.” Id. at 505. Accordingly, the Secretary’s authority under both the 1978 and 1980 statutes to dispose of federal lands by exchanging them for privately owned lands for the Park must be exercised in accordance with whatever particular rules Congress has established. One set of rules applicable generally to land exchange transactions in the National Park System is set forth in 16 U.S.C. § 460/-22(b): The Secretary of the Interior is authorized to accept title to any non-Federal property or interest therein within a unit of the National Park System or miscellaneous area under his administra­ tion, and in exchange therefor he may convey to the grantor of 2 “ Excess p ro p erty ” is defined in § 3(e) of the P roperty Act as “ any property un d er the control o f any F ederal agency w hich is not required for its needs and th e discharge o f its responsibilities, as d eterm ined by the head th e re o f” 40 U S C . § 47 2 (e) “ S urplus p ro p erty ” is defined in § 3(g) as “ any excess property not required fo r the needs and the discharge o f the responsibilities of all Federal agencies, as d eterm ined by the A dm inistrator [of G eneral S ervices]." 40 U S C § 472(g) (em phasis added). 3 W hen C ongress has m ade an exception to general practice under the P roperty A ct w ith respect to the adm inistration and disp o sitio n of excess property, it has been explicit See, e g , 4Q\J S .C . § 48 3 (a)(2 ) (GSA m u st transfer to the S ecretary o f the Interior any excess real property located w ithin an Indian reservation, to be h eld in trust for the use and benefit o f the tribe, w ithout regard to w hether any other Federal agency needs o r w ants to acq u ire it for its ow n use). 253 such property or interest any Federally owned property or interest therein under his jurisdiction which he determines is suitable for exchange or other disposal and which is located in the same State as the non-Federal property to be acquired . . . . The values of the properties so exchanged either shall be approximately equal, or if they are not approximately equal, the values shall be equal­ ized by the payment of cash to the grantor from funds appropri­ ated for the acquisition o f land for the area, or to the Secretary as the circumstances require. (Emphasis supplied.) Section 460/-22(b) was enacted as § 5(b) of the Land and Water Conservation Fund Amendments of 1968, Pub. L. No. 90-401, 82 Stat. 356. By its terms, it applies to all land exchange transactions in “ the National Park System or miscellaneous area[s] under [the Secretary’s] jurisdiction.” Its legislative history indicates that Congress intended to impose “ consistent” limiting conditions on the Secretary’s authority to acquire private land for national parks by exchange, confining the land available for such exchanges to “ federally owned tracts under the jurisdiction of the Department of the Interior in the same State, or States, as the national park unit.” S. Rep. No. 1071, 90th Cong., 2d Sess. 8-9 (1968). In 1970 the general applicability of § 460/-22(b) to all land exchange transactions in the National Park System (unless “ in conflict with any . . . specific provi­ sion” ) was affirmed by § 2(b) of Pub. L. No. 91-383,84 Stat. 826, codified at 16 U .S.C . § lc(b). See H.R. Rep. No. 1265, 91st Cong., 2d Sess. 8 (1970) (letter from Secretary of the Interior Hickel).4 Your Department does not contend, nor do we think it reasonably could, that the general limitations on the Secretary’s land exchange authority contained in § 460/-22(b) are not applicable to exchanges under § 505(b) of the 1978 Act. We agree, then, that under the 1978 Act standing alone the Secretary would have been authorized to acquire privately owned land for the Park by exchange only when the federal property to be exchanged is (1) “ under his jurisdiction” and (2) “ located in the same State as the non-Federal property to be acquired.” The question thus arises whether the 1980 enactment modified the Secretary’s ex­ change authority under the 1978 Act. Your Department interprets the 1980 enactment to authorize the Secretary to acquire from GSA federally owned land in other states in order to exchange it for the privately owned land in Hawaii. That is, you believe the 1980 provision carves out an exception to the intrastate restriction which otherwise governs all land exchanges transactions in the national park system. Your position in this regard appears to be based on a broad reading of the 1980 provision’s 4 W hen C o n g ress has m ade an exception to th e intrastate restrictio n of § 4 6 0 /-2 2 (b ), it has been quite specific See. e .g ., 16 U S .C § 4 5 9 c -2 (c ) (S ecretary m ay acquire land for Point R eyes National S eashore by exchanging p ro p erty u n d er his ju risd ic tio n “ within C a lifo rn ia and adjacent States” ); 16 U .S C . § 4 5 9 /- l( b ) (A ssateague N ational S eashore; land in M aryland or V irginia m ay be exchanged); 16 U .S C . § 4 6 0 o - l( a ) (D elaw are Water G ap N ational R ecreation A rea; o n ly land in P ennsylvania, New Jersey or New York may be exchanged), 16 U .S .C . § 4 6 0 /- l ( a ) (B ig h o m C anyon National R ecreation Area; land in M ontana o r W yom ing m ay be exchanged); 16 U .S .C § 4 6 0 w -l(a ) (In d ian a Dunes N ational Seashore, land in Indiana o r Illinois may be exchanged) 254 introductory phrase, “ [notwithstanding any other provision of law.” See Assist­ ant Solicitor Watts’ memorandum of Aug. 14, 1981. We cannot agree that the phrase accomplishes so much. At the outset, it is not clear from the text of the 1980 provision whether the introductory “ notwithstanding” phrase modifies the specific directive in this provision to acquire surplus land from GSA for the purpose of exchange, or whether it modifies the Secretary’s statutory exchange authority itself. If the former reading were correct, the phrase would not supersede more generally applicable legal conditions governing an exchange transaction, such as § 460/-22(b). If the latter reading were correct, then the introductory phrase would have to be read to repeal every statutory restriction on or regulation of the Secretary’s power to acquire the land in question. See, e .g ., 40 U.S.C. § 255 or 42 U.S.C. § 4651. This latter reading would, in rendering all such restrictions and regulations legally ineffective, repeal by implication all such restrictions and regulations. Repeals by implication are not favored, see Watt v. Alaska, supra, 451 U.S. at 267. We would be, therefore, reluctant to give such a broad reach to this ambiguous provision in the 1980 enactment without clearer textual expression of legislative intent. See also TVA v. Hill, 437 U.S. 153,189-90 (1978) (exceptions to a generally applicable statute will not be implied from subsequent legislation, particularly where the subsequent legislation is an appropriations act). In addi­ tion, as pointed out in notes 3 and 4 supra, this particular problem of statutory construction arises in a context in which Congress has historically legislated with care and specificity when authorizing exceptions to the general congressionally established rules governing acquisition and disposal of property by the Ex­ ecutive. Accordingly, we would normally give the “ notwithstanding” phrase the narrower of the two readings absent other persuasive evidence of congressional intent to the contrary. The brief legislative history of the 1980 law, found at 126 Cong. Rec. 29665 (1980), confirms, rather than contradicts, our reading of the 1980 enactment. Senator Hatfield described the difficulty created by Congress’ failure to appropri­ ate funds to purchase the privately held Hawaiian land for the Park, and explained his proposed legislative solution in the following terms: Mr. President, this is one of those very interesting situations where we are trying to correct an inequity that exists at this time. The Congress of the United States authorized the establishment of a park in Hawaii and this park was to be developed out of a large parcel of private ownership. The only problem is that the Govern­ ment has not had the appropriations to make this purchase, and it has now been appraised at about $60 million. The owners of this property are people of modest income, of increasing age. In fact, I believe the owner is now near 70. They realize that, for the first time, if they should die their heirs would be thrust into a very untenable position of having to pay 255 inheritance tax on estate ownership, including this $60 million appraised value land. They have asked for relief in this situation. The GSA and the Forest Service [sic] have agreed that there is land in Hawaii that they could easily exchange and thereby create a fluid landholding as against this one buyer market situation they face. All this does is to give, in effect, authorization to the GSA and the Forest Service [sic] under existing rules, regulations, and laws to proceed to redress this particular hardship that has been placed upon these innocent people. This passage reveals no intention to remove the otherwise applicable intrastate restriction of 16 U .S.C . § 460/—22(b). Indeed, Senator Hatfield seems to have assumed that the transaction to be facilitated by his legislation would involve only federal surplus land located in Hawaii (“The GSA and the Forest Service [sic] have agreed that there is land in Hawaii that they could easily exchange. . . .”). This, coupled with his final reference to “ existing rules, regulations, and laws” which we have already quoted above, convinces us that the 1980 legislation was not intended to carve out an exception to § 460/-22(b) so as to permit intrastate land exchanges. The most plausible explanation for the introductory “ notwithstanding” phrase is found in what has been described to us by the Assistant Solicitor as the GSA’s pre-1980 reluctance to make available surplus property for the purposes of exchange except in accordance with the strict conditions imposed by its own regulations.5 The 1980 legislation was, we conclude, intended to encourage the GSA to make available surplus property for the exchange by providing the specific legal authority which the GSA apparently felt was insufficient under the 1978 law. It was not, however, intended to remove legal restrictions which would otherwise be applicable to the exchange itself. T h eo d o r e B . O lso n Assistant Attorney General Office c f Legal Counsel 5 See 41 C .F R . § 101—47 301—1(c) (“surplus real property shall be disp o sed o f by exchange for privately ow ned p ro p erty o n ly fo r p roperty m anagem ent co n sid eratio n s such as boundary realignm ent o r provision of access o r in th o se situ atio n s in w hich the acquisition is a u th o rized by law, the requesting Federal agency has received approval fro m the O ffice o f M an ag em en t an d Budget a n d clearance from its congressio n al oversight com m ittees to acquire by e x c h an g e, an d th e transaction offers substantial econom ic o r unique program advantages n ot otherw ise obtainable by any o th e r m ethod o f acquisition.’'). 256

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Exchange Authority for Kaloko Honokohau National Historical Park T he Departm ent o f the Interior is authorized to acquire privately held land for the K aloko Honokohau National H istorical f t r k by exchanging it for surplus federal land of equivalent value w ithin the State of Hawaii. Its exchange authority does not, however, extend to excess as well as surplus federal land, nor to land outside the State of Hawaii. T he power to d ispose o f property of the United States is com m itted under the C onstitution to C ongress, and the E x ecutive’s disposition of federal land in any particular case m ust be undertaken in accordance w ith w hatever rules C ongress has established for this purpose. In this ca se , the D epartm ent o f the Interior’s specific exchange authority in connection with the Park is pre­ sum ptively lim ited by the otherwise applicable general legal restrictions on federal land exchange transactions. May 20, 1982 MEMORANDUM OPINION FOR THE UNDERSECRETARY OF THE INTERIOR This responds to your request for the Department’s legal opinion on two issues relating to your authority to acquire land for the Kaloko Honokohau National Historical Park in Hawaii. Both issues involve Interior’s authority under the 1980 provision in its appropriations act to acquire what is now privately owned land by exchanging it for federal land of equivalent value. The first question is whether both “ surplus” and “ excess” federal real properties are available for such an exchange under the 1980 law. The second question is whether federal land in other states may be exchanged for the privately held Hawaiian land in question. The General Services Administration (GSA), in an opinion of its General Counsel dated August 25, 1981, takes the position that only intrastate exchanges of surplus real property are authorized. The Assistant Solicitor of the Interior and counsel for the private property owners disagree, taking the position that the 1980 law authorizes interstate exchanges of both surplus and excess property.1 For reasons stated below, we believe that the result reached by the GSA is correct, 1 See A ug. 14, 1981, M em orandum to the A ssistant S ecretary for Fish and W ildlife and f c r k s , and the letter of S ept. 14, 1981, from C arla A H ills to Stephen Thayer, A ssistant to the A dm inistrator o f G SA T h e legal opin io n s cited are confined to the issue raised by the proposed exchange of land in differen t states, and d o not d iscu ss the question w hether both “ surplus” and “ excess” property m ay be exchanged. We gather that d isag reem en t with respect to the latter question arose som etim e after these opinions were w ritten, and we have not been made aw are of the argum ents advanced in support of either position 251 and that the only land authorized for exchange by the 1980 law is federal surplus land within the State of Hawaii. I. Legislative Background The Kaloko Honokohau National Historical Park was established by the National Kirks and Recreation Act of 1978 (1978 Act), Pub. L. No. 95-625, 92 Stat. 3499, “ to provide a center for the preservation, interpretation, and per­ petuation of traditional native Hawaiian activities and culture . . . .” See § 505(a) of the 1978 Act, 16 U .S.C . § 396d(a) (Supp. II 1978). Authority to acquire land for the Park was given to the Secretary of the Interior in § 505(b) of the 1978 Act: Except for any lands owned by the State of Hawaii or its subdivisions, which may be acquired only by donation, the Secre­ tary is authorized to acquire the lands described above by dona­ tion, exchange, or purchase through the use of donated or appro­ priated funds, notwithstanding any prior restriction of law. 16 U.S.C. § 396d(b) (Supp. II 1978). Since the Park’s establishment, Congress has failed to appropriate any funds to acquire privately held land for the Park. Nor, apparently, has it been possible otherwise to acquire the particular property in question. In 1980, additional legislation was passed to augment the Secretary’s authority to acquire land under the 1978 Act. This legislation, enacted as a floor amend­ ment to your Department’s appropriation act for fiscal 1981, Pub. L. No. 96-514, 94 Stat. 2960, reads in its entirety as follows: Notwithstanding any other provision of law, the Secretary is authorized and shall seek to acquire the lands described in Section 505(a) of the Act of November 10, 1978 (92 Stat. 3467) by first acquiring Federal surplus lands of equivalent value from the General Services Administration and then exchanging such sur­ plus lands for the lands described in Section 505(a) of that Act with the land owners. Exchanges shall be on the basis of equal value, and any party to the exchange may pay or accept cash in order to equalize the value of the property exchanged. II. Whether Excess Property as Well as Surplus Property Is Available for Exchange With respect to your first question, we find no support in the terms of the 1980 appropriation act or its legislative history for an argument that “ excess” as well as “ surplus” real property should be available for an exchange transaction. By its terms, the 1980 provision refers only to “ federal surplus lands” held by the General Services Administration. Under the Federal Property and Administrative Services Act of 1949, 40 U .S.C . §§ 471-514, the law pursuant to which the 252 GSA holds and administers federal property, the terms “ surplus” and “ excess” denote two quite distinct categories of property.2 Property determined by one agency to be in “ excess” of its needs can be sold or otherwise disposed of outside the federal government as “ surplus” only when and if the Administrator of General Services determines that no other executive agency needs it. See 40 U.S.C. § 483(a)(1) and 41 C.F.R. § 101^7.201-1. When the 1980 legislation speaks of the acquisition of “ surplus” property from the GSA, we believe it reasonable to assume that Congress intended that term to have its ordinary meaning under the Property Act. See 2A Sutherland Statutes and Statutory Construction § 47.27 (4th ed. 1973). See also Watt v. Alaska, 451 U.S. 259, 267 (1981) (two statutes dealing with the same subject must be read to give effect to each other if possible “ while preserving their sense and purpose” ). This assumption is confirmed by the legislative history of the 1980 provision. In explaining the legislation he had introduced, Senator Hatfield stated that “ [a]ll this does is to give, in effect, authorization to the GSA and the Forest Service [sic] under existing rules, regulations, and laws” to attempt to acquire the private property through an exchange transaction. 126 Cong. Rec. 29665 (1980).3 III. Whether Interstate Land Exchanges Are Authorized by the 1980 Provision As a general matter, the power to dispose of property of the United States is committed to Congress by Article IV, section 3, clause 2 of the Constitution. This power of Congress is “ exclusive,” and “ only through its exercise in some form can rights in lands belonging to the United States be acquired.” Utah Power and Light Co. v. United States, 243 U.S. 389, 404—05 (1917). It follows that Congress may “ prescribe the conditions upon which others may obtain rights in them.” Id. at 505. Accordingly, the Secretary’s authority under both the 1978 and 1980 statutes to dispose of federal lands by exchanging them for privately owned lands for the Park must be exercised in accordance with whatever particular rules Congress has established. One set of rules applicable generally to land exchange transactions in the National Park System is set forth in 16 U.S.C. § 460/-22(b): The Secretary of the Interior is authorized to accept title to any non-Federal property or interest therein within a unit of the National Park System or miscellaneous area under his administra­ tion, and in exchange therefor he may convey to the grantor of 2 “ Excess p ro p erty ” is defined in § 3(e) of the P roperty Act as “ any property un d er the control o f any F ederal agency w hich is not required for its needs and th e discharge o f its responsibilities, as d eterm ined by the head th e re o f” 40 U S C . § 47 2 (e) “ S urplus p ro p erty ” is defined in § 3(g) as “ any excess property not required fo r the needs and the discharge o f the responsibilities of all Federal agencies, as d eterm ined by the A dm inistrator [of G eneral S ervices]." 40 U S C § 472(g) (em phasis added). 3 W hen C ongress has m ade an exception to general practice under the P roperty A ct w ith respect to the adm inistration and disp o sitio n of excess property, it has been explicit See, e g , 4Q\J S .C . § 48 3 (a)(2 ) (GSA m u st transfer to the S ecretary o f the Interior any excess real property located w ithin an Indian reservation, to be h eld in trust for the use and benefit o f the tribe, w ithout regard to w hether any other Federal agency needs o r w ants to acq u ire it for its ow n use). 253 such property or interest any Federally owned property or interest therein under his jurisdiction which he determines is suitable for exchange or other disposal and which is located in the same State as the non-Federal property to be acquired . . . . The values of the properties so exchanged either shall be approximately equal, or if they are not approximately equal, the values shall be equal­ ized by the payment of cash to the grantor from funds appropri­ ated for the acquisition o f land for the area, or to the Secretary as the circumstances require. (Emphasis supplied.) Section 460/-22(b) was enacted as § 5(b) of the Land and Water Conservation Fund Amendments of 1968, Pub. L. No. 90-401, 82 Stat. 356. By its terms, it applies to all land exchange transactions in “ the National Park System or miscellaneous area[s] under [the Secretary’s] jurisdiction.” Its legislative history indicates that Congress intended to impose “ consistent” limiting conditions on the Secretary’s authority to acquire private land for national parks by exchange, confining the land available for such exchanges to “ federally owned tracts under the jurisdiction of the Department of the Interior in the same State, or States, as the national park unit.” S. Rep. No. 1071, 90th Cong., 2d Sess. 8-9 (1968). In 1970 the general applicability of § 460/-22(b) to all land exchange transactions in the National Park System (unless “ in conflict with any . . . specific provi­ sion” ) was affirmed by § 2(b) of Pub. L. No. 91-383,84 Stat. 826, codified at 16 U .S.C . § lc(b). See H.R. Rep. No. 1265, 91st Cong., 2d Sess. 8 (1970) (letter from Secretary of the Interior Hickel).4 Your Department does not contend, nor do we think it reasonably could, that the general limitations on the Secretary’s land exchange authority contained in § 460/-22(b) are not applicable to exchanges under § 505(b) of the 1978 Act. We agree, then, that under the 1978 Act standing alone the Secretary would have been authorized to acquire privately owned land for the Park by exchange only when the federal property to be exchanged is (1) “ under his jurisdiction” and (2) “ located in the same State as the non-Federal property to be acquired.” The question thus arises whether the 1980 enactment modified the Secretary’s ex­ change authority under the 1978 Act. Your Department interprets the 1980 enactment to authorize the Secretary to acquire from GSA federally owned land in other states in order to exchange it for the privately owned land in Hawaii. That is, you believe the 1980 provision carves out an exception to the intrastate restriction which otherwise governs all land exchanges transactions in the national park system. Your position in this regard appears to be based on a broad reading of the 1980 provision’s 4 W hen C o n g ress has m ade an exception to th e intrastate restrictio n of § 4 6 0 /-2 2 (b ), it has been quite specific See. e .g ., 16 U S .C § 4 5 9 c -2 (c ) (S ecretary m ay acquire land for Point R eyes National S eashore by exchanging p ro p erty u n d er his ju risd ic tio n “ within C a lifo rn ia and adjacent States” ); 16 U .S C . § 4 5 9 /- l( b ) (A ssateague N ational S eashore; land in M aryland or V irginia m ay be exchanged); 16 U .S C . § 4 6 0 o - l( a ) (D elaw are Water G ap N ational R ecreation A rea; o n ly land in P ennsylvania, New Jersey or New York may be exchanged), 16 U .S .C . § 4 6 0 /- l ( a ) (B ig h o m C anyon National R ecreation Area; land in M ontana o r W yom ing m ay be exchanged); 16 U .S .C § 4 6 0 w -l(a ) (In d ian a Dunes N ational Seashore, land in Indiana o r Illinois may be exchanged) 254 introductory phrase, “ [notwithstanding any other provision of law.” See Assist­ ant Solicitor Watts’ memorandum of Aug. 14, 1981. We cannot agree that the phrase accomplishes so much. At the outset, it is not clear from the text of the 1980 provision whether the introductory “ notwithstanding” phrase modifies the specific directive in this provision to acquire surplus land from GSA for the purpose of exchange, or whether it modifies the Secretary’s statutory exchange authority itself. If the former reading were correct, the phrase would not supersede more generally applicable legal conditions governing an exchange transaction, such as § 460/-22(b). If the latter reading were correct, then the introductory phrase would have to be read to repeal every statutory restriction on or regulation of the Secretary’s power to acquire the land in question. See, e .g ., 40 U.S.C. § 255 or 42 U.S.C. § 4651. This latter reading would, in rendering all such restrictions and regulations legally ineffective, repeal by implication all such restrictions and regulations. Repeals by implication are not favored, see Watt v. Alaska, supra, 451 U.S. at 267. We would be, therefore, reluctant to give such a broad reach to this ambiguous provision in the 1980 enactment without clearer textual expression of legislative intent. See also TVA v. Hill, 437 U.S. 153,189-90 (1978) (exceptions to a generally applicable statute will not be implied from subsequent legislation, particularly where the subsequent legislation is an appropriations act). In addi­ tion, as pointed out in notes 3 and 4 supra, this particular problem of statutory construction arises in a context in which Congress has historically legislated with care and specificity when authorizing exceptions to the general congressionally established rules governing acquisition and disposal of property by the Ex­ ecutive. Accordingly, we would normally give the “ notwithstanding” phrase the narrower of the two readings absent other persuasive evidence of congressional intent to the contrary. The brief legislative history of the 1980 law, found at 126 Cong. Rec. 29665 (1980), confirms, rather than contradicts, our reading of the 1980 enactment. Senator Hatfield described the difficulty created by Congress’ failure to appropri­ ate funds to purchase the privately held Hawaiian land for the Park, and explained his proposed legislative solution in the following terms: Mr. President, this is one of those very interesting situations where we are trying to correct an inequity that exists at this time. The Congress of the United States authorized the establishment of a park in Hawaii and this park was to be developed out of a large parcel of private ownership. The only problem is that the Govern­ ment has not had the appropriations to make this purchase, and it has now been appraised at about $60 million. The owners of this property are people of modest income, of increasing age. In fact, I believe the owner is now near 70. They realize that, for the first time, if they should die their heirs would be thrust into a very untenable position of having to pay 255 inheritance tax on estate ownership, including this $60 million appraised value land. They have asked for relief in this situation. The GSA and the Forest Service [sic] have agreed that there is land in Hawaii that they could easily exchange and thereby create a fluid landholding as against this one buyer market situation they face. All this does is to give, in effect, authorization to the GSA and the Forest Service [sic] under existing rules, regulations, and laws to proceed to redress this particular hardship that has been placed upon these innocent people. This passage reveals no intention to remove the otherwise applicable intrastate restriction of 16 U .S.C . § 460/—22(b). Indeed, Senator Hatfield seems to have assumed that the transaction to be facilitated by his legislation would involve only federal surplus land located in Hawaii (“The GSA and the Forest Service [sic] have agreed that there is land in Hawaii that they could easily exchange. . . .”). This, coupled with his final reference to “ existing rules, regulations, and laws” which we have already quoted above, convinces us that the 1980 legislation was not intended to carve out an exception to § 460/-22(b) so as to permit intrastate land exchanges. The most plausible explanation for the introductory “ notwithstanding” phrase is found in what has been described to us by the Assistant Solicitor as the GSA’s pre-1980 reluctance to make available surplus property for the purposes of exchange except in accordance with the strict conditions imposed by its own regulations.5 The 1980 legislation was, we conclude, intended to encourage the GSA to make available surplus property for the exchange by providing the specific legal authority which the GSA apparently felt was insufficient under the 1978 law. It was not, however, intended to remove legal restrictions which would otherwise be applicable to the exchange itself. T h eo d o r e B . O lso n Assistant Attorney General Office c f Legal Counsel 5 See 41 C .F R . § 101—47 301—1(c) (“surplus real property shall be disp o sed o f by exchange for privately ow ned p ro p erty o n ly fo r p roperty m anagem ent co n sid eratio n s such as boundary realignm ent o r provision of access o r in th o se situ atio n s in w hich the acquisition is a u th o rized by law, the requesting Federal agency has received approval fro m the O ffice o f M an ag em en t an d Budget a n d clearance from its congressio n al oversight com m ittees to acquire by e x c h an g e, an d th e transaction offers substantial econom ic o r unique program advantages n ot otherw ise obtainable by any o th e r m ethod o f acquisition.’'). 256

Write a legal research memo on the following topic.

Whether Government Reproduction of Copyrighted Materials is a Noninfringing “ Fair Use” Although governm ent reproduction o f copyrighted m aterial for governm ental use w ould in m any co n ­ texts be a noninfringing fair use under section 107 o f the C opyright A ct o f 1976, such governm ent reproduction o f copyrighted m aterial does not invariably qualify as a “ fair use ” April 30, 1999 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 erce You have requested an opinion from this Office on a legal question raised in connection with an attempt by the Copyright Clearance Center, Inc. (“ CCC” ) to negotiate licenses with the Department of Commerce and other federal govern­ ment agencies, pursuant to which such agencies would, in exchange for a fee, obtain permission to reproduce certain copyrighted materials by photocopying.' See Letter for Dawn E. Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Andrew J. Pincus, General Counsel, Department of Com­ merce at 1 (June 23, 1998) (“ Pincus Letter” ). You inform us that a “ key factor in our decision whether such negotiations [with the CCC] even are appropriate is whether there are any circumstances under which the Copyright Act might require a government agency to obtain such a license: if a license is never nec­ essary, there would be no reason to consider entering into negotiations with the CCC, or with individual authors of works.” Id. Accordingly, you have asked for our opinion on the following question: “ whether a government agency ever is required to secure either permission or licensing before making unauthorized reproduction and use of materials that are protected by copyright law, or whether all government reproduction and use of such materials per se qualifies for the ‘fair use’ exception from the obligations of the Copyright Act.” Id. You further assert that “ [t]here appears to be substantial disagreement within the government with-respect to this issue.” Id. In particular, you suggest that the Commercial Litigation Branch of the Department of Justice’s Civil Division may have con­ veyed to certain agencies the view that “ virtually all photocopying for government use is permitted under the fair use doctrine,” and that that view of the Commercial ‘ The CCC, a nonprofit consortium, or “ clearing house,” established in 1977, acts as an agent for participating publishers. Under one of the CCC’s offered services, a user pays a flat fee, in exchange for which it receives a blanket annual license to make photocopies for internal use of any copyrighted material contained in any o f the works registered with the CCC. The license fee is based on a limited photocopying survey that accounts for the license’s employee population and the copying fees for the journals regularly copied by that licensee Upon payment of the fee, the licensee is authorized for a specified term to make unlimited numbers of photocopies, for internal use, from CCC-registered publications The revenue that the CCC derives from the licensee then is allocated among the publishers that have registered publications with the CCC, with the CCC retaining certain service charges See American Geophysical Union v. Texaco, Inc., 802 F. Supp 1, 7 -8 (S.D N.Y 1992) (discussing this CCC licensing practice), a jfd , 60 F.3d 913 (2d C ir 1994), cert, dismissed, 516 U.S. 1005 (1995) 87 Opinions o f the Office o f Legal Counsel in Volume 23 Litigation Branch was “ based upon the decision in Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), a f f d by an equally divided Court, 420 U.S. 376 (1975).” Id. at 2. As we explain below, while government reproduction of copyrighted material for governmental use would in many contexts be noninfringing because it would be a “ fair use” under section 107 of the Copyright Act of 1976, 17 U.S.C. § 107 (1994), there is no “ per se” rule under which such government reproduction of copyrighted material invariably qualifies as a fair use.2 It is important to note, however, that we have been unable to discern any disagreement within the federal government on this specific question: To our knowledge, no agency of the execu­ tive branch has argued, or advised, that government copying is per se a fair use. In particular, the Department o f Justice did not urge such a categorical rule in the Williams & Wilkins litigation, see infra note 15 (brief for the United States in the Supreme Court did not dispute that photocopying by the government may in some circumstances constitute copyright infringement); and, to our knowledge, the Department has not thereafter proffered any arguments, nor provided any advice, inconsistent with the views expressed in that brief.3 We do not, in this opinion, reach any conclusions about the circumstances under which government agencies should negotiate to obtain photocopying licenses. We caution, however, that a general practice of government agencies entering into licensing agreements in which they pay licensing fees for uses that are fair may, over time, undermine the government’s ability to argue successfully that such uses are fair. For this and other reasons, government agencies may wish to ensure that, if they do negotiate licensing arrangements, such arrangements cover only those government photocopying practices that otherwise would, in fact, be infringing. In Part I of this opinion, we provide some background on the fair use doctrine. In Part II, we review the case law regarding government photocopying and fair use, as well as Congress’s enactment of the Copyright Act of 1976, and conclude that government photocopying o f copyrighted materials does not invariably qualify as a fair use. Finally, in Part III, we provide some guidance on the factors that an agency should consider in determining whether a particular photocopying prac­ tice would be a fair use and whether to negotiate a license with respect to par­ ticular photocopying practices. 2 In framing the particular question you have asked us to consider, you refer to “ unauthorized reproduction and use o f materials that are protected by copyright law.” Pincus Letter at 1. The bulk o f your letter and supporting materials, however, indicates that your inquiry specifically concerns “ photocopying for government u s e ” Id at 2 Accordingly, we will in this opinion focus, not on all potential federal government uses of copyrighted materials, but instead, on government photocopying o f copyrighted materials for internal government use. We note, in particular, that this opinion does not specifically consider the circumstances under which it would be a fair use for an agency to republish copyrighted materials in government publicauons or in publicly available databases. 3 Indeed, a Department o f Energy memorandum that you provided as an attachment to your letter indicates that the Commercial Litigation Division of the Department o f Justice has informed the Department of Energy that, in its view, som e cases o f government photocopying likely would not be fair uses. See Memorandum for Jim Chafin and All Field Offices, from Paul A G ottlieb, Assistant G eneral Counsel for Technology Transfer and Intellectual Property, U nited States Department of Energy, Re: Copyright Clearance Center at 2 (May 23,1995). 88 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use' I. The Fair Use Doctrine Article I, Section 8 of the Constitution empowers Congress to “ promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const, art. I, § 8, cl. 8. Pursuant to that power, Congress enacted the Copy­ right Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §101 et seq. (1994)) (the “ Copyright Act” or the “ 1976 Act” ). Section 106 of the Copyright Act provides, inter alia, that the owner of a copy­ right under Title 17 of the United States Code “ has the exclusive rights . . . to reproduce the copyrighted work in copies,” and to “ authorize” such reproduc­ tion. 17 U.S.C. § 106(1) (1994). Those “ exclusive rights,” however, are “ [sjubject to” limitations codified in “ sections 107 through 120” of the 1976 Act. Id. § 106. For present purposes, the most important of those limitations is found in section 107 of the Copyright Act, id. § 107. That section, which is entitled “ Limitations on exclusive rights: Fair use,” provides, in pertinent part: Notwithstanding the provisions of section[] 106 . . ., the fair use of a copyrighted work, including such use by reproduction in copies . . ., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational pur­ poses; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Section 107’s “ fair use” limitation on copyright, and the particular factors enumerated in that section, reflect and incorporate a longstanding common law doctrine. See Harper & Row, Publishers, Inc. v. The Nation Enters ., 471 U.S. 539, 549 (1985). From the “ infancy of copyright protection,” courts have found it necessary to provide some opportunity for fair use of copyrighted materials in order “ to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science 89 Opinions o f the Office o f Legal Counsel in Volume 23 and useful Arts.’ ” Cam pbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). Before enactment of the 1976 Act, however, the fair-use doctrine was “ exclu­ sively [a] judge-made doctrine.” Id. at 576. When it codified the fair use doctrine in section 107 of the 1976 Act, “ Congress meant ‘to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way’ and intended that courts continue the common-law tradition of fair use adjudication.” Id. at 577 (quoting H.R. Rep. No. 94-1476, at 66 (1976) ( “ House Report” ), reprinted in 1976 U.S.C.C.A.N. 5659, 5679; S. Rep. No. 94-473, at 62 (1975) ( “ Senate Report” )); accord H arper & Row, 471 U.S. at 554.4 As noted above, the fair use doctrine, like the copyright protections that it quali­ fies, is necessary in order “ to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’ ” Campbell, 510 U.S. at 575; see also, e.g., H arper & Row, 471 U.S. at 545 ( “ copyright is intended to increase and not to impede the harvest of knowledge” ). As the Supreme Court recently emphasized, “ [t]he fair use doctrine thus ‘permits [and requires] courts to avoid rigid applica­ tion of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ ” Campbell, 510 U.S. at 577 (quoting Stew art v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted)).5 4 In 1992, Congress added the following senience to the end o f 17 U S C §107, in order to clanfy that the fair-use limitation is applicable to unpublished works: “ The fact that a work is unpublished shall not itself bar a finding o f fair use if such finding is m ade upon consideration o f all the above factors ” Pub L No. 102-492, 106 Stat 3145 (1992). Arguably, application of the fair use doctrine to unpublished works is one way in which section 107 departs from the common law. See, e g , H.R Rep No 102-836, at 4 (1992) ( “ The common law, going back to late eighteenth century English cases, had been stnct in prohibiting fair use of unpublished works under the theory that the author should decide when and in what form his or her work should first reach the public ” ), reprinted in 1992 U S C.C A.N. 2553, 2556; Salinger v Random House, In c , 811 F.2d 90, 95 (2d Cir.) (“ Though com m on law, especially as developed in England, appears to have denied the defense of fair use to unpublished works, see W. Patry, The Fair Use Privilege in Copyright Law 436—41 (1985), the 1976 Act explicitly makes all of the rights protected by copynght, including the right o f first publication, subject to the defense of fair use.” ), cert denied, 484 U.S. 890 (1987); New Era Publications In t’l, AP S v Henry Holt & C o , 695 F Supp. 1493, 1502 (S D N.Y 1988) (Copyright Act’s application o f fair use doctnne to unpublished work was “ in departure from the common law rule” ), a jfd , 873 F.2d 576 (2d Cir. 1989), cert denied, 493 U.S 1094 (1990) But see H arper &. Row, 471 U.S. at 550-51 (although “ fair use traditionally was not recognized [at common law] as a defense to charges o f copying from an author’s as yet unpublished works . . . [t]his absolute rule . . was tempered in practice by the equitable nature of the fair use doctnne” ) 5 See also Pierre N. Leval, Toward a F air Use Standard, 103 Harv L Rev 1105, 1110 (1990) ( “ The doctnne o f fair use limits the scope o f the copynght monopoly in furtherance of its utibtanan objective. Fair use should not be considered a bizane, occasionally tolerated departure from the grand conception of the copynght monopoly To the contrary, it is a necessary part o f the overall design ” ); Fogerty v Fantasy, Inc., 510 U S 517, 526-27 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U S 151, 156 (1975))1 T he limited scope o f the copynght holder’s statutory monopoly reflects a balance of competing claims upon the public interest: CreaUve w ork is to be encouraged and rewarded, but pnvate motivation must •ultimately serve the cause of promoting broad public avajlability o f literature, music, and the other arts. The immediate effect o f our copyright law is to secure a fair return for an ‘author’s’ creative labor But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good 90 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ‘ ‘Fair U se' II. Fair Use and Government Photocopying The federal government can be liable for violation of the copyright laws. Con­ gress has expressly provided that a work protected by the copyright laws can be “ infringed by the United States,” 28 U.S.C. § 1498(b) (1994),6 and further has provided that “ the exclusive action which may be brought for such infringe­ ment shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensa­ tion as damages for such infringement,” 28 U.S.C. § 1498(b) (Supp. Ill 1997). At the same time, it cannot be disputed that the federal government’s copying (and other use) of copyrighted materials is subject to the fair use doctrine codified in 17 U.S.C. § 107.7 It follows that any federal government photocopying that is a fair use is not infringing. However, there is no basis for concluding that the photocopying of copyrighted materials by the federal government automati­ cally or invariably constitutes a fair use. The case law provides very little guidance on the question of when government photocopying is a fair use. Reported cases involving application of the fair use doctrine to governmental conduct are rare. Indeed, the Williams & Wilkins deci­ sion, to which your letter refers and which we discuss below, is one of the only published opinions containing a significant discussion of governmental fair use.8 And, outside the context of public schools, we have found only one case — involving circumstances far removed from those at issue in this opinion — in which a court has rejected a government’s assertion that its use of copyrighted materials was fair.9 What is more, even outside the context of governmental use, 6 See also H.R. Rep. No 86-624, at 2 (1959) (“ When the Government deliberately publishes a copyrighted article without obtaining the prior consent o f the copynght proprietor, the general assumption would be lhat the holder, pursuant to the pnnciples o f ‘just compensation’ under the fifth amendment of our Constitution, should be entitled to an action against the Government for infringement ” ) 7 There is nothing in the statute to suggest that the federal government cannot invoke the fair use doctnne. The legislative history indicates lhat cenain governmental uses can be fair. See infra notes 19, 24 And the courts uni­ formly have assumed that the fair use analysis provided in section 107 o f the Act applies to government uses of copynghted matenals See, e.g., the cases cited in note 8, infra 8 A few other cases contain less extensive discussion o f governmental fair use. See, e g . Association o f Am. Med. Colleges v. Cuomo, 928 F.2d 519, 523-26 (2d Cir.), cert denied, 502 U.S 862 (1991), College Entrance Examination Bd. v Pataki, 889 F. Supp 554, 564-75 (N.D N Y 1995), Sinai v California Bureau o f Automotive Repair, No C -92-0274—VRW, 1992 WL 470699, at *3-*4 (N.D. Cai. Dec 21, 1992), College Entrance Examination Bd. v Cuomo, 788 F. Supp 134, 140-^3 (N.D.N Y. 1992), West v City o f New York, No 78 Civ. 1981 (MJL). 1985 WL 202, at *24—*25 (S.D N Y Jan. 18, 1985), Key Maps, Inc. v. Pruitt, 470 F. Supp 33, 37-38 (S.D Tex. 1978). O f these, only West and Key M aps involved decisions, necessary to the judgment, on the ments o f the fair use question; and only Key M aps involved a government entity making and distnbuiing multiple copies o f copynghted materials for internal government use 9 See College Entrance Examination B d , 889 F Supp at 564-75. In that case, the distnct court, on a motion for preliminary injunction, found a likelihood o f success on plaintiffs’ infringement claim against a state government. That case did not involve government copying for internal government use. See supra note 2. Instead, the case involved a challenge to a state statute that required testing organizations to disclose copies of their copynghted, confidential tests and related materials, and that further provided that such materials, once disclosed, would become public records. There also are at least two decisions in which courts have found that a distnbution of multiple copies o f copyrighted materials to students in a public school was not a fair use. See Marcus v Rowley, 695 F.2d 1171, 1174—79 (9th Continued 91 Opinions o f the Office o f Legal Counsel in Volume 23 there is only a small handful of reported cases involving whether and under what circumstances photocopying is a fair use.10 The sole reported decision (apart from the classroom context) concerning whether government photocopying is a fair use is Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), a j f d by an equally divided Court, 420 U.S. 376 (1975). The plaintiff in that case challenged certain practices of the National Institutes of Health ( “ NIH” ) and the National Library of Medicine (“ N LM ” ). The NIH library ran a photocopying service for the benefit of its research staff: On request, researchers could obtain a photocopy of an article from any of the journals in the library’s collection, typically to assist them in their on-going projects or for background reading. As a general matter, NIH would agree to provide a requester only one copy of a particular article, only one article per journal issue, and no article o f over 50 pages. In 1970, the library filled 85,744 requests for photocopies of journal articles (including journals published by W il­ liams & Wilkins), constituting about 930,000 pages. See 487 F.2d at 1348. NLM is a repository of much of the w orld’s medical literature, in essence a “ librarians’ library.” Id. Upon request, NLM would provide photocopies of journal articles, free of charge, to other libraries and like research- and education-oriented institu­ tions, both public and private (including commercial organizations, such as drug companies). NLM provided only one photocopy of a particular article per request, and would not honor a request for photocopying of an entire journal issue. In 1968, a representative year, NLM filled about 120,000 requests by photocopying journal articles. NLM made no effort to ascertain the ultimate use to which the Cir. 1983), Wihtol v. Crow, 309 F.2d 777, 780-81 (8lh C ir 1962) Such classroom cases may be instructive on the general matter o f fair use in the context o f reproduction for nonprofit purposes However, such cases typically involve archival collection o r distribution o f multiple copies o f copynghted materials that were, in the first instance, prepared and marketed primarily for use in the very same classroom setting. See, e.g., Marcus, 695 F.2d at 1175 W e assume that the government photocopying practices about which you are concerned will rarely, if ever, involve federal government duplication for educational use m a classroom, or practices that fairly can be said to be analogous to those at issue in Marcus O f course, insofar as certain federal government practices are akin to those at issue in the classroom cases, then the courts’ reasoning in decisions such as Marcus would be germane to the fair use analysis (The holding in Wihtol is of less practical value, since the court in that case merely held that “ [w]hatever may be the breadth o f the doctnne of ‘fair use,’ it is not conceivable to us that the copying of all, or substantially all, o f a copynghted song can be held to be a ‘fair use’ merely because the infnnger had no intent to infringe ” 309 F.2d at 780.) Furthermore, with respect to such cases it may be mstrucuve to look to the legislative history o f the 1976 Act, m which the House Committee on the Judiciary reproduced (i) an “ Agreement on Guidelines for C lassroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals,” which had been drafted by representatives of author/publisher and educational organizations, and (n) a similar, more special­ ized set o f “ Guidelines for Educational Uses o f M usic,” which had been drafted by representatives of music pub­ lishing and educational organizations See House Report at 66-72, reprinted in 1976 U.S.C.C.A.N at 5680-86. The H ouse Committee expressed its belief that “ the guidelines are a reasonable interpretation of the minimum standards o f fair use” in the classroom context, id. at 72, reprinted in 1976 U.S C C A N at 5686, and the House and Senate Conferees “ accept[ed]” the guidelines “ as part o f their understanding of fair use,” H R Rep No. 94-1733, at 70 (1976), reprinted in 1976 U.S.C.C A N . 5810, 5811. (On the question of the legal effect, if any, of these guidelmes, see, e.g., Princeton Univ. Press v M ichigan Document Servs., Inc., 99 F 3 d 1381, 1390-91 (6th Cir 1996) (en banc), cert, denied, 520 U S 1156 (1997); id at 1410-12 (Ryan , J., dissenting); 4 Melville B Nimmer & David Nimmer, Nim m er on Copynght § 13 05[E][3][a), at 13-241-42 (1998)) l0 See, e g , Princeton Univ. Press, 99 F.3d 1381; American Geophysical Union v Texaco, I n c , 60 F.3d 913 (2d C ir 1994), cert, dismissed, 516 U .S. 1005 (1995); D uffy v. Penguin Books USA Inc., 4 F. Supp 2d 268, 27 4 75 (S D N.Y 1998), Television Digest, Inc. v United States Telephone A ss'n, 841 F. Supp. 5, 9-11 (D.D.C 1993); Basic Books, Inc v K inko's Graphics Corp., 758 F Supp 1522 ( S D N Y 1991) 92 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ' 'Fair Use ’ copied articles were put. Although NLM did provide some photocopies to institu­ tions outside the government, NLM declined to provide to non-government libraries copies of articles published within the preceding five years in any of 104 journals included on a so-called “ widely-available list.” Id. at 1348-49. The Court of Claims, in a 4-to-3 decision, held that the NIH and NLM photocopying practices were noninfringing because such practices were fair uses. The majority discussed at length eight separate “ considerations which merge to that conclusion,” id. at 1353: (i) NIH and NLM are nonprofit institutions, see id. at 1354; (ii) the libraries’ photocopying policies were “ within appropriate confines” — in particular, the libraries did not sell the copies, dis­ tribute them broadly, or, with slight exceptions by NLM, distribute the copies to nongovernmental entities, id. at 1354-55; (iii) such library photocopying practices had long been carried out across the nation “ with apparent general acceptance,” id. at 135556; (iv) medical science would be seriously hurt by a finding that such library photocopying was infringing, see id. at 1356-57; (v) the plaintiff had failed to prove economic detriment as a result of the libraries’ practices, see id. at 1357-59; (vi) the statutory language and history were singularly unclear on the question, and it would be “ less dangerous” to rule in favor of the libraries until Congress acted to clarify the fair use question, id. at 1359-61; (vii) contemporaneous legislative history of proposed legislation (that had not yet resulted in the 1976 amendment of the copyright law) “ indicate[dj the correctness of our general approach,” id. at 1361; and (viii) the law in many foreign countries was that such practices were not infringing, see id. at 1361-62. The Court of Claims in its decision also urged Congress to enact legislation to resolve the difficult fair use questions raised by the increasingly prevalent practice of photocopying — questions that were, in the court’s words, “ preeminently a problem for Congress.” 487 F.2d at 1360; see also id. at 1353, 1363 (“ Hopefully, 93 Opinions o f the Office o f Legal Counsel in Volume 23 the result in the present case will be but a ‘holding operation’ in the interim period before Congress enacts its preferred solution.” ). Williams & Wilkins appealed to the Supreme Court. In that Court, the Depart­ ment of Justice argued that the Court of Claims correctly analyzed the fair use question, and that the Court should affirm the judgment in favor of the United States. See Brief for the United States, Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No. 73-1279); Paul Goldstein, Copyright’s Highway 113— 26 (1994) (describing Supreme Court proceedings). An equally divided Court, without opinion, affirmed the low er court judgment. See 420 U.S. 376 (1975). Congress was well aware of the dispute in Williams & Wilkins and of the Court o f Claims’ plea that Congress enact legislation to resolve the difficult fair use questions raised in that case. See, e.g., Senate Report at 71. And, in the 1976 Act, Congress did take three steps with respect to the matter of photocopying. First, in section 106 of the Act, Congress expressly affirmed that the rights of a copyright owner include the rights “ to reproduce the copyrighted work in copies” and to “ authorize” such reproduction. 17 U.S.C. §106(1) (1994).11 Second, the text of section 107 of the Act — in which Congress for the first time formally codified the fair use doctrine — expressly provides that “ reproduction in copies . . . for purposes such as . . . news reporting, teaching . . ., scholar­ ship, or research,” can be “ the fair use of a copyrighted work.” Finally, in section 108 of the Act, Congress provided that certain forms of library and archival photocopying are not infringing, see 17 U.S.C.A. § 108 (West 1996 & Supp. 1999), thereby creating a discrete carve-out, or safe harbor, that does not “ in any way affect[] the right o f fair use as provided by section 107,” 17 U.S.C. § 108(f)(4) (1994). However, Congress did not otherwise resolve the fair use ques­ tions raised in Williams <£ Wilkins, and, in particular, did not identify the cir­ cumstances under which photocopying — and government photocopying in par­ ticular— would, or would not, constitute fair use under section 107 of the 1976 A ct.12 Instead, as explained above, Congress simply enacted 17 U.S.C. §107 in 11 As the court in Williams & Wilkins indicated, see 487 F.2d at 1350-51, 1359, there had been some question whether, under the then-existing copynght laws, the exclusive nghts of the copyright owner included the right to control the copying o f books and penodicals for personal use. See also B nef for the United States at 16 n26, Williams & Wilkins Co. v. United States, 420 U.S 376 (1975) (No 73-1279) (discussing this question). 12 In a memorandum attached to your letter, counsel for the CCC argue that section 108 of the 1976 Act “ expressly proscnbes the copymg at issue in W illiams & Wilkins,” and that congressional enactment of section 108 “ signalled C ongressional disapproval o f [Williams & Wilkins] on fair use grounds, and instead indicated that the photocopying activities in question should be covered by a separate statutory provision, namely Section 108.” Memorandum of W eil, Gotshal & M anges LLP, Re* Government Photocopying as Copyright Infringement at 22-23 (July 30, 1997) (“ Weil, Gotshal M em o” ). See also U nited States Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report o f the Working Group on Intellectual Property Rights, at 82 n.262 (Sept. 1995) ( “ W hite Paper” ) ( “ precedential value o f Williams & Wilkins may be reduced” because of, inter aha, “ Section 108’s proscnption on most ‘systematic’ photocopying” ), quoted with approval in Weil, Gotshal M emo at 22; William F. Patry, The Fair Use Privilege in Copyright Law 210 (2d ed 1995) ( “ In 1976, Congress by subjecting the activity before the Court o f Claims to a statutory exemption m Section 108 of the Copy­ nght Act, available only to hbranes and archives qualifying under Section 108(a) and then only in the enumerated instances described in Sections 108(d), 108(e), and further subject to the conditions of Section 108(g), indicated its disapproval o f the Court of Claims’ fair use holding.” ). 94 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ' ‘Fair Use ’ order to “ codify the common-law doctrine.” H arper & Row , 471 U.S. at 549. Accordingly, the Court of Claims decision in Williams & Wilkins remains binding precedent in the Federal Circuit, where infringement claims against the federal government must be brought.13 The continued vitality of Williams & Wilkins in the Federal Circuit does not, however, mean that all federal government photocopying is a fair use. The Wil­ liams & Wilkins court, after discussing at length the eight different considerations, or “ elements,” that contributed to its decision, 487 F.2d at 1353-62, emphasized that its holding (that the library copying practices at issue were noninfringing) This is incorrect, because section 108 of the 1976 Act does not narrow the protection for fair use provided by the common-law doctnne codified in section 107 Section 108(a) o f the Act, 17 U.S.C A § 108(a) (West 1996 & Supp 1999), provides that, under certain conditions, it is “ not an infringement of copynght for a library or archives . to reproduce no more than one copy or phonorecord o f a work, or to distribute such copy or phonorecord,” “ [notw ithstanding the provisions o f section 106.” Section 108(g)(2), in turn, states that “ (t]he rights of reproduction and distnbution under this section . . . do not extend” to certain cases involving the “ systematic reproduction or distribution of single or multiple copies.” (Emphasis added) Section 108(g)(2) does not “ expressly proscnbe[]” the copying practices at issue in Williams & Wilkins — indeed, nothing in section 108 “ proscnbes” any practice at all. Nor is there anything in section 108 suggesting that “ systematic” reproduction is “ lawful only via the [section 108(g)(2)] proviso, [and] could not be a fair use ” United States Copynght Office, Report o f the Register o f Copy­ rights' Library Reproduction o f Copyrighted Works (17 U.S.C. 108), at 98 (1983) ( “ 1983 Register Report” ) At most, section 108(g)(2) merely provides that the “ n ghts” to copy and distribute that are provided “ under” section 108 “ do not extend to” the “ systematic” practices descnbed in section 108(g)(2) To be sure, “ section 108 author­ izes certain photocopying practices which may not qualify as a fair use,” House Report at 74 (emphasis added), reprinted in 1976 U.S C.C.A N. at 5688, see also Senate Report at 67 However, the statute does not provide, or even suggest, that the circumstances under which copying is noninfringing under section 108(a) are those “ lhat would typically not amount to fair use [under section 107],” White Paper at 84-85 (emphasis added), nor that “ Section 108 was enacted to make lawful some types o f copying which would otherwise be infringements o f copy­ right, fair use notwithstanding,” 1983 Register Report at 96 (emphasis added) Indeed, by its express terms, nothing in section 108 “ in any way affects the nght of fair use as provided by section 107.” 17 U.S.C § 108(f)(4) (1994); see uiso House Report at 74 ( “ No provision of section 108 is intended to lake away any nghts existing under the fair use doctrine.” ), reprinted in 1976 U .S C C .A N at 5687-88, Senate Report at 67 (same); 122 Cong. Rec. 3836 (1976) (statement o f Sen Magnuson) ( “ the Judiciary Committee clearly sel out in iheir report that the fair use doctrine not only applies to reproduction practices of libraries, but that in no way did they intend section 108 to be a limitation upon the fair use doctnne” ). Accordingly, whether section 108 renders certain copying practices “ not an infringement” does not affect w hether such practices are noninfringing fair uses under section 107 See Texaco, 802 F. Supp. at 28 & n 26 (emphasizing that “ Section 108 is a separate special statutory exemption governed by an entirely different set of standards [than under section 107],” and rejecting the argument “ that the understanding o f Section 107 should be influenced by what is permitted under Section 108” ); accord 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[E][2], at 13-240 (1998) A certain copying practice can be “ noninfnnging” under section 107, under section 108, under both provisions, or under neither. In ils 1983 Report, the Register of Copyrights suggested that such a construction o f the statute, in which practices permissible under section 108 might also be permissible under section 107, would “ render §108 superfluous.” 1983 Register Report at 96 n.4 That is not the case, however. As the Register noted, “ the library community sought § 108 to permit copying that had not been spelled out in the proposed fair use provision ” Id. (emphasis added). Section 108 identifies (“ spell[s] out” ) as noninfnnging a category of library photocopying that may, or may not, constitute fair use Section 108 thus fairly can be viewed as a very valuable— and not superfluous— safe harbor: If a certain library practice is noninfringing under the specific and detailed provisions of section 108(a) (as confined by section 108(g)(2)), a library need not be concerned about how that particular photocopying practice would fare under section 107’s more complex and indeterminate fair use stand­ ards. 13 Section 1498(b) o f title 28 provides that “ the exclusive action which may be brought for mfnngement [by the federal government] shall be an action by the copynght owner against the United States in the Court of Federal Claims ” 28 U.S.C § 1498(b) (Supp. Ill 1997). Decisions o f lhat court are appealable to the United States Court o f Appeals for the Federal Circuit, see 28 U S C § 1295(a)(3) (1994), which in turn considers itself bound by decisions (such as Williams & Wilkins) that the former Court of Claims issued pnor to October 1982. See South Corp v. United States, 690 F 2d 1368, 1370 & n.2 (Fed Cir 1982); see also, e.g., Gargoyles, Inc. v. United States, 113 F 3d 1572, 1576 (Fed C ir 1997). 95 Opinions o f the Office o f Legal Counsel in Volume 23 was based upon all of the elements present in that case, and that its decision would not necessarily resolve different cases “ with other significant variables,” id. at 1362. The court expressly noted that it was not determining whether any of the particular elements in the Williams & Wilkins case would be sufficient for a finding of fair use, nor whether all of the relevant elements cumulatively were “ essential” to the finding o f fair use: It sufficed for the court simply to decide that “ at least when all co-exist in combination a ‘fair use’ is made out.” Id.\ see also id. ( “ we feel a strong need to obey the canon of judicial parsimony, being stingy rather than expansive in the reach of our holding” ).14 Implicitly, then, the decision in Williams & Wilkins itself suggests that there may be some circumstances under which government photocopying might be infringing. See also Brief for the United States at 14, Williams. & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No. 73-1279) (“ The doctrine is applied as its rationale dictates in each case, and has no sharp edges.” ).15 A ‘ ‘per se’ ’ rule also would be inconsistent with the approach that the Supreme Court subsequently has taken in its decisions involving section 107 of the Copy­ right Act. The Court repeatedly has emphasized that the task of determining whether a particular use is fair “ is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Cam pbell, 510 U.S. at 577; accord id. at 584 (Congress “ ‘eschewed a rigid, bright-line approach to fair use,’ ” in favor of “ a ‘sensitive balancing of interests.’ ” ) (quoting Sony Corp. o f America v. Universal City Studios, Inc., 464 U.S. 417, 449 n.31, 455 n.40 (1984)); H arper & Row, A ll U.S. at 552 (“ fair use analysis must always be tailored to the individual case” ). III. D eterm ining Whether a Particular Government Photocopying Practice is a Fair Use Our conclusion that government photocopying is not invariably noninfringing does not, of course, answer the question whether government agencies should enter into licensing agreements for photocopying, and if so, what the terms and 14 M ore recent fair use decisions involving photocopying similarly have been confined narrowly to the particular copying practices in dispute See, e g , Texaco, 60 F.3d at 931 ( “ Our ruling is confined to the institutional, systematic, archival multiplication o f copies revealed by the record— the precise copying that the parties stipulated should be the basis for . . .d e c is io n . ”) 15 As we discuss supra p. 88, we have no reason to believe that any agency of the executive branch has argued, or advised, that government copying is “ per se a fair use.” In this respect, it is notable in particular lhat, in its Supreme Court brief in Williams <6 Wilkins, the United States cited a House Report as “ indicating] . that photocopying by the government may in som e circumstances constitute copynght infringement ” B nef for the United States at 15 n 24, Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No 73-1279) (citing H.R. Rep. No 86-624, at 5 (1959)) In the cited House Report, a House Committee indicated that the federal government could infringe a copyright when it “ publishes” an article without permission See supra note 6. The Committee did not indicate what it meant by “ publishes,” and did not expressly mention photocopying At the page of the H ouse Report (page 5) that the Solicitor General cited, however, a letter wntten by the Department of Commerce assumes that government photocopying could be infringing. See also id. at 8 (reflecting a similar assumption conveyed by the Librarian o f Congress) There is no suggestion in the House Report that the House Committee disagreed w ith this assumption. 96 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use ’ conditions of such agreements should be. In answering that question, there is an inescapable tension. On the one hand, because of the highly fact-bound nature of the fair use inquiry, it is difficult to ascertain in advance which governmental practices will, or will not, be fair uses: There is an “ endless variety of situations and combinations of circumstances that can rise in particular cases.” House Report at 66, reprinted in 1976 U.S.C.C.A.N. at 5680. Such uncertainty, when viewed in isolation, might weigh in favor of entering into relatively broad licensing agree­ ments, so as to ensure that an agency’s photocopying will never be infringing. On the other hand, and in addition to the desire to avoid unnecessary costs, there is an important legal consideration that counsels against entering into unnecessary licensing agreements and in favor of limiting such agreements to encompass only those photocopying practices that are infringing — namely, the concern that gen­ eral custom and usage may be integral to the fair use analysis.16 Indeed, at least one court has opined, in particular, that whether it is “ fair,” under the copyright law, to engage in a photocopying practice without compensation may depend, in part, on whether similarly situated entities customarily agree to pay a fee to the copyright holders.17 We have no occasion here to consider whether that court was correct in this regard; but it is possible that other courts may follow suit. Accordingly, if government agencies routinely agree to pay licensing fees to engage in photocopying practices that were fair uses at the time, there is a chance some courts may conclude that a growing or longstanding custom o f paying such fees weighs against a finding that such photocopying practices are fair uses when unlicensed. Thus, an agency that decides to negotiate a photocopying license should seek to limit the scope of the licensing agreement so as not to cover those photocopying practices that the agency, in good faith, concludes are not infringing. In the end, each agency must do its best to evaluate whether any o f its photocopying practices are infringing, and, if so, to obtain proper authorization for such uses of copyrighted materials. Although, as we have explained, there may be many government photocopying practices that are fair uses (or that are, for other reasons, not infringing), under some circumstances government photocopying may not be a fair use. In evaluating whether their practices are infringing, agencies should be guided by Williams & Wilkins, which, as noted above, is still binding precedent in the Federal Circuit. However, as explained above, the holding in Williams & Wilkins itself was dependent on the particular facts of that case, and the 8150 calculus may be different with respect to govern­ 16 See, e g , Williams & Wilkins * 487 F 2 d at 1355-56, see also Harper & Row, 471 U S . at 550 (the fair use doctnne traditionally “ was predicated on the author’s implied consent to ‘reasonable and customary’ use when he released his work for public consum ption” ) 17 See Princeton Univ. Press, 99 F.3d at 1387 (consideration of the potential licensing revenues for photocopying in a fair use analysis is “ especially” appropnate where the copynght holder not only has an interest in exploiting the licensing market, but also “ has actually succeeded in doing so” ) But c f Campbell, 510 U.S. at 585 n.18 (defend­ ants’ request for permission to use copyrighted song in a parody does “ not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litiganon” ). 97 Opinions o f the Office o f Legal Counsel in Volume 23 ment photocopying practices that diverge in material ways from the NIH and NLM practices at issue in Williams & Wilkins .18 Moreover, agencies should be aware that, in two important recent cases in other circuits, sharply divided courts o f appeals have held that certain commercial photocopying practices were not fair uses. In Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc), cert, denied, 520 U.S. 1156 (1997), the United States Court of Appeals for the Sixth Circuit held that a commercial copyshop had engaged in willful infringement by reproducing substantial segments of copyrighted works of scholarship and binding such repro­ ductions into coursepacks that the copyshop then sold to students. In American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994), cert, dismissed, 516 U.S. 1005 (1995), the United States Court of Appeals for the Second Circuit held that Texaco’s systematic photocopying o f scientific journal articles for its researchers’ archival use was infringing. Even if the United States Court of Appeals for the Federal Circuit were to adopt the reasoning of these decisions, the rationale of those decisions would not apply with full force in the context of government photocopying, since the decisions each rested, in part, on the fact that each of the defendants “ acquire[d] conspicuous financial rewards from its use of the copyrighted material.” Id. at 922; see also Princeton Univ. Press, 99 F.3d at 1386, 1389. Moreover, as the Texaco court noted, “ courts are more willing to find a secondary use [i.e., the use that is made of the photocopies] fair when it produces a value that benefits the broader public interest.” 60 F.3d at 922. Nevertheless, the ongoing debate among the judges in cases such as these (and in W illiams & Wilkins) demonstrates that the boundaries of fair use in the photocopying context are uncertain, highly contested, and especially dependent upon the particulars of a given case. And, while in some cases it might be fairly easy for an agency to determine that a government practice is noninfringing,19 usually that will not be the case: Whether a particular government photocopying practice is a fair use often will depend upon a “ ‘sensitive balancing of 18 M oreover, the subsequent advent of the CCC, and the possibility of reasonable licensing agreements with that organization, may affect at least one of the factors that led the Court of Claims to rule against the copyright holder in Williams & Wilkins. The Court of C laim s reasoned that medical science would be seriously hurt by a finding that the NIH and NLM photocopying was infringing, since the result of such a holding could have been that libraries w ould have to cease their photocopying practices. See 487 F.2d at 1356-57 But insofar as such libraries now could avoid a finding o f fair use by agreeing to pay a reasonable and affordable licensing fee — that is, a fee that would not materially deter the actual making and use o f valuable photocopies — the harm that the Williams & Wilkins court foresaw could be diminished See Texaco, 60 F 3d at 924 (“ To the extent the copying practice was ‘reasonable’ in 1973 [when Williams & Wilkins was decided], it has ceased to be ‘reasonable’ as the reasons that justified it before [photocopying licensing] have ceased to exist ’) (quoting the district court opinion, 802 F. Supp. at 25) But see id at 934 (Jacobs, J , dissenting). 19 For an example outside the context o f photocopying, see, e.g., House Report at 73 ( “ The Committee has consid­ ered the question o f publication, in Congressional hearings and documents, of copynghted material. Where the length of the work or excerpt published and the number of copies authonzed are reasonable under the circumstances, and the work itself is directly relevant to a matter o f legitimate legislative concern, the Committee believes that the publication would constitute fair use.” ), reprinted in 1976 U .S C.C A.N at 5687 98 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing "Fair U se’ interests.’ ” Cam pbell, 510 U.S. at 584 (quoting Sony Corp. o f America v. Uni­ versal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984)). In the text of section 107 of the Copyright Act itself, Congress has instructed that, in determining whether the use made of a work in any particular case is a fair use, ‘‘the factors to be considered shall include’’ the following: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational pur­ poses; (2) the nature of the copyrighted work; (3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. These four statutory factors should not be treated in isolation, one from another. Campbell , 510 U.S. at 578. Nor are those factors exhaustive. See H arper & Row, 471 U.S. at 560; H.R. Rep. No. 102-836, at 9-10 (1992), reprinted in 1992 U.S.C.C.A.N. 2553, 2561-62.20 Most importantly, it is critical that the statutory factors, as well as all other pertinent factors and considerations, “ be explored, and the results weighed together, in light o f the purposes o f copyright." Campbell, 510 U.S. at 578 (emphasis added); see also id. at 581 (the fair use inquiry requires that any particular use of copyrighted material “ be judged, case by case, in light of the ends of the copyright law” ).21 Accordingly, before turning to particular factors and considerations that agencies should consider in the context of govern­ ment photocopying, it is important once again to identify the “ purposes of copy­ right.” Copyright law “ ultimately serves the purpose of enriching the general public through access to creative works.” Fogerty v. Fantasy, Inc., 510 U.S. 517-18, 527 (1994); see also H arper <£ Row, 471 U.S. at 545 (“ copyright is intended to increase and not to impede the harvest of knowledge” ). Thus, in determining whether a particular photocopying practice is a fair use, the ultimate question to be answered is whether permitting the government to continue to engage in the practice without paying a licensing fee would “ serve[] the copyright objective 20 Section 107 expressly provides that “ the factors to be considered shall include” the four enumerated factors (emphasis added), and the 1976 Act elsewhere provides that the term “ including” is “ illustrative and not limitative,” 17 U S.C. § 101 (1994) 21 See also 4 Melville B. Nimmer & David Nimmer, N immer on Copyright § 13 05[A][5], at 13-195 (1998) (“ the protean factors enumerated in Section 107, standing by themselves, lack the concreteness to provide definite answers to difficult cases” ); Lloyd L Weinreb, Fair Use, 61 Fordham L. Rev 1291, 1306 (1999) ( “ fair use depends on a calculus of incommensurables” ). 99 Opinions o f the Office o f Legal Counsel in Volume 23 of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990), cited with approval in Campbell, 510 U.S. at 5 7 8 .2 2 Moreover, although the point is less clearly established, the fair use doctrine may be understood to contemplate permitting uses that serve “ not only . . . the purpose of copyright but also . . . other socially recognized purposes.” Lloyd L. Weinreb, F a ir’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1144 (1990). For example, the Supreme Court in the Sony case held that consumer videotaping of television broadcasts for purposes of “ time-shifting” was a fair use, in part because such a practice “ yields societal benefits.” 464 U.S. at 454. Elaborating on this point, the Court cited the example of using a videotaping machine “ to enable a [hospital] patient to see programs he would otherwise miss,” which, as the Court explained, “ has no productive purpose other than contributing to the psychological well-being of the patient.” Id. at 455 n.40. O f greater pertinence to the subject matter at hand — namely, government copying — the Court further suggested that “ a legislator who copies for the sake o f broadening her understanding o f what her constituents are watching; or a con­ stituent who copies a news program to help make a decision on how to vote,” are examples of uses that could be “ fair.” Id. Thus, it fairly can be argued that, as a general matter, “ courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest,” Texaco, 60 F.3d at 922, in contrast with a use that “ can fairly be characterized as a form o f ‘commercial exploitation,’ i.e., when the copier directly and exclusively acquires conspicuous financial rewards from its use of the copyrighted material,” id .23 For instance, the federal government typically photocopies materials in order to facilitate some other, “ secondary” use of such materials, and such secondary use generally is aimed at providing a public benefit, or at serving a “ broad[] public purpose.” Id. Insofar as an agency’s photocopying is intended to facilitate such public purposes, that should weigh in favor of a finding of fair use.24 See a lso infra p. 101 (discussing whether purpose of the photocopying is to enhance profitmaking). 22 See also, e.g., Atari Games Corp. v Nintendo o f Am., Inc., 975 F 2 d 832, 843 (Fed. Cir 1992) (where, m “ reverse engineering” o f computer softw are, “ intermediate” copying permitted the user to study that software and thereafter design new video game program s, the resultant “ growth in creative expression” weighed in favor of finding that the copying was a fair use). 23See also, e g ., N im m er, § 13.05[B][4], at 13-205 ( “ The public interest is also a factor that continually informs the fair use analysis ” ) (footnote omitted). 24 See, e.g., Williams & Wilkins, 487 F 2 d at 1353 ( “ W e cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy o f a law review article, m one o f the smaller or less available journals, which bears directly on a problem both ju d g es are then considering in a case before them is infringing the copynght, rather than making ‘fair use’ of his issue o f that journal.” ), Key Maps, I n c , 470 F. Supp at 38 (county fire marshal’s distribution o f copies o f copynghted m aps to 50 fire departments, law enforcement agencies, and civil defense units in the county was “ legitimate, fair, and reasonable,” since the copies were disseminated “ solely for internal purposes which related to a discemable public interest,” namely, “ the coordination of fire prevention activities in the unincor­ porated areas o f [the] county” ), see also House Report at 65 (noting that, under section 107 of the 1976 Act, 100 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use' In order to decide whether a particular government use of copyrighted materials would, on the whole, “ promote the Progress of Science and useful Arts,” it is necessary to take into account an “ ample view of the universe of relevant evi­ dence.” Campbell, 510 U.S. at 575, 584. Similarly, in order to determine whether any other benefits to the broader public interest would sufficiently outweigh the costs of any reduction in the incentives for creativity, it is necessary to engage in a comprehensive evaluation of all pertinent factors. We think that, in the par­ ticular context of government photocopying, the following specific considerations (each of which bears on the four enumerated statutory factors) might have a significant impact on the fair use calculus: (a) One important consideration that courts typically address under the first statutory factor (“ the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” ) is whether the use in question is undertaken in order to increase the user’s profits. In most, if not all, cases, the purposes for which the government makes photocopies do not include profitmaking or commercial exploitation. Although the nonprofit nature of the government’s use of photocopies would not be dispositive, see Campbell, 510 U.S. at 584, it certainly would be “ one element,” id., germane to the fair use question.25 The commercial/nonprofit distinction may be especially significant where, as in most cases of photocopying, the secondary use is not “ transformative” — i.e., where the copyrighted material is merely copied in its original form and is not transformed into another valuable product. See id. at 579 (the more transformative the use, the less significant to the analysis will be the question of commercialism).26 “ courts might regard as fair” the “ reproduction o f a [copynghted] work in legislative or judicial proceedings or reports” ), reprinted in 1976 U.S C.C.A N. at 5678-79; Senate Report at 61-62 (same). Harper & Row, 471 U.S. at 584-85 n.8 (Brennan, J., dissenting) (example of a judicial opinion quoting extensively from copynghted materials), Sinai, 1992 WL 470699, at *3 (state Bureau o f Automotive Repairs used matenals for a “ public purpose” when it disseminated an auto emissions chart to field offices throughout the state so that those offices could assist smog check stations and consumers in complying with the state’s emission laws). 25 See also Harper & Row, 471 U.S at 562, Texaco, 60 F 3d at 921-22 26 Counsel for the CCC, citing Campbell, suggest that nontransformative uses “ are unlikely to be regarded as fair ones.” Weil, Gotshal Memo at 8 However, the Court in Campbell simply indicated that, because “ the goal of copynght, to promote science and the arts, is generally furthered by the creation of transformative works, . . . (sjuch works thus lie at the heart o f the fair use doctnne’s guarantee o f breathing space within the confines of copyright, . . . and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding o f fair u s e ” 510 U.S. at 579. The Court expressly cautioned that such transformative use “ is not absolutely necessary for a finding o f fair use,” id., and in support of that proposition, the Court cited (i) a case (Sony Corp o f Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)) in which the Court found a nontransformative use to be noninfringing, and (n) the express indication in section 107 of the 1976 Act that reproduction o f multiple copies for classroom distnbution can be a fair use. Id at 579 & n .ll, see also id. at 584—85 (eschewing fair use analysis that relies on a “ hard evidentiary presumption,” in light of the need for a “ sensitive balancing” o f interests). It is important to note, as well, that the very first example that section 107 provides of a use that can be “ fair” is “ reproduction in copies or phonorecords,” even though such “ reproduction” in most cases would not be “ transformative” in the sense the Court described in Campbell See also House Report at 66 ( “ the reference [m 17 U.S C. §107] to fair use ‘by reproduction in copies or phonorecords or by any other m eans’ is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms o f use” ), reprinted in 1976 U.S C C A.N. at 5679. 101 Opinions o f the Office o f Legal Counsel in Volume 23 (b) Photocopying more likely will be deemed “ fair” where the photocopies are disseminated to a discrete and limited audience within the government. To the extent that copies are sold, or distributed broadly, especially outside the government, that likely would weigh against a finding of fair use. See Williams & Wilkins, 487 F.2d at 1353 & n.12, 1354—55. (This consideration likely would be germane to the first ( “ purpose and character of the use” ) and fourth ( “ effect of the use upon the potential market for or value of the copyrighted work” ) statu­ tory factors.) (c) Copying that is done “ spontaneously],” for the purpose of facilitating an immediate and discrete objective, is more likely to be a fair use than systematic “ archival” copying of extensive materials for possible future use. See Texaco, 60 F.3d at 919-20. (This consideration, too, would bear on the first and fourth statutory factors.) And, as the third statutory factor expressly indicates, “ the amount and substantiality of the portion used in relation to the copyrighted work as a whole’’ also is relevant to determining whether a use is fair. (d) Copying materials for the purpose of collecting or studying certain facts or ideas contained therein — as opposed to the work’s original expression — increases the likelihood that the reproduction will be a fair use. In Feist Publ ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Court emphasized that, as a matter of constitutional law, “ facts are not copyrightable.” Id. at 344. All facts — scientific, historical, biographical, and news of the day — ‘‘ ‘may not be copyrighted and are part of the public domain available to every person.’ ” Id. at 348 (citation omitted); accord H arper & Row, 471 U.S. at 556 (“ No author may copyright his ideas or the facts he narrates.” ). Furthermore, 17 U.S.C. § 102(b) (1994) provides that “ [i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” The exclusion of facts and ideas from copyright protection, like the fair use doctrine, serves the goal of promoting the progress of science and useful arts. See Campbell, 510 U.S. at 575 n.5.27 Accordingly, copyright protection for a work containing facts or ideas “ is limited to those aspects of the work — termed ‘expression’ — that display the stamp of the author’s originality.” H arper & Row, 471 U.S. at 547. Indeed, as the Court reemphasized in Campbell, “ ‘facts contained in existing works may be freely copied.’ ” 510 U.S. at 575 n.5 (quoting Feist, 499 U.S. at 359).28 Thus, where the government’s copying is limited to the bare facts contained in particular mate­ 27 Moreover, the Copyright Act’s distinction between copyrightable expression and uncopynghtable facts and ideas is necessary in order to reconcile the restrictions o f the Act with the First Amendment. See Harper & Row, 471 U.S. at 556, 560, see also New York Tim es Co. v. United States, 403 U.S. 713, 726 n.* (1971) (Brennan, J., concur­ ring), cited with approval in Harper &. Row, 471 U.S. at 556 28 Thus, for exam ple, the Court in H arper & Row implied that although direct quotations from President Ford’s biography were subject to copynght protection, the histoncal facts contained in that biography were not entitled to such protection and could be freely copied. See 471 U.S at 565-66 & n.8 (applying copynght analysis only to “ verbatim quotes” from the biography, and excluding from infringement consideration historical quotations attnbuted to third parties and to government documents) 102 Whether Government Reproduction o f Copynghted Materials is a Noninfringing ‘ ‘Fair Use ’ rials, and there is no copying of protected expression, there is no possibility o f copyright infringement, and the fair-use question is inapposite. Moreover, even if a document or book is entitled to some copyright protection, nevertheless, as a general matter “ fair use is more likely to be found in factual works than in fictional works.” Stewart v. Abend, 495 U.S. 207, 237 (1990). Accordingly, even where the government copies materials that contain protected “ expression,” or factual compilations that arrange or select facts in a manner sufficiently original to trigger some limited, “ thin” copyright protection,29 the photocopying more likely will be a fair use if the purpose of the copying is simply to obtain, collect, or study the facts and ideas contained in the materials. This will be the case especially where, for purposes of photocopying, the facts and ideas cannot readily be segregated from the protected expression, and where the government’s copying of the protected expression therefore is merely incidental to its copying of unprotected facts and ideas.30 (e) The fourth factor that the statute expressly identifies as relevant to the fairuse analysis is the “ effect of the use upon the potential market for or value of the copyrighted work.” This factor requires courts “ to consider not only the extent of the market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510 U.S. at 590 (quoting 3 Nimmer § 13.05[A][4], at 13-102.61 (1993)). The importance of this factor “ will vary, not only with the amount of harm, but also with the relative strength of the showing on the other [fair-use] factors.” Id. at 590 n.21. 29“ [T]he copynght in a factual compilation is thin,” extending only to the selection or arrangement of the facts, if any, that is original or expressive Feist, 499 U S at 348 As the Court explainedThe mere fact that a work is copynghted does not mean that every element of the work may be protected Originality remains the sine qua non of copyright, accordingly, copyright protection may extend only to those components o f a work that are original to the author. . . Thus, if the compilation author clothes facts with an onginal collocation o f words, he or she may be able to claim a copynght in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. Id at 348-49 30 See. eg., Texaco, 60 F 3d at 925 & n .ll. National Rifle A s s ’n o f Am v Handgun Control Fed. o f Ohio, 15 F 3d 559, 562 (6th Cir.), cert, denied, 513 U.S 815 (1994), Texaco, 802 F Supp at 15 (although such a factcentered justification for photocopying “ has some m erit,'’ and is “ ingenious,” it “ simply does not fit the facts of the case” ); see also, e g , Atari Games Corp , 975 F 2d at 843 ( “ When the nature of a work requires intermediate copying to understand the ideas and processes in a copyrighted work, that nature supports a fair use for intermediate copying Thus, reverse engineenng object code to discern the unprotectable ideas in a computer program is a fair u s e ” ); Sega Enters. Ltd. v. Accolade, In c , 977 F.2d 1510, 1524—26 (9th Cir. 1992). By analogy, in the context of publication (rather than mere reproduction) o f copynghted materials, the Supreme Court has indicated that it may be permissible to copy protected expression verbatim where “ necessary adequately to convey the facts,” or where particular expression is “ so integral to the idea expressed as to be inseparable from it ” Harper & Row, 471 U S at 563, see also Leval, Toward a Fair Use Standard, 103 Harv L Rev. at 1113-15. Perhaps the most famous case of this sort is Time Inc v Bernard Geis A sso cs, 293 F. Supp. 130 (S D N Y 1968), in which the court held that it was fair use to depict frames from the copyrighted Zapruder film in a book about the Kennedy assassination, where there was “ a public interest in having the fullest information available on the murder of President Kennedy,” and where such photographs made the author’s theory o f the assassination “ easier to understand,” id at 146. 103 Opinions o f the Office o f L egal Counsel in Volume 23 The most obvious way in which copying can have an adverse market effect is where it directly curtails demand for purchase of the original work, such as where an entity uses photocopying in lieu of additional subscriptions of the original work that it otherwise would purchase. See, e.g., Texaco , 60 F.3d at 92729. Furthermore, with the advent of the CCC, it now can be argued that the failure to pay a licensing fee for the photocopying of materials covered by the CCC has an adverse effect on another potential “ market” that was not present at the time of W illiams & Wilkins — namely, the potential “ licensing fee” market. See, e.g., Princeton Univ. Press, 99 F.3d at 1387-88; Texaco, 60 F.3d at 929-31. Because this sort of “ harm ” to a licensing fee “ market” could, by definition, exist whenever an entity refuses to provide the requested compensation for its copies, what is significant is not the simple question of whether any such market harm exists, but rather, the magnitude and effect of the harm. “ Market harm is a matter of degree.” Campbell, 510 U.S. at 590 n.21.31 Harm to this potential “ licensing fee” market, like other forms of market harm, should be germane to the fair-use analysis only if, and to the extent that, such harm would deter “ ‘the creation and publication of edifying matter.’ ” Id. at 578 n.10 (quoting Leval, Toward a F air Use, 103 Harv. L. Rev. at 1134). If “ unrestricted and widespread [photocopying] o f the sort engaged in by the [government],” Campbell, 510 U.S. at 590 (internal quotation marks omitted) would not appreciably alter the incen­ tives to create and disseminate the underlying works (and other “ edifying” original creations), the harm to the fee “ market” should have correspondingly limited impact when evaluating this fair use factor. Conclusion There is no “ per se” rule that government reproduction of copyrighted mate­ rial— including, in particular, government photocopying of copyrighted materials for internal government use — automatically qualifies as a fair use under section 107 of the Copyright Act of 1976. However, government photocopying would in many contexts be noninfringing because it would be a “ fair use” ; and there are good reasons that, if an agency decides to negotiate photocopying licensing agreements, it should seek to limit the scope of any such arrangement to cover only those government photocopying practices that otherwise would, in fact, be infringing. RANDOLPH D. MOSS Acting Assistant Attorney General Office o f Legal Counsel 31 See also W illiam W Fisher III, Reconstructing the Fair Use D octnne, 101 Harv L. Rev 1659, 1671-72 (1988). 104

Write a legal research memo on the following topic.

Whether Government Reproduction of Copyrighted Materials is a Noninfringing “ Fair Use” Although governm ent reproduction o f copyrighted m aterial for governm ental use w ould in m any co n ­ texts be a noninfringing fair use under section 107 o f the C opyright A ct o f 1976, such governm ent reproduction o f copyrighted m aterial does not invariably qualify as a “ fair use ” April 30, 1999 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 erce You have requested an opinion from this Office on a legal question raised in connection with an attempt by the Copyright Clearance Center, Inc. (“ CCC” ) to negotiate licenses with the Department of Commerce and other federal govern­ ment agencies, pursuant to which such agencies would, in exchange for a fee, obtain permission to reproduce certain copyrighted materials by photocopying.' See Letter for Dawn E. Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Andrew J. Pincus, General Counsel, Department of Com­ merce at 1 (June 23, 1998) (“ Pincus Letter” ). You inform us that a “ key factor in our decision whether such negotiations [with the CCC] even are appropriate is whether there are any circumstances under which the Copyright Act might require a government agency to obtain such a license: if a license is never nec­ essary, there would be no reason to consider entering into negotiations with the CCC, or with individual authors of works.” Id. Accordingly, you have asked for our opinion on the following question: “ whether a government agency ever is required to secure either permission or licensing before making unauthorized reproduction and use of materials that are protected by copyright law, or whether all government reproduction and use of such materials per se qualifies for the ‘fair use’ exception from the obligations of the Copyright Act.” Id. You further assert that “ [t]here appears to be substantial disagreement within the government with-respect to this issue.” Id. In particular, you suggest that the Commercial Litigation Branch of the Department of Justice’s Civil Division may have con­ veyed to certain agencies the view that “ virtually all photocopying for government use is permitted under the fair use doctrine,” and that that view of the Commercial ‘ The CCC, a nonprofit consortium, or “ clearing house,” established in 1977, acts as an agent for participating publishers. Under one of the CCC’s offered services, a user pays a flat fee, in exchange for which it receives a blanket annual license to make photocopies for internal use of any copyrighted material contained in any o f the works registered with the CCC. The license fee is based on a limited photocopying survey that accounts for the license’s employee population and the copying fees for the journals regularly copied by that licensee Upon payment of the fee, the licensee is authorized for a specified term to make unlimited numbers of photocopies, for internal use, from CCC-registered publications The revenue that the CCC derives from the licensee then is allocated among the publishers that have registered publications with the CCC, with the CCC retaining certain service charges See American Geophysical Union v. Texaco, Inc., 802 F. Supp 1, 7 -8 (S.D N.Y 1992) (discussing this CCC licensing practice), a jfd , 60 F.3d 913 (2d C ir 1994), cert, dismissed, 516 U.S. 1005 (1995) 87 Opinions o f the Office o f Legal Counsel in Volume 23 Litigation Branch was “ based upon the decision in Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), a f f d by an equally divided Court, 420 U.S. 376 (1975).” Id. at 2. As we explain below, while government reproduction of copyrighted material for governmental use would in many contexts be noninfringing because it would be a “ fair use” under section 107 of the Copyright Act of 1976, 17 U.S.C. § 107 (1994), there is no “ per se” rule under which such government reproduction of copyrighted material invariably qualifies as a fair use.2 It is important to note, however, that we have been unable to discern any disagreement within the federal government on this specific question: To our knowledge, no agency of the execu­ tive branch has argued, or advised, that government copying is per se a fair use. In particular, the Department o f Justice did not urge such a categorical rule in the Williams & Wilkins litigation, see infra note 15 (brief for the United States in the Supreme Court did not dispute that photocopying by the government may in some circumstances constitute copyright infringement); and, to our knowledge, the Department has not thereafter proffered any arguments, nor provided any advice, inconsistent with the views expressed in that brief.3 We do not, in this opinion, reach any conclusions about the circumstances under which government agencies should negotiate to obtain photocopying licenses. We caution, however, that a general practice of government agencies entering into licensing agreements in which they pay licensing fees for uses that are fair may, over time, undermine the government’s ability to argue successfully that such uses are fair. For this and other reasons, government agencies may wish to ensure that, if they do negotiate licensing arrangements, such arrangements cover only those government photocopying practices that otherwise would, in fact, be infringing. In Part I of this opinion, we provide some background on the fair use doctrine. In Part II, we review the case law regarding government photocopying and fair use, as well as Congress’s enactment of the Copyright Act of 1976, and conclude that government photocopying o f copyrighted materials does not invariably qualify as a fair use. Finally, in Part III, we provide some guidance on the factors that an agency should consider in determining whether a particular photocopying prac­ tice would be a fair use and whether to negotiate a license with respect to par­ ticular photocopying practices. 2 In framing the particular question you have asked us to consider, you refer to “ unauthorized reproduction and use o f materials that are protected by copyright law.” Pincus Letter at 1. The bulk o f your letter and supporting materials, however, indicates that your inquiry specifically concerns “ photocopying for government u s e ” Id at 2 Accordingly, we will in this opinion focus, not on all potential federal government uses of copyrighted materials, but instead, on government photocopying o f copyrighted materials for internal government use. We note, in particular, that this opinion does not specifically consider the circumstances under which it would be a fair use for an agency to republish copyrighted materials in government publicauons or in publicly available databases. 3 Indeed, a Department o f Energy memorandum that you provided as an attachment to your letter indicates that the Commercial Litigation Division of the Department o f Justice has informed the Department of Energy that, in its view, som e cases o f government photocopying likely would not be fair uses. See Memorandum for Jim Chafin and All Field Offices, from Paul A G ottlieb, Assistant G eneral Counsel for Technology Transfer and Intellectual Property, U nited States Department of Energy, Re: Copyright Clearance Center at 2 (May 23,1995). 88 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use' I. The Fair Use Doctrine Article I, Section 8 of the Constitution empowers Congress to “ promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const, art. I, § 8, cl. 8. Pursuant to that power, Congress enacted the Copy­ right Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §101 et seq. (1994)) (the “ Copyright Act” or the “ 1976 Act” ). Section 106 of the Copyright Act provides, inter alia, that the owner of a copy­ right under Title 17 of the United States Code “ has the exclusive rights . . . to reproduce the copyrighted work in copies,” and to “ authorize” such reproduc­ tion. 17 U.S.C. § 106(1) (1994). Those “ exclusive rights,” however, are “ [sjubject to” limitations codified in “ sections 107 through 120” of the 1976 Act. Id. § 106. For present purposes, the most important of those limitations is found in section 107 of the Copyright Act, id. § 107. That section, which is entitled “ Limitations on exclusive rights: Fair use,” provides, in pertinent part: Notwithstanding the provisions of section[] 106 . . ., the fair use of a copyrighted work, including such use by reproduction in copies . . ., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational pur­ poses; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Section 107’s “ fair use” limitation on copyright, and the particular factors enumerated in that section, reflect and incorporate a longstanding common law doctrine. See Harper & Row, Publishers, Inc. v. The Nation Enters ., 471 U.S. 539, 549 (1985). From the “ infancy of copyright protection,” courts have found it necessary to provide some opportunity for fair use of copyrighted materials in order “ to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science 89 Opinions o f the Office o f Legal Counsel in Volume 23 and useful Arts.’ ” Cam pbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). Before enactment of the 1976 Act, however, the fair-use doctrine was “ exclu­ sively [a] judge-made doctrine.” Id. at 576. When it codified the fair use doctrine in section 107 of the 1976 Act, “ Congress meant ‘to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way’ and intended that courts continue the common-law tradition of fair use adjudication.” Id. at 577 (quoting H.R. Rep. No. 94-1476, at 66 (1976) ( “ House Report” ), reprinted in 1976 U.S.C.C.A.N. 5659, 5679; S. Rep. No. 94-473, at 62 (1975) ( “ Senate Report” )); accord H arper & Row, 471 U.S. at 554.4 As noted above, the fair use doctrine, like the copyright protections that it quali­ fies, is necessary in order “ to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’ ” Campbell, 510 U.S. at 575; see also, e.g., H arper & Row, 471 U.S. at 545 ( “ copyright is intended to increase and not to impede the harvest of knowledge” ). As the Supreme Court recently emphasized, “ [t]he fair use doctrine thus ‘permits [and requires] courts to avoid rigid applica­ tion of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ ” Campbell, 510 U.S. at 577 (quoting Stew art v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted)).5 4 In 1992, Congress added the following senience to the end o f 17 U S C §107, in order to clanfy that the fair-use limitation is applicable to unpublished works: “ The fact that a work is unpublished shall not itself bar a finding o f fair use if such finding is m ade upon consideration o f all the above factors ” Pub L No. 102-492, 106 Stat 3145 (1992). Arguably, application of the fair use doctrine to unpublished works is one way in which section 107 departs from the common law. See, e g , H.R Rep No 102-836, at 4 (1992) ( “ The common law, going back to late eighteenth century English cases, had been stnct in prohibiting fair use of unpublished works under the theory that the author should decide when and in what form his or her work should first reach the public ” ), reprinted in 1992 U S C.C A.N. 2553, 2556; Salinger v Random House, In c , 811 F.2d 90, 95 (2d Cir.) (“ Though com m on law, especially as developed in England, appears to have denied the defense of fair use to unpublished works, see W. Patry, The Fair Use Privilege in Copyright Law 436—41 (1985), the 1976 Act explicitly makes all of the rights protected by copynght, including the right o f first publication, subject to the defense of fair use.” ), cert denied, 484 U.S. 890 (1987); New Era Publications In t’l, AP S v Henry Holt & C o , 695 F Supp. 1493, 1502 (S D N.Y 1988) (Copyright Act’s application o f fair use doctnne to unpublished work was “ in departure from the common law rule” ), a jfd , 873 F.2d 576 (2d Cir. 1989), cert denied, 493 U.S 1094 (1990) But see H arper &. Row, 471 U.S. at 550-51 (although “ fair use traditionally was not recognized [at common law] as a defense to charges o f copying from an author’s as yet unpublished works . . . [t]his absolute rule . . was tempered in practice by the equitable nature of the fair use doctnne” ) 5 See also Pierre N. Leval, Toward a F air Use Standard, 103 Harv L Rev 1105, 1110 (1990) ( “ The doctnne o f fair use limits the scope o f the copynght monopoly in furtherance of its utibtanan objective. Fair use should not be considered a bizane, occasionally tolerated departure from the grand conception of the copynght monopoly To the contrary, it is a necessary part o f the overall design ” ); Fogerty v Fantasy, Inc., 510 U S 517, 526-27 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U S 151, 156 (1975))1 T he limited scope o f the copynght holder’s statutory monopoly reflects a balance of competing claims upon the public interest: CreaUve w ork is to be encouraged and rewarded, but pnvate motivation must •ultimately serve the cause of promoting broad public avajlability o f literature, music, and the other arts. The immediate effect o f our copyright law is to secure a fair return for an ‘author’s’ creative labor But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good 90 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ‘ ‘Fair U se' II. Fair Use and Government Photocopying The federal government can be liable for violation of the copyright laws. Con­ gress has expressly provided that a work protected by the copyright laws can be “ infringed by the United States,” 28 U.S.C. § 1498(b) (1994),6 and further has provided that “ the exclusive action which may be brought for such infringe­ ment shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensa­ tion as damages for such infringement,” 28 U.S.C. § 1498(b) (Supp. Ill 1997). At the same time, it cannot be disputed that the federal government’s copying (and other use) of copyrighted materials is subject to the fair use doctrine codified in 17 U.S.C. § 107.7 It follows that any federal government photocopying that is a fair use is not infringing. However, there is no basis for concluding that the photocopying of copyrighted materials by the federal government automati­ cally or invariably constitutes a fair use. The case law provides very little guidance on the question of when government photocopying is a fair use. Reported cases involving application of the fair use doctrine to governmental conduct are rare. Indeed, the Williams & Wilkins deci­ sion, to which your letter refers and which we discuss below, is one of the only published opinions containing a significant discussion of governmental fair use.8 And, outside the context of public schools, we have found only one case — involving circumstances far removed from those at issue in this opinion — in which a court has rejected a government’s assertion that its use of copyrighted materials was fair.9 What is more, even outside the context of governmental use, 6 See also H.R. Rep. No 86-624, at 2 (1959) (“ When the Government deliberately publishes a copyrighted article without obtaining the prior consent o f the copynght proprietor, the general assumption would be lhat the holder, pursuant to the pnnciples o f ‘just compensation’ under the fifth amendment of our Constitution, should be entitled to an action against the Government for infringement ” ) 7 There is nothing in the statute to suggest that the federal government cannot invoke the fair use doctnne. The legislative history indicates lhat cenain governmental uses can be fair. See infra notes 19, 24 And the courts uni­ formly have assumed that the fair use analysis provided in section 107 o f the Act applies to government uses of copynghted matenals See, e.g., the cases cited in note 8, infra 8 A few other cases contain less extensive discussion o f governmental fair use. See, e g . Association o f Am. Med. Colleges v. Cuomo, 928 F.2d 519, 523-26 (2d Cir.), cert denied, 502 U.S 862 (1991), College Entrance Examination Bd. v Pataki, 889 F. Supp 554, 564-75 (N.D N Y 1995), Sinai v California Bureau o f Automotive Repair, No C -92-0274—VRW, 1992 WL 470699, at *3-*4 (N.D. Cai. Dec 21, 1992), College Entrance Examination Bd. v Cuomo, 788 F. Supp 134, 140-^3 (N.D.N Y. 1992), West v City o f New York, No 78 Civ. 1981 (MJL). 1985 WL 202, at *24—*25 (S.D N Y Jan. 18, 1985), Key Maps, Inc. v. Pruitt, 470 F. Supp 33, 37-38 (S.D Tex. 1978). O f these, only West and Key M aps involved decisions, necessary to the judgment, on the ments o f the fair use question; and only Key M aps involved a government entity making and distnbuiing multiple copies o f copynghted materials for internal government use 9 See College Entrance Examination B d , 889 F Supp at 564-75. In that case, the distnct court, on a motion for preliminary injunction, found a likelihood o f success on plaintiffs’ infringement claim against a state government. That case did not involve government copying for internal government use. See supra note 2. Instead, the case involved a challenge to a state statute that required testing organizations to disclose copies of their copynghted, confidential tests and related materials, and that further provided that such materials, once disclosed, would become public records. There also are at least two decisions in which courts have found that a distnbution of multiple copies o f copyrighted materials to students in a public school was not a fair use. See Marcus v Rowley, 695 F.2d 1171, 1174—79 (9th Continued 91 Opinions o f the Office o f Legal Counsel in Volume 23 there is only a small handful of reported cases involving whether and under what circumstances photocopying is a fair use.10 The sole reported decision (apart from the classroom context) concerning whether government photocopying is a fair use is Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), a j f d by an equally divided Court, 420 U.S. 376 (1975). The plaintiff in that case challenged certain practices of the National Institutes of Health ( “ NIH” ) and the National Library of Medicine (“ N LM ” ). The NIH library ran a photocopying service for the benefit of its research staff: On request, researchers could obtain a photocopy of an article from any of the journals in the library’s collection, typically to assist them in their on-going projects or for background reading. As a general matter, NIH would agree to provide a requester only one copy of a particular article, only one article per journal issue, and no article o f over 50 pages. In 1970, the library filled 85,744 requests for photocopies of journal articles (including journals published by W il­ liams & Wilkins), constituting about 930,000 pages. See 487 F.2d at 1348. NLM is a repository of much of the w orld’s medical literature, in essence a “ librarians’ library.” Id. Upon request, NLM would provide photocopies of journal articles, free of charge, to other libraries and like research- and education-oriented institu­ tions, both public and private (including commercial organizations, such as drug companies). NLM provided only one photocopy of a particular article per request, and would not honor a request for photocopying of an entire journal issue. In 1968, a representative year, NLM filled about 120,000 requests by photocopying journal articles. NLM made no effort to ascertain the ultimate use to which the Cir. 1983), Wihtol v. Crow, 309 F.2d 777, 780-81 (8lh C ir 1962) Such classroom cases may be instructive on the general matter o f fair use in the context o f reproduction for nonprofit purposes However, such cases typically involve archival collection o r distribution o f multiple copies o f copynghted materials that were, in the first instance, prepared and marketed primarily for use in the very same classroom setting. See, e.g., Marcus, 695 F.2d at 1175 W e assume that the government photocopying practices about which you are concerned will rarely, if ever, involve federal government duplication for educational use m a classroom, or practices that fairly can be said to be analogous to those at issue in Marcus O f course, insofar as certain federal government practices are akin to those at issue in the classroom cases, then the courts’ reasoning in decisions such as Marcus would be germane to the fair use analysis (The holding in Wihtol is of less practical value, since the court in that case merely held that “ [w]hatever may be the breadth o f the doctnne of ‘fair use,’ it is not conceivable to us that the copying of all, or substantially all, o f a copynghted song can be held to be a ‘fair use’ merely because the infnnger had no intent to infringe ” 309 F.2d at 780.) Furthermore, with respect to such cases it may be mstrucuve to look to the legislative history o f the 1976 Act, m which the House Committee on the Judiciary reproduced (i) an “ Agreement on Guidelines for C lassroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals,” which had been drafted by representatives of author/publisher and educational organizations, and (n) a similar, more special­ ized set o f “ Guidelines for Educational Uses o f M usic,” which had been drafted by representatives of music pub­ lishing and educational organizations See House Report at 66-72, reprinted in 1976 U.S.C.C.A.N at 5680-86. The H ouse Committee expressed its belief that “ the guidelines are a reasonable interpretation of the minimum standards o f fair use” in the classroom context, id. at 72, reprinted in 1976 U.S C C A N at 5686, and the House and Senate Conferees “ accept[ed]” the guidelines “ as part o f their understanding of fair use,” H R Rep No. 94-1733, at 70 (1976), reprinted in 1976 U.S.C.C A N . 5810, 5811. (On the question of the legal effect, if any, of these guidelmes, see, e.g., Princeton Univ. Press v M ichigan Document Servs., Inc., 99 F 3 d 1381, 1390-91 (6th Cir 1996) (en banc), cert, denied, 520 U S 1156 (1997); id at 1410-12 (Ryan , J., dissenting); 4 Melville B Nimmer & David Nimmer, Nim m er on Copynght § 13 05[E][3][a), at 13-241-42 (1998)) l0 See, e g , Princeton Univ. Press, 99 F.3d 1381; American Geophysical Union v Texaco, I n c , 60 F.3d 913 (2d C ir 1994), cert, dismissed, 516 U .S. 1005 (1995); D uffy v. Penguin Books USA Inc., 4 F. Supp 2d 268, 27 4 75 (S D N.Y 1998), Television Digest, Inc. v United States Telephone A ss'n, 841 F. Supp. 5, 9-11 (D.D.C 1993); Basic Books, Inc v K inko's Graphics Corp., 758 F Supp 1522 ( S D N Y 1991) 92 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ' 'Fair Use ’ copied articles were put. Although NLM did provide some photocopies to institu­ tions outside the government, NLM declined to provide to non-government libraries copies of articles published within the preceding five years in any of 104 journals included on a so-called “ widely-available list.” Id. at 1348-49. The Court of Claims, in a 4-to-3 decision, held that the NIH and NLM photocopying practices were noninfringing because such practices were fair uses. The majority discussed at length eight separate “ considerations which merge to that conclusion,” id. at 1353: (i) NIH and NLM are nonprofit institutions, see id. at 1354; (ii) the libraries’ photocopying policies were “ within appropriate confines” — in particular, the libraries did not sell the copies, dis­ tribute them broadly, or, with slight exceptions by NLM, distribute the copies to nongovernmental entities, id. at 1354-55; (iii) such library photocopying practices had long been carried out across the nation “ with apparent general acceptance,” id. at 135556; (iv) medical science would be seriously hurt by a finding that such library photocopying was infringing, see id. at 1356-57; (v) the plaintiff had failed to prove economic detriment as a result of the libraries’ practices, see id. at 1357-59; (vi) the statutory language and history were singularly unclear on the question, and it would be “ less dangerous” to rule in favor of the libraries until Congress acted to clarify the fair use question, id. at 1359-61; (vii) contemporaneous legislative history of proposed legislation (that had not yet resulted in the 1976 amendment of the copyright law) “ indicate[dj the correctness of our general approach,” id. at 1361; and (viii) the law in many foreign countries was that such practices were not infringing, see id. at 1361-62. The Court of Claims in its decision also urged Congress to enact legislation to resolve the difficult fair use questions raised by the increasingly prevalent practice of photocopying — questions that were, in the court’s words, “ preeminently a problem for Congress.” 487 F.2d at 1360; see also id. at 1353, 1363 (“ Hopefully, 93 Opinions o f the Office o f Legal Counsel in Volume 23 the result in the present case will be but a ‘holding operation’ in the interim period before Congress enacts its preferred solution.” ). Williams & Wilkins appealed to the Supreme Court. In that Court, the Depart­ ment of Justice argued that the Court of Claims correctly analyzed the fair use question, and that the Court should affirm the judgment in favor of the United States. See Brief for the United States, Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No. 73-1279); Paul Goldstein, Copyright’s Highway 113— 26 (1994) (describing Supreme Court proceedings). An equally divided Court, without opinion, affirmed the low er court judgment. See 420 U.S. 376 (1975). Congress was well aware of the dispute in Williams & Wilkins and of the Court o f Claims’ plea that Congress enact legislation to resolve the difficult fair use questions raised in that case. See, e.g., Senate Report at 71. And, in the 1976 Act, Congress did take three steps with respect to the matter of photocopying. First, in section 106 of the Act, Congress expressly affirmed that the rights of a copyright owner include the rights “ to reproduce the copyrighted work in copies” and to “ authorize” such reproduction. 17 U.S.C. §106(1) (1994).11 Second, the text of section 107 of the Act — in which Congress for the first time formally codified the fair use doctrine — expressly provides that “ reproduction in copies . . . for purposes such as . . . news reporting, teaching . . ., scholar­ ship, or research,” can be “ the fair use of a copyrighted work.” Finally, in section 108 of the Act, Congress provided that certain forms of library and archival photocopying are not infringing, see 17 U.S.C.A. § 108 (West 1996 & Supp. 1999), thereby creating a discrete carve-out, or safe harbor, that does not “ in any way affect[] the right o f fair use as provided by section 107,” 17 U.S.C. § 108(f)(4) (1994). However, Congress did not otherwise resolve the fair use ques­ tions raised in Williams <£ Wilkins, and, in particular, did not identify the cir­ cumstances under which photocopying — and government photocopying in par­ ticular— would, or would not, constitute fair use under section 107 of the 1976 A ct.12 Instead, as explained above, Congress simply enacted 17 U.S.C. §107 in 11 As the court in Williams & Wilkins indicated, see 487 F.2d at 1350-51, 1359, there had been some question whether, under the then-existing copynght laws, the exclusive nghts of the copyright owner included the right to control the copying o f books and penodicals for personal use. See also B nef for the United States at 16 n26, Williams & Wilkins Co. v. United States, 420 U.S 376 (1975) (No 73-1279) (discussing this question). 12 In a memorandum attached to your letter, counsel for the CCC argue that section 108 of the 1976 Act “ expressly proscnbes the copymg at issue in W illiams & Wilkins,” and that congressional enactment of section 108 “ signalled C ongressional disapproval o f [Williams & Wilkins] on fair use grounds, and instead indicated that the photocopying activities in question should be covered by a separate statutory provision, namely Section 108.” Memorandum of W eil, Gotshal & M anges LLP, Re* Government Photocopying as Copyright Infringement at 22-23 (July 30, 1997) (“ Weil, Gotshal M em o” ). See also U nited States Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report o f the Working Group on Intellectual Property Rights, at 82 n.262 (Sept. 1995) ( “ W hite Paper” ) ( “ precedential value o f Williams & Wilkins may be reduced” because of, inter aha, “ Section 108’s proscnption on most ‘systematic’ photocopying” ), quoted with approval in Weil, Gotshal M emo at 22; William F. Patry, The Fair Use Privilege in Copyright Law 210 (2d ed 1995) ( “ In 1976, Congress by subjecting the activity before the Court o f Claims to a statutory exemption m Section 108 of the Copy­ nght Act, available only to hbranes and archives qualifying under Section 108(a) and then only in the enumerated instances described in Sections 108(d), 108(e), and further subject to the conditions of Section 108(g), indicated its disapproval o f the Court of Claims’ fair use holding.” ). 94 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing ' ‘Fair Use ’ order to “ codify the common-law doctrine.” H arper & Row , 471 U.S. at 549. Accordingly, the Court of Claims decision in Williams & Wilkins remains binding precedent in the Federal Circuit, where infringement claims against the federal government must be brought.13 The continued vitality of Williams & Wilkins in the Federal Circuit does not, however, mean that all federal government photocopying is a fair use. The Wil­ liams & Wilkins court, after discussing at length the eight different considerations, or “ elements,” that contributed to its decision, 487 F.2d at 1353-62, emphasized that its holding (that the library copying practices at issue were noninfringing) This is incorrect, because section 108 of the 1976 Act does not narrow the protection for fair use provided by the common-law doctnne codified in section 107 Section 108(a) o f the Act, 17 U.S.C A § 108(a) (West 1996 & Supp 1999), provides that, under certain conditions, it is “ not an infringement of copynght for a library or archives . to reproduce no more than one copy or phonorecord o f a work, or to distribute such copy or phonorecord,” “ [notw ithstanding the provisions o f section 106.” Section 108(g)(2), in turn, states that “ (t]he rights of reproduction and distnbution under this section . . . do not extend” to certain cases involving the “ systematic reproduction or distribution of single or multiple copies.” (Emphasis added) Section 108(g)(2) does not “ expressly proscnbe[]” the copying practices at issue in Williams & Wilkins — indeed, nothing in section 108 “ proscnbes” any practice at all. Nor is there anything in section 108 suggesting that “ systematic” reproduction is “ lawful only via the [section 108(g)(2)] proviso, [and] could not be a fair use ” United States Copynght Office, Report o f the Register o f Copy­ rights' Library Reproduction o f Copyrighted Works (17 U.S.C. 108), at 98 (1983) ( “ 1983 Register Report” ) At most, section 108(g)(2) merely provides that the “ n ghts” to copy and distribute that are provided “ under” section 108 “ do not extend to” the “ systematic” practices descnbed in section 108(g)(2) To be sure, “ section 108 author­ izes certain photocopying practices which may not qualify as a fair use,” House Report at 74 (emphasis added), reprinted in 1976 U.S C.C.A N. at 5688, see also Senate Report at 67 However, the statute does not provide, or even suggest, that the circumstances under which copying is noninfringing under section 108(a) are those “ lhat would typically not amount to fair use [under section 107],” White Paper at 84-85 (emphasis added), nor that “ Section 108 was enacted to make lawful some types o f copying which would otherwise be infringements o f copy­ right, fair use notwithstanding,” 1983 Register Report at 96 (emphasis added) Indeed, by its express terms, nothing in section 108 “ in any way affects the nght of fair use as provided by section 107.” 17 U.S.C § 108(f)(4) (1994); see uiso House Report at 74 ( “ No provision of section 108 is intended to lake away any nghts existing under the fair use doctrine.” ), reprinted in 1976 U .S C C .A N at 5687-88, Senate Report at 67 (same); 122 Cong. Rec. 3836 (1976) (statement o f Sen Magnuson) ( “ the Judiciary Committee clearly sel out in iheir report that the fair use doctrine not only applies to reproduction practices of libraries, but that in no way did they intend section 108 to be a limitation upon the fair use doctnne” ). Accordingly, whether section 108 renders certain copying practices “ not an infringement” does not affect w hether such practices are noninfringing fair uses under section 107 See Texaco, 802 F. Supp. at 28 & n 26 (emphasizing that “ Section 108 is a separate special statutory exemption governed by an entirely different set of standards [than under section 107],” and rejecting the argument “ that the understanding o f Section 107 should be influenced by what is permitted under Section 108” ); accord 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[E][2], at 13-240 (1998) A certain copying practice can be “ noninfnnging” under section 107, under section 108, under both provisions, or under neither. In ils 1983 Report, the Register of Copyrights suggested that such a construction o f the statute, in which practices permissible under section 108 might also be permissible under section 107, would “ render §108 superfluous.” 1983 Register Report at 96 n.4 That is not the case, however. As the Register noted, “ the library community sought § 108 to permit copying that had not been spelled out in the proposed fair use provision ” Id. (emphasis added). Section 108 identifies (“ spell[s] out” ) as noninfnnging a category of library photocopying that may, or may not, constitute fair use Section 108 thus fairly can be viewed as a very valuable— and not superfluous— safe harbor: If a certain library practice is noninfringing under the specific and detailed provisions of section 108(a) (as confined by section 108(g)(2)), a library need not be concerned about how that particular photocopying practice would fare under section 107’s more complex and indeterminate fair use stand­ ards. 13 Section 1498(b) o f title 28 provides that “ the exclusive action which may be brought for mfnngement [by the federal government] shall be an action by the copynght owner against the United States in the Court of Federal Claims ” 28 U.S.C § 1498(b) (Supp. Ill 1997). Decisions o f lhat court are appealable to the United States Court o f Appeals for the Federal Circuit, see 28 U S C § 1295(a)(3) (1994), which in turn considers itself bound by decisions (such as Williams & Wilkins) that the former Court of Claims issued pnor to October 1982. See South Corp v. United States, 690 F 2d 1368, 1370 & n.2 (Fed Cir 1982); see also, e.g., Gargoyles, Inc. v. United States, 113 F 3d 1572, 1576 (Fed C ir 1997). 95 Opinions o f the Office o f Legal Counsel in Volume 23 was based upon all of the elements present in that case, and that its decision would not necessarily resolve different cases “ with other significant variables,” id. at 1362. The court expressly noted that it was not determining whether any of the particular elements in the Williams & Wilkins case would be sufficient for a finding of fair use, nor whether all of the relevant elements cumulatively were “ essential” to the finding o f fair use: It sufficed for the court simply to decide that “ at least when all co-exist in combination a ‘fair use’ is made out.” Id.\ see also id. ( “ we feel a strong need to obey the canon of judicial parsimony, being stingy rather than expansive in the reach of our holding” ).14 Implicitly, then, the decision in Williams & Wilkins itself suggests that there may be some circumstances under which government photocopying might be infringing. See also Brief for the United States at 14, Williams. & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No. 73-1279) (“ The doctrine is applied as its rationale dictates in each case, and has no sharp edges.” ).15 A ‘ ‘per se’ ’ rule also would be inconsistent with the approach that the Supreme Court subsequently has taken in its decisions involving section 107 of the Copy­ right Act. The Court repeatedly has emphasized that the task of determining whether a particular use is fair “ is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Cam pbell, 510 U.S. at 577; accord id. at 584 (Congress “ ‘eschewed a rigid, bright-line approach to fair use,’ ” in favor of “ a ‘sensitive balancing of interests.’ ” ) (quoting Sony Corp. o f America v. Universal City Studios, Inc., 464 U.S. 417, 449 n.31, 455 n.40 (1984)); H arper & Row, A ll U.S. at 552 (“ fair use analysis must always be tailored to the individual case” ). III. D eterm ining Whether a Particular Government Photocopying Practice is a Fair Use Our conclusion that government photocopying is not invariably noninfringing does not, of course, answer the question whether government agencies should enter into licensing agreements for photocopying, and if so, what the terms and 14 M ore recent fair use decisions involving photocopying similarly have been confined narrowly to the particular copying practices in dispute See, e g , Texaco, 60 F.3d at 931 ( “ Our ruling is confined to the institutional, systematic, archival multiplication o f copies revealed by the record— the precise copying that the parties stipulated should be the basis for . . .d e c is io n . ”) 15 As we discuss supra p. 88, we have no reason to believe that any agency of the executive branch has argued, or advised, that government copying is “ per se a fair use.” In this respect, it is notable in particular lhat, in its Supreme Court brief in Williams <6 Wilkins, the United States cited a House Report as “ indicating] . that photocopying by the government may in som e circumstances constitute copynght infringement ” B nef for the United States at 15 n 24, Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No 73-1279) (citing H.R. Rep. No 86-624, at 5 (1959)) In the cited House Report, a House Committee indicated that the federal government could infringe a copyright when it “ publishes” an article without permission See supra note 6. The Committee did not indicate what it meant by “ publishes,” and did not expressly mention photocopying At the page of the H ouse Report (page 5) that the Solicitor General cited, however, a letter wntten by the Department of Commerce assumes that government photocopying could be infringing. See also id. at 8 (reflecting a similar assumption conveyed by the Librarian o f Congress) There is no suggestion in the House Report that the House Committee disagreed w ith this assumption. 96 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use ’ conditions of such agreements should be. In answering that question, there is an inescapable tension. On the one hand, because of the highly fact-bound nature of the fair use inquiry, it is difficult to ascertain in advance which governmental practices will, or will not, be fair uses: There is an “ endless variety of situations and combinations of circumstances that can rise in particular cases.” House Report at 66, reprinted in 1976 U.S.C.C.A.N. at 5680. Such uncertainty, when viewed in isolation, might weigh in favor of entering into relatively broad licensing agree­ ments, so as to ensure that an agency’s photocopying will never be infringing. On the other hand, and in addition to the desire to avoid unnecessary costs, there is an important legal consideration that counsels against entering into unnecessary licensing agreements and in favor of limiting such agreements to encompass only those photocopying practices that are infringing — namely, the concern that gen­ eral custom and usage may be integral to the fair use analysis.16 Indeed, at least one court has opined, in particular, that whether it is “ fair,” under the copyright law, to engage in a photocopying practice without compensation may depend, in part, on whether similarly situated entities customarily agree to pay a fee to the copyright holders.17 We have no occasion here to consider whether that court was correct in this regard; but it is possible that other courts may follow suit. Accordingly, if government agencies routinely agree to pay licensing fees to engage in photocopying practices that were fair uses at the time, there is a chance some courts may conclude that a growing or longstanding custom o f paying such fees weighs against a finding that such photocopying practices are fair uses when unlicensed. Thus, an agency that decides to negotiate a photocopying license should seek to limit the scope of the licensing agreement so as not to cover those photocopying practices that the agency, in good faith, concludes are not infringing. In the end, each agency must do its best to evaluate whether any o f its photocopying practices are infringing, and, if so, to obtain proper authorization for such uses of copyrighted materials. Although, as we have explained, there may be many government photocopying practices that are fair uses (or that are, for other reasons, not infringing), under some circumstances government photocopying may not be a fair use. In evaluating whether their practices are infringing, agencies should be guided by Williams & Wilkins, which, as noted above, is still binding precedent in the Federal Circuit. However, as explained above, the holding in Williams & Wilkins itself was dependent on the particular facts of that case, and the 8150 calculus may be different with respect to govern­ 16 See, e g , Williams & Wilkins * 487 F 2 d at 1355-56, see also Harper & Row, 471 U S . at 550 (the fair use doctnne traditionally “ was predicated on the author’s implied consent to ‘reasonable and customary’ use when he released his work for public consum ption” ) 17 See Princeton Univ. Press, 99 F.3d at 1387 (consideration of the potential licensing revenues for photocopying in a fair use analysis is “ especially” appropnate where the copynght holder not only has an interest in exploiting the licensing market, but also “ has actually succeeded in doing so” ) But c f Campbell, 510 U.S. at 585 n.18 (defend­ ants’ request for permission to use copyrighted song in a parody does “ not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litiganon” ). 97 Opinions o f the Office o f Legal Counsel in Volume 23 ment photocopying practices that diverge in material ways from the NIH and NLM practices at issue in Williams & Wilkins .18 Moreover, agencies should be aware that, in two important recent cases in other circuits, sharply divided courts o f appeals have held that certain commercial photocopying practices were not fair uses. In Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc), cert, denied, 520 U.S. 1156 (1997), the United States Court of Appeals for the Sixth Circuit held that a commercial copyshop had engaged in willful infringement by reproducing substantial segments of copyrighted works of scholarship and binding such repro­ ductions into coursepacks that the copyshop then sold to students. In American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994), cert, dismissed, 516 U.S. 1005 (1995), the United States Court of Appeals for the Second Circuit held that Texaco’s systematic photocopying o f scientific journal articles for its researchers’ archival use was infringing. Even if the United States Court of Appeals for the Federal Circuit were to adopt the reasoning of these decisions, the rationale of those decisions would not apply with full force in the context of government photocopying, since the decisions each rested, in part, on the fact that each of the defendants “ acquire[d] conspicuous financial rewards from its use of the copyrighted material.” Id. at 922; see also Princeton Univ. Press, 99 F.3d at 1386, 1389. Moreover, as the Texaco court noted, “ courts are more willing to find a secondary use [i.e., the use that is made of the photocopies] fair when it produces a value that benefits the broader public interest.” 60 F.3d at 922. Nevertheless, the ongoing debate among the judges in cases such as these (and in W illiams & Wilkins) demonstrates that the boundaries of fair use in the photocopying context are uncertain, highly contested, and especially dependent upon the particulars of a given case. And, while in some cases it might be fairly easy for an agency to determine that a government practice is noninfringing,19 usually that will not be the case: Whether a particular government photocopying practice is a fair use often will depend upon a “ ‘sensitive balancing of 18 M oreover, the subsequent advent of the CCC, and the possibility of reasonable licensing agreements with that organization, may affect at least one of the factors that led the Court of Claims to rule against the copyright holder in Williams & Wilkins. The Court of C laim s reasoned that medical science would be seriously hurt by a finding that the NIH and NLM photocopying was infringing, since the result of such a holding could have been that libraries w ould have to cease their photocopying practices. See 487 F.2d at 1356-57 But insofar as such libraries now could avoid a finding o f fair use by agreeing to pay a reasonable and affordable licensing fee — that is, a fee that would not materially deter the actual making and use o f valuable photocopies — the harm that the Williams & Wilkins court foresaw could be diminished See Texaco, 60 F 3d at 924 (“ To the extent the copying practice was ‘reasonable’ in 1973 [when Williams & Wilkins was decided], it has ceased to be ‘reasonable’ as the reasons that justified it before [photocopying licensing] have ceased to exist ’) (quoting the district court opinion, 802 F. Supp. at 25) But see id at 934 (Jacobs, J , dissenting). 19 For an example outside the context o f photocopying, see, e.g., House Report at 73 ( “ The Committee has consid­ ered the question o f publication, in Congressional hearings and documents, of copynghted material. Where the length of the work or excerpt published and the number of copies authonzed are reasonable under the circumstances, and the work itself is directly relevant to a matter o f legitimate legislative concern, the Committee believes that the publication would constitute fair use.” ), reprinted in 1976 U .S C.C A.N at 5687 98 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing "Fair U se’ interests.’ ” Cam pbell, 510 U.S. at 584 (quoting Sony Corp. o f America v. Uni­ versal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984)). In the text of section 107 of the Copyright Act itself, Congress has instructed that, in determining whether the use made of a work in any particular case is a fair use, ‘‘the factors to be considered shall include’’ the following: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational pur­ poses; (2) the nature of the copyrighted work; (3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. These four statutory factors should not be treated in isolation, one from another. Campbell , 510 U.S. at 578. Nor are those factors exhaustive. See H arper & Row, 471 U.S. at 560; H.R. Rep. No. 102-836, at 9-10 (1992), reprinted in 1992 U.S.C.C.A.N. 2553, 2561-62.20 Most importantly, it is critical that the statutory factors, as well as all other pertinent factors and considerations, “ be explored, and the results weighed together, in light o f the purposes o f copyright." Campbell, 510 U.S. at 578 (emphasis added); see also id. at 581 (the fair use inquiry requires that any particular use of copyrighted material “ be judged, case by case, in light of the ends of the copyright law” ).21 Accordingly, before turning to particular factors and considerations that agencies should consider in the context of govern­ ment photocopying, it is important once again to identify the “ purposes of copy­ right.” Copyright law “ ultimately serves the purpose of enriching the general public through access to creative works.” Fogerty v. Fantasy, Inc., 510 U.S. 517-18, 527 (1994); see also H arper <£ Row, 471 U.S. at 545 (“ copyright is intended to increase and not to impede the harvest of knowledge” ). Thus, in determining whether a particular photocopying practice is a fair use, the ultimate question to be answered is whether permitting the government to continue to engage in the practice without paying a licensing fee would “ serve[] the copyright objective 20 Section 107 expressly provides that “ the factors to be considered shall include” the four enumerated factors (emphasis added), and the 1976 Act elsewhere provides that the term “ including” is “ illustrative and not limitative,” 17 U S.C. § 101 (1994) 21 See also 4 Melville B. Nimmer & David Nimmer, N immer on Copyright § 13 05[A][5], at 13-195 (1998) (“ the protean factors enumerated in Section 107, standing by themselves, lack the concreteness to provide definite answers to difficult cases” ); Lloyd L Weinreb, Fair Use, 61 Fordham L. Rev 1291, 1306 (1999) ( “ fair use depends on a calculus of incommensurables” ). 99 Opinions o f the Office o f Legal Counsel in Volume 23 of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990), cited with approval in Campbell, 510 U.S. at 5 7 8 .2 2 Moreover, although the point is less clearly established, the fair use doctrine may be understood to contemplate permitting uses that serve “ not only . . . the purpose of copyright but also . . . other socially recognized purposes.” Lloyd L. Weinreb, F a ir’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1144 (1990). For example, the Supreme Court in the Sony case held that consumer videotaping of television broadcasts for purposes of “ time-shifting” was a fair use, in part because such a practice “ yields societal benefits.” 464 U.S. at 454. Elaborating on this point, the Court cited the example of using a videotaping machine “ to enable a [hospital] patient to see programs he would otherwise miss,” which, as the Court explained, “ has no productive purpose other than contributing to the psychological well-being of the patient.” Id. at 455 n.40. O f greater pertinence to the subject matter at hand — namely, government copying — the Court further suggested that “ a legislator who copies for the sake o f broadening her understanding o f what her constituents are watching; or a con­ stituent who copies a news program to help make a decision on how to vote,” are examples of uses that could be “ fair.” Id. Thus, it fairly can be argued that, as a general matter, “ courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest,” Texaco, 60 F.3d at 922, in contrast with a use that “ can fairly be characterized as a form o f ‘commercial exploitation,’ i.e., when the copier directly and exclusively acquires conspicuous financial rewards from its use of the copyrighted material,” id .23 For instance, the federal government typically photocopies materials in order to facilitate some other, “ secondary” use of such materials, and such secondary use generally is aimed at providing a public benefit, or at serving a “ broad[] public purpose.” Id. Insofar as an agency’s photocopying is intended to facilitate such public purposes, that should weigh in favor of a finding of fair use.24 See a lso infra p. 101 (discussing whether purpose of the photocopying is to enhance profitmaking). 22 See also, e.g., Atari Games Corp. v Nintendo o f Am., Inc., 975 F 2 d 832, 843 (Fed. Cir 1992) (where, m “ reverse engineering” o f computer softw are, “ intermediate” copying permitted the user to study that software and thereafter design new video game program s, the resultant “ growth in creative expression” weighed in favor of finding that the copying was a fair use). 23See also, e g ., N im m er, § 13.05[B][4], at 13-205 ( “ The public interest is also a factor that continually informs the fair use analysis ” ) (footnote omitted). 24 See, e.g., Williams & Wilkins, 487 F 2 d at 1353 ( “ W e cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy o f a law review article, m one o f the smaller or less available journals, which bears directly on a problem both ju d g es are then considering in a case before them is infringing the copynght, rather than making ‘fair use’ of his issue o f that journal.” ), Key Maps, I n c , 470 F. Supp at 38 (county fire marshal’s distribution o f copies o f copynghted m aps to 50 fire departments, law enforcement agencies, and civil defense units in the county was “ legitimate, fair, and reasonable,” since the copies were disseminated “ solely for internal purposes which related to a discemable public interest,” namely, “ the coordination of fire prevention activities in the unincor­ porated areas o f [the] county” ), see also House Report at 65 (noting that, under section 107 of the 1976 Act, 100 Whether Government Reproduction o f Copyrighted Materials is a Noninfringing “Fair Use' In order to decide whether a particular government use of copyrighted materials would, on the whole, “ promote the Progress of Science and useful Arts,” it is necessary to take into account an “ ample view of the universe of relevant evi­ dence.” Campbell, 510 U.S. at 575, 584. Similarly, in order to determine whether any other benefits to the broader public interest would sufficiently outweigh the costs of any reduction in the incentives for creativity, it is necessary to engage in a comprehensive evaluation of all pertinent factors. We think that, in the par­ ticular context of government photocopying, the following specific considerations (each of which bears on the four enumerated statutory factors) might have a significant impact on the fair use calculus: (a) One important consideration that courts typically address under the first statutory factor (“ the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” ) is whether the use in question is undertaken in order to increase the user’s profits. In most, if not all, cases, the purposes for which the government makes photocopies do not include profitmaking or commercial exploitation. Although the nonprofit nature of the government’s use of photocopies would not be dispositive, see Campbell, 510 U.S. at 584, it certainly would be “ one element,” id., germane to the fair use question.25 The commercial/nonprofit distinction may be especially significant where, as in most cases of photocopying, the secondary use is not “ transformative” — i.e., where the copyrighted material is merely copied in its original form and is not transformed into another valuable product. See id. at 579 (the more transformative the use, the less significant to the analysis will be the question of commercialism).26 “ courts might regard as fair” the “ reproduction o f a [copynghted] work in legislative or judicial proceedings or reports” ), reprinted in 1976 U.S C.C.A N. at 5678-79; Senate Report at 61-62 (same). Harper & Row, 471 U.S. at 584-85 n.8 (Brennan, J., dissenting) (example of a judicial opinion quoting extensively from copynghted materials), Sinai, 1992 WL 470699, at *3 (state Bureau o f Automotive Repairs used matenals for a “ public purpose” when it disseminated an auto emissions chart to field offices throughout the state so that those offices could assist smog check stations and consumers in complying with the state’s emission laws). 25 See also Harper & Row, 471 U.S at 562, Texaco, 60 F 3d at 921-22 26 Counsel for the CCC, citing Campbell, suggest that nontransformative uses “ are unlikely to be regarded as fair ones.” Weil, Gotshal Memo at 8 However, the Court in Campbell simply indicated that, because “ the goal of copynght, to promote science and the arts, is generally furthered by the creation of transformative works, . . . (sjuch works thus lie at the heart o f the fair use doctnne’s guarantee o f breathing space within the confines of copyright, . . . and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding o f fair u s e ” 510 U.S. at 579. The Court expressly cautioned that such transformative use “ is not absolutely necessary for a finding o f fair use,” id., and in support of that proposition, the Court cited (i) a case (Sony Corp o f Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)) in which the Court found a nontransformative use to be noninfringing, and (n) the express indication in section 107 of the 1976 Act that reproduction o f multiple copies for classroom distnbution can be a fair use. Id at 579 & n .ll, see also id. at 584—85 (eschewing fair use analysis that relies on a “ hard evidentiary presumption,” in light of the need for a “ sensitive balancing” o f interests). It is important to note, as well, that the very first example that section 107 provides of a use that can be “ fair” is “ reproduction in copies or phonorecords,” even though such “ reproduction” in most cases would not be “ transformative” in the sense the Court described in Campbell See also House Report at 66 ( “ the reference [m 17 U.S C. §107] to fair use ‘by reproduction in copies or phonorecords or by any other m eans’ is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms o f use” ), reprinted in 1976 U.S C C A.N. at 5679. 101 Opinions o f the Office o f Legal Counsel in Volume 23 (b) Photocopying more likely will be deemed “ fair” where the photocopies are disseminated to a discrete and limited audience within the government. To the extent that copies are sold, or distributed broadly, especially outside the government, that likely would weigh against a finding of fair use. See Williams & Wilkins, 487 F.2d at 1353 & n.12, 1354—55. (This consideration likely would be germane to the first ( “ purpose and character of the use” ) and fourth ( “ effect of the use upon the potential market for or value of the copyrighted work” ) statu­ tory factors.) (c) Copying that is done “ spontaneously],” for the purpose of facilitating an immediate and discrete objective, is more likely to be a fair use than systematic “ archival” copying of extensive materials for possible future use. See Texaco, 60 F.3d at 919-20. (This consideration, too, would bear on the first and fourth statutory factors.) And, as the third statutory factor expressly indicates, “ the amount and substantiality of the portion used in relation to the copyrighted work as a whole’’ also is relevant to determining whether a use is fair. (d) Copying materials for the purpose of collecting or studying certain facts or ideas contained therein — as opposed to the work’s original expression — increases the likelihood that the reproduction will be a fair use. In Feist Publ ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Court emphasized that, as a matter of constitutional law, “ facts are not copyrightable.” Id. at 344. All facts — scientific, historical, biographical, and news of the day — ‘‘ ‘may not be copyrighted and are part of the public domain available to every person.’ ” Id. at 348 (citation omitted); accord H arper & Row, 471 U.S. at 556 (“ No author may copyright his ideas or the facts he narrates.” ). Furthermore, 17 U.S.C. § 102(b) (1994) provides that “ [i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” The exclusion of facts and ideas from copyright protection, like the fair use doctrine, serves the goal of promoting the progress of science and useful arts. See Campbell, 510 U.S. at 575 n.5.27 Accordingly, copyright protection for a work containing facts or ideas “ is limited to those aspects of the work — termed ‘expression’ — that display the stamp of the author’s originality.” H arper & Row, 471 U.S. at 547. Indeed, as the Court reemphasized in Campbell, “ ‘facts contained in existing works may be freely copied.’ ” 510 U.S. at 575 n.5 (quoting Feist, 499 U.S. at 359).28 Thus, where the government’s copying is limited to the bare facts contained in particular mate­ 27 Moreover, the Copyright Act’s distinction between copyrightable expression and uncopynghtable facts and ideas is necessary in order to reconcile the restrictions o f the Act with the First Amendment. See Harper & Row, 471 U.S. at 556, 560, see also New York Tim es Co. v. United States, 403 U.S. 713, 726 n.* (1971) (Brennan, J., concur­ ring), cited with approval in Harper &. Row, 471 U.S. at 556 28 Thus, for exam ple, the Court in H arper & Row implied that although direct quotations from President Ford’s biography were subject to copynght protection, the histoncal facts contained in that biography were not entitled to such protection and could be freely copied. See 471 U.S at 565-66 & n.8 (applying copynght analysis only to “ verbatim quotes” from the biography, and excluding from infringement consideration historical quotations attnbuted to third parties and to government documents) 102 Whether Government Reproduction o f Copynghted Materials is a Noninfringing ‘ ‘Fair Use ’ rials, and there is no copying of protected expression, there is no possibility o f copyright infringement, and the fair-use question is inapposite. Moreover, even if a document or book is entitled to some copyright protection, nevertheless, as a general matter “ fair use is more likely to be found in factual works than in fictional works.” Stewart v. Abend, 495 U.S. 207, 237 (1990). Accordingly, even where the government copies materials that contain protected “ expression,” or factual compilations that arrange or select facts in a manner sufficiently original to trigger some limited, “ thin” copyright protection,29 the photocopying more likely will be a fair use if the purpose of the copying is simply to obtain, collect, or study the facts and ideas contained in the materials. This will be the case especially where, for purposes of photocopying, the facts and ideas cannot readily be segregated from the protected expression, and where the government’s copying of the protected expression therefore is merely incidental to its copying of unprotected facts and ideas.30 (e) The fourth factor that the statute expressly identifies as relevant to the fairuse analysis is the “ effect of the use upon the potential market for or value of the copyrighted work.” This factor requires courts “ to consider not only the extent of the market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510 U.S. at 590 (quoting 3 Nimmer § 13.05[A][4], at 13-102.61 (1993)). The importance of this factor “ will vary, not only with the amount of harm, but also with the relative strength of the showing on the other [fair-use] factors.” Id. at 590 n.21. 29“ [T]he copynght in a factual compilation is thin,” extending only to the selection or arrangement of the facts, if any, that is original or expressive Feist, 499 U S at 348 As the Court explainedThe mere fact that a work is copynghted does not mean that every element of the work may be protected Originality remains the sine qua non of copyright, accordingly, copyright protection may extend only to those components o f a work that are original to the author. . . Thus, if the compilation author clothes facts with an onginal collocation o f words, he or she may be able to claim a copynght in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. Id at 348-49 30 See. eg., Texaco, 60 F 3d at 925 & n .ll. National Rifle A s s ’n o f Am v Handgun Control Fed. o f Ohio, 15 F 3d 559, 562 (6th Cir.), cert, denied, 513 U.S 815 (1994), Texaco, 802 F Supp at 15 (although such a factcentered justification for photocopying “ has some m erit,'’ and is “ ingenious,” it “ simply does not fit the facts of the case” ); see also, e g , Atari Games Corp , 975 F 2d at 843 ( “ When the nature of a work requires intermediate copying to understand the ideas and processes in a copyrighted work, that nature supports a fair use for intermediate copying Thus, reverse engineenng object code to discern the unprotectable ideas in a computer program is a fair u s e ” ); Sega Enters. Ltd. v. Accolade, In c , 977 F.2d 1510, 1524—26 (9th Cir. 1992). By analogy, in the context of publication (rather than mere reproduction) o f copynghted materials, the Supreme Court has indicated that it may be permissible to copy protected expression verbatim where “ necessary adequately to convey the facts,” or where particular expression is “ so integral to the idea expressed as to be inseparable from it ” Harper & Row, 471 U S at 563, see also Leval, Toward a Fair Use Standard, 103 Harv L Rev. at 1113-15. Perhaps the most famous case of this sort is Time Inc v Bernard Geis A sso cs, 293 F. Supp. 130 (S D N Y 1968), in which the court held that it was fair use to depict frames from the copyrighted Zapruder film in a book about the Kennedy assassination, where there was “ a public interest in having the fullest information available on the murder of President Kennedy,” and where such photographs made the author’s theory o f the assassination “ easier to understand,” id at 146. 103 Opinions o f the Office o f L egal Counsel in Volume 23 The most obvious way in which copying can have an adverse market effect is where it directly curtails demand for purchase of the original work, such as where an entity uses photocopying in lieu of additional subscriptions of the original work that it otherwise would purchase. See, e.g., Texaco , 60 F.3d at 92729. Furthermore, with the advent of the CCC, it now can be argued that the failure to pay a licensing fee for the photocopying of materials covered by the CCC has an adverse effect on another potential “ market” that was not present at the time of W illiams & Wilkins — namely, the potential “ licensing fee” market. See, e.g., Princeton Univ. Press, 99 F.3d at 1387-88; Texaco, 60 F.3d at 929-31. Because this sort of “ harm ” to a licensing fee “ market” could, by definition, exist whenever an entity refuses to provide the requested compensation for its copies, what is significant is not the simple question of whether any such market harm exists, but rather, the magnitude and effect of the harm. “ Market harm is a matter of degree.” Campbell, 510 U.S. at 590 n.21.31 Harm to this potential “ licensing fee” market, like other forms of market harm, should be germane to the fair-use analysis only if, and to the extent that, such harm would deter “ ‘the creation and publication of edifying matter.’ ” Id. at 578 n.10 (quoting Leval, Toward a F air Use, 103 Harv. L. Rev. at 1134). If “ unrestricted and widespread [photocopying] o f the sort engaged in by the [government],” Campbell, 510 U.S. at 590 (internal quotation marks omitted) would not appreciably alter the incen­ tives to create and disseminate the underlying works (and other “ edifying” original creations), the harm to the fee “ market” should have correspondingly limited impact when evaluating this fair use factor. Conclusion There is no “ per se” rule that government reproduction of copyrighted mate­ rial— including, in particular, government photocopying of copyrighted materials for internal government use — automatically qualifies as a fair use under section 107 of the Copyright Act of 1976. However, government photocopying would in many contexts be noninfringing because it would be a “ fair use” ; and there are good reasons that, if an agency decides to negotiate photocopying licensing agreements, it should seek to limit the scope of any such arrangement to cover only those government photocopying practices that otherwise would, in fact, be infringing. RANDOLPH D. MOSS Acting Assistant Attorney General Office o f Legal Counsel 31 See also W illiam W Fisher III, Reconstructing the Fair Use D octnne, 101 Harv L. Rev 1659, 1671-72 (1988). 104

Write a legal research memo on the following topic.

Whether False Statements or Omissions in Iraq’s Weapons of Mass Destruction Declaration Would Constitute a “Further Material Breach” Under U.N. Security Council Resolution 1441 False statements or omissions in Iraq’s weapons of mass destruction declaration would by themselves constitute a “further material breach” of U.N. Security Council Resolution 1441. December 7, 2002 MEMORANDUM OPINION FOR THE COUNSEL TO THE VICE PRESIDENT * You have asked whether the Government of Iraq will have committed a “further material breach” of its international legal obligations, as that term is defined in paragraph 4 of United Nations (“U.N.”) Security Council Resolution 1441 (“UNSCR 1441”), if it makes false statements or omissions in the declaration required by paragraph 3 of that resolution. 1 In paragraph 3, the Security Council required that Iraq report on all aspects of its weapons of mass destruction (“WMD”) programs. Paragraph 4 finds that false statements or omissions in Iraq’s paragraph 3 declaration and failure by Iraq to comply and cooperate with UNSCR 1441 would constitute a further material breach. We conclude that false statements or omissions by themselves represent a material breach of the Security Council resolution. We have addressed the meaning of U.N. Security Council resolutions regarding Iraq in previous opinions. See generally Authority of the President Under Domestic and International Law to Use Military Force Against Iraq, 26 Op. O.L.C. 135 (2002) (“Iraq Opinion”); Effect of a Recent United Nations Security Council Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq, 26 Op. O.L.C. 190 (2002). As the Security Council itself has recognized, Iraq is currently in material breach of pre-existing Security Council resolutions related to its development of WMD programs, its repression of its civilian population, and its threat to international peace and security in the region. S.C. Res. 1441, ¶ 1, U.N. Doc. S/RES/1441 (Nov. 8, 2002). Violation of * For the book edition of this memorandum opinion, some of the internet citations have been updated or replaced with citations of equivalent available printed authorities. 1 You have not asked, and we do not address, what actually constitutes “false statements or omissions” under paragraph 4. Our Office has not reviewed the Iraqi declaration, which is due on December 8, 2002. We note, however, that the U.N. Security Council itself has stated that “[a]ny false statement or omission in the declaration” qualifies for purposes of paragraph 4 as “a further material breach.” Press Release, Security Council, Security Council Holds Iraq in ‘Material Breach’ of Disarmament Obligations, Offers Final Chance to Comply, Unanimously Adopting Resolution 1441, U.N. SC/7564 (Aug. 11, 2002) (“UNSCR 1441 Press Release”), available at www.un.org/News/Press/docs/2002/ SC7564.doc.htm (last visited May 10, 2012) (emphasis added). 217 227-329 VOL_26_PROOF.pdf 227 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 those resolutions authorizes the United States to use force against Iraq in order to enforce the resolutions and restore international peace and security to the region. Iraq Opinion, 26 Op. O.L.C. at 153-69. As we have advised, the President (who represents the United States in its foreign affairs) may make the determination whether Iraq has committed a material breach of the U.N. Security Council resolutions regarding Iraq. Id. at 158-61. 2 I. UNSCR 1441 reaffirms that the Government of Iraq is already “in material breach of its obligations under relevant resolutions.” S.C. Res. 1441, ¶ 1. It also imposes additional obligations on Iraq in order to provide it with “a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council.” Id. ¶ 2. Paragraph 3 of UNSCR 1441 requires Iraq to provide a new declaration disclosing all aspects of its WMD program within 30 days of its enactment. As the U.N. Security Council approved UNSCR 1441 on November 8, 2002, the Iraqi declaration of its WMD program is due by December 8, 2002. Specifically, paragraph 3 requires Iraq to provide to the United Nations Monitoring, Verification and Inspection Commission, the International Atomic Energy Agency, and the Security Council a “currently accurate, full, and complete declaration of all aspects of its” WMD program. Id. ¶ 3. Paragraph 4 provides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below. Id. ¶ 4 (emphasis added). Because of its use of the word “and,” paragraph 4 might be misconstrued by some to provide that a “further material breach” has occurred only when Iraq both makes false statements or omissions and fails to comply and cooperate with the resolution. Under such an interpretation, the word “and” conveys only a conjunctive meaning. Therefore, false statements or omissions in Iraq’s paragraph 3 declaration alone would not in itself constitute a further material breach. Rather, those false statements or omissions would have to be accompanied by some other 2 It is the responsibility of this Office, on behalf of the Attorney General, 28 C.F.R. § 0.25(a) & (e) (2002), to provide authoritative opinions for the President on all legal questions, including questions of international law. See Letter for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel (Jan. 11, 2002). 218 227-329 VOL_26_PROOF.pdf 228 10/22/12 11:13 AM False Statements or Omissions as “Further Material Breach” Under UNSCR 1441 action amounting to a failure to comply with UNSCR 1441 or cooperate fully with its implementation. II. In this context, an interpretation of “and” as solely conjunctive is illogical and inconsistent with the text and purpose of UNSCR 1441. It is well established that the word “and” is capable of more than one possible construction. In some contexts, “and” conveys a conjunctive meaning, under which all enumerated conditions must be satisfied before a particular result is achieved. In other contexts, however, “and” is used disjunctively, in which case any one of among two or more conditions by itself would be sufficient to trigger a particular result. Whether the word “and” conveys a conjunctive or disjunctive meaning depends on the context. In this case, examination of the context of UNSCR 1441 demonstrates clearly that paragraph 4 uses “and” in the disjunctive sense. Making false statements or omissions in Iraq’s declaration of its WMD programs, without more, would constitute a further material breach of Iraq’s international obligations. A. Under standard approaches to legal interpretation, it has been long established that the word “and” may convey a disjunctive rather than a conjunctive meaning. 3 Determining which usage was intended in a particular provision requires, as always, an examination of the context in which the term appears. As the Supreme Court has explained, in order to give effect to the intention of those who drafted a text, “courts are often compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as meaning ‘or.’” United States v. Fisk, 70 U.S. (3 Wall.) 445, 447 (1865). See also Union Ins. Co. v. United States, 73 U.S. (6 Wall.) 759, 764 (1867) (“when we look beyond the mere words to the obvious intent we cannot help seeing that the word ‘or’ must be taken conjunctively”). Such constructions are permitted to effectuate “[t]he obvious purpose” of the provision, and are appropriate when “[t]he evil intended to be remedied” is “transparent.” Fisk, 70 U.S. at 447. While pleading for reading “and” in its common conjunctive meaning, the most recent edition of Sutherland’s treatise on statutory construction recognizes that “[d]isjunctive ‘or’ and [c]onjunctive ‘and’ may be interpreted as substitutes.” 3 Some might object that United States cases on the disjunctive meaning of “and” are not applicable to international law. The ordinary meaning of words, purpose, and context are relevant in international legal interpretation, just as they are in American practice. As the Restatement (Third) of Foreign Relations Law explains, “an international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.” Restatement (Third) of Foreign Relations Law 325(1) (1987). See also Vienna Convention on the Law of Treaties, art. 31(1) (same). The reasoning of American courts in interpreting “and” is therefore relevant and persuasive with regard to how “and” should be read in light of its context. 219 227-329 VOL_26_PROOF.pdf 229 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 1A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 21:14, at 183-88 (6th ed. 2002). 4 Federal courts of appeals, 5 federal district courts, 6 and state courts 7 have held that the word “and” is capable of conveying a disjunctive meaning. Such constructions have been applied to wills 8 and contracts 9 as well as statutory enactments. 10 4 Courts cite Sutherland’s discussion of conjunctive and disjunctive terms as authority. See, e.g., Bruce v. First Fed. Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 715 (5th Cir. 1988); United States v. Del Rio Springs, Inc., 392 F. Supp. 226, 227 (D. Ariz. 1975). 5 See, e.g., Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958) (“the word ‘and’ is not a word with a single meaning, for chameleonlike, it takes its color from its surroundings”); Cal. Lumbermen’s Council v. FTC, 115 F.2d 178, 185 (9th Cir. 1940) (“when the order is read as a complete article there is no question but that the acts prohibited [‘the purchase and the offering for sale’] are prohibited in the case of purchase and sale or the purchase or sale, separately or together”); Pitcairn v. Am. Refrigerator Transit Co., 101 F.2d 929, 937 (8th Cir. 1939) (“‘and’ is sometimes read as ‘or’, when necessary to effectuate an apparent intent”); Atlantic Terra Cotta Co. v. Masons’ Supply Co., 180 F. 332, 338 (6th Cir. 1910) (“‘and’ is frequently read as ‘or’”). 6 See, e.g., Matter of Velis, 123 B.R. 497, 510 (D.N.J. 1991) (“The word ‘and’ is to be accorded its normal conjunctive connotation, rather than treated as a synonym for the word ‘or,’ unless such strict grammatical construction would frustrate clear legislative intent.”), rev’d on other grounds, 949 F.2d 78 (3rd Cir. 1991); United States v. Mullendore, 30 F. Supp. 13, 15 (N.D. Okla. 1939) (“the Courts have many times held that ‘and’ in a statute may be read to mean ‘or’”). 7 See, e.g., Mayer v. Cook, 57 N.Y.S. 94, 95 (N.Y. App. Div. 1899) (“courts have construed ‘and’ as ‘or’”). 8 See, e.g., Polsky v. Cont’l Nat’l Bank of Lincoln, 110 F.2d 50, 57 (8th Cir. 1940) (“The word ‘and’ may sometimes be substituted for the word ‘or,’ and vice versa, even in the construction of a will, where that is necessary to carry out the manifest intention of the testator.”). 9 See, e.g., In re Knepp, 229 B.R. 821, 847 (Bankr. N.D. Ala. 1999) (“It is a general rule of contract construction that ‘and’ can be read as ‘or’ and vice-versa under certain conditions. The words should not be treated as interchangeable when their accurate and literal reading does not render the sense dubious. . . . [T]he intent of the parties must determine whether the Court chooses to adopt this construction.”) (citations and quotations omitted). 10 Courts have given varying degrees of presumptive weight to the standard usage of “and” in its conjunctive sense. Compare, e.g., Bruce, 837 F.2d at 715 (“The word ‘and’ is . . . to be accepted for its conjunctive connotation rather than as a word interchangeable with ‘or’ except where strict grammatical construction will frustrate clear legislative intent.”), Peacock, 252 F.2d at 893 n.1 (“The words ‘and’ and ‘or’ when used in a statute are convertible, as the sense may require. A substitution of one for the other is frequently resorted to in the interpretation of statutes, when the evident intention of the lawmaker requires it.”), and Rice v. United States, 53 F. 910, 912 (8th Cir. 1893) (“Undoubtedly ‘and’ is not always to be taken conjunctively. It is sometimes read as if it were ‘or,’ and taken disjunctively and distributively, but this is only done where that reading is necessary to give effect to the intention of the legislature, as plainly expressed in other parts of the act, or deducible therefrom.”), with Geyer v. Bookwalter, 193 F. Supp. 57, 62 (W.D. Mo. 1961) (“In order to effectuate the intention of this testator, the word ‘and’ is to be construed to mean ‘or’.”), and United States v. Cumbee, 84 F. Supp. 390, 391 (D. Minn. 1949) (construing statute “in the light of the purpose and history of the provision of which it is a part and the statutes to which it applies” to “give ‘and’ the meaning of ‘or’”); see also 1A C. Dallas Sands, Sutherland on Statutes and Statutory Construction § 21:14, at 90-91 (4th ed. 1972) (“the words are interchangeable . . . one may be substituted for the other, if to do so consistent with the legislative intent”) (quoted in Del Rio Springs, 392 F. Supp. at 227). 220 227-329 VOL_26_PROOF.pdf 230 10/22/12 11:13 AM False Statements or Omissions as “Further Material Breach” Under UNSCR 1441 B. The text and purpose of UNSCR 1441 unequivocally demonstrate that giving conjunctive meaning to the word “and” in paragraph 4 would be illogical and would frustrate the clear intent of the U.N. Security Council. Indeed, in a press release announcing its unanimous approval of UNSCR 1441, the Security Council stated that “[a]ny false statement or omission in the declaration will be considered a further material breach of Iraq’s obligations.” UNSCR 1441 Press Release, supra note 1. In light of “[t]he obvious purpose” of paragraph 4, Fisk, 70 U.S. at 447, we would likewise read the term “and” disjunctively and conclude that Iraq will be in “further material breach of [its] obligations” if it makes “false statements or omissions in the declarations submitted . . . pursuant to [paragraph 3 of] this resolution.” S.C. Res. 1441, ¶ 4. A conjunctive approach to paragraph 4, taken to its logical conclusion, is both untenable and impossible to reconcile with either the text or purpose of the resolution. Under a conjunctive construction, the Government of Iraq would not be in “further material breach of [its] obligations” unless it both (1) makes “false statements or omissions in [its] declarations” and (2) “fail[s] . . . to comply with, and cooperate fully in the implementation of, this resolution.” S.C. Res. 1441, ¶ 4. In other words, Iraq could avoid a finding of “further material breach” simply by making a completely truthful and accurate declaration. Iraq could willfully refuse inspections and even engage in military hostilities against U.N. inspectors and the U.S. and allied forces protecting them. Under a conjunctive reading of “and,” Iraq could make a full disclosure of its existing WMD programs, and then refuse to disarm and instead re-double its illegal efforts to obtain such weapons and yet still not be in “further material breach of [its] obligations” to the Security Council. Or a material breach would not occur if Iraq fully cooperated with U.N. inspectors, but utterly failed to provide any disclosure of information related to its WMD programs. Such a result cannot be squared with the text of UNSCR 1441. Paragraph 5 and subsequent provisions of UNSCR 1441 detail Iraq’s specific obligations with respect to inspections and disarmament. Iraqi violations of these provisions, such as refusing to allow inspectors into Iraq, or harming inspectors, or concealing WMD locations and materials, would constitute a material breach of its obligations under UNSCR 1441. Yet, under the conjunctive construction, the most willful violations of its inspection obligations would not constitute a “further material breach” so long as Iraq has not made false statements or omissions in its paragraph 3 declaration. Under the conjunctive approach, once Iraq satisfied its declaration obligations under paragraph 3 and refrained from making “false statements or omissions” in that declaration, Iraq would never be vulnerable to a finding of “further material breach of Iraq’s obligations.” Such a construction of 221 227-329 VOL_26_PROOF.pdf 231 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 the resolution would render most of UNSCR 1441 a nullity. Only by reading “and” in paragraph 4 as disjunctive can we give effect to all of UNSCR 1441. Reading “and” to be conjunctive would also conflict with the very purpose of UNSCR 1441. The text of the resolution makes clear that its fundamental purpose is to disarm Iraq of WMD. Honest declarations and full and complete access for inspectors are merely a means required to meet an end. UNSCR 1441 expressly states that, although Iraq already “has been and remains in material breach of its obligations” under prior U.N. Security Council resolutions, the Council would “afford Iraq . . . a final opportunity to comply with its disarmament obligations.” S.C. Res. 1441, ¶¶ 1-2 (emphasis added). The resolution specifically notes that the declaration requirements of paragraph 3 are not an end in themselves, but that they are imposed so that Iraq might “begin to comply with its disarmament obligations.” Id. ¶ 3. Paragraph 3’s mandate of a “currently accurate, full, and complete declaration” is the “begin[ning],” and thus the sina qua non, of disarmament. Id. ¶¶ 3-4. In light of the resolution’s clear purpose to achieve the disarmament of Iraq, a construction of paragraph 4 that allows Iraq to refuse to disarm and still avoid a finding of “further material breach” would be at odds with the text and structure of UNSCR 1441. Events surrounding the passage of UNSCR 1441 further demonstrate that the core purpose of the resolution is to secure Iraqi disarmament. On October 25, 2002, President Bush made clear that the United States would not accept any Security Council resolution that did not make disarmament its paramount objective. He stated that “any resolution that evolves must be one which does the job of holding Saddam Hussein to account. That includes a rigorous, new and vibrant inspections regime, the purpose of which is disarmament, not inspections for the sake of inspections.” 11 After the Council approved UNSCR 1441, President Bush stated that, “[w]ith the resolution just passed, . . . Saddam Hussein must fully disclose and destroy his weapons of mass destruction. . . . Any act of delay or defiance will be an additional breach of Iraq’s international obligations. . . . Any Iraqi noncompliance . . . will show that Iraq has no intention of disarming.” 12 In its press release announcing its unanimous approval of UNSCR 1441, the Security Council reiterated that the resolution merely “afford[ed]” Iraq “a ‘final opportunity to comply’ with its disarmament obligations.” UNSCR 1441 Press Release, supra note 1. That announcement also quotes U.N. Secretary-General Kofi Annan, who applauded the resolution and said that “[t]he goal is to ensure the peaceful disarmament of Iraq in compliance with Council resolutions and a better, more secure future for its people.” Id. John Negroponte, the United States ambassador to 11 The President’s News Conference with President Jiang Zemin of China in Crawford, Texas, 2 Pub. Papers of Pres. George W. Bush 1897, 1900 (Oct. 25, 2002) (emphasis added). 12 Remarks on the Passage of a United Nations Security Council Resolution on Iraq, 2 Pub. Papers of Pres. George W. Bush 2053, 2053 (Nov. 8, 2002) (emphasis added). 222 227-329 VOL_26_PROOF.pdf 232 10/22/12 11:13 AM False Statements or Omissions as “Further Material Breach” Under UNSCR 1441 the United Nations, said that “the resolution constituted the world community’s demand that Iraq disclose and destroy its weapons of mass destruction. The new course in that effort would send a clear message to Iraq insisting it disarm or face the consequences.” Id. (emphasis added). These remarks demonstrate that Iraq’s fundamental obligation is disarmament, and that honest declarations by themselves cannot immunize Iraq from a finding that it has committed a “further material breach of [its] obligations.” Representatives from the other member nations of the Security Council have made similar statements. For example, United Kingdom representative Jeremy Greenstock said that “[t]he resolution made crystal clear that Iraq was being given a final opportunity to comply with its disarmament obligations. The regime in Baghdad now faced an unequivocal choice: between complete disarmament and the serious consequences indicated in paragraph 13 of the resolution.” Id. The Mexican delegate, Adolpho Aguilar Zinser, maintained that, “[i]n case of failure to comply, the Council would act”—apparently without regard to whether Iraq had given an accurate declaration free of any false statements or omissions. Id. Richard Ryan of Ireland explained that “[t]he resolution was about disarming Iraq,” and that “[t]he Council had given Iraq an opportunity to comply with its disarmament obligations.” Id. Bulgaria’s Stefan Tafrov similarly noted that the resolution’s “objective” was “the disarmament of Iraq.” Id. Ole Peter Kolby of Norway acknowledged “the overall objective of disarming Iraq of weapons of mass destruction” and that “the Council had afforded Iraq with a final opportunity to comply with its disarmament obligations.” Id. The President of the Council, Zhang Yishan of China, stated that “[t]he purpose” of the resolution “was to disarm Iraq.” Id. Even the Russian delegate, Sergey Lavrov, who contended that “it would not be seen as a violation if” Iraq took “more than 30 days” to issue its paragraph 3 declaration, nevertheless “emphasized the need for Iraq to comply with all its disarmaments obligations on the basis of today’s resolution.” Id. (emphasis added). We have found no evidence, moreover, to suggest that any member nation of the Security Council believed that noncompliance with inspections or Iraqi refusal to disarm would not constitute a “further material breach” under UNSCR 1441, so long as Iraq provided a complete and accurate disclosure of its WMD program. In light of the apparent consensus that Iraq’s fundamental obligation was disarmament, it is unsurprising that no pre-enactment history adopts a conjunctive approach to paragraph 4 or asserts that honest declarations by themselves could prevent a finding of “further material breach of Iraq’s obligations.” III. In conclusion, should Iraq make false statements or omissions in its paragraph 3 declaration, Iraq would necessarily be in “further material breach of [its] obliga- 223 227-329 VOL_26_PROOF.pdf 233 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 tions.” False statements or omissions alone are enough to constitute “further material breach” as that term is defined in paragraph 4. An additional showing of noncompliance and noncooperation with the resolution is not required, because the word “and” in paragraph 4 has a disjunctive, rather than a conjunctive, meaning. JOHN C. YOO Deputy Assistant Attorney General Office of Legal Counsel 224 227-329 VOL_26_PROOF.pdf 234 10/22/12 11:13 AM

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(Slip Opinion) Ratification of the Equal Rights Amendment Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b. Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution. January 6, 2020 MEMORANDUM OPINION FOR THE GENERAL COUNSEL NATIONAL ARCHIVES AND RECORDS ADMINISTRATION You have asked for our views concerning the legal status of the Equal Rights Amendment (“ERA”). Consistent with Article V of the Constitution, two-thirds of both Houses passed a joint resolution proposing the ERA, which would become part of the Constitution when ratified by three-fourths of the States. See 86 Stat. 1523 (1972) (“ERA Resolution”). Consistent with the last seven amendments adopted before 1972, Congress conditioned ratification on a deadline, requiring that the necessary number of States (thirty-eight) approve the amendment within seven years. See id. As that deadline approached, only thirty-five States had ratified the ERA, and several had sought to rescind their initial approvals. Congress took the unprecedented step of voting, with a simple majority in each House, to extend the deadline by three years, until June 30, 1982. See 92 Stat. 3799 (1978). That new deadline came and went, however, without additional ratifications. The ERA thus failed to secure the necessary ratifications within either of Congress’s deadlines. Nearly four decades later, ERA supporters have renewed their push to ratify the amendment. Some have urged Congress to restart the ratification process by proposing it anew. See, e.g., Remarks of Justice Ruth Bader Ginsburg, Georgetown University Law Center (Sept. 12, 2019) (“[T]he ERA fell three States short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the 1 Opinions of the Office of Legal Counsel in Volume 44 necessary number of States to ratify it.”). 1 Others, however, have urged the outstanding States to ratify the long-expired ERA Resolution, arguing that the congressional deadline was invalid or could be retroactively nullified by Congress. In 2017, Nevada voted to ratify the ERA, see S.J. Res. 2, 79th Leg. (Nev. 2017), and in 2018, Illinois did the same, see S.J. Res. Const. Amend. 0004, 100th Gen. Assemb. (Ill. 2018). If the ratification period remains open, and if the efforts by five States to rescind their earlier ratifications are disregarded, then thirty-seven States could be credited with having voted to ratify the ERA. After falling just short of ratifying the ERA during its 2019 session, the Virginia legislature is expected to vote again early this year. Congress has charged the Archivist of the United States with the responsibility to publish a new constitutional amendment upon receiving the formal instruments of ratification from the necessary number of States. Whenever the National Archives and Records Administration (“NARA”) receives “official notice” that an amendment to the Constitution “has been adopted,” the Archivist “shall forthwith cause the amendment to be published” along with a certificate identifying the States that ratified the amendment and declaring “that the [amendment] has become valid, to all intents and purposes, as a part of the Constitution of the United States.” 1 U.S.C. § 106b. In view of this responsibility, NARA has received inquiries from Members of Congress and from several States asking about the status of the ERA. Accordingly, you have asked for our views on the legal status of the proposed amendment. 2 We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States. The Supreme Court has upheld Congress’s authority to impose a deadline for ratifying a proposed constitutional amendment. See Dillon v. Gloss, 256 U.S. 368, 375–76 (1921) (“Of the power of Congress, keeping within 1 https://www.facebook.com/georgetownlaw/videos/justice-ginsburg-to-address-newgeorgetown-law-students/2325195750861807 (remarks starting at 1:03:35); see also Marcia Coyle, Partisan Divisions Are ‘Not Serving Our Country Well,’ Justice Ginsburg Says, Nat’l L.J., Sept. 12, 2019 (quoting Justice Ginsburg’s remarks on the ERA), https:// www.law.com/nationallawjournal/2019/09/12/partisan-divisions-are-not-serving-ourcountry-well-justice-ginsburg-says/. 2 See Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, from Gary M. Stern, General Counsel, National Archives and Records Administration (Dec. 12, 2018). 2 Ratification of the Equal Rights Amendment reasonable limits, to fix a definite period for the ratification we entertain no doubt.”). Although Congress fixed the ratification deadline in the proposing clause of the ERA Resolution, rather than in the proposed amendment’s text, that choice followed established practice. After incorporating ratification deadlines in the text of four amendments, see U.S. Const. amends. XVIII, XX–XXII, Congress placed deadlines in the resolutions proposing each of the next four amendments. Both Houses of Congress, by the requisite two-thirds majorities, adopted the terms of the ERA Resolution, including the ratification deadline, and the state legislatures were well aware of that deadline when they considered the resolution. We therefore do not believe that the location of the deadline alters its effectiveness. The more difficult question concerns whether Congress, having initially specified that state legislatures must ratify the proposed amendment within seven years, may modify that deadline. In 1977, this Office advised that Congress could extend the ERA’s deadline before it had expired. See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977) (“Constitutionality of ERA Extension”). 3 We recognized that “respectable arguments can be made on both sides of this question,” id. at 7, but we viewed Congress’s authority to fix the deadline in the first instance as including a power to modify it even after the States had begun to vote on ratification, see id. at 20–21. We acknowledged, however, that there would be a “strong argument” that Congress’s authority to extend a pending deadline would not include “reviving a proposed amendment” after the deadline had expired. Id. at 5–6. Although we disagree with the 1977 opinion’s conclusion that Congress may extend a ratification deadline on an amendment pending before the States, we agree in any event that Congress may not revive a proposed amendment after the deadline has expired. The Constitution authorizes Congress to propose amendments for ratification, but it does not contemThe 1977 opinion is not published in the Opinions of the Office of Legal Counsel, but it was reprinted in connection with Assistant Attorney General Harmon’s November 1, 1977 congressional testimony. See Equal Rights Amendment Extension: Hearings on H.J. Res. 638 Before the Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 95th Cong. 7–27 (1978). 3 3 Opinions of the Office of Legal Counsel in Volume 44 plate any continuing role for Congress during the ratification period. See U.S. Const. art. V. Even if Congress could validly extend the ERA’s ratification deadline before its expiration, that deadline expired decades ago. Should the people of the United States wish to adopt the ERA as part of the Constitution, then the appropriate path is for Congress (or a convention sought by the state legislatures) to propose that amendment once more, in a manner consistent with Article V of the Constitution. I. Congress proposed the ERA to the States after five decades of deliberation over whether such an amendment was necessary to secure equal rights for women or might instead cut back on existing protections. The first ERA proposal was introduced in 1923. It would have provided that “[m]en and women shall have equal rights throughout the United States and every place subject to its jurisdiction” and that Congress could “enforce this article by appropriate legislation.” S.J. Res. 21, 68th Cong. (1923); see also H.R.J. Res. 75, 68th Cong. (1923). The measure faced opposition from traditionalists and some leaders of the women’s movement, including many who feared that the amendment would invalidate labor laws that protected women. See Mary Frances Berry, Why ERA Failed: Politics, Women’s Rights, and the Amending Process of the Constitution 56–60 (1986). The proposal did not advance in 1923, but it was re-introduced repeatedly over the next fifty years, and it was the subject of multiple committee hearings. 4 The amendment appears to have first reached the Senate floor in July 1946, where it fell short of the required two-thirds majority by a vote of 38 to 35. See 92 Cong. Rec. 9404–05 (1946). The Senate would go on to approve the proposal by the required supermajority on two occasions, in 1950 and 1953. See 99 Cong. Rec. 8974 (1953); 96 Cong. Rec. 872–73 (1950). On both occasions, however, the House did not act on the measure. 4 See, e.g., H.R.J. Res. 42, 79th Cong. (1945); S.J. Res. 8, 77th Cong. (1941); S.J. Res. 65, 75th Cong. (1937); H.R.J. Res. 1, 75th Cong. (1937); S.J. Res. 1, 73d Cong. (1933); H.R.J. Res. 55, 71st Cong. (1929); S.J. Res. 64, 70th Cong. (1928); S.J. Res. 11, 69th Cong. (1925); Equal Rights for Men and Women: Hearings on S.J. Res. 65 Before a Subcomm. of the S. Comm. on the Judiciary, 75th Cong. (1938); Equal Rights Amendment: Hearing on S.J. Res. 64 Before a Subcomm. of the S. Comm. on the Judiciary, 70th Cong. (1929). 4 Ratification of the Equal Rights Amendment After languishing for decades, the ERA gained momentum during the 91st Congress. See H.R.J. Res. 264, 91st Cong. (1969). In 1970, Representative Martha Griffiths obtained the necessary signatures for a discharge petition to move the resolution out of the House Judiciary Committee, and the House approved the resolution by an overwhelming margin. See 116 Cong. Rec. 28004, 28036–37 (1970). The Senate, however, did not take a final vote on the resolution. See S. Rep. No. 92-689, at 4–5 (1972). Notably, in the debates over the ERA, opponents had seized on the absence of a ratification deadline. See, e.g., 116 Cong. Rec. 28012 (1970) (remarks of Rep. Celler); see also 116 Cong. Rec. 36302 (1970) (remarks of Sen. Ervin) (proposing to amend the earlier resolution to include a seven-year deadline for ratification). In the 92nd Congress, the resolution finally met with bicameral success. The House adopted the ERA Resolution by the requisite two-thirds majority on October 12, 1971. 117 Cong. Rec. 35815 (1971). The Senate did the same on March 22, 1972. 118 Cong. Rec. 9598 (1972). The ERA Resolution reads in its entirety: JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress: “ARTICLE — “SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. “SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. “SEC. 3. This amendment shall take effect two years after the date of ratification.” 86 Stat. at 1523. 5 Opinions of the Office of Legal Counsel in Volume 44 The proposing clause of the ERA Resolution contains a ratification deadline, which required that “the legislatures of three-fourths of the several States” ratify the amendment “within seven years from the date of its submission by the Congress,” resulting in a deadline of March 22, 1979. Id. In 1971, Representative Griffiths, the ERA’s lead sponsor, defended the inclusion of the deadline, describing it as “customary,” as intended to meet “one of the objections” previously raised against the resolution, and as a “perfectly proper” way to ensure that the resolution “should not be hanging over our head forever.” 117 Cong. Rec. at 35814– 15. The report of the Senate Judiciary Committee similarly explained: “This is the traditional form of a joint resolution proposing a constitutional amendment for ratification by the States. The seven year time limitation assures that ratification reflects the contemporaneous views of the people.” S. Rep. No. 92-689, at 20; see also Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Question of Time, 57 Tex. L. Rev. 919, 921 (1979) (stating that ERA supporters “thought the stipulation innocuous, a ‘customary’ statute of limitations, not a matter of substance worth opposing” (footnote omitted)). Congress therefore made the deliberate choice to subject the proposed amendment to a seven-year ratification deadline. After Congress adopted the ERA Resolution, the Acting Administrator of the General Services Administration transmitted certified copies of the full text of the resolution to the States with a request that each governor submit the proposed amendment “to the legislature of your state for such action as it may take.” Constitutionality of ERA Extension at 3; see, e.g., Letter for George C. Wallace, Governor, State of Alabama, from Rod Kreger, Acting Administrator, General Services Administration (Mar. 24, 1972). 5 Twenty-two States ratified the ERA by the end of 1972. 6 The As we have previously recognized, “Section 106b and its antecedents have long been understood as imposing a ministerial, ‘record-keeping’ duty upon the executive branch.” Congressional Pay Amendment, 16 Op. O.L.C. 85, 98 (1992). From 1791 to 1951, the Secretary of State reported on the ratification of new amendments, a practice that Congress formally endorsed in 1818. See Act of Apr. 20, 1818, ch. 80, § 2, 3 Stat. 439. The Administrator of General Services held the duty from 1951 to 1984. See Pub. L. No. 82248, ch. 655, sec. 2(b), § 106b, 65 Stat. 710, 710 (1951). In 1984, the role was transferred to the Archivist. See Pub. L. No. 98-497, § 107(d), 98 Stat. 2280, 2291 (1984). 6 The States were Hawaii, New Hampshire, Delaware, Iowa, Idaho, Kansas, Nebraska, Texas, Tennessee, Alaska, Rhode Island, New Jersey, Colorado, West Virginia, Wisconsin, New York, Michigan, Maryland, Massachusetts, Kentucky, Pennsylvania, and 5 6 Ratification of the Equal Rights Amendment political winds shifted, however, and only thirteen more States ratified within the next five years. 7 During those years, four States voted to rescind their earlier ratifications. 8 A fifth State, South Dakota, later adopted a resolution providing that its prior ratification would be withdrawn if the requisite number of the States failed to ratify the ERA within the sevenyear period. S.J. Res. 2, 54th Leg. (S.D. 1979). As the seven-year deadline approached, Congress considered resolutions that would take the historically unprecedented step of extending the ratification deadline. See H.R.J. Res. 638, 95th Cong., 1st Sess. (1977); H.R.J. Res. 638, 95th Cong., 2d Sess. (1978). Congress had never before sought to adjust the terms or conditions of a constitutional amendment pending before the States. A subcommittee of the House Judiciary Committee conducted hearings over six days during which government offiCalifornia. S. Con. Res. 39, 6th Leg. (Haw. 1972); H.R. Con. Res. 1, 1972 Sess. Gen. Ct. (N.H. 1972); S. Con. Res. 47, 126th Gen. Assemb. (Del. 1972); S.J. Res. 1008, 64th Gen. Assemb. (Iowa 1972); S.J. Res. 133, 41st Leg. (Idaho 1972); H.R. Con. Res. 1155, 1972 Sess. Leg. (Kan. 1972); Legis. Res. 86, 82d Leg. (Neb. 1972); S. Con. Res. 1, 62d Leg. (Tex. 1972); H.R.J. Res. 371, 87th Gen. Assemb. (Tenn. 1972); H.R.J. Res. 125, 7th Leg. (Alaska 1972); S. Res. 3482, 1972 Jan. Sess. Gen. Assemb. (R.I. 1972); S. Con. Res. 74, 195th Leg. (N.J. 1972); H.R. Con. Res. 1017, 48th Gen. Assemb. (Colo. 1972); S.J. Res. 3, 60th Leg. (W. Va. 1972); Enrolled J. Res. 52, 1972 Spec. Sess. Gen. Assemb. (Wis. 1972); S. Con. Res. 9748, 179th Leg. (N.Y. 1972); S.J. Res. GG, 76th Leg. (Mich. 1972); H.R.J. Res. LLL, 76th Leg. (Mich. 1972); Res. 35, 1972 Sess. Gen. Assemb. (Md. 1972); Res. Ratifying the Proposed Amend. to the Const. of the U.S. Prohibiting Discrimination on Account of Sex, 167th Gen. Ct. (Mass. 1972); H.R.J. Res. 2, 1972 1st Extra. Sess. Gen. Assemb. (Ky. 1972); J. Res. 2, 1972 Sess. Gen. Assemb. (Pa. 1972); S.J. Res. 20, 1972 Sess. Leg. (Cal. 1972). 7 Eight States ratified the ERA in 1973: Wyoming, South Dakota, Oregon, Minnesota, New Mexico, Vermont, Connecticut, and Washington. H.R.J. Res. 2, 42d Leg. (Wyo. 1973); S.J. Res. 1, 48th Leg. (S.D. 1973); S.J. Res. 4, 57th Legis. Assemb. (Or. 1973); H.R. Res. 1, 68th Leg. (Minn. 1973); H.R.J. Res. 2, 31st Leg. (N.M. 1973); H.R.J. Res. 8, 1973 Sess. Gen. Assemb. (Vt. 1973); H.R.J. Res. 1, 1973 Jan. Sess. Gen. Assemb. (Conn. 1973); H.R.J. Res. 10, 43d Leg. (Wash. 1973). Three ratified in 1974: Maine, Montana, and Ohio. J. Res. to Ratify the Equal Rights Amend. to the Federal Const., 106th Leg., 1st Spec. Sess. (Me. 1974); H.R.J. Res. 4, 43d Leg. (Mont. 1974); H.R.J. Res. 11, 110th Gen. Assemb. (Ohio 1974). North Dakota ratified the ERA in 1975. S. Con. Res. 4007, 44th Legis. Assemb. (N.D. 1975). Indiana did so in 1977. H.R.J. Res. 2, 100th Gen. Assemb. (Ind. 1977). 8 Kentucky voted to rescind its ratification in 1972. H.R.J. Res. 20, 1978 Sess. Gen. Assemb. (Ky. 1978). Nebraska did the same in 1973, Legis. Res. 9, 83d Leg. (Neb. 1973); Tennessee in 1974, S.J. Res. 29, 88th Gen. Assemb. (Tenn. 1974); and Idaho in 1977, H. Con. Res. 10, 44th Leg. (Idaho 1977). 7 Opinions of the Office of Legal Counsel in Volume 44 cials, legal scholars, and political activists expressed differing views over whether Congress could validly extend the ratification deadline, whether it could adopt such a resolution by only a simple majority vote, and whether States could validly rescind their earlier ratifications. See Equal Rights Amendment Extension: Hearings on H.J. Res. 638 Before the Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 95th Cong. (1978) (“House Extension Hearings ”). The witnesses included future Justice Ruth Bader Ginsburg, who was then a professor at Columbia Law School, and John Harmon, who was the Assistant Attorney General for this Office. A subcommittee of the Senate Judiciary Committee also conducted hearings. See Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. (1979) (“Senate Extension Hearings ”). In connection with these hearings, Assistant Attorney General Harmon released an opinion, which he had provided to the Counsel to the President, concluding that the proposed extension of the ERA would likely be constitutional. See Constitutionality of ERA Extension at 1. The opinion advised that “respectable arguments can be made on both sides of this question,” since Article V “can be viewed as envisioning a process whereby Congress proposes an amendment and is divested of any power once the amendment is submitted to the States for ratification.” Id. at 7. Nevertheless, the opinion ultimately concluded that Congress’s authority to “establish a ‘reasonable’ time in which ratification may occur,” id., may be subject to modification by a later Congress at least where the deadline has not yet expired, see id. at 5–8, 16–17. The opinion reasoned that the ERA’s deadline was not in the proposed amendment’s actual text and therefore concerned only a “‘subsidiary matter[] of detail’” that Congress could revise by a simple majority vote of both Houses. Id. at 22–23 (quoting Dillon, 256 U.S. at 376). In 1978, the House and Senate, acting by simple majorities, adopted a resolution extending the deadline for the ERA’s ratification. 92 Stat. at 3799. 9 The ERA’s supporters had initially sought to extend the ratification deadline by an additional seven years, but a compromise extended the deadline by just over three years, to June 30, 1982. See H.R. Rep. No. 951405, at 1 (1978). Although this Office had advised that the President 9 The votes in the House and Senate were 233–189 and 60–36. 124 Cong. Rec. 26264, 34314 (1978). 8 Ratification of the Equal Rights Amendment need not sign a resolution concerning a constitutional amendment, see Constitutionality of ERA Extension at 25, President Carter chose to sign the extension resolution to demonstrate his support. See Equal Rights Amendment, Remarks on Signing H.J. Res. 638 (Oct. 20, 1978), 2 Pub. Papers of Pres. Jimmy Carter 1800 (1978) (acknowledging that “the Constitution does not require the President to sign a resolution concerning an amendment to the Constitution”). Several States and state legislators challenged the validity of the resolution extending the ratification deadline, and a federal district court held that Congress had exceeded its authority in passing the extension resolution. See Idaho v. Freeman, 529 F. Supp. 1107, 1150–54 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982). According to the district court, “[o]nce the proposal has been formulated and sent to the states, the time period could not be changed any more than the entity designated to ratify could be changed from the state legislature to a state convention or vice versa.” Id. at 1153. The Supreme Court allowed briefing on appeals from the district court, granted certiorari before judgment in the court of appeals, and stayed the district court’s judgment. See Nat’l Org. for Women, Inc. v. Idaho, 455 U.S. 918 (1982). But before the Court was able to address the validity of Congress’s deadline extension on the merits, the extended deadline expired without ratifications by any additional States. The Court then vacated the district court’s judgment and remanded the cases with instructions to dismiss the complaints as moot. See Nat’l Org. for Women, Inc. v. Idaho, 459 U.S. 809 (1982). After the expiration of the 1982 deadline, many of the ERA’s supporters acknowledged that the ratification effort had failed and would have to begin anew. See Berry, Why ERA Failed at 81 (“In the aftermath of ERA’s defeat, proponents began to assess the reasons for failure.”); see also Adam Clymer, Time Runs Out for Proposed Rights Amendment, N.Y. Times, July 1, 1982, at A12 (“The drive to ratify the proposed Federal equal rights amendment . . . failed tonight in the states, still three legislatures short of the 38 that would have made it the 27th Amendment to the Constitution.”); Marjorie Hunter, Leaders Concede Loss on Equal Rights, N.Y. Times, June 25, 1982, at A1 (“Leaders of the fight for an equal rights amendment officially conceded defeat today.”). The ERA’s supporters in Congress offered new resolutions to reintroduce the ERA, which, if approved by two-thirds majorities, would have restarted the ratification process. See 128 Cong. Rec. 16106 (1982) (statement of Rep. Schroeder) (announcing that she, along with “200 Members of the House 9 Opinions of the Office of Legal Counsel in Volume 44 and 51 Members of the Senate,” had “reintroduced the equal rights amendment,” and analogizing the new proposal to “the phoenix rising from the ashes”); id. at 16108–09 (statement of Rep. Rodino) (acknowledging that the previously proposed ERA “failed of ratification as of June 30,” arguing that “what we need to do is to really go forward once again,” and introducing a resolution to “begin the battle anew”); see also Berry, Why ERA Failed at 82 (“The supporters of ERA in Congress . . . did not give up the effort either. They announced on July 14, that they had fiftyone cosponsors in the Senate and 201 in the House to reintroduce ERA.”). In January 1983, Joint Resolution 1 was introduced in the House, proposing the ERA for ratification by state legislatures with a new seven-year deadline. See H.R.J. Res. 1, 98th Cong. (1983). The House voted on the resolution, but it fell short of the necessary two-thirds majority. See 129 Cong. Rec. 32668, 32684–85 (1983). In the following decades, similar resolutions were regularly introduced. See, e.g., H.R.J. Res. 1, 101st Cong. (1989); S.J. Res. 1, 101st Cong. (1989); S.J. Res. 40, 103d Cong. (1993); H.R.J. Res. 41, 106th Cong. (1999); S.J. Res. 7, 109th Cong. (2005); H.R.J. Res. 69, 112th Cong. (2011); S.J. Res. 6, 115th Cong. (2017). None, however, was adopted. In the current Congress, similar resolutions were introduced in the House on January 29, 2019, see H.R.J. Res. 35, 116th Cong., and in the Senate on March 27, 2019, see S.J. Res. 15, 116th Cong. Two-thirds passage of either of those resolutions in both chambers of Congress would restart the ratification process by reproposing the ERA to the States. Separately, ERA supporters in recent years have sought to revive the expired ERA Resolution from 1972, contending either that the original deadline was legally invalid or that Congress may retroactively nullify the deadline decades after the original proposal’s expiration. See Allison L. Held et al., The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & L. 113 (1997). 10 In the current Congress, several proposed resolutions would See also Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years, N.Y. Times, Nov. 6, 2019 (“‘It’s been extended by Congress, so if you can extend it, you can certainly strike it,’ said Representative Jackie Speier of California, the lead sponsor of a bipartisan House resolution to repeal the deadline.”), https://www. nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html; Dana Canedy, Advocates of Equal Rights Amendment Resume Their Fight, N.Y. Times, May 4, 2003, § 1, at 41 (“Supporters contend they can challenge the deadline if they can now find three more states to vote in favor of the amendment.”). 10 10 Ratification of the Equal Rights Amendment purport to void the deadline in the ERA Resolution. See S.J. Res. 6, 116th Cong. (2019); H.R.J. Res. 79, 116th Cong. (2019); H.R.J. Res. 38, 116th Cong. (2019). The House Judiciary Committee voted on November 13, 2019 to report one of those resolutions favorably. See H.R.J. Res. 79, 116th Cong. (2019) (as amended). 11 In seeking to revive the ERA, supporters have urged several States to ratify the ERA as proposed in the ERA Resolution. See, e.g., Kristina Peterson, Equal Rights Amendment Could Soon Be Back in Congress, Wall St. J., July 3, 2019, https://www.wsj.com/articles/equal-rightsamendment-could-soon-be-back-in-congress-11562155202. In March 2017, Nevada’s legislature approved it. S.J. Res. 2, 79th Leg. (Nev. 2017). In May 2018, the Illinois legislature did the same. S.J. Res. Const. Amend. 0004, 100th Gen. Assemb. (Ill. 2018). The Virginia legislature narrowly failed to approve the amendment in 2019, but ERA supporters will try again this year. 12 If the ratification votes from 1972 to 1977 remain valid, and the five rescissions of those ratifications are disregarded, then thirty-seven of the States may be viewed as having approved the ERA Resolution. In that case, the approval by Virginia, or by another state legislature, would require a determination as to whether the ERA Resolution remains pending, notwithstanding the congressional deadline. The passage of House Joint Resolution 79, or a similar resolution, would likewise require a determination as to whether Congress may revive the ERA Resolution by retroactively removing the earlier deadline. Accordingly, you have requested our opinion on these matters. 11 See also Press Release, H. Comm. on the Judiciary, House Judiciary Committee Passes Resolution Removing Ratification Deadline for the ERA (Nov. 13, 2019), https:// judiciary.house.gov/news/press-releases/house-judiciary-committee-passes-resolutionremoving-ratification-deadline-era. 12 See Jenna Portnoy, ERA Bill Dies for Good in GOP-Controlled Virginia House of Delegates, Wash. Post, Feb. 21, 2019, https://www.washingtonpost.com/local/virginiapolitics/virginia-house-kills-era-ratification-bill/2019/02/21/82920204-3560-11e9-854a7a14d7fec96a_story.html (noting the narrow failure); Rachel Frazin, Virginia Targets Historic Push on Equal Rights Amendment for Women, The Hill, Dec. 1, 2019, https:// thehill.com/homenews/state-watch/472295-virginia-targets-historic-push-on-equal-rightsamendment-for-women (noting that joint resolutions to ratify the ERA have been prefiled in both houses for consideration in the upcoming session). 11 Opinions of the Office of Legal Counsel in Volume 44 II. Congress required that the ERA Resolution be ratified within a fixed period, and whether the effective deadline was in 1979 or 1982, that time has come and gone. The ERA Resolution thus has expired unless the deadline was somehow invalid in the first place. Yet in Dillon, the Supreme Court squarely upheld Congress’s authority to set a ratification deadline, 256 U.S. at 374–76, and that conclusion is consistent not only with Article V of the Constitution, but with the history of the seven amendments proposed and ratified since Dillon. For the last four of those amendments, Congress placed the deadline in the proposing clause—the clause containing the procedural rules for ratification that, like the amendment itself, has always been adopted by two-thirds of both Houses of Congress. As Chief Justice Hughes suggested in his controlling opinion in Coleman v. Miller, 307 U.S. 433 (1939), a ratification deadline may be included “either in the proposed amendment or in the resolution of submission,” id. at 452, and there is no reason in law or historical practice to draw any other conclusion. Because Congress lawfully conditioned the States’ ratification of the ERA upon a deadline, and because the deadline expired, the proposed amendment has necessarily failed. A. The Founders established a process for amending the Constitution that requires substantial agreement within the Nation to alter its fundamental law. As James Madison explained in The Federalist, the Founders chose to ensure a broad consensus in favor of any amendment to “guard[] . . . against that extreme facility which would render the Constitution too mutable,” while at the same time avoiding “that extreme difficulty which might perpetuate its discovered faults.” The Federalist No. 43, at 296 (James Madison) (Jacob E. Cooke ed., 1961); see also id. No. 85, at 592 (Alexander Hamilton) (“[W]henever . . . ten [of thirteen] states[] were united in the desire of a particular amendment, that amendment must infallibly take place.” (footnote omitted)). The Constitution requires supermajorities in Congress (or of state legislatures) to propose an amendment. U.S. Const. art. V. It then raises the bar for ratification even higher by requiring three-fourths of the States—acting either through their legislatures or through ratifying conventions—to approve the amendment. See id. 12 Ratification of the Equal Rights Amendment The infrequency with which the Constitution has been amended attests not just to the genius of the original design but also to the difficulty inherent in securing the broad consensus required by Article V. In connection with promises made during the state ratifying conventions for the original Constitution, the First Congress in 1789 proposed twelve amendments to the States. See 1 Stat. 97 (1789); see also, e.g., David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801, at 110–115 (1997). By 1791, three-fourths of the States had approved ten of those twelve articles—the Bill of Rights. See U.S. Const. amends. I–X; see also 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 339–40 (2d ed. 1836). In the nearly 230 years since then, the States have ratified only seventeen additional amendments. See U.S. Const. amends. XI–XXVII. Article V of the Constitution sets forth the procedures for proposing and ratifying constitutional amendments: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Id. art. V. The process for proposing amendments is one of only two instances where the Constitution requires both Houses of Congress to act by a supermajority. 13 The other is when Congress seeks to override the PresiThe Constitution alternatively provides that a supermajority (two-thirds) of the state legislatures may petition Congress to convene a convention for proposing amendments. U.S. Const. art. V. The Founders believed that this process would likely be unnecessary unless Congress had become corrupted. See, e.g., 1 The Records of the Federal Convention of 1787, at 202–03 (Max Farrand ed., 1911); 1 Blackstone’s Commentaries 371 (St. 13 13 Opinions of the Office of Legal Counsel in Volume 44 dent’s veto of a bill or other form of joint resolution. See id. art. I, § 7, cls. 2–3. 14 The Founders thus established a high bar by requiring that two-thirds of both Houses agree upon the terms of any amendment to be proposed to the States and that three-fourths of the States ratify the amendment on those terms. The Constitution further grants Congress the authority to specify “one or the other Mode of Ratification” in the States, either by the legislatures thereof or by state conventions chosen for that purpose. Id. art. V. In adopting the Constitution, the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments.” United States v. Sprague, 282 U.S. 716, 733 (1931); see also 4 Elliot, Debates in the Several State Conventions at 177 (statement of James Iredell) (“Any amendments which either Congress shall propose, or which shall be proposed by such general convention, are afterwards to be submitted to the legislatures of the different states, or conventions called for that purpose, as Congress shall think proper[.]”). Congress therefore exercises discretion in determining not just the substance of the amendment, but which of the two modes of ratification is to be used. See Sprague, 282 U.S. at 732 (recognizing that “the choice of mode rests solely in the discretion of Congress”). In making such determinations, Congress has specified the mode of ratification in the proposing clause included within every resolution proposing a constitutional amendment. For every successful amendment, both Houses of Congress approved the proposing clause at the same time as the text of the proposed amendment, and they did so by a two-thirds vote. Congress included such a clause in the very first set of amendments proposed to the States, ten of which were ratified in 1791 as the Bill of Rights (and one of which was ratified in 1992 as the Twenty-Seventh Amendment). The resolution recited that Congress was proposing twelve George Tucker ed., 1803) (observing that the convention process “will probably never be resorted to, unless the federal government should betray symptoms of corruption,” and describing the convention process as a “radical and effectual remedy”). As a historical matter, the state legislatures have never successfully petitioned for such a convention, and every amendment proposed to the States to date has come from Congress in the first instance. 14 The Constitution requires a two-thirds majority in the Senate to convict a civil officer in an impeachment trial, U.S. Const. art. I, § 3, cl. 6, and to give advice and consent to ratification of a treaty, id. art. II, § 2, cl. 2. It requires two-thirds of either House to concur in the expulsion of one of its Members. Id. art. I, § 5, cl. 2. 14 Ratification of the Equal Rights Amendment articles “to the legislatures of the several states, as amendments to the constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid to all intents and purposes, as part of the said Constitution.” 1 Stat. at 97 (emphasis added). In every subsequent amendment proposed to the States, Congress has included a proposing clause reciting the intended mode of ratification. 15 The proposing clause for the Bill of Rights not only specified the mode of ratification but also contained a procedural instruction authorizing the state legislatures either to ratify “all” twelve proposed articles or to ratify “any of ” them individually. 1 Stat. at 97. This proposing clause was debated by the House and the Senate and considered of a piece with the substantive proposed amendments. See 4 Documentary History of the First Federal Congress of the United States of America 35–45 (Charlene Bangs Bickford & Helen E. Veit eds., 1986). Although the early resolutions proposing amendments did not include deadlines for ratification, seven-year deadlines were included in the texts of what became the Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments. See U.S. Const. amends. XVIII, § 3; XX, § 6; XXI, § 3; XXII, § 2. When proposing the Twenty-Third Amendment in 1960, Congress included a similar seven-year deadline in the proposing clause, see 74 Stat. 1057 (1960), and every subsequent proposed amendment has also included, in its proposing clause, a requirement that the amendment be ratified within seven years. See 76 Stat. 1259 (1962) (Twenty-Fourth Amendment); 79 Stat. 1327 (1965) (Twenty-Fifth Amendment); 85 Stat. 825 (1971) (Twenty-Sixth Amendment); 86 Stat. at 1523 (proposed ERA); 92 Stat. 3795 (1978) (proposed D.C. Congressional Representation Amendment). See 1 Stat. 402 (1794) (Eleventh Amendment); 2 Stat. 306 (1803) (Twelfth Amendment); 2 Stat. 613 (1810) (proposed Titles of Nobility Amendment); 12 Stat. 251 (1861) (proposed Article the Thirteenth); 13 Stat. 567 (1865) (Thirteenth Amendment); 14 Stat. 358 (1866) (Fourteenth Amendment); 15 Stat. 346 (1869) (Fifteenth Amendment); 36 Stat. 184 (1909) (Sixteenth Amendment); 37 Stat. 646 (1912) (Seventeenth Amendment); 40 Stat. 1050 (1917) (Eighteenth Amendment); 41 Stat. 362 (1919) (Nineteenth Amendment); 43 Stat. 670 (1924) (proposed Child Labor Amendment); 47 Stat. 745 (1932) (Twentieth Amendment); 48 Stat. 1749 (1933) (Twenty-First Amendment); 61 Stat. 959 (1947) (Twenty-Second Amendment); 74 Stat. 1057 (1960) (Twenty-Third Amendment); 76 Stat. 1259 (1962) (Twenty-Fourth Amendment); 79 Stat. 1327 (1965) (Twenty-Fifth Amendment); 85 Stat. 825 (1971) (Twenty-Sixth Amendment); 86 Stat. 1523 (1972) (proposed ERA); 92 Stat. 3795 (1978) (proposed D.C. Congressional Representation Amendment). 15 15 Opinions of the Office of Legal Counsel in Volume 44 Each of these deadlines was adopted as part of the same resolution that proposed each amendment by the required two-thirds majorities of both Houses of Congress. B. Article V does not expressly address how long the States have to ratify a proposed amendment. The “article says nothing about the time within which ratification may be had—neither that it shall be unlimited nor that it shall be fixed by Congress.” Dillon, 256 U.S. at 371. The text does direct that “[t]he Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution[.]” U.S. Const. art. V (emphases added). This language authorizes Congress to propose amendments for ratification when two-thirds majorities in each chamber deem it necessary, thereby implying that Congress may propose amendments for the period that the requisite majorities deem necessary. See Dillon, 256 U.S. at 375 (“[I]t is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently.”). Article V thus requires Congress to make a judgment concerning the needs of the moment and, from that, the Supreme Court has inferred the power to set a deadline by which the States must ratify, or reject, Congress’s judgment. See id. at 375–76. The Court reached this conclusion in Dillon, which upheld Congress’s authority to impose a deadline for ratifying the Eighteenth Amendment, which established Prohibition. See U.S. Const. amend. XVIII, §§ 1–2. In section 3 of the Amendment, Congress conditioned its effectiveness upon the requirement that it be ratified within seven years. See id. § 3 (“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”). The Senate had previously considered proposing ratification deadlines for the Fourteenth and Fifteenth Amendments. See Cong. Globe, 40th Cong., 3d Sess. 912–13, 1309–14 (1869); Cong. Globe, 39th Cong., 1st Sess. 2771 (1866). But the Eighteenth Amendment was the first amendment to include one. In Dillon, a prisoner detained in violation of the National Prohibition Act (which was enacted pursuant to federal power authorized by the Eighteenth Amendment) argued that the presence of the deadline invali16 Ratification of the Equal Rights Amendment dated the amendment because “Congress has no constitutional power to limit the time of deliberation or otherwise attempt to control what the legislatures of the States shall do in their deliberation.” Br. for Appellant at 4, Dillon v. Gloss, 256 U.S. 368 (1921) (No. 251). In rejecting this claim, the Court observed that “some” of the first seventeen amendments had been ratified “within a single year after their proposal and all within four years.” Dillon, 256 U.S. at 372. Four other proposed amendments, however, had failed to obtain the necessary votes from the States and “lain dormant for many years,” leaving it an “open question” whether they “could be resurrected.” Id. at 372–73. To avoid such future uncertainty, the Court explained, Congress fixed a seven-year deadline for the ratification of the Prohibition amendment. Id. at 373; see also 55 Cong. Rec. 5557 (1917) (remarks of Sen. Ashurst) (expressing support for a provision “limiting the time in the case of this amendment or any other amendment to 10, 12, 14, 16, 18, or even 20 years, so that we will not hand down to posterity a conglomerate mass of amendments floating around in a cloudy, nebulous, hazy way”). In upholding Congress’s authority to impose deadlines, the Court recognized that Article V does not expressly address the timing of ratification. See Dillon, 256 U.S. at 371. It nevertheless read the text to imply a degree of contemporaneity between an amendment’s proposal and its ratification, which “are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time.” Id. at 374–75. The Court inferred that the approval of three-fourths of the States needs to be “sufficiently contemporaneous . . . to reflect the will of the people in all sections at relatively the same period.” Id. at 375. Thus, “‘an alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today,’” and “‘if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’” Id. at 375 (quoting, with alterations, John Alexander Jameson, A Treatise on Constitutional Conventions § 585, at 634 (4th ed. 1887)). 16 The Court therefore concluded The Dillon Court necessarily rejected Jameson’s contention that, although Article V gives Congress the powers to propose an amendment and to express the mode of ratification, it does not grant Congress the power “to prescribe conditions as to the time within which amendments are to be ratified, and hence to do so would be to transcend the power given.” Jameson, A Treatise on Constitutional Conventions § 585, at 634. 16 17 Opinions of the Office of Legal Counsel in Volume 44 that “the fair inference or implication from article V is that the ratification must be within some reasonable time after the proposal.” Dillon, 256 U.S. at 375. 17 Having viewed Article V as implicitly including a requirement of contemporaneity, Dillon rejected the argument that Congress lacks the power to set the reasonable time for ratification. See id. at 375−76. The Court reasoned that, “[a]s a rule[,] the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and article V is no exception to the rule.” Id. at 376 (footnote omitted). Therefore, “[w]hether a definite period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine[.]” Id. The Court concluded that Congress has the authority to impose a deadline upon the ratification process, reasoning that such a power is “an incident of its power to designate the mode of ratification” under Article V. Id. C. Unlike with the Eighteenth Amendment, Congress placed the ratification deadline for the ERA Resolution in the proposing clause, rather than in the text of the proposed amendment. But that judgment was entirely consistent with the four preceding amendments, and with Dillon’s recognition that a deadline is related to the mode of ratification, which has always been included in the proposing clause. In placing the ERA’s deadline in the proposing clause, Congress followed a practice that started with the Twenty-Third Amendment. See 74 Stat. at 1057 (resolving “that the following article is hereby proposed . . . which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by Congress”). Congress took the same In Congressional Pay Amendment, this Office concluded that “Dillon is not authoritative on the issue whether Article V requires contemporaneous ratification” in the absence of any congressional deadline, because the Eighteenth Amendment contained a deadline. 16 Op. O.L.C. at 92–93. Finding no time limit in Article V, we concluded that the Twenty-Seventh Amendment, which was proposed without a deadline in 1789, had been adopted in 1992. See id. at 97, 105. Because the ERA Resolution contained a deadline (which has expired), we do not need to consider in this opinion the 1992 opinion’s reading of Dillon. 17 18 Ratification of the Equal Rights Amendment course in the proposing clauses of the Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth Amendments. See 76 Stat. at 1259; 79 Stat. at 1327; 85 Stat. at 825. There is no reason for deadlines declared in proposing clauses to be any less binding on the ratification process than those included in the text of proposed amendments. In Dillon, the Supreme Court held that Congress’s decision to fix “a definite period for ratification” is “a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification” under Article V. 256 U.S. at 376. In the first resolution proposing constitutional amendments, Congress identified the mode of ratification in the resolution’s proposing clause, separate from the text of the proposed amendments themselves. See supra pp. 14–15. Congress has specified the mode of ratification in the proposing clause of every resolution proposing a constitutional amendment since then. See supra note 15. Each time, twothirds of both Houses of Congress approved these measures. Insofar as Congress and the States have relied upon proposing clauses to specify the mode of ratification since 1789, we think it clear that Congress may exercise its integrally related authority to set a deadline in precisely the same manner. Chief Justice Hughes suggested as much when he observed that the Child Labor Amendment did not include a ratification deadline “either in the proposed amendment or in the resolution of submission.” Coleman, 307 U.S. at 452. As we recognized in 1977, “[t]he history of congressional use of a seven-year limitation demonstrates that Congress moved from inclusion of the limit in the text of proposed amendments to including it within the proposing clauses . . . without ever indicating any intent to change the substance of their actions.” Constitutionality of ERA Extension at 15. After the Court’s 1921 decision in Dillon confirmed the validity of the Eighteenth Amendment’s ratification deadline, Congress included a seven-year deadline in the Twentieth, Twenty-First, and Twenty-Second Amendments. See U.S. Const. amend. XX, § 6 (“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.”); id. amend. XXI, § 3 (“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”); id. amend. XXII, § 2 (“This article shall be inoperative unless it shall have been ratified as an 19 Opinions of the Office of Legal Counsel in Volume 44 amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”). By including such a provision in the amendment itself, Congress ensured that approvals secured after the seven-year deadline would be ineffective. Even if three-fourths of the States later ratified the amendment—and it therefore became “valid to all Intents and Purposes, as Part of [the] Constitution,” id. art. V—the amendment, by its own terms, would be legally inert. Members of Congress recognized, however, that these textual deadlines came at a cost. With each amendment, the Nation’s highest law became increasingly cluttered with extraneous sections imposing conditions on ratification that had no prospective effect. Once three-fourths of the States ratified amendments within the prescribed deadlines, the deadlines, having already fulfilled their purpose, were nonetheless added to the constitutional text. To avoid exacerbating that problem, Congress adopted an alternative way of setting a ratification deadline when it proposed the Twenty-Third Amendment. Rather than including the deadline in the amendment’s text, Congress put it in the proposing clause specifying the mode of ratification. See 74 Stat. at 1057. As Senator Kefauver had explained: The general idea was that it was better not to make the 7-year provision a part of the proposed constitutional amendment itself. It was felt that that would clutter up the Constitution. . . . We wanted to put the 7-year limitation in the preamble. So the intention of the preamble is that it must be ratified within 7 years in order to be effective. 101 Cong. Rec. 6628 (1955); see also Appointment of Representatives: Hearing on S.J. Res. 8 Before a Subcomm. of the S. Comm. on the Judiciary, 84th Cong. 34 (1955) (letter from Prof. Noel Dowling) (“The 7-year limitation is put in the resolution rather than in the text of the amendment. There is no doubt about the power of Congress to put it there; and it will be equally effective. The usual way, to be sure, has been to write the limitation into the amendment; but we hope such an unnecessary cluttering up of the Constitution can be ended.”). 18 In connection with the Twentieth Amendment, Representative Emanuel Celler had proposed placing the seven-year deadline in the proposing clause, but that approach drew objections. 75 Cong. Rec. 3856–57 (1932). Representative Lamar Jeffers protested that, “[i]f the gentleman wants his amendment in the Constitution, it should go in a new 18 20 Ratification of the Equal Rights Amendment Congress thereafter adopted the Twenty-Third Amendment resolution, including the seven-year deadline, by a two-thirds majority of both Houses. 106 Cong. Rec. 12571, 12858 (1960); see 74 Stat. at 1057. The States promptly ratified the amendment within ten months. See Certification of Amendment to Constitution of the United States Granting Representation in the Electoral College to the District of Columbia, 26 Fed. Reg. 2808 (Apr. 3, 1961). And Congress repeated the very same course by including deadlines in the proposing clauses for the Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth Amendments. See 76 Stat. at 1259; 79 Stat. at 1327; 85 Stat. at 825. 19 In 1977, we observed that Congress appears to have adopted this approach without any discussion about potentially placing the deadlines elsewhere. See Constitutionality of ERA Extension at 14–15. And we have found no indication that Members of Congress (or any court) seriously questioned the binding nature of a deadline stated in a resolution’s proposing clause rather than the text of its proposed amendment. In the case of the ERA Resolution, Congress again included a ratification deadline in the proposing clause. Members suggested that, by this time, it had become the customary way of setting a deadline. See, e.g., S. Rep. No. 92-689, at 20 (1972) (describing the deadline as part of the “traditional form of a joint resolution proposing a constitutional amendment for ratification by the States” and stating that it “has been included in every amendment added to the Constitution in the last 50 years”). The deadline was widely understood to be a necessary part of the legislative compromise that resulted in the resolution’s passage. Prominent ERA section, or section 6. As he has now offered it, it would be of no avail, as he is offering it as a part of the proposal clause and not as a part of the proposed constitutional amendment.” Id. at 3856; see also id. (statement of Rep. Ramseyer) (“The eighteenth amendment carried that 7-year provision as section 3, and it was that provision that the Supreme Court held to be valid. . . . I think we should play safe, inasmuch as the Supreme Court has held the provision valid.”); see also Constitutionality of ERA Extension at 10–11 (discussing this history). We have not identified the expression of any similar concern with respect to the Twenty-Third or any subsequent Amendment, and, as discussed below, we believe this concern is misplaced. 19 In proposing the Twenty-Third and Twenty-Fourth Amendments, Congress provided that the amendment would be valid “only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission” (emphasis added). Starting with the Twenty-Fifth Amendment, Congress replaced “only if ” with “when.” As we recognized in 1977, this change did not alter the meaning of the resolution or the binding nature of the deadline. See Constitutionality of ERA Extension at 15. 21 Opinions of the Office of Legal Counsel in Volume 44 opponents had faulted an earlier version of the resolution for the absence of a deadline. See, e.g., 116 Cong. Rec. at 28012 (remarks of Rep. Celler, Chairman of the House Judiciary Committee) (decrying the fact that, without a deadline, “[t]his amendment could roam around State legislatures for 50 years” and arguing that the “customar[y]” seven-year deadline should be added); id. at 36302 (remarks of Sen. Ervin) (proposing a seven-year deadline and noting that “we still have floating around some unratified amendments that were submitted at the time of the original submission of the Bill of Rights”). And ERA supporters confirmed that, while they expected prompt ratification, the seven-year deadline would impose a binding time limit. See 117 Cong. Rec. at 35814–15 (remarks of Rep. Griffiths) (recognizing that the deadline will ensure that the resolution “should not be hanging over our head forever”); 118 Cong. Rec. at 9552 (remarks of Sen. Hartke) (recognizing that if the ERA is not “ratified within 7 years,” then “we must begin the entire process once again”). In proposing the ERA to the States with a deadline, Members of Congress thus recognized that the deadline was a binding condition upon its ratification. Apart from the seven-year deadline in the proposing clause, the ERA Resolution included a separate timing requirement—a delay on effectiveness for two years after ratification—in section 3 of the text of the proposed amendment. But this distinction did not make the seven-year deadline any less mandatory than the two-year delay. Unlike with ratification deadlines, Congress has never placed an amendment’s delayed effective date in a proposing clause. Nor is it clear that it could effectively do so, because Article V declares that a proposed amendment “shall be valid to all Intents and Purposes, as Part of [the] Constitution, when ratified.” U.S. Const. art. V (emphasis added). Including the two-year delay in the amendment itself could be necessary to amend the effect that Article V would otherwise have on the amendment’s effective date. After Congress proposed the ERA Resolution, state legislatures considered whether to ratify it subject to all of the conditions imposed by Congress, including the seven-year deadline. Of the thirty-five state legislatures that ratified between 1972 and 1977, twenty-five expressly voted upon a state measure that included the text of the ERA Resolution in its entirety (and hence the deadline). See Senate Extension Hearings at 739–54, 756–61. Five others did not expressly vote on the entire text of the ERA Resolution, but the seven-year deadline was otherwise repeated in the measures that they approved. See id. at 739–40, 742–43, 746–47, 22 Ratification of the Equal Rights Amendment 752–54, 758. And South Dakota’s legislature expressly provided that its ratification would be formally withdrawn if the ERA were not adopted within the seven-year deadline. S.J. Res. 2, 54th Leg. (S.D. 1979). Accordingly, the States that ratified the ERA Resolution plainly did so with the knowledge of the timing condition and with the understanding that the seven-year deadline was part and parcel of the amendment proposal. Although some ERA supporters have recently questioned the enforceability of the deadline, no one involved with the ERA around the time of its proposal seems to have done so. As the original ratification period neared its end, Congress weighed extending the deadline precisely to avoid the failure of the amendment. For instance, Representative Elizabeth Holtzman, the primary sponsor of the extension resolution, testified that “[t]he cosponsors of [the] resolution have every hope that the equal rights amendment will be ratified before March 22, 1979, but do believe there might be need for an insurance policy to assure that the deadline will not arbitrarily end all debate on the ERA.” House Extension Hearings at 4 (emphasis added). And while this Office advised that Congress could extend the deadline, we nonetheless recognized that the proposed amendment would otherwise expire. See Constitutionality of ERA Extension at 15. Even more telling, the Supreme Court necessarily recognized the enforceability of the deadline by finding that the legal controversy over the ERA extension became moot when the extended deadline lapsed. After the district court in Idaho v. Freeman held that Congress could not extend the deadline, the federal government and others sought review in the Supreme Court. See, e.g., Pet. of Adm’r of Gen. Servs. for Writ of Cert. Before J., Carmen v. Idaho, No. 81-1313 (U.S. Jan. 22, 1982); Pet. for Writ of Cert. Before J., Nat’l Org. for Women, Inc. v. Idaho, No. 81-1283 (U.S. Jan. 8, 1982). Although the Court accepted review, the June 1982 deadline expired before it could hear argument. At that point, the Acting Solicitor General urged the Court to dismiss the case as moot because “the Amendment has failed of adoption no matter what the resolution of the legal issues presented.” Mem. for Adm’r of Gen. Servs. Suggesting Mootness at 3, Nat’l Org. for Women, Inc. v. Idaho, Nos. 81-1282 et al. (U.S. July 9, 1982). Other parties objected to that conclusion on prudential grounds, but none argued that the deadline was unenforceable. 20 The 20 See, e.g., Response of Nat’l Org. for Women, Inc., et al., to Mem. for Adm’r of Gen. Servs. Suggesting Mootness at 3–5, Nat’l Org. for Women, Inc. v. Idaho, Nos. 81-1282 23 Opinions of the Office of Legal Counsel in Volume 44 Supreme Court remanded with instructions “to dismiss the complaints as moot.” Nat’l Org. for Women, 459 U.S. at 809. In so doing, the Court necessarily adopted the view that Congress had validly imposed a ratification deadline that had expired. See Response of Nat’l Org. for Women, Inc., et al., to Mem. for Adm’r of Gen. Servs. Suggesting Mootness at 3, Nat’l Org. for Women, Inc. v. Idaho, Nos. 81-1282 et al. (July 23, 1982) (“Even an unexplained ruling that this case is moot would necessarily signal implicit acceptance of [the Acting Solicitor General’s] position, particularly in light of this Court’s stay of January 25.”). All of this history confirms that the deadline in the proposing clause of the ERA Resolution was a valid and binding exercise of Congress’s authority to set a deadline on ratification. Congress in 1972 required the ERA to be ratified by a certain date as an incident to its authority to set the mode of ratification. See Dillon, 256 U.S. at 376. Two-thirds of both Houses of Congress approved the amendment with that accompanying condition, and the state legislatures that ratified did so as well. Under the text and structure of Article V, and consistent with the Court’s opinion in Dillon, that condition was legally effective. Because the deadline lapsed without ratifications from the requisite thirty-eight States, the ERA Resolution is no longer pending before the States, and ratification by additional state legislatures would not result in the ERA’s adoption. III. Although the ERA Resolution expired decades ago, there remains the question whether Congress may revive the ERA ratification process. As noted above, the House Judiciary Committee has favorably reported a joint resolution “[r]emoving the deadline for the ratification of the equal rights amendment,” which would purport to make the ERA “valid to all intents and purposes as part of the United States Constitution whenever ratified by the legislatures of three-fourths of the several States.” H.R.J. et al. (U.S. July 23, 1982) (arguing that notwithstanding the expiration of the deadline, the Court should address whether the validity of the extension presented a political question); Response of Washington Appellees and Respondents to Mem. for Adm’r of Gen. Servs. Suggesting Mootness at 4, Nat’l Org. for Women, Inc. v. Idaho, Nos. 81-1282 et al. (U.S. Aug. 10, 1982) (“One might think that a scheme to secure ratification past the expiration of the second deadline is patently ludicrous. However, it also seemed ludicrous prior to 1978 to suggest an extension of time for the ratification of a constitutional amendment by a simple majority vote.”). 24 Ratification of the Equal Rights Amendment Res. 79, 116th Cong. (as ordered to be reported by H. Comm. on the Judiciary, Nov. 13, 2019); see also supra note 11 and accompanying text. We therefore must consider whether this pending resolution, if adopted by both Houses of Congress, would reopen the ratification of the ERA Resolution. Congress, of course, could restart the amendment process by reproposing the ERA to the States. We do not believe, however, that Congress in 2020 may change the terms upon which the 1972 Congress proposed the ERA for the States’ consideration. Article V does not expressly or implicitly grant Congress such authority. To the contrary, the text contemplates no role for Congress in the ratification process after it proposes an amendment. Moreover, such a congressional power finds no support in Supreme Court precedent. While the controlling opinion in Coleman suggested that Congress—and not the Court—may judge what constitutes “a reasonable limit of time for ratification,” the opinion concerned only those instances “when the limit has not been fixed in advance.” 307 U.S. at 454 (opinion of Hughes, C.J.). By its own terms, that opinion does not extend to the circumstances of the ERA, where Congress fixed a deadline before the proposal went to the States and that period has now expired. A. Those who believe that the ERA Resolution may be revived argue that Congress’s authority under Article V would allow simple majorities in each House to eliminate the earlier ratification deadline and thereby extend the ratification process. See 165 Cong. Rec. H8741 (daily ed. Nov. 8, 2019) (statement of Rep. Speier) (identifying Article V as the constitutional authority for House Joint Resolution 79). Relying upon Congress’s prior action to extend the ERA deadline, they argue that, since the deadline rests in the proposing clause rather than the amendment’s text, it is open to congressional revision at any time, including decades after its expiration. See, e.g., Held, 3 Wm & M. J. Women & L. at 128– 29; Astor, supra note 10 (“‘It’s been extended by Congress, so if you can extend it, you can certainly strike it,’ said Representative Jackie Speier of California, the lead sponsor of a bipartisan House resolution to repeal the deadline.”). They contend not only that this approach would permit the States to ratify the ERA Resolution long after the deadline, but that the thirty-five ratifications from the 1970s, as well as the two from the 2010s, 25 Opinions of the Office of Legal Counsel in Volume 44 would count towards the thirty-eight necessary to complete ratification.21 Despite Congress’s having proposed the ERA Resolution to the States with an express deadline, and the state legislatures’ having voted upon it with that understanding, this contingent of ERA supporters believes that a concurrent resolution of Congress could void that earlier widespread understanding. We do not believe that Article V permits that approach. Congress’s authority to fix a “definite period for ratification” is “an incident of its power to designate the mode of ratification.” Dillon, 256 U.S. at 376. Congress may fix such a deadline for a proposed amendment “so that all may know what it is and speculation on what is a reasonable time may be avoided.” Id. Congress would hardly be setting a “definite period for ratification” if a later Congress could simply revise that judgment, either by reducing, extending, or eliminating the deadline that had been part of the proposal transmitted to the States. While Congress need not set any ratification deadline, once it has done so, “that determination of a time period becomes an integral part of the proposed mode of ratification.” Idaho v. Freeman, 529 F. Supp. at 1152–53. “Once the proposal has been formulated and sent to the states, the time period could not be changed any more than the entity designated to ratify could be changed from the state legislature to a state convention or vice versa.” Id. at 1153. When Congress “propose[s]” an amendment, it also selects the “Mode of Ratification.” U.S. Const. art. V. The power to “propose” authorizes Congress to set the terms upon which the amendment will be considered by others, namely the States. See 2 Noah Webster, American Dictionary of the English Language s.v. PROPOSE (1828) (defining the transitive verb propose: “To offer for consideration, discussion, acceptance or adoption; as, to propose a bill or resolve to a legislative body[.]”); 2 Samuel Johnson, A Dictionary of the English Language s.v. To PROPOSE (6th ed. 1785) (“To offer to the consideration.”). Once Congress has “propose[d]” an amendment and selected the mode of ratification as “may be proposed by the Congress,” the States then determine whether the proposal will be ratified. U.S. Const. art. V. As we recognized in our Notably, these proponents further argue that States may not rescind their earlier ratifications, which means that a resolution would amend the terms of the proposal upon which the state legislatures voted between 1972 and 1977 and purportedly lock them into their earlier votes upon different terms, without any input from, or opportunity for reconsideration by, those legislatures. See, e.g., Held, 3 Wm & M. J. Women & L. at 131–34. 21 26 Ratification of the Equal Rights Amendment 1992 opinion concerning the Twenty-Seventh Amendment, “[n]othing in Article V suggests that Congress has any further role. Indeed, the language of Article V strongly suggests the opposite[.]” Congressional Pay Amendment, 16 Op. O.L.C. 85, 102 (1992). 22 The power to propose is thus a prospective power, and does not entail any authority to modify the terms of a proposed amendment once it has been offered for the consideration of the States. Consistent with the Constitution’s federal structure, Congress and the state legislatures are “separate legislative bodies representing separate sovereignties and agencies of the people.” Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the TwentySeventh Amendment, 103 Yale L.J. 677, 689 (1993). Congress has the responsibility to propose the text of an amendment and the terms under which the States may ratify it, but once it has done so, Congress may not directly regulate the States in the performance of their distinct constitutional responsibilities. Cf. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475 (2018) (recognizing that the Founders made a “decision to withhold from Congress the power to issue orders directly to the States”). If anything, Article V operates in precisely the opposite direction by authorizing the state legislatures themselves to require Congress to call a constitutional convention to propose new amendments. 23 Article V goes on to confirm that Congress lacks any continuing authority over ratification by providing that the States’ ratification of what Congress proposed 22 See also 56 Cong. Rec. 446 (1917) (statement of Rep. Lenroot) (“Article V expressly provides that once this proposed amendment has gone from the halls of Congress and rests with the States, when ratified by the States it becomes a part of the Constitution.”); Walter Dellinger, Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386, 398 (1983) (The Constitution “requires no additional action by Congress or by anyone else after ratification by the final state.”); Grover Rees III, Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension, 58 Tex. L. Rev. 875, 899 (1980) (arguing that Article V requires only “proposal by Congress” and “ratification by the states,” not “final ‘acceptance’ by Congress”). 23 As noted above, see supra note 13, the Founders expressed concern that the national government might block necessary amendments, and they therefore included in Article V a mechanism to ensure that the States could amend the Constitution even over the objection of Congress by allowing two-thirds of the state legislatures to direct Congress to convene a convention to propose such new constitutional amendments. See Federalist No. 85, at 593 (Alexander Hamilton) (“By the fifth article of the plan the congress will be obliged, ‘on the application of the legislatures of two thirds of the states . . . to call a convention for proposing amendments.’”). 27 Opinions of the Office of Legal Counsel in Volume 44 is self-executing. Upon the approval of “three fourths” of the state legislatures or of state ratifying conventions, the amendment “shall be valid to all Intents and Purposes, as Part of th[e] Constitution.” U.S. Const. art. V. In other words, the amendment becomes immediately effective, and Article V contemplates no additional role for Congress in modifying the proposal or in accepting or approving ratifications by the States. For these reasons, constitutional commentators have long recognized that “Congress may not withdraw an amendment once it has been proposed.” Constitutionality of ERA Extension at 18 n.22; see also Lester Bernhardt Orfield, The Amending of the Federal Constitution 51–52 (1942) (“The practice has been to regard such a withdrawal as ineffectual. The theory apparently is that each affirmative step in the passage of an amendment is irrevocable.”); Charles K. Burdick, The Law of the American Constitution 39 (1922) (“It seems safe to assert that Congress, having once submitted a proposed constitutional amendment to the States, cannot thereafter withdraw it from their consideration[.]”); Jameson, A Treatise on Constitutional Conventions § 585 at 634 (“[T]he Federal Constitution, from which Congress alone derives its power to submit amendments to the States, does not provide for recalling them upon any event or condition; and . . . the power to recall cannot be considered as involved in that to submit, as necessary to its complete execution. It therefore cannot exist.”). Similarly, we believe that Article V does not authorize Congress to adjust the terms of an amendment previously proposed to the States, whether it seeks to alter the mode of ratification or the deadline for ratification. Recognizing congressional authority to modify the terms of a proposed constitutional amendment would present numerous questions that lack answers in the text of the Constitution or the history of past amendments. Could Congress modify a substantive provision within a pending amendment, or is its modification power limited to procedural terms? Could a later Congress hostile to a pending amendment shorten the deadline or declare it expired (and if so, how would such a power differ from a power to withdraw the pending amendment)? Must Congress adopt such changes by the same two-thirds vote of both Houses by which an amendment is proposed, or would a simple majority vote of each House suffice? And must the President sign the joint resolution modifying a proposal, or would the modification become immediately effective without presentment? Compare U.S. Const. art. I, § 7, cls. 2–3, with Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 381 n.*, 382 (1798). In concluding that 28 Ratification of the Equal Rights Amendment Congress could extend the ERA’s deadline, our 1977 opinion hazarded answers to all of these questions, while recognizing the absence of any authoritative guidance from the Constitution, caselaw, or historical practice. See Constitutionality of ERA Extension at 16–26. We think that the better inference to draw from the Constitution’s silence is that there is no modification authority in the first place. If Congress wants to remove a ratification deadline from a proposed amendment, then it must propose an entirely new constitutional amendment, giving the States a new opportunity to consider that proposal. Article V does not provide for any other supervisory mechanism by which Congress can adjust those terms. B. Although the text of Article V does not contemplate any further role for Congress after it has proposed a constitutional amendment, the Supreme Court suggested one exception in Coleman, where a majority of justices concluded that, when a proposed amendment contains no deadline, then Congress, not the courts, should have the responsibility for deciding whether the States had ratified the amendment within a reasonable time. In Coleman, members of the Kansas legislature had challenged the State’s 1937 ratification of the Child Labor Amendment based, in part, on the ground that it was untimely because Congress had proposed the amendment in 1924. See 307 U.S. at 436. In addressing that question, the Court fractured on whether Dillon’s requirement that an amendment be ratified within a “reasonable time” was a matter subject to judicial resolution. There was no majority opinion, but two separate opinions, joined by a total of seven justices, agreed that where a proposed amendment lacked any deadline, what constituted a “reasonable time” for ratification was a nonjusticiable political question. Chief Justice Hughes’s controlling opinion, which was joined by Justices Stone and Reed and styled as the “Opinion of the Court,” concluded that the political branches, and not the Court, should decide whether an amendment had been ratified within a “reasonable time.” See Coleman, 307 U.S. at 454 (opinion of Hughes, C.J.). In so ruling, he reasoned that “the question of a reasonable time in many cases would involve . . . an appraisal of a great variety of relevant conditions, political, social and economic,” and these conditions were “appropriate for the consideration of the political departments of the Government.” Id. at 453–54. The Chief Justice advised that Congress should address that question “when, in the 29 Opinions of the Office of Legal Counsel in Volume 44 presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment.” Id. at 454 (emphasis added). Justice Black, joined by Justices Roberts, Frankfurter, and Douglas, would have gone further and treated any congressional proclamation that an amendment had been ratified as “final” and “‘conclusive upon the courts.’” Id. at 457 (Black, J., concurring) (quoting Leser v. Garnett, 258 U.S. 130, 137 (1922)). 24 Neither of these Coleman opinions identified any textual foundation for any power of Congress to “promulgate” an amendment ratified by threefourths of the States. The dissenting justices criticized the majority opinions for addressing a point that had not been “raised by the parties or by the United States appearing as amicus curiae.” Id. at 474 (Butler, J., dissenting). And Coleman’s conclusion has been frequently criticized as lacking foundation in the text, caselaw, or historical practice of congressional amendments. See, e.g., Congressional Pay Amendment, 16 Op. O.L.C. at 99 (“[C]ongressional promulgation is neither required by Article V nor consistent with constitutional practice.”); Dellinger, 97 Harv. L. Rev. at 403 (“[T]he Coleman Court largely manufactured the anticipated event of congressional promulgation to which it was deferring.”); Rees, 24 Justice Black’s separate opinion, which would appear to view every question about the adoption of a constitutional amendment as a political question, is difficult to square with Dillon and several other cases where the Supreme Court has addressed the validity of congressional action on constitutional amendments. See, e.g., National Prohibition Cases, 253 U.S. 350 (1920) (holding that the requirements of Article V were met in connection with the adoption of the Eighteenth Amendment); Sprague, 282 U.S. at 716 (rejecting the claim that Congress was obliged to call a convention to propose the Eighteenth Amendment); Hollingsworth, 3 U.S. at 381 n.*, 382 (stating that “[t]he negative of the President applies only to the ordinary cases of legislation,” and thus holding that the Eleventh Amendment had been “constitutionally adopted”). As then–Circuit Judge John Paul Stevens recognized, “since a majority of the [Coleman] Court refused to accept [Justice Black’s] position in that case, and since the Court has on several occasions decided questions arising under article V, even in the face of ‘political question’ contentions, that argument is not one which a District Court is free to accept.” Dyer v. Blair, 390 F. Supp. 1291, 1299–1300 & n.20 (N.D. Ill. 1975) (Stevens, J.) (footnote omitted). In contrast with cases involving the requirements of Article V, the Court has treated questions about whether a State has ratified an amendment as nonjusticiable. See Leser, 258 U.S. at 137 (holding a State official’s “duly authenticated” acknowledgement of ratification to be “conclusive upon the courts”); cf. White v. Hart, 80 U.S. 646, 649 (1871) (suggesting, in dictum, that the Court could not review Congress’s decision to require Georgia to ratify the Fourteenth and Fifteenth Amendments as a condition of regaining representation in Congress after the Civil War). 30 Ratification of the Equal Rights Amendment 58 Tex. L. Rev. at 887 (“Coleman was a very bad decision when handed down, and the Court almost certainly would decide it differently today.”) (footnote omitted). Nothing in Article V suggests that Congress has any role in promulgating an amendment after it has been ratified by the requisite number of state legislatures or conventions. To the contrary, Dillon held that the ratification of the Eighteenth Amendment was “consummated” on the date that the thirty-sixth State had ratified it, and not thirteen days later when the Acting Secretary of State had proclaimed it under the statutory predecessor to 1 U.S.C. § 106b. See Dillon, 256 U.S. at 376. The Court in Dillon did not suggest that there was any need for Congress to promulgate the amendment, and Congress did not purport to do so. Chief Justice Hughes’s opinion would create a strange situation in which state legislatures voting on an amendment would not know until after the fact—and potentially long after the fact—whether a future Congress would conclude that their ratifications had occurred within a “reasonable time.” See Congressional Pay Amendment, 16 Op. O.L.C. at 95 (“In order to be able to carry out its function in the ratification process, any state that is contemplating ratification must know whether an amendment is in fact pending before it. That is not a matter of degree; the proposed amendment is either pending or not.”). Such a scenario would not only be a constitutional anomaly, it would directly conflict with Article V’s command that, “when ratified” by three-fourths of the States, an amendment “shall be valid to all Intents and Purposes, as Part of this Constitution.” U.S. Const. art. V (emphasis added). 25 Chief Justice Hughes’s analysis relied upon the role that Congress had played in the “special circumstances” surrounding the ratification of the Fourteenth Amendment during Reconstruction. Coleman, 307 U.S. at 449–50. There, Secretary of State George Seward had responded to irregularities in the ratifications of Ohio and New Jersey by issuing a conditional certification of the amendment “if the resolutions of the legislatures of Ohio and New Jersey . . . are to be deemed as remaining in full force and effect.” Proclamation No. 11, 15 Stat. 706, 707 (1868). The House 25 In addition, the Coleman rule would suggest that Congress could block a constitutional amendment that was proposed, over Congress’s objection, by a convention called by the States, simply by declaring that the States had not ratified it within a “reasonable time.” And because Congress’s decision to block the amendment would be a political question, no court could second-guess that determination. That would vitiate the States’ affirmative power under Article V to bypass Congress. See supra notes 13 and 23. 31 Opinions of the Office of Legal Counsel in Volume 44 and Senate responded by adopting a concurrent resolution declaring the Fourteenth Amendment to be part of the Constitution. See Proclamation No. 13, 15 Stat. 708, 709–10 (1868). One week later, the Secretary of State issued a second proclamation “in execution of ” the States’ ratifications and the concurrent resolution certifying the Fourteenth Amendment. Id. at 710–11. Based on that one episode, Chief Justice Hughes concluded that Congress could determine the timeliness of Kansas’s ratification if and when Congress exercised its promulgation authority after three-fourths of the States had submitted ratifications. But that vision of Congress’s role in the ratification process was “inconsistent with both the text of Article V of the Constitution and with the bulk of past practice.” Congressional Pay Amendment, 16 Op. O.L.C. at 102. As Professor Walter Dellinger later observed, “[t]he action of the Reconstruction Congress with respect to the fourteenth amendment was literally unprecedented.” Dellinger, 97 Harv. L. Rev. at 400. Congress had played no official role in promulgating the first thirteen amendments or any amendment since. Indeed, only two of the other twenty-six amendments have been the subject of any congressional action at all, and in neither case was Congress’s action deemed necessary to promulgate the amendment. 26 Accordingly, the notion of a freestanding authority of Congress to determine the validity of a constitutional amendment after the States have submitted their ratifications finds little support in the text of Article V, historical practice, or other Supreme Court precedent. 26 The Fifteenth Amendment, like the Fourteenth, was plagued with Reconstruction irregularities, and the Senate initially referred to committee a joint resolution declaring the Amendment to be valid and part of the Constitution, but it later passed a simple resolution requesting the views of the Secretary of State. Cong. Globe, 41st Cong., 2d Sess. 1444, 1653 (1870). The Secretary of State thereafter proclaimed the Fifteenth Amendment on March 30, 1870. See Proclamation No. 10, 16 Stat. 1131–32 (1870). The House then adopted its own resolution declaring the amendment’s validity, Cong. Globe, 41st Cong., 2d Sess. 5441 (1870), but the Senate never took up the measure. With respect to the Twenty-Seventh Amendment, the Archivist certified the ratification in reliance upon the opinion of this Office. See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 Fed. Reg. 21187 (1992). The House and the Senate later passed separate versions of concurrent resolutions that would have confirmed the amendment’s validity. See H.R. Con. Res. 320, 102d Cong. (1992); S. Con. Res. 120, 102d Cong. (1992). 32 Ratification of the Equal Rights Amendment Moreover, to the extent that Chief Justice Hughes’s Coleman opinion ( joined by only two other Justices) represents a precedential holding of the Court, see Marks v. United States, 430 U.S. 188, 193 (1977), it still would not authorize Congress to revive the long-expired ERA Resolution. Coleman addressed whether an amendment, which had been proposed thirteen years earlier, could still be ratified within a “reasonable time,” and the Court held that the political branches, not the Court, must decide that question. See Coleman, 307 U.S. at 454 (opinion of Hughes, C.J.). Although Chief Justice Hughes contemplated that, where an amendment’s proposal lacked a ratification deadline, Congress could determine timeliness after the States had ratified the amendment, he did not suggest that Congress could nullify a deadline it had previously imposed on the States. To the contrary, the Chief Justice repeatedly emphasized that Congress had not imposed any deadline on the Child Labor Amendment. His opinion stated that “[n]o limitation of time for ratification is provided in the instant case either in the proposed amendment or in the resolution of submission.” Id. at 452 (emphasis added). The Court assumed that the question of “what is a reasonable time” may be “an open one when the limit has not been fixed in advance” by Congress. Id. at 454 (emphasis added). But it concluded that, even if an amendment would lapse after some period, “it does not follow that, whenever Congress has not exercised that power, the Court should take upon itself the responsibility of deciding what constitutes a reasonable time and determine accordingly the validity of ratifications.” Id. at 452–53. The opinion thus repeatedly made clear that the Court was addressing the case where Congress did not include a deadline when proposing the amendment. Nothing in Coleman supports the view that when Congress proposed an amendment and included a time limit “in the resolution of submission,” id. at 452, it would later be free to revise that judgment. C. Apart from Coleman itself, the proponents of reviving the ERA ratification process rely heavily upon Congress’s 1978 decision to modify the ERA’s original deadline before it expired. The precedent of the ERA extension, however, is a thin reed. The action reflected something that Congress had never done before in our Nation’s history, and the only federal court to review the measure held it unconstitutional. See Idaho v. Freeman, 529 F. Supp. at 1153. Although this Office at the time issued an 33 Opinions of the Office of Legal Counsel in Volume 44 opinion recognizing Congress’s authority to extend the deadline, we recognized that it was “difficult to conclude with certainty that [the extension resolution] is or is not constitutional,” and that “respectable arguments can be made on both sides of this question.” Constitutionality of ERA Extension at 1, 7. Since then, this Office has adopted a narrower view of Coleman than the one reflected in our 1977 opinion, but even if we adhered to all of the reasoning in the 1977 opinion, we do not believe that opinion would support reviving the ERA Resolution nearly forty years after the deadline expired. In Constitutionality of ERA Extension, this Office concluded that, when the ratification deadline was not placed in the text of the proposed constitutional amendment, but only in the proposing clause, that condition on ratification should be treated as equivalent to a statute subject to congressional modification. See id. 7–8, 15–16. The Office relied on Coleman as recognizing a congressional authority “years after an amendment has been proposed . . . to determine the reasonableness of the intervening time period” and to modify a deadline placed in the proposing clause. Id. at 7–8. At the same time, our opinion admitted that there was an argument that “Art[icle] V itself can be viewed as envisioning a process whereby Congress proposes an amendment and is divested of any power once the amendment is submitted to the States for ratification,” and that, “[a]s suggested by the language of the Coleman opinion, the question of a time limit is no longer open once a time limit is imposed by the proposing Congress.” Id. at 7. This Office later read Article V to further limit Congress’s role in proposing amendments. In Congressional Pay Amendment, we rejected the proposition that Coleman had recognized an exclusive congressional authority to determine when a constitutional amendment had been validly ratified. See 16 Op. O.L.C. at 101–02. In a footnote, our 1992 opinion questioned the 1977 opinion’s interpretation of Coleman, although we suggested that the extension of the ERA ratification deadline might be viewed as the “‘reproposal’ of a constitutional amendment” (a purely congressional action) rather than “the certification of a ratified amendment” (an action in which Article V gives Congress no role). Id. at 102 n.24. At the same time, we opined that, “[t]o the extent that our earlier opinions suggest that Congress alone must make the determination of the adoption of a constitutional amendment, we reject them today.” Id. For the reasons discussed above, we also take a narrower view of Coleman than the one advanced in our 1977 opinion, and we do not believe that the 34 Ratification of the Equal Rights Amendment decision supports the authority of Congress to revise a deadline included in an amendment previously proposed to the States. Yet even under the reasoning of Constitutionality of ERA Extension, there was a distinction between congressional action to extend a pending ratification deadline and action to revive it after the fact. That opinion concluded that, under Coleman, Congress might reconsider whether a seven-year deadline was a “reasonable time” for ratification, but the opinion simultaneously suggested that any such authority could not survive the deadline’s expiration. As we observed, “[c]ertainly if a time limit had expired before an intervening Congress had taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House and thereby begin the ratification process anew.” Constitutionality of ERA Extension at 5–6. The Acting Solicitor General effectively took the same view in Supreme Court litigation about the extension of the ERA Resolution, defending the extension until the deadline expired, but then acknowledging that the effort to ratify the ERA had come to an end. See Mem. for Adm’r of Gen. Servs. Suggesting Mootness at 3–4, Nat’l Org. for Women (“[T]he amendment has failed of adoption . . . . Even if all of the ratifications remain valid, the rescissions are disregarded, and Congress is conceded the power to extend the ratification period as it did here, only 35 of the necessary 38 states can be regarded as having ratified the Amendment.”). The proponents of the 1978 ERA extension also relied upon Congress’s general authority to extend statutes of limitations. As Justice Ginsburg explained in 1979, “[i]n form and function, the seven-year provision is a statute of limitations. Generally, statutes of limitations may be extended should the legislature determine that its initial estimate was inaccurate.” Ginsburg, 57 Tex. L. Rev. at 927 n.43; see also House Extension Hearings at 129 (testimony of Prof. Ruth Bader Ginsburg) (“It is the general rule that extensions [of ] statutes of limitation may be directed by the legislature. . . . If the objective was simply to exclude [stale] claims, an extension of the limitation period for a reasonable time is well-accepted and fully comports with constitutional constraints.”). 27 It is true that 27 We again note that, several months ago, Justice Ginsburg publicly stated her view that the ERA “fell three States short of ratification” and the ratification process must begin anew: “I hope someday [the ERA] will be put back in the political hopper, starting 35 Opinions of the Office of Legal Counsel in Volume 44 Congress may extend a limitations period, sometimes even after pending claims have expired. See Chase Secs. Corp. v. Donaldson, 325 U.S. 304 (1945); Campbell v. Holt, 115 U.S. 620 (1885); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (“[T]he length and indeed even the very existence of a statute of limitations upon a federal cause of action is entirely subject to congressional control.”). But Congress changes the terms of a statute of limitations only by enacting a new law, and that change is adopted through the same constitutionally required procedures as the prior one. See U.S. Const. art. I, § 7. There is no constitutional shortcut that would permit revisions without adoption by both Houses and presentment to the President. By the same token, we do not believe that Congress may change the terms upon which an amendment has been proposed to the States except by following the same procedures that were required in connection with the earlier proposal, namely proposal by twothirds majorities and a new round of consideration by the States. Because Congress and the state legislatures are distinct actors in the constitutional amendment process, the 116th Congress may not revise the terms under which two-thirds of both Houses proposed the ERA Resolution and under which thirty-five state legislatures initially ratified it. Such an action by this Congress would seem tantamount to asking the 116th Congress to override a veto that President Carter had returned during the 92nd Congress, a power this Congress plainly does not have. See Pocket Veto Case, 279 U.S. 655, 684–85 (1929) (“[I]t was plainly the object of the [relevant] constitutional provision that there should be a timely return of the bill, which . . . should enable Congress to proceed immediately with its reconsideration [.]” (emphasis added)). Because the 1972 ERA Resolution has lapsed, the only constitutional way for Congress to revive the ERA, should it seek to do so, would be for two-thirds of both Houses of Congress to propose the amendment anew for consideration by the States. IV. In view of our foregoing conclusions, it is unnecessary for us to consider whether the earlier ratifications of the ERA by five state legislatures were validly rescinded. See supra note 8 and accompanying text. The question of a State’s authority to rescind its ratification, before an over again, collecting the necessary number of States to ratify it.” See supra note 1 and accompanying text (emphasis added). 36 Ratification of the Equal Rights Amendment amendment has been ratified by three-fourths of the States, is a significant one that has not been resolved. See Ginsburg, 57 Tex. L. Rev. at 920 (describing the doctrine of rescission as “the most debatable issue” concerning the ERA’s legal status shortly after the 1978 extension). In Constitutionality of ERA Extension, we concluded that the Constitution does not permit rescissions, even if Congress had changed the ratification deadline after the State had voted upon the amendment. See id. at 28–49; see also Power of a State Legislature to Rescind its Ratification of a Constitutional Amendment, 1 Op. O.L.C. 13, 15 (1977). The district court in Idaho v. Freeman disagreed, however, reasoning that Dillon’s interpretation of Article V requires a contemporaneous consensus of the people of the United States, and therefore implies that a state legislature, as the representative of one portion of the people, remains free to change its position until three-fourths of the States have agreed in common to support ratification. See 529 F. Supp. at 1146–50. The Supreme Court did not reach the question before the extended deadline expired. Although we have disagreed in this opinion with some of the conclusions in the 1977 opinion, we believe that the expiration of the ERA Resolution makes it unnecessary for us to revisit this question. Regardless of the continuing validity of the five States’ ratifications, three-fourths of the States did not ratify the amendment before the deadline that Congress set for the ERA Resolution, and therefore, the 1972 version of the ERA has failed of adoption. V. For the reasons set forth above, we conclude that the ERA Resolution has expired and is no longer pending before the States. Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C. § 106b. In addition, we conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration. Accordingly, should Congress now “deem [the ERA] necessary,” U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by twothirds of the state legislatures) to propose the amendment once more and 37 Opinions of the Office of Legal Counsel in Volume 44 restart the ratification process among the States, consistent with Article V of the Constitution. STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 38

Write a legal research memo on the following topic.

Authority of the Environmental Protection Agency to Indemnify Its Employees The Environmental Protection Agency may use funds appropriated to the agency for “Salaries and Expenses" to indemnify its employees for personal liability arising from actions taken within the scope of their official duties. February 1, 1989 M emorandum O pin io n for t h e G eneral C ounsel E nvironmental P rotection A gency This responds to your request for the opinion of this Office concerning the authority of the Environmental Protection Agency (“EPA”) to indem­ nify its employees for personal liability arising from actions taken within the scope of their official duties.1 The memorandum accompanying the request concludes that the EPA may indemnify its employees with funds appropriated to the agency for “Salaries and Expenses.”2 For the reasons stated below, we agree that the EPA may use these appropriated funds to indemnify its employees for judgments and other liability incurred as a result of official actions. Analysis As a general rule, an agency may spend a general appropriation to pay any expense that is necessary or incident to the achievement of the underlying objectives for which the appropriation was made.3 Principles of Federal 1 Letter for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Francis S. Blake, General Counsel, Environmental Protection Agency (Mar. 16, 1988). 2 Memorandum for Andrew Moran, Assistant General Counsel, General Law and Claims Branch, from Ray E. Spears, Claims Officer, General Law and Claims Branch (Mar. 12, 1988) (“EPA Memorandum”). 3There are two exceptions to this general rule — that an agency may not use generally appropriated funds if there is a specific appropriation for that purpose or if the use of appropriated funds for that pur­ pose is prohibited by law. Principles o f Federal Appropriations Law 3-12 (GAO 1st ed 1982), see also 3 Op. O.L C. 9 (1979) In this instance, neither exception applies There is no specific appropriation to the EPA to be used for the indemnification o f its employees See EPA Memorandum at 2 (laws EPA enforces), Department of Housing and Urban Development — Independent Agencies Appropriations Act, 1989, Pub L No 100-404, 102 Stat. 1014, 1022 (1988) (“1989 Appropriations Act”) (EPA’s current appropria­ tion). Nor is there any express statutory prohibition on the use of appropriated funds for the indemnifi­ cation of EPA employees 46 Appropriations Law 3-12 (GAO 1st ed. 1982).4 The EPA, therefore, may use a general appropriation to indemnify its employees if the Administrator or another responsible official determines that such an expense is necessary to achieve the mission of the agency. The nature of an agency’s responsibil­ ities and the provisions of the law appropriating funds to an agency must be considered together in determining whether it is permissible to use appro­ priated funds to indemnify employees for personal liability incurred as a result of actions within the scope of an employee’s official duties. For exam­ ple, the special law enforcement duties of the Department of Justice sup­ port the use of funds appropriated to the Department for the indemnifica­ tion of its employees.5 Likewise, it has long been the policy of the federal government to defend employees who are sued in their individual capacity for actions taken within their official responsibilities.6 The EPA Memorandum states that it is necessary for the EPA to indem­ nify its employees because of the chilling effect the possibility of person­ al liability has on employees: EPA employees are required in their official capacities and as part of their official duties to take actions in many areas where there is uncertainty concerning the hazards posed by a partic­ ular situation or where the risks among various remedial options is unclear. In this regard, EPA employees have been sued in their individual capacities for such diverse actions as gasoline lead inspections and enforcement of pollution dis­ charged standards. EPAs ability to effectively ensure the pro­ tection of the environment depends upon the willingness of its employees to take all required actions. The threat of personal liability against an employee for a decision made or action taken as part of official duties can adversely affect EPAs achievement of its statutory purposes. The threat of personal liability would have a chilling effect on performance of official duties and would serve as a substantial impediment to EPAs successful accomplishment of its mission. EPA Memorandum at 4-5. Therefore, you conclude that “EPA’s ability to indemnify its employees where it determines that the employee was act­ 4The Comptroller General is an officer of the legislative branch, see Bowsher v Synar, 478 U.S. 714, 727-32 (1986), and, historically, the executive branch has not considered itself bound by the Comptroller General’s legal opinions if they conflict with the legal opinions of the Attorney General or the Office of Legal Counsel. Nonetheless, the Comptroller General’s opinions can provide guidance on certain techni­ cal matters, usually in the budget area. In this instance, the Comptroller General’s construction of appro­ priations law is consistent with our reading of the law. 5 See Statement of Policy Concerning Indemnification of Department of Justice Employees, 51 Fed. Reg. 27,021 (1986) (“DOJ Indemnification Policy”). GSee, e.g , Case o f Captain Wilkes, 9 Op Att’y Gen. 51, 52 (1857); Costs o f Suits Against Officers o f the Navy, 5 Op. Att’y Gen. 397 (1851) 47 ing within the scope of official duties and consistent with statute, regula­ tion and policy, directly contributes to EPA’s ability to carry out effec­ tively its varied responsibilities. As such, payment of such judgments is a necessary expense of EPA operations.” Id. at 8. Therefore, where the Administrator or another responsible official has determined that indem­ nification is necessary, you believe that funds in EPA’s annual general appropriation for “Salaries and Expenses” may be used by the agency to indemnify its employees. We agree that it would be lawful for the Administrator or another respon­ sible official of EPA to determine that the threat of personal liability stands as a mzgor impediment to the effective enforcement of federal environ­ mental law by EPA employees. “The prospect of personal liability, and even the uncertainty as to what conduct may result in a lawsuit against the employee personally, tend to intimidate all employees, impede creativity and stifle initiative and decisive action.” DOJ Indemnification Policy, 51 Fed. Reg. at 27,022. It would be reasonable to determine that an EPA employee might protect his own interest, rather than serving the public interest, because of his concern with the threat of personal liability. This would clearly hinder the EPA in its mission to safeguard the nation’s envi­ ronment. The inhibition of creativity and initiative is especially trouble­ some in the context of environmental issues, whose resolution depends in significant part on innovative solutions to complicated problems in an area of rapidly increasing scientific knowledge and ever-changing technology. These factors support your judgment that it is necessary for the EPA to be able to protect its employees from the threat of personal liability. The Comptroller General, as you noted, has agreed with our conclusion that general agency funds may appropriately be used to indemnify agency employees for liability arising out of their official duties in certain instances. For example, the Comptroller General concluded that it was permissible for the FBI to use appropriated funds to indemnify an employee for a contempt fine imposed when the employee, at the direc­ tion of the Attorney General, refused to answer questions, 44 Comp. Gen. 312 (1964), and to indemnify three agents and an informant for attorneys’ fees assessed in a civil proceeding arising out of a search for illegal weapons which resulted in the shooting of two suspects, 59 Comp. Gen. 489 (1980). Similarly, the General Counsel to the Comptroller General concluded that the Department of the Interior could indemnify three employees who were found personally liable for trespassing because they were acting in the course of official responsibilities which were con­ sistent with agency policy and had been approved by the United States Attorney. B-168571-O.M. (Jan. 27, 1970).7 Not surprisingly, the Comp­ troller General recently stated, “It has long been our view that the United 1See Alien v. Merovka, 382 F.2d 589 (10th Cir. 1967), Meivvka v (describing the events resulting in the liability). 48 AUen , 410 F2d 1307 (10th Cir. 1969) States may bear expenses, including court-imposed sanctions, which a Government employee incurs because of an act done in the discharge of his official duties.” 59 Comp. Gen. at 493. We agree that the EPA may, if such a determination is made, use its gen­ eral appropriation for “Salaries and Expenses” to indemnify an employee. That appropriation is for “necessary expenses, not otherwise provided for.” 1989 Appropriations Act, 102 Stat. at 1022. Once the Administrator or other responsible official has determined that the indemnification of an employee for personal liability arising from an official action is a nec­ essary expense, we believe that the “Salaries and Expenses” appropria­ tion is a lawful source of funds for that purpose. Indeed, the Comptroller General has approved the use of a similar general appropriation for “Salaries and Expenses” to indemnify an employee for a contempt fine. 44 Comp. Gen. at 314 (FBI). Of course, the EPA may indemnify an employee only for actions that are within the scope of his or her official responsibilities. The determina­ tion of whether an expense is necessary to accomplish the purposes of an agency must be made by the agency itself. We can, of course, express no opinion at this point on whether any particular employee actions result­ ing in personal liability may be indemnified by the EPA. Conclusion We believe that you are correct in concluding that the role of the EPA in enforcing federal environmental laws requires agency employees to have the latitude to perform their responsibilities without the fear of per­ sonal liability for actions that Eire found to be within the scope of their employment. Thus, the indemnification of its employees is a necessary expense which the EPA may, in the absence of a specific appropriation for that purpose, fund through its general appropriations. We therefore concur that the annual appropriation to the agency for “Salaries and Expenses” is a lawful source of funds for the indemnification of employ­ ees by the EPA. As the original letter from your Office noted, the next step will be for EPA to promulgate regulations that are consistent with EPA’s statutory authority. Perhaps the Department of Justice regulations may serve as a model. It is important to do this in a timely fashion so that EPA’s stan­ dards are in place before any indemnification is granted. Clear standards that are applied in a consistent fashion will ensure that indemnification is provided in as fair a manner as possible. D ouglas W. Kmiec Assistant Attorney General Office of Legal Counsel 49

Write a legal research memo on the following topic.

Effect of Appropriations Rider on Access of DOJ Inspector General to Certain Protected Information Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal year 2016, from denying the Department’s Office of the Inspector General (“OIG”) timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, pursuant to the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968); Rule 6(e) of the Federal Rules of Criminal Procedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year. April 27, 2016 MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL You have asked us to clarify the authority of the Department of Justice (the “Department”) to disclose certain statutorily protected materials to its Office of the Inspector General (“OIG”) in light of the enactment of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, Pub. L. No. 114-113, div. B, 129 Stat. 2242, 2286 (2015) (“CJS Appropriations Act”). 1 In particular, you have asked whether the Department may, in light of that Act, disclose to OIG material protected from disclosure by the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510– 2522 (“Title III”); Rule 6(e) of the Federal Rules of Criminal Procedure (“Rule 6(e)”); or section 626 of the Fair Credit Reporting Act, 15 U.S.C. § 1681u (“FCRA”). As relevant, section 540 of the CJS Appropriations Act provides that the Department may not use fiscal year 2016 funds “to See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Carlos Uriarte, Associate Deputy Attorney General, Re: Request for OLC Opinion (Mar. 9, 2016, 5:16 PM). We requested the views of several potentially affected entities, and received the views of OIG and the National Aeronautics and Space Administration (“NASA”). See E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from William M. Blier, General Counsel, OIG, Re: Solicitation of Views, att. (Mar. 23, 2016, 6:11 PM); E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from David G. Barrett, Associate General Counsel, NASA, Re: Solicitation of Views (Apr. 6, 2016, 9:41 AM). 1 39 40 Op. O.L.C. 39 (2016) deny [its] Inspector General . . . timely access to any records, documents, or other materials available to the [D]epartment . . . , or to prevent or impede that Inspector General’s access to such records, documents, or other materials, under any provision of law, except a provision of law that expressly refers to the Inspector General and expressly limits the Inspector General’s right of access.” CJS Appropriations Act § 540, 129 Stat. at 2332. For the reasons set forth below, we conclude that this provision has the effect of barring the Department, for the remainder of fiscal year 2016, from denying OIG timely access to requested materials pursuant to Title III, Rule 6(e), or section 626 of FCRA, or from preventing or impeding OIG’s access to such materials. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year. I. We begin with the relevant statutory background and governing legal principles. With the exception of the subsequently enacted CJS Appropriations Act, these statutes and principles are discussed in depth in this Office’s recent opinion, Access of Department of Justice Inspector General to Certain Information Protected from Disclosure by Statute, 39 Op. O.L.C. 12 (2015) (“IG Access”). The Inspector General Act of 1978, 5 U.S.C. app. (“IG Act”), established an Office of Inspector General in a large number of federal agencies. 5 U.S.C. app. §§ 2(A), 8G(a)–(b), 12(2). In 1988, Congress extended that Act to the Department and established OIG. See Inspector General Act Amendments of 1988, Pub. L. No. 100-504, § 102(c), (f ), 102 Stat. 2515, 2515, 2520–21 (codified as amended at 5 U.S.C. app. §§ 8E, 12(1)– (2)). The IG Act grants inspectors general several authorities with respect to the agencies within which their offices are established, including, in section 6(a)(1), the authority “to have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable establishment which relate to programs and operations with respect to which that Inspector General has responsibilities under this Act.” 5 U.S.C. app. § 6(a)(1). Section 8E of the Act qualifies this authority in certain circumstances, providing that the Attorney General may “prohibit the Inspector General from carrying out or completing any audit or investigation, or from issuing a subpoena . . . if the Attorney 40 Effect of Appropriations Rider on Access of DOJ Inspector General to Information General determines that such prohibition is necessary to prevent the disclosure” of certain sensitive materials. Id. § 8E(a)(2). On its face, the IG Act thus “requires the Department to disclose ‘all’ materials [requested by OIG] that are available to the Department, relate to an OIG review of programs or operations within its investigative jurisdiction, and are not covered by a determination to withhold them under section 8E.” IG Access, 39 Op. O.L.C. at 20. As we explained in our IG Access opinion, however, the IG Act is “not in all circumstances the only statute that governs OIG’s access to Department materials.” Id. at 19. The three statutes about which you have asked—Title III, Rule 6(e), and FCRA—also govern access, including OIG’s access, to certain highly sensitive Department materials. Title III provides that an investigative or law enforcement officer “violat[es]” the law by “willful[ly] disclos[ing]” the contents of a lawfully intercepted wire, oral, or electronic communication “beyond the extent permitted by” Title III. 18 U.S.C. § 2520(g). Rule 6(e) provides that “attorney[s] for the government” and other persons “must not disclose a matter occurring before [a] grand jury”—such as testimony that witnesses have delivered in confidential grand jury proceedings—except pursuant to a specific exception. Fed. R. Crim. P. 6(e)(2)(B). And section 626 of FCRA states that the Federal Bureau of Investigation (“FBI”) “may not disseminate” consumer information obtained pursuant to a National Security Letter—which may include private banking and credit information collected from credit agencies, frequently without the consumer’s knowledge—except under two enumerated exceptions. 15 U.S.C. § 1681u(g). These statutes permit Department officials to disclose covered materials to OIG in “most, but not all, of the circumstances in which OIG might request [them].” IG Access, 39 Op. O.L.C. at 15; see id. at 21–69 (examining each statute in detail to identify the circumstances in which it permits disclosure to OIG). In particular, Title III and Rule 6(e) allow Department officials to disclose the contents of intercepted communications and grand jury materials to OIG in connection with any OIG investigation or review that relates to the Department’s criminal law enforcement activities, and section 626 of FCRA allows the FBI to disclose protected consumer information to OIG if the disclosure could assist in the approval or conduct of foreign counterintelligence investigations. See id. at 68. But the statutes do not permit disclosures that “have either an attenuated or no 41 40 Op. O.L.C. 39 (2016) connection” with the Department’s criminal law enforcement activities, or the approval or conduct of foreign counterintelligence investigations. Id. at 68. Accordingly, if OIG were to request access to protected materials in one of those limited circumstances in which Title III, Rule 6(e), or section 626 prohibits their disclosure, Department officials would face potentially conflicting statutory commands. On the one hand, the IG Act states that Department officials must grant OIG access to “all materials” that OIG requests and that fall within OIG’s investigative jurisdiction; on the other hand, Title III, Rule 6(e), and section 626 state, respectively, that officials would “violat[e]” the law by disclosing, “must not disclose,” or “may not disseminate” the requested materials. See id. at 19–20. In our IG Access opinion, we resolved this conflict by applying two well-established legal principles. First, we observed that “in a range of contexts . . . the Supreme Court and this Office have declined to infer that Congress intended to override statutory limits on the disclosure of highly sensitive information about which Congress has expressed a special concern for privacy, absent a clear statement of congressional intent to that effect.” Id. at 70. The Court and this Office had previously concluded that this principle required a clear statement before a statute could be construed to authorize the disclosure of information protected by Rule 6(e) or Title III—i.e., confidential material (such as witness testimony) developed in the course of grand jury proceedings, or the contents of private communications lawfully wiretapped by the government. Id. at 70–71. And we concluded in the IG Access opinion that “the logic of these opinions . . . extends to section 626 of FCRA” as well, given the “strict duty of confidentiality” and the “penalties for improper disclosure” imposed by section 626, as well as the “highly sensitive” nature of the information section 626 protects—i.e., private consumer banking and credit information obtained by the FBI from credit agencies, frequently without the consumer’s knowledge. Id. at 73. Second, we invoked the “rule of relative specificity,” which holds that “‘[w]here there is no clear [congressional] intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.’” Id. at 74 (alterations in original) (quoting Morton v. Mancari, 417 U.S. 535, 550–51 (1974)). Title III, Rule 6(e), and section 626 of FCRA “address with greater specificity” than the IG Act “the type of information they regulate,” “the precise conditions under 42 Effect of Appropriations Rider on Access of DOJ Inspector General to Information which disclosure” is permitted, and “the lawful recipients of information.” Id. at 76–77. Accordingly, we concluded that, like the clear statement principle pertaining to highly sensitive information, the rule of relative specificity “require[d] a clear statement” before it could be inferred that “the general right of access granted by section 6(a)(1) [of the IG Act] takes precedence over the specific, carefully delineated limits on disclosure Congress set forth in” Title III, Rule 6(e), and section 626. Id. at 78. Applying these two principles, we concluded that the IG Act does not contain such a clear statement. Id. at 79. The Act, we observed, “does not mention” any of the three withholding statutes, or contain general language addressing potential conflicts with other statutory confidentiality provisions, such as a statement that the inspector general’s right of access shall apply ‘notwithstanding any other law’ or ‘notwithstanding any statutory prohibition on disclosure’—language that might, at least in some circumstances, provide a clearer indication that the general access language was supposed to override more specific statutory protections of confidential information. Id. at 79–80 (citing Brady Act Implementation Issues, 20 Op. O.L.C. 57, 62 (1996)). Although the IG Act grants inspectors general a right “to have access to all records” available to their respective agencies and within their investigative jurisdiction, the Supreme Court and this Office have repeatedly concluded that “‘expansive modifiers’” like “all” and “any” do not, on their own, supply the kind of clear statement needed to overcome competing interpretive presumptions. Id. at 81 (quoting Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 n.4 (2008)); see id. at 81–82. And while we found “‘plausible’” OIG’s contention that certain language in section 6(b)(1) of the IG Act “implies that Congress intended access under section 6(a)(1) to be ‘automatic’ and free of any ‘existing statutory restriction[s],’” we ultimately concluded that the “negative inference” that OIG identified was not “unequivocal enough to establish a clear manifestation of congressional intent,” id. at 83–84, particularly in light of a statement in the Act’s Senate report that each inspector general’s right of access would be “‘subject, of course, to the provisions of other statutes, such as the Privacy Act,’” id. at 86 (emphasis omitted) (quoting S. Rep. No. 95-1071, at 33–34 (1978)). 43 40 Op. O.L.C. 39 (2016) Our IG Access opinion also considered whether an appropriations rider in the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130 (2014) (“2015 Appropriations Act”), granted OIG access to information otherwise protected from disclosure by Title III, Rule 6(e), or section 626 of FCRA. Section 218 of the 2015 Appropriations Act stated: No funds provided in this Act shall be used to deny the Inspector General of the Department of Justice timely access to all records, documents, and other materials in the custody or possession of the Department or to prevent or impede the Inspector General’s access to such records, documents and other materials, unless in accordance with an express limitation of section 6(a) of the Inspector General Act, as amended, consistent with the plain language of the Inspector General Act, as amended. The Inspector General of the Department of Justice shall report to the Committees on Appropriations within five calendar days any failures to comply with this requirement. Id. § 218, 128 Stat. at 2200. We acknowledged that OIG had made “substantial” arguments that this rider required the Department to grant it access to materials otherwise protected by Title III, Rule 6(e), and section 626. IG Access, 39 Op. O.L.C. at 92. But we ultimately concluded that the rider did not override Title III, Rule 6(e), and section 626 in the limited circumstances in which those statutes bar OIG’s access to protected information. We began our analysis of section 218 by observing that there were “at least three conceivable constructions of the phrase ‘express limitation of section 6(a) of the Inspector General Act.’” Id. at 93. First, this phrase could be interpreted to prohibit Department officials from denying OIG access to materials except under “limitations” on OIG’s access that “appear in section 6(a) itself or that expressly refer to that section”—a reading that would have barred the Department from withholding materials from OIG under Title III, Rule 6(e), or section 626 of FCRA, as well as under section 8E of the IG Act itself. Id. Second, the provision could be interpreted—as OIG proposed—to refer to “only those limitations on disclosure that are specifically directed at disclosures to OIG under the IG Act, whether or not they explicitly refer to section 6(a).” Id. This reading would have permitted the Department to withhold records under section 44 Effect of Appropriations Rider on Access of DOJ Inspector General to Information 8E, but not under Title III, Rule 6(e), or section 626. Third, the provision could be interpreted to “encompass all ‘express’ [statutory] limitations on disclosure that . . . are properly deemed to function as ‘limitation[s] of section 6(a).’” Id. Under this reading, the Department would be permitted to withhold information under Title III, Rule 6(e), and section 626, as well as section 8E of the IG Act. See id. We concluded that the first interpretation, although a natural reading of the phrase “express limitation of section 6(a),” was untenable. As noted above, this reading would have meant that the rider had implicitly repealed (among other things) section 8E of the IG Act itself, a provision that “does not refer explicitly to section 6(a).” Id. We thought that result implausible in light of the “strong presumption against implied repeals in appropriations acts,” and because other parts of the rider made clear that it was intended to be consistent with the plain language of the Inspector General Act. Id. Having found this natural reading of section 218’s key phrase untenable, we went on to consider the second and third readings we had identified. The second interpretation, we noted, required reading the phrase “in accordance with an express limitation of section 6(a) of the [IG Act]” to mean “in accordance with a limitation that expressly addresses disclosures to OIG under the IG Act.” Id. at 94. Although “not the most natural reading of section 218’s text,” this reading was in our view plausible because “section 6(a) is the principal provision in the IG Act that governs disclosures to OIG.” Id. The third reading was likewise “reasonably grounded in the statutory text.” Id. at 95. “Statutes like Title III, Rule 6(e), and section 626” of FCRA, we explained, “can be considered ‘limitations of section 6(a)’ in that they supersede section 6(a) in situations where both section 6(a) and one of those statutes would apply.” Id. And they can be considered “express” limitations because “they explicitly contemplate . . . nondisclosure in the circumstances they address”—as opposed to, for example, general statutory provisions that implicitly authorize an agency to withhold information, or agency practices grounded in regulations or other non-statutory authorities. Id. Although we thought that both the second and the third readings of section 218 were plausible, we concluded that the third was more consistent with the relevant principles of statutory interpretation. We noted that, in order to override the limitations on disclosure imposed by Title III, Rule 45 40 Op. O.L.C. 39 (2016) 6(e), and section 626 of FCRA, section 218 would—consistent with the principles we had discussed earlier—need to “contain a clear congressional statement that it was intended to have that effect.” Id. And while the second reading of the phrase “express limitation of section 6(a)” was “consonant with” certain “events surrounding [the rider’s] enactment,” id. at 97, it did not follow clearly from the phrase’s plain language, but rather “require[d] reading unstated limitations into the rider’s text,” id. at 95. Further, as noted above, the phrase “express limitation of section 6(a)” was also susceptible to another plausible reading—the third reading—that allowed information to be withheld pursuant to Title III, Rule 6(e), and section 626. As a result, that phrase did not in our view “constitute a sufficiently clear statement to override the limitations on disclosure imposed by those statutes.” Id. This conclusion was reinforced by the fact that “section 218 appear[ed] in an appropriations act that post-dates the provisions in Title III, Rule 6(e) and section 626 of FCRA.” Id. at 95–96. “[T]here is a ‘very strong presumption’ that appropriations measures do not ‘amend substantive law,’ a presumption that may be overcome only by ‘unambiguous[]’ evidence to the contrary.” Id. at 96 (second alteration in original) (quoting Calloway v. Dist. of Columbia, 216 F.3d 1, 9 (D.C. Cir. 2000)); see Tenn. Valley Auth. v. Hill, 437 U.S. 153, 189–91 (1978). We did not find such evidence in section 218, given that it did not “mention Title III, Rule 6(e), or section 626” or “state that the provision [was] intended to amend existing statutes in any way.” IG Access, 39 Op. O.L.C. at 96. We also noted that the drafters’ general statement that section 218 was “‘designed to improve OIG access to Department documents and information’” was consistent with all of the readings we had considered, including the third reading, under which the rider functioned to “reaffirm and reinforce” the existing disclosure requirements in the IG Act by adding timeliness and reporting requirements, and adding the possibility of Anti-Deficiency Act consequences for failure to make required disclosures. Id. at 96–97 (quoting 160 Cong. Rec. H9345 (daily ed. Dec. 11, 2014)). Several months after we issued the IG Access opinion, Congress enacted the Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242 (Dec. 18, 2015). Division B of that statute, the CJS Appropriations Act, appropriates funds to the Department of Justice and OIG, as well as several additional entities, “for the fiscal year ending Sep46 Effect of Appropriations Rider on Access of DOJ Inspector General to Information tember 30, 2016,” commonly referred to as fiscal year 2016. CJS Appropriations Act § 5, 129 Stat. at 2244; see id. tit. II, 129 Stat. at 2296. Section 540 of the CJS Appropriations Act provides: No funds provided in this Act shall be used to deny an Inspector General funded under this Act timely access to any records, documents, or other materials available to the department or agency over which that Inspector General has responsibilities under the Inspector General Act of 1978, or to prevent or impede that Inspector General’s access to such records, documents, or other materials, under any provision of law, except a provision of law that expressly refers to the Inspector General and expressly limits the Inspector General’s right of access. A department or agency covered by this section shall provide its Inspector General with access to all such records, documents, and other materials in a timely manner. Each Inspector General shall ensure compliance with statutory limitations on disclosure relevant to the information provided by the establishment over which that Inspector General has responsibilities under the Inspector General Act of 1978. Each Inspector General covered by this section shall report to the Committees on Appropriations of the House of Representatives and the Senate within 5 calendar days any failures to comply with this requirement. Id. § 540, 129 Stat. at 2332. In a joint explanatory statement, the statute’s drafters explained simply that “[s]ection 540 requires agencies funded by the Act to provide Inspectors General with timely access to information.” 161 Cong. Rec. H9745 (daily ed. Dec. 17, 2015); see Consolidated Appropriations Act, 2016 § 4, 129 Stat. at 2244 (stating that this explanatory statement “shall have the same effect . . . as if it were a joint explanatory statement of a committee of conference”). II. As we explained in the IG Access opinion (and as discussed above), an appropriations act may be construed to override the limitations on disclosure contained in Title III, Rule 6(e), and section 626 of FCRA only if the act contains a “‘clear’” and “‘unambiguous[]’” statement that Congress intended it to have that effect. IG Access, 39 Op. O.L.C. at 97; supra pp. 45–46. We conclude that section 540 of the CJS Appropriations Act 47 40 Op. O.L.C. 39 (2016) contains such a clear and unambiguous statement, and therefore that it effectively bars the Department from withholding materials from OIG pursuant to Title III, Rule 6(e), or section 626 for the remainder of fiscal year 2016. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG during the remainder of that year. To start, there is no question that section 540 on its face imposes a restriction on the Department’s use of fiscal year 2016 funds to deny, prevent, or impede OIG’s access to Department materials. The first part of that provision states that “[n]o funds provided in this Act shall be used” to deny, prevent, or impede the access of “an Inspector General funded under this Act” to materials “available to the department or agency over which the Inspector General has responsibilities under the Inspector General Act of 1978.” The “Act” referred to in section 540 is the CJS Appropriations Act, which appropriates funds both to the Department generally and to OIG specifically for fiscal year 2016. See Consolidated Appropriations Act, 2016 § 3, 129 Stat. at 2244 (“Except as expressly provided otherwise, any reference to ‘this Act’ contained in any division of this Act shall be treated as referring only to the provisions of that division.”); CJS Appropriations Act tit. II, 129 Stat. at 2296, 2297 (appropriating funds to “the Department of Justice,” including $93,709,000 “[f ]or necessary expenses of the Office of Inspector General”). And the Department of Justice is the “department . . . over which” OIG has responsibilities under the IG Act. See 5 U.S.C. app. §§ 4(a), 8E(b). Section 540 thus prohibits the Department from using any “funds provided in [the CJS Appropriations Act]” to deny, prevent, or impede OIG’s access to materials “available to the [D]epartment.” It is likewise clear that the plain language of this funding restriction bars the Department from using fiscal year 2016 funds to withhold materials from OIG pursuant to Title III, Rule 6(e), or section 626 of FCRA. Section 540 states that the Department may not use fiscal year 2016 funds to deny [OIG] timely access to any records, documents, or other materials available to the [D]epartment . . . , or to prevent or impede [OIG’s] access to such records, documents, or other materials, under any provision of law, except a provision of law that expressly refers to the Inspector General and expressly limits the Inspector General’s right of access. 48 Effect of Appropriations Rider on Access of DOJ Inspector General to Information CJS Appropriations Act § 540 (emphasis added). Title III, Rule 6(e), and section 626 are plainly “provision[s] of law.” See, e.g., Republic of Iraq v. Beaty, 556 U.S. 848, 856 (2009) (stating that a federal statute is “indisputably” a “provision of law”); Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981) (stating that Rule 6(e) is “by any definition . . . a statute”). By withholding materials pursuant to any of those provisions, the Department would be “deny[ing]” or “prevent[ing]” access “under” such provisions. See, e.g., Webster’s New World College Dictionary 1574 (5th ed. 2014) (defining “under” in similar context to mean “because of ”); Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (referring to “deny[ing] writs of habeas corpus under [28 U.S.C.] § 2254” (emphasis added)); IG Access, 39 Op. O.L.C. at 95 (referring to “withholding under Title III, Rule 6(e), and section 626” (emphasis added)). And Rule 6(e) and section 626 do not “refer to[]” inspectors general at all, let alone “expressly limit[]” their access, while the sole provision of Title III that refers to inspectors general does not impose any limit on their right of access. See 18 U.S.C. § 2520(f ) (requiring the head of a department or agency to “notify the Inspector General with jurisdiction over the department or agency” if the head determines that disciplinary action is not warranted for a violation of Title III, and to “provide the Inspector General with the reasons for such determination”). Furthermore, by prohibiting the Department from using fiscal year 2016 funds to withhold materials pursuant to Title III, Rule 6(e), or section 626 of FCRA, the appropriations rider effectively prohibits the Department from withholding materials pursuant to those statutes for the remainder of fiscal year 2016. This is because in order to withhold materials from OIG during fiscal year 2016, the Department would invariably need to use funds appropriated by the CJS Appropriations Act—if nothing else, because withholding would take time for which a Department employee would be compensated by the CJS Appropriations Act, or entail the use of resources (such as electricity, paper, or a computer) funded by the Act. See CJS Appropriations Act tit. II, 129 Stat. at 2296 (appropriating funds for “salaries and expenses”); McHugh v. Rubin, 220 F.3d 53, 57 (2d Cir. 2000) (“Even the simple act . . . of processing applications in accordance with a straightforward categorical rule (for example, ‘all applications shall be denied’) would involve the use of appropriated funds.”); Env’t Def. Ctr. v. Babbitt, 73 F.3d 867, 871–72 49 40 Op. O.L.C. 39 (2016) (9th Cir. 1995) (“The use of any government resources—whether salaries, employees, paper, or buildings—to accomplish a final listing would entail government expenditure.”). 2 And incurring an obligation of appropriated funds to withhold covered materials might well violate not only section 540 but also the Anti-Deficiency Act, 31 U.S.C. § 1341 et seq., a statute that subjects federal officers and employees who expend or obligate funds in excess of appropriated amounts to administrative and, in the case of knowing and willful violations, criminal penalties. See id. §§ 1341(a), 1349(a), 1350; Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25 Op. O.L.C. 33, 35 (2001) (concluding that “when Congress has expressly prohibited the expenditure of any funds for a particular purpose” within an appropriation, a violation of that condition “would generally constitute a violation of the Antideficiency Act”). Moreover, for at least three reasons, we believe section 540’s prohibition on using fiscal year 2016 funds to withhold these materials from We recognize that funds that are not “provided in” the CJS Appropriations Act, such as funds held over from a previous fiscal year, are not subject to section 540. CJS Appropriations Act § 540. And it is possible that some Department employees with custody of materials OIG requests might be paid with such funds. However, we understand that the vast majority of the Department’s salaries and operations are funded by annual appropriations. See, e.g., id. tit. II (appropriating funds for, among other things, “Salaries and Expenses” for “General Administration,” the United States Parole Commission, “General Legal Activities,” the Antitrust Division, United States Attorneys, the Foreign Claims Settlement Commission, the Community Relations Service, the United States Marshals Service, the National Security Division, the FBI, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Federal Prison System). We further understand that these annually appropriated salaries include the salaries of supervisory and senior leadership officials who have general authority to obtain access to materials related to matters they supervise, and, in light of section 540, the authority and obligation to obtain such access in order to disclose requested materials to OIG without regard to the restrictions in Title III, Rule 6(e), or section 626 of FCRA. See id.; 28 U.S.C. §§ 509, 510; see also 5 U.S.C. § 301. Thus, even if OIG requested materials from the Department in the narrow circumstances in which such materials are protected from disclosure to OIG by Title III, Rule 6(e), or section 626, and even if none of the Department employees with custody of those materials were paid with fiscal year 2016 funds or used resources supported by such funds to process the request, OIG’s request could always be elevated to a supervisory official who was paid with fiscal year 2016 funds and had the authority to obtain and disclose the materials notwithstanding the restrictions in Title III, Rule 6(e), or section 626. 2 50 Effect of Appropriations Rider on Access of DOJ Inspector General to Information OIG—unlike the analogous provisions in the IG Act or section 218 of the 2015 Appropriations Act—is “‘clear’” and “‘unambiguous[],’” and therefore satisfies the clear statement rules described in our IG Access opinion. IG Access, 39 Op. O.L.C. at 83, 95, 97. First, in our view, the only plausible construction of section 540 is that it forbids the use of fiscal year 2016 funds to withhold materials from OIG pursuant to Title III, Rule 6(e), or section 626 of FCRA. As just discussed, section 540 states that the Department may not use such funds to withhold materials from OIG “under any provision of law” except a provision that expressly limits inspector general access, and under no reasonable construction does that language permit the Department to use fiscal year 2016 funds to withhold materials under Title III, Rule 6(e), or section 626. Thus, unlike section 218 of the 2015 Appropriations Act, section 540 is not “susceptible to alternative interpretations, one of which would permit withholding under Title III, Rule 6(e), and section 626,” and it therefore cannot be construed in a manner consistent with those statutes. Id. at 95; see The Last Best Beef, LLC v. Dudas, 506 F.3d 333, 339 (4th Cir. 2007) (stating that where an appropriations rider is “in absolute contradiction with” an earlier-enacted statute, and an agency “simply cannot comply simultaneously” with both enactments, the agency is “bound to follow Congress’s last word on the matter even in an appropriations law” (internal quotation marks omitted)). Second, unlike both section 218 and the IG Act, section 540 expressly “address[es] potential conflicts with other statutory confidentiality provisions.” IG Access, 39 Op. O.L.C. at 80; see id. at 96. It specifies that the Department may not use fiscal year 2016 funds to “deny [OIG] timely access . . . under any provision of law,” subject to one exception. CJS Appropriations Act § 540. That language is similar to statutory grants of access “notwithstanding any other law” that we have previously found sufficient, at least in some circumstances, to override competing limitations on disclosure. See, e.g., Brady Act Implementation Issues, 20 Op. O.L.C. at 62 (stating that the Brady Act’s grant of access “notwithstanding any other law” overrides the limitations on disclosure found in the Privacy Act); IG Access, 39 Op. O.L.C. at 79–80. And it confirms that Congress specifically intended to override other statutory limitations, and did not merely countermand them inadvertently through broad language. Cf. Ali, 552 U.S. at 220 n.4 (noting that “circumstances may counteract the effect of expansive modifiers” like “all” and “any”); Hill, 437 U.S. at 51 40 Op. O.L.C. 39 (2016) 190 (explaining that the presumption against implied repeals applies with special force to appropriations acts because otherwise “every appropriations measure would be pregnant with prospects of altering substantive legislation” and legislators would be required “to review exhaustively the background of every authorization before voting on an appropriation”). Third, section 540 sets forth only one circumstance in which it would permit the Department to use fiscal year 2016 funds to withhold materials from OIG: where a provision of law “expressly refers to the Inspector General and expressly limits the Inspector General’s right of access.” CJS Appropriations Act § 540. That narrow exception would be largely superfluous if section 540 did not otherwise prohibit the Department from using such funds to withhold (and thus, in effect, bar the Department from withholding) materials available to the Department pursuant to statutory provisions. And the inclusion of this one exception implies that Congress did not intend to allow others. See, e.g., Hill, 437 U.S. at 188 (stating that because Congress “create[d] a number of limited ‘hardship exemptions’” to the Endangered Species Act, “we must presume that these were the only ‘hardship cases’ Congress intended to exempt”); cf. IG Access, 39 Op. O.L.C. at 83–84 (describing as “plausible” OIG’s argument that the IG Act overrode other statutory prohibitions on disclosure based on a negative inference from section 6(b)(1) of the IG Act, but concluding that “the inference OIG invoke[d]” was not sufficiently strong to provide a “clear manifestation of congressional intent” (internal quotation marks omitted)). Moreover, section 8E(a) of the IG Act falls comfortably within the exception’s scope. See 5 U.S.C. app. § 8E(a)(2) (stating that the Attorney General “may prohibit the Inspector General from carrying out or completing any audit or investigation, or from issuing any subpena, . . . to prevent the disclosure of ” certain sensitive information (emphases added)). A straightforward interpretation of section 540 thus does not invite the result we thought “implausible” when construing section 218 of the 2015 Appropriations Act—namely, an implied partial repeal of a section of the IG Act itself. IG Access, 39 Op. O.L.C. at 93. Finally, to return to the question you asked, it follows directly from this prohibition on withholding that the Department may (and must) disregard the limitations in Title III, Rule 6(e), and section 626 of FCRA when it makes disclosures to OIG. As discussed above, for the remainder of the fiscal year, section 540 effectively bars the Department from withholding 52 Effect of Appropriations Rider on Access of DOJ Inspector General to Information materials from OIG under Title III, Rule 6(e), or section 626. And in so doing, section 540 effectively overrides the limitations in those statutes with respect to disclosures to OIG during that period. It is therefore plainly permissible—and indeed required—for the Department to disregard those limitations in making disclosures to OIG for the remainder of the fiscal year. III. For the foregoing reasons, we conclude that section 540 of the CJS Appropriations Act effectively prohibits the Department, for the remainder of fiscal year 2016, from denying OIG timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, pursuant to Title III, Rule 6(e), or section 626 of FCRA. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year. We note that, upon obtaining materials from the Department, OIG will be required to “ensure compliance with statutory limitations on disclosure relevant to the information” contained in those materials. CJS Appropriations Act § 540. We have not considered the nature of the Department’s and OIG’s obligations after fiscal year 2016 with respect to materials to which OIG obtains access under section 540. KARL R. THOMPSON Principal Deputy Assistant Attorney General Office of Legal Counsel 53

Write a legal research memo on the following topic.

Exercise of Transfer Authority Under § 110 of H.J. Res. 370 T h e substantive au th o n ty granted the S ecretary o f the Treasury by H.J. Res. 370 to transfer funds betw een appropriation accounts is severable from the unconstitutional “com m ittee approval” provision in that law, and m ay be exercised by the Secretary within a reasonable period after he has inform ed the A ppropriations C om m ittee o f his intent to do so. September 2, 1982 MEMORANDUM FOR THE GENERAL COUNSEL, DEPARTMENT OF THE TREASURY This responds to your request for our opinion whether a “committee approval” provision contained in § llO ofPub. L. No. 97-92,95 Stat. 1183,1194(1981), is severable from the substantive authority granted in § 110 to the Secretary of the Treasury to transfer funds between appropriation accounts. For reasons stated hereafter, we believe that this substantive transfer authority is severable from the unconstitutional “committee approval” provision. It follows from this conclusion that the substantive transfer authority may be exercised notwithstanding the unconstitutionality of the “committee approval” provision. Thus, the “approval” of the committee is not, in our view, required in order for the Secretary to exercise the transfer authority; that power may be exercised after appropriate notice to the Appropriations Committees has, in the judgment of the Secretary, been given. Section 110 was enacted as part of H.J. Res. 370, a joint resolution making continuing appropriations for many federal departments and agencies that was enacted on December 15, 1981. Section 110 reads, in pertinent part, as follows: [T]he Secretary of the Treasury is authorized to transfer up to 2 per centum from any appropriation account provided by this joint resolution for the Department of the Treasury . . . to any other such appropriation account: . . . Provided further, That approval for such transfers is obtained in advance from the House and Senate Committees on Appropriations. 95 Stat. 1194. You have informed us that the Secretary of the Treasury, earlier this year, exercised the transfer authority granted by § 110, with the “approval” of the House and Senate Committees on Appropriations. In addition, the Secretary has, by letters to the Committee chairmen of August 27, 1982, informed those 520 Committees of his intent to exercise his power under § 110 to make certain transfers, indicating in his letters the need to do so by September 2 in order to continue certain activities in the Internal Revenue Service and the United States Secret Service.1The Secretary has, to date, received no response from either of the Committees. The general question presented is whether he may execute the transfers in question, which we assume to be otherwise within the substantive authority granted by § 110, without having secured “in advance” the “approval” of the Committees. We believe the threshold question which must be addressed is whether the substantive authority granted in § 110 is severable from the “committee ap­ proval” provision. As you are aware, the Executive has long regarded these kinds of “committee approval” provisions as unconstitutional. See, e.g., 37 Op. Att’y Gen. 56 (1933); 41 Op. Att’y Gen. 230 (1955); 41 Op. Att’y Gen. 300 (1957). Indeed, Presidents Eisenhower and Johnson explicitly instructed their subordi­ nates to disregard such “committee approval” provisions in signing into law bills that contained such provisions. See Public Papers of the Presidents, Dwight D. Eisenhower 688,689 (1955); Public Papers of the Presidents, Lyndon B. Johnson 104-05 (1963-64). If, however, the “committee approval” provision is not severable from the substantive authority to which it is attached, here the transfer authority, then the transfer authority itself may not be exercised by the Secretary. Because the Secretary has previously exercised his authority under § 110, this Administration has, at least implicitly, taken the position that the “committee approval” provi­ sion is severable from the Secretary’s substantive authority because if we be­ lieved the provision were inseverable, then it is doubtful that the Secretary could exercise the substantive transfer authority. We believe that position is correct. The courts will generally presume that Congress intends the unconstitutional portion of a statute to be severed from the remainder of that statute. See Tilton v. Richardson, 403 U.S. 672, 684 (1971) (plurality opinion), quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 30 (1937) (“ ‘The cardinal principal of statutory construction is to save and not to destroy.’ ”). Under the law of sever­ ability, the invalid portions of a statute are to be severed “ ‘[ujnless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is n o t. . . .’ ” Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234 (1932). We believe the presumption of severability governs the “committee approval” provision in § 110 for several reasons. First, we have found no indication in the sparse legislative history of the joint resolution that Congress ever focused on the question whether, assuming the unconstitutionality of the “committee approval” provision, it would refuse to extend to the Secretary the substantive authority contained in § 110. Indeed, we have been unable to find any pertinent reference 1 According to Acting Secretary Sprinkel’s letter, appropriation accounts for these activities will be exhausted on or about September 2, 1982. 521 whatsoever to § 110 in that legislative history. See H.R. Rep. 372, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. S 14956-96 (daily ed. December 10, 1981); id ., H 9102-55. Second, although the literal language of § 110 assumes that the Secretary will have received the “approval” of the Committees before he exer­ cises the transfer authority, we would not read that language as decisive of the severability issue. We would not do so for two separate but related reasons. First, Congress concededly assumes the constitutionality of such legislative veto provisions when it includes them in bills. Thus, there is no reason to believe that such an assumption reflects a congressional determination that it would not have granted the substantive authority if the legislative veto provision is indeed unconstitutional. To attribute to Congress such an intent would be to attribute to Congress the intent to enact meaningless legislation, because Congress includes such provisions knowing full well the position of the Executive that such provisions are unconstitutional and at least constructively being on notice that extant court decisions, including a decision of the Ninth Circuit decided almost a year before H.J. Res. 370 was enacted, indicate the correctness of the Executive’s position.2 Second, and more importantly, there is a long and continuous practice of the Executive’s refusing to regard identical or similar language contained in appro­ priations acts as being determinative of the severability issue. Indeed, this longstanding view of the Executive, well known to Congress, records the Executive as opposing such “committee approval” provisions on constitutional grounds and as asserting the right to exercise the substantive power attached to those provisions without first receiving the “approval” of the Appropriations Committees. Thus, in 1955, President Eisenhower, in signing into law the Department of Defense Appropriation Act, noted that a section of that Act prohibited use of funds appropriated under it for certain purposes without the approval of the Appropriations Committees of the Senate and House. In a signing statement addressed to Congress, President Eisenhower stated to Congress that the legis­ lative veto aspect of that provision “will be regarded as invalid by the executive branch of the Government . . . Public Papers of the Presidents, Dwight D. Eisenhower 688, 689 (1955). In 1963, President Johnson signed into law the Public Works Appropriations Act. That Act contained a provision preventing the Panama Canal Company from disposing of any real property without first obtaining the approval of the appro­ priate legislative committees of the House and Senate. In a signing statement, President Johnson stated his view that such “committee approval” provisions were unconstitutional and he stated that the provision was to be treated as “a request for information . . . Public Papers of the Presidents, Lyndon B. 2 Chadha v. INS, 634 F 2d 408 (9th Cir. 1980), Nos. 80-1832(1983) Shortly after enactment of H.J. Res 370, a decision was handed down by the D C. Circuit in Consumer Energy Council c f America v. FERC, 673 F 2d 425 (1 9 8 1), a case currently pending on appeal to the Supreme Court, in which that court broadly condemned all types of legislative veto devices as unconstitutional. Both Houses of Congress parucipated actively in the litigation of that case as well as Chadha and were thoroughly apprised of the Executive’s position on the constitutional issue involved. 522 Johnson 104 (1963-64). President Johnson by separate memorandum directed the Secretary of the Army, entrusted with execution of that provision of the Public Works Appropriations Act, to exercise authority under the Act but to regard the “committee approval” provision as merely requiring the Secretary to keep the congressional committees informed of actions taken under the substantive au­ thority of that Act. More recently, President Carter signed into law the Foreign Assistance and Related Programs Appropriations Acts of 1977 and 1978 which contained “committee approval” provisions attached to transfer authority virtually identical to the “committee approval” provision in § 110. At the time he signed those bills into law, President Carter directed the Secretary of State by memorandum to regard the “committee approval” aspects as unconstitutional and, therefore, not legally binding. He directed the Secretary to treat the “committee approval” provision as requiring only that the appropriate committees be consulted. Subse­ quently, as detailed in a letter from the General Counsel of the Agency for International Development to Chairman Inouye of the Subcommittee on Foreign Operations of the Senate Committee on Appropriations of February 12, 1980, the President exercised the transfer authority contained in § 115 without securing in advance the “approval” of the Appropriations Committees. In doing so, the President acted on the advice of this Office, provided to the Director of the Office of Management and Budget on October 28, 1977, that the authority under § 115 could be exercised without the prior approval of the Appropriations Committees.3 We believe these historical incidents establish a consistent view of the Ex­ ecutive with regard to “committee approval” provisions in appropriations acts that substantive authority to which such “committee approval” provisions are attached will be exercised and that the “committee approval” provisions will be treated essentially as requiring only that the committees be informed of action taken or to be taken by the Executive. We have no difficulty in concluding that the language of § 110, without more, cannot be read as expressing a congressional intent to overturn this established understanding. In a similar vein, we do not believe that that plain language can, in this overall historical context, be regarded as expressing a congressional intent that the substantive authority granted by § 1 1 0 should fall with the “committee approval” provision— in short, the “committee approval” provision is, in our view, severable. Based on this same historical practice, we believe the Secretary is entitled to exercise his transfer authority under § 110 within a reasonable period of time after he has informed the Appropriations Committees of his intent to do so. In present circumstances, we believe the Secretary could conclude that the Au­ gust 27, 1982, letters to the Appropriations Committees chairmen regarding 3 We note that shortly after this full ainng of the Executive s position that such authority could be exercised without the prior approval of the Appropriations Committees, those same Committees acted on the Foreign Assistance and Related Program Appropriations Act, Pub. L. No. 97-121, 95 Stat. 1647 (1982). In that Act, the Committees and Congress left intact the transfer authonty which had been the subject of contention in 1980. See § 514. 95 Stat. 1655, and § 523, 95 Stat 1657 (1982) 523 transfers currently under consideration provide reasonable notice and that the Secretary may execute such transfers as he determines to be appropriate. T h e o d o r e B. O lson Assistant Attorney General Office c f Legal Counsel 524

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The Pocket Veto: Historical Practice and Judicial Precedent [The follow ing two m em oranda exam ine historical practice and judicial precedent under the Pocket Veto Clause o f the C onstitution, A rt. I, § 7, cl. 2, in order to advise the President concerning the efficacy o f a p ocket veto during both intrasession and intersession adjournm ents of Congress.] I. February 10, 1982 M EM O R A N D U M OPINION FO R THE COUNSEL TO THE PRESIDENT This m em orandum discusses generally the President’s power to pocket veto legislation, with specific reference to the President’s pocket veto of H.R. 4353 during the recent intersession adjournm ent o f the 97th Congress. A rticle 1, § 7, clause 2 of the Constitution provides: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, w ho shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Recon­ sideration two thirds of that House shall agree to pass the Bill, it shall be sent, together w ith the Objections, to the other House, by w hich it shall likewise be reconsidered; and if approved by two thirds o f that House, it shall become a Law. . . . If any Bill shall not be returned by the President w ithin ten Days (Sundays ex­ cepted) after it shall have been presented to him, the Same shall be a Law, in like M anner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law. (Em phasis supplied.) The italicized phrase is commonly referred to as the “ pocket veto” provision because it empowers the President to prevent a bill’s becom ing law sim ply by placing it in his pocket— i.e., neither signing it nor returning it with his objections to its House of origin. The functional difference 134 between ordinary vetoes and pocket vetoes is that the latter cannot be overridden by Congress. As the President’s recent pocket veto of H.R. 4353 demonstrates, the questions raised by the pocket veto provision have considerable practical significance. If, contrary to the advice given orally by this Office, the pocket veto of H .R . 4353 was ineffective, that provision became law at the expiration of the ten-day period (Sundays excepted) after it was presented to the President. Because of the short time period involved, and because of the possible adverse consequence of an erroneous decision to pocket veto a bill rather than return it to Congress with objections, questions regarding the pocket veto provision often attain consider­ able urgency and importance. We therefore believe that it is useful to examine in advance the various issues arising under the pocket veto provision in a relatively comprehensive fashion in order to advise you regarding the legality of pocket vetoes in situations that are likely to arise in the future. The pocket veto provision appears to have been adopted without controversy by the Framers; the proceedings and debates of the Constitutional Convention shed no light on its meaning. Interpretation of the provision must therefore rely on historical practice and on three pertinent judicial decisions: The Pocket Veto Case, 279 U .S. 655 (1929); Wright v. United States, 302 U .S. 583 (1938); and Kennedy v. Sampson, 511 F.2d 430 (D .C. Cir. 1974). I. Historical Practice Presidents throughout our history have used the pocket veto power fre­ quently— a fact which is not surprising in light of the tendency on the part of Congress to present a mass of legislation to the President just before it adjourns and in view of the convenience to the President of exercising a veto that cannot be overridden by Congress. M ost pocket vetoes have occurred after final adjourn­ ments of C ongress or intersession adjournments between the first and second sessions.1 Presidents have also pocket vetoed bills during intrasession adjourn­ ments2 of varying lengths,3 but this practice has been relatively unusual.4 The historical practice therefore strongly supports the pocket veto during final and intersession adjournm ents, but is inconclusive for intrasession adjournm ents.5 1 See H ouse D oc. N o. 493, 70th C o n g ., 2d Sess. (1928) (m em orandum prepared by the A ttorney G eneral and p resented to C ongress; relied on by Suprem e C ourt in The Pocket Veto Case, 2 7 9 U .S. 655 (1929)). 2 T he A ttorney G eneral rendered an opinion in 1943 concluding that the pocket veto provision w as triggered by an adjournm ent w ithin th e first session o f the 78th C ongress w hich lasted from July 8 to Septem ber 14, 1943. 4 0 Op. A tt'y G en. 274 (1943). 3 See Office o f Legal C ounsel, Pocket Vetoes D uring Short H oliday R ecesses (Jan. 13, 1971), Pocket V etoes D uring A djournm ents o f C ongress W ithin a S ession (Nov 19, 1968). 4 See Kennedy v Sampson, 511 F.2d at 4 4 2 -4 5 (appendix analyzing pocket vetoes d u n n g all in trasessio n adjournm ents o f m ore than three days since 1800) 5 W hile highly relevant, the practice engaged in by the Executive Branch and generally acquiesced in by C o n g ress is not dispositive See The Pocket Veto Case, 279 U .S . at 690 (executive practice, acquiesced in b y the legislature, is entitled to “ great re g a rd ” but is “ not absolutely binding on the ju d icial departm ent. . ” ) (quoting State v South Norwalk, 77 C onn 2 5 7 , 264). It is ultim ately the province and duty o f the Judicial Branch to “ say w hat the law is.” United States v N ix o n ,4 1 8 V .S .6 8 3 ,7 0 3 (l974),quotingM arburyy.M adison,5\J S (J Cranch) 137, 177(1 8 0 3 ). Executive practices, even ones o f long duration, m ust yteld to contrary jud icial interpretations. 135 II . Judicial Decisions A. The Pocket Veto Case The Pocket Veto Case involved a Senate bill which authorized certain Indian tribes to bring suit against the United States in the Court of Claims. The bill passed both Houses and was d u ly presented to the President on June 24 ,1 9 2 6 . On July 3, 1926, the House of R epresentatives adjourned sine die and the Senate adjourned to N ovem ber 12, the date to w hich, sitting as a court of impeachment, it had previously adjourned fo r the trial of certain articles of im peachm ent.6 The July 3 adjournm ent was the final adjournm ent of the first session of the 69th Congress. The ten-day period (Sundays excepted) provided for presidential action under A rticle I, § 7, clause 2 expired on July 6, 1926, three days after the first session o f Congress adjourned. The President neither signed the bill nor returned it to the Senate and th e bill was not published as a law. Contending that the bill had become a law without the President’s signature, the Indian tribes filed suit in the Court of Claims. The Court of Claims sustained the U nited States’ demurrer an d the Supreme Court affirmed unanimously. Justice S anford’s opinion concluded that the word “ adjournm ent” was not lim ited to final adjournments o f a Congress, but also included interim adjourn­ m ents between or within sessions. The determ inative question, therefore, was not w hether C ongress had “ adjourned,” but rather whether the adjournment was one which “ prevent[ed]” the President from returning a bill to the House in which it originated in the time allowed. The specific question, in the C ourt’s view, was whether the intersession adjournm ent o f C ongress prevented the President from returning the bill, or w hether the Constitution was satisfied by the possibility of delivery to an officer or agent o f the H ouse of origin, to be held by him and delivered to the House when it resum ed its sittings for th e next session. The Court concluded that “ the ‘H ouse’ to which the bill is to be returned, is the House in session.” 279 U .S. at 682. It followed that under the constitutional mandate [the bill] is to be returned to the “ H ouse” when sitting in an organized capacity for the transaction of business, and having authority to receive the return, enter the President’s objections on its jou rn al, and proceed to reconsider the bill; and that no return can be m ade to the House when it is not in session as a collective body and its members are dispersed. Id. at 683. In rejecting the contention that delivery to an agent sufficed when the House was not in session, the Court observed that Congress had never authorized agents to receive bills returned by the President during its adjournment. Moreover, 6 T h e im peachm ent pro ceed in g s were b ro u g h t against G eo rg e W. E nglish, a federal d istrict ju d g e resigned b efore th e dale for th e Senate trial. S ee 68 C ong. R ec 3 - 4 (1926). 136 English delivery to such an agent, even if authorized by Congress, “ would not comply with the constitutional mandate.” Id. at 684: The H ouse, not having been in session when the bill was delivered to the officer or agent, could neither have received the bill and objections at that time, nor have entered the objections upon its journal, nor have proceeded to reconsider the bill, as the Constitu­ tion requires; and there is nothing in the Constitution which authorizes either House to make a nunc pro tunc record of the return of a bill as of a date on which it had not, in fact, been returned. M anifestly it was not intended that, instead of returning the bill to the House itself, as required by the constitutional provision, the President should be authorized to deliver it, during an adjournm ent of the House, to some individual officer or agent not authorized to make any legislative record of its delivery, who should hold it in his own hands for days, weeks or perhaps months— not only leaving open possible questions as to the date on which it had been delivered to him , or whether it had in fact been delivered to him at all, but keeping the bill in the meantime in a state of suspended animation until the House resumes its sittings, with no certain knowledge on the part of the public as to whether it had or had not been seasonably delivered, and neces­ sarily causing delay in its reconsideration which the Constitution evidently intended to avoid. In short, it was plainly the object of the constitutional provision that there should be a timely return of the bill, which should not only be a matter of official record definitely shown by the journal of the House itself, giving public, certain and prom pt knowledge as to the status of the bill, but should enable Congress to proceed immediately with its recon­ sideration; and that the return of the bill should be an actual and public return to the House itself, and not a fictitious return by a delivery of the bill to som e individual which could be given a retroactive effect at a later date when the time for the return of the bill to the House had expired. Id. B. Wright v. United States Wright v. United States, 302 U .S. 583 (1938), involved a Senate bill which granted jurisdiction to the Court of Claims to adjudicate the petitioner’s claim against the U nited States. The bill passed both Houses during the first session of the 74th Congress and was presented to the President on April 24, 1936. On May 4 ,1 9 3 6 , the Senate recessed until noon on May 7; the House of Representa­ tives remained in session. Because the Senate was in recess for not more than three days, it was not necessary to obtain the consent of the House of Representa­ 137 tives pursuant to A rticle I, § 5 , clause 4 of the C onstitution.7 On May 5, the tenth day (Sundays excepted) after receiving the bill, the President returned it to the Senate with a m essage stating his objections. The bill and the message were delivered to the Secretary of the Senate. The Senate received the President’s m essage when it reconvened o n May 7 and referred the bill and the President’s m essage to com m ittee. No further action was taken. T he petitioner presented his petition to the Court of Claims, contending that the P resident’s veto of the bill was ineffective because, under The Pocket Veto Case, delivery to an agent o f the Senate did not constitute a constitutionally sufficient retu rn .8 The Court of Claim s denied the petition and the Supreme Court affirm ed. The C o u rt’s opinion, per C hief Justice Hughes, held only that the President’s veto of the legislation was effective; it did not directly concern the pocket veto. In holding that the President was not prevented from vetoing the bill by the tem porary recess of the Senate, however, the opinion necessarily implied that a pocket veto of the bill would have been ineffective. Moreover, the C ourt’s analysis contained broad language which stands in sharp contrast to The Pocket Veto Case. The C ourt held, first, that “ Congress” had not adjourned when only one of its H ouses was in recess. Because “ Congress” was comprised of both Houses, the recess of the Senate while the H ouse rem ained in session did not amount to an adjournm ent of Congress. Second, the C ourt rejected the argument that the President was prevented from returning the bill because of the Senate’s recess. It noted that the Constitution did not forbid return o f a bill to an agent of the Congress such as the Secretary of the Senate. N or was there any practical difficulty in returning the bill during a recess: The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive, the bill. . . . There is no greater difficulty in returning a bill to one of the two Houses when it is in recess during a session o f Congress than in presenting a bill to the President by sending it to the White House in his tem porary absence. . . . To say that the President cannot return a bill when the House in which it originated is in recess during the session of Congress, and thus afford an opportunity fo r the passing of the bill over the Presi­ d en t’s objections, is to ignore the plainest practical considerations and by im plying a requirement o f an artificial formality to erect a barrier to the exercise o f a constitutional right. Id. at 5 8 9 -9 0 . The C ourt distinguished The Pocket Veto C ase on the ground that the dangers which the C ourt had envisaged with respect to an intersession adjournment by 7 A rtic le I, § 5 , clause 4 provides: “ N either H o u se ,d u rin g the S ession o f C o n g re ss,sh a ll, w ithout the C onsent of the other, adjourn for m ore than three days, n o r to any other Place than that in w hich the tw o H ouses shall b e sitting.” 8 T h e p etitio n er co n ten d ed that the bill had n o t been pocket vetoed because the pocket veto provision applies only w hen both H ouses have adjourned. Brief fo r Petitioner in Wright v United States at 18 138 both Houses were illusory in the context of an intrasession adjournment by one House for a period of three days or less. In the case of such a brief recess, there was no danger that the public would not be promptly and fully informed of the return of the bill with the President’s objections, or that the bill would not be properly safeguarded or duly recorded upon the journal o f the House, or that it would not be subject to reasonably prompt action by the House. Id. at 595. The Court specifically declined to address the question whether an intrasession adjournment of m ore than three days, for which the consent of both Houses is required pursuant to Article I, § 5, clause 4, would prevent the return of a bill and thereby trigger the pocket veto provision. Id. at 598. It held only that where the Congress had not adjourned and the House in which the bill originated is in recess for not more than three days under the constitutional permission while Congress is in session, the bill does not become a law if the President has delivered the bill with his objections to the appropriate officer of that House within the prescribed ten days and the Congress does not pass the bill over his objections by the requisite votes. Id.9 C. Kennedy v. Sampson Kennedy v. Sampson, 511 F.2d 430 (D .C . Cir. 1974), involved a Senate bill which was presented to the President on D ecem ber 14, 1970. On Decem ber 22 both Houses adjourned pursuant to a concurrent resolution, the Senate until December 28 and the House until December 29. The Senate authorized its Secretary to receive presidential messages during the adjournment. On D e­ cem ber 24 the President issued a memorandum announcing that he would withhold his signature from the bill; the President did not, however, return the bill to the Senate. T he ten-day period (Sundays excepted) for presidential approval expired on Decem ber 25. The bill was not published as a law. The plaintiff, a United States Senator who had voted for the measure, brought suit in district court against the Administrator o f the General Services Admin­ istration and the Chief of W hite House Records seeking a declaration that the bill had become law and an order requiring the defendants to publish the bill as law. The defendants contended that the bill had been validly pocket vetoed and had not become law. T he district court granted summary judgm ent for the plaintiff and the U nited States C ourt of A ppeals for the D istrict of C olum bia C ircuit affirm ed.10 The court, p e r Judge Tam m ,11 began by observing that the pocket veto pow er is an exception to the general rule that Congress may override the President’s veto. 9 Justice Stone w rote an opinion, jo in ed by Ju stice B randeis, w hich agreed that the bill did not becom e a law but co n clu d ed, contrary to the m ajority opinion, that the bill had been validly pocket vetoed Justice C ardozo to o k no part in the decision o f the case 10 The S olicitor G en eral determ ined not to petition the S uprem e C ourt for a w rit o f ce rtio ran 11 Ju d ges fiahy and B azelon concurred in the opinion 139 As su ch , in the cou rt’s opinion, the power m ust be limited by the specific purpose w hich it was intended to serve. Applying this narrow construction, the court held that the congressional adjournment at issue fell within the rule of Wright v. United States rather than that o f The Pocket Veto C ase. The court found it immaterial that the adjournm ent was for five days rather than three days, as in Wright. N or was it significant that both Houses had adjourned, rather than only the House of origin as in Wright, since the presence or absence o f the non-originating House could have no relevance to the validity o f the pocket veto. Moreover, Judge Tamm concluded that a pocket veto would have been inap­ propriate even under the standards set forth in The Pocket Veto Case: “ [t]he m odem practice o f Congress w ith respect to intrasession adjournments creates neither of the hazards— long delay and public uncertainty— perceived in The Pocket Veto C a se .” 511 F.2d at 440. Intrasession adjournments virtually never involved interruptions of the m agnitude considered in The Pocket Veto Case; and “ [m ]odem m ethods of com m unication,” id. at 441, make the return of a disapproved bill to the appropriate officer o f an originating House a matter of public record. T he court therefore concluded broadly that an intrasession adjournment of Congress does not prevent the President from returning a bill which he disapproves so long as appropriate arrangem ents are made for the receipt of presidential messages during the adjournment. Id. at 437. See also id. at 4 4 2 .12 III. Interests Served by the Pocket Veto T hese cases identify three distinct interests— sometimes conflicting, som e­ tim es reinforcing— served by the pocket veto provision of the Constitution: (1) the interest in ensuring that both Congress and the President have their due say in the process of lawmaking (the interest in mutuality); (2) the interest in avoiding delay in the process by which Congress determines whether to override a presidential veto (the interest in prompt reconsideration); and (3) the interest in ensuring public awareness of, and certainty about, the status of legislation (the interest in public certainty). A. Mutuality A rticle I, § 7 o f the Constitution provides generally that both the President and the C ongress play a role in the lawmaking process— the President by approving 12 Follow ing the Kennedy decision, the D epartm ent o f Justice issued a press release stating P resident Ford has determ ined that h e w ill use the return veto rather than the p ocket veto during intrasesston and in tersessio n recesses a n d adjournm ents o f th e C ongress, provided that the H ouse of C ongress to w hich th e bill and the P resident’s objections m ust be returned according to the C onstitution has specifically authorized an officer or other agen t to receive return vetoes during such p eriods. D epartm ent o f Ju stice P ress R elease, Apr. 13, 1 9 7 6 ,a t 2 [ N o t e * T h e im m ediate occasion for this p ressrelea se was the consent ju d g m e n t in Kennedy v Jones, 4 1 2 F.Supp. 353 (D .D C . 1976) Ed.] 140 or vetoing legislation, the Congress by passing legislation initially and by overriding presidential vetoes. The Fram ers evidently intended that both branches would play their assigned role whenever possible. As the Court said in Wright v. United States, 302 U.S. at 596: T he c o n stitu tio n a l p ro v isio n s [fo r p re sid e n tial v eto, c o n ­ gressional override, and pocket veto] have two fundamental pur­ poses: (1) that the President shall have suitable opportunity to consider the bills presented to him, and (2) that the Congress shall have suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto provided there are the requisite votes. The Framers recognized that certain technical rules were necessary in order to prevent frustration of the interest in mutuality. See 1 J. Story, Commentaries on the Constitution o f the United States § 891 (5th ed. 1905). First, there was the possibility that the President would fail to act on a bill presented to him by Congress. Because the bill would not be signed, it would not become a law; but because the President would not return it with his objections to its House of origin, there would be no opportunity for Congress to override a veto. To avoid a de facto veto which would deprive Congress of its power to override, the Framers provided that the President m ust act within ten days (Sundays excepted) or the bill would become law as if he had signed it. This solution, however, created a second problem. If Congress was in adjourn­ ment on the tenth day (Sundays excepted) after a bill was presented to the President, so as to prevent the President from returning the bill with his objec­ tions, the bill would automatically become law on the expiration of the tenth day and the President would be deprived of his veto power. Congress could hold up the presentation of legislation to the President until the day it went out of session, thereby essentially writing the President out of the lawmaking process. The pocket veto power dealt with this problem by providing that a bill would not become law if the President failed to sign it and was prevented from returning it because of a congressional adjournm ent.13 The pocket veto serves the interest in mutuality because it achieves the best possible approximation of the shared lawmaking generally contemplated in Article I, § 7 in those situations in which the presidential veto and congressional override powers cannot coexist. When the choice is between depriving the President of his veto or retaining the presidential veto but denying Congress the power to override, the interest in mutuality is best served by the latter alternative. Congress has power to avoid any possibility of a pocket veto by arranging to be in session on the tenth day (Sundays excepted) after a bill is presented to the President, or by delaying presentation of a bill until a time when it is scheduled to be in session on the tenth day (Sundays excepted) following. Moreover, even if a 13 If the P resident signed the bill, it w ould becom e law notw ithstanding the ad journm ent of C ongress Edwards v United States, 286 U .S 482 (1932), La Abra Silver Mining Co v. United States, 175 U S 4 2 3 (1899) 141 bill is pocket vetoed, the Congress can simply reenact it when it returns to session. See The Pocket Veto Case, 279 U .S. at 679 n.6. The President, on the other hand, in the absence o f a pocket veto would have no means of preventing C ongress from presenting bills to him on the last day before an adjournment, thus preventing him from exercising his veto. And when the bill became law, the President would have no way to repeal it without affirmative action by a majority of both Houses o f Congress. T h e interest in ensuring that both the President and C ongress play their assigned roles in lawmaking is thus better served by the presence of the pocket veto than by its absence. Because the pocket veto does not provide for congressional override, it serves the interest in mutuality only when, at the expiration of the ten-day period (Sundays excepted) following presidential receipt of a bill: (1) Congress has adjourned sine die at the end o f its final session and has thereby terminated its legislative existence; or (2) C ongress has taken some other adjournment and has failed to provide any effective means by which the President may return a bill during the adjournment. O nly in these situations is the President unable to exercise his veto power by returning the bill with objections. In all other situations, the interest in m utuality is served by an ordinary veto subject to congressional override and is disserved by a pocket veto. B. Prompt Reconsideration The pocket veto also serves the interest in ensuring the possibility of prompt congressional reconsideration o f a bill following a presidential veto. In The Pocket Veto C ase, for example, the C ourt was concerned that delivery to a congressional agent during an intrasession adjournment would permit the agent to hold the disapproved bill fo r “ days, weeks or perhaps months, . . . keeping the bill in the m eantim e in a state of suspended animation . . . and necessarily causing delay in its reconsideration which the Constitution evidently intended to avoid.” 279 U .S . at 684. In Wright v. United States, 302 U .S. 583, the Court em phasized that a three-day recess of one House did not pose the dangers of “ undue delay,” identified in The Pocket Veto Case, because a mere “ brief,” “ sh o rt,” and “ tem porary” recess, extending for a “ very limited time only,” did not create the danger that a vetoed bill “ would not be subject to reasonably prom pt action by the House.” Id. at 595. And Kennedy v. Sampson recognized that “ long d elay ” was one of the hazards perceived in The Pocket Veto Case. 511 F.2d at 440. The interest in prompt reconsideration does not lend itself to precise quan­ tification. The adjournment at issue in The Pocket Veto Case lasted roughly five m onths; the adjournm ents at issue in Wright v. United States and Kennedy v. Sampson were of three and five days, respectively. Between these figures lies a broad area of uncertainty, in w hich the argum ent favoring the validity of a pocket veto becom es stronger as the period of adjournment increases. The interest in prom pt reconsideration will sometimes reinforce the interest in m utuality. A final adjournment o f Congress, in which the interest in mutuality is 142 strongly im plicated, will typically continue for a substantial period of time. Similarly, non-final adjournments in which Congress has appointed agents to receive presidential m essages, in which the interest in m utuality is not served by a pocket veto, are also typically of brief duration. On the other hand, non-final adjournments can extend for a considerable period of time and final adjournments can be very brief. In some cases, therefore, the interest in mutuality and the interest in prompt reconsideration will conflict. C. Public Certainty The third interest underlying the pocket veto provision is that of ensuring that the public is reliably informed about the process of lawmaking. In The Pocket Veto Case, the Court said that return of a disapproved bill to a congressional agent during an intersession adjournm ent would not provide “ certain knowledge on the part of the public as to whether it had or had not been seasonably delivered” because return of the bill would not be “ a matter of official record definitely shown by the journal of the House itself, giving public, certain and prompt knowledge as to the status of the bill. . . . ” 279 U .S. at 684-85. In Wright v. United States, the Court recognized that the pocket veto provision safeguarded against “ [t]he prospect that . . . the public may not be promptly and properly informed of the return of the bill with the President’s objections, or that the bill would not be properly safeguarded or duly recorded upon the journal of the H ouse,” although in the context of a three-day recess of one House only, the Court found this danger was “ wholly chimerical.” 302 U .S. at 595. And Kennedy v. Sampson recognized that the pocket veto provision was designed, in part, to ensure public certainty. See 511 F.2d at 440. The interest in public certainty seems to have factual and legal components. Factually, there is a strong interest in guaranteeing that the public has full knowledge of the President’s decision to veto a bill, and of the reasons for that decision as stated in the President’s objections. Legally, there is a strong interest in providing the public with certain knowledge whether the bill has becom e law. Obviously, segm ents of the public affected by a bill will often have a compelling interest in knowing whether the bill has become a law so that they may structure their actions in order to comply with the law or to obtain the benefits provided thereunder. As a practical matter, as the Court observed in Kennedy v. Sampson, the interest in obtaining the facts of a veto will usually be well served by the availability of “ [m ]odem methods of com m unication,” 511 F.2d at 441. Presi­ dential vetoes are widely reported in the press. The problem of legal uncertainty, on the other hand, remains pressing today. The need for legal certainty requires hard-and-fast rules that can easily and clearly be applied in individual cases. In this respect, the interest in public certainty stands in tension with the interest in prompt reconsideration since the latter interest increases incrementally in 143 strength with the length of an adjournm ent and is not susceptible to resolution through a clear, non-arbitrary ru le .14 The interest in public certainty reinforces the interest in mutuality in the case of final adjournm ents. In the case of non-final adjournments, the interest in public certainty might occasionally conflict with the interest in mutuality when there are legal questions regarding whether Congress has designated an agent to receive presidential messages during its adjournment. IV. The above analysis provides som e guidance as to the validity of pocket vetoes in a variety of recurring situations. A. Final Adjournments A pocket veto is certainly appropriate after the final adjournment of a Con­ gress. If it were not, there would be a serious question as to whether the pocket veto provision o f the Constitution had any meaning at all. That pocket vetoes are appropriate after a final adjournment was settled in The Pocket Veto C ase15 and has not been questioned by the subsequent decisions which narrowed The Pocket Veto Case in other respects. Moreover, in the context of a final adjournment of Congress all three interests served by the pocket veto provision suggest the appropriateness of a pocket veto. W ithout a pocket veto, the President could be denied his proper role in lawmaking by the presentation of numerous bills towards the end of the final session of Congress (interest in mutuality); final adjournm ents are often lengthy (interest in prompt reconsideration); and a rule providing for pocket vetoes in this situation is capable of hard-and-fast applica­ tion (interest in public certainty). Accordingly, the President m ay pocket veto bills after the final adjournment of a Congress without fear that his veto will be ineffective and the bills will become law. B. Intersession Adjournments We also believe the President may pocket veto bills during intersession adjournm ents. Adjournments between sessions are typically accomplished by means of concurrent resolutions16 adjourning the session sine d ie .17 The Presi­ 14 Judge T am m ’s distin ctio n between intrasession and intersession adjournm ents in Kennedy v. Sampson appears based, largely, on the need for hard-and-fast rules in this area. A sh arp distinction betw een intersession and intrasession adjournm ents w ould be inappropriate if the only criterion w ere the length o f an adjournm ent, since w hile intersession ad jo u rn m en ts are also generally relatively lengthy and intrasession adjournm ents relatively brief, this rs not alw ays the case M “ It is also co n ced ed , as w e understand, that the P resident is necessarily prevented from returning a bill by a final adjournm ent o f th e C o n g ress, since su c h adjournm ent term inates the legislative existence o f the C o n g ress and m akes it im possible to return th e bill to e ith e r H ouse.” 279 U .S at 681. Ih A co ncurrent resolution is required by A rticle I, § 5 , clause 4 , pro h ib itin g eith er H o u se from adjourning for m ore than three days w ithout the consent o f the other. See note 7 supra 17 A sine die ad jo u rn m en t is necessary because any adjournm ent to a date certain w ithin the session w ould not term inate the sessio n . In The Pocket Veto C ase Congress adjourned its first session even though the Senate adjourned to a date certain w ithin the session rather th a n sine die. T h is w as because o f an unusual situatton in w hich the Senate agreed to return to p erform non-legislative b usiness, th e consideration o f certain articles o f im peachm ent A fter m eeting to co n sid e r these artic le s, the S en ate, sitting as a court o f im peach m en t, voted to adjourn sine die See note 6 and accom panying te x t, supra. 144 dent’s pocket veto of H .R . 4353 on December 29, 1981, occurred during a sine die adjournm ent of the first session o f the 97th C ongress, beginning D e­ cember 16, 1981.18 By joint resolution, Congress agreed to reconvene for the second session on January 2 5 ,1 9 8 2 .19 In this section we confirm the advice given orally by this Office that the President was authorized to pocket veto H.R. 4353. The Pocket Veto Case stands at least for the proposition that a pocket veto is appropriate during an intersession adjournment. The Court in Wright, dis­ tinguishing The Pocket Veto Case, strongly implied that the case retained force in the context o f intersession adjournments: However real th[ej dangers [envisaged by the Court in The Pocket Veto Case] may be when Congress has adjourned and the mem­ bers of its Houses have dispersed at the end of a session, the situation with which the Court was dealing, they appear to be illusory when there is a mere tem porary recess. 302 U .S. at 595. Similarly, the court in Kennedy v. Sampson limited its holding to intrasession adjournments and sharply distinguished these from intersession adjournments. Although we believe, and have frequently advised, that the pocket veto is appropriate in the context of intersession adjournments, we recognize that objections could be made to this conclusion based on an analysis of the interests underlying the pocket veto provision. The interest in mutuality is not particularly strong in the case of a pocket veto during an intersession adjournment, at least so long as the House of origin has appointed an agent to receive presidential messages. The President could veto the bill and return it, together with his objections, to the agent who would lay the m atter before the House for recon­ sideration upon its return. Thus the President would not be deprived of his power to veto legislation. A pocket veto, on the other hand, arguably disserves the interest in m utuality in this circumstance because it would deprive Congress of its power to override. The interest in prompt reconsideration is served by a pocket veto during lengthy intersession adjournments but not by pocket vetoes during brief intersession adjournments. Thus, pocket vetoes during brief intersession adjournments are somewhat more vulnerable than those during lengthy interses­ sion adjournm ents. However, we believe that the interest in public certainty justifies a hard-and-fast rule that pocket vetoes are always appropriate during intersession adjournm ents. See note 14 supra. The alternative of a rule based upon the length of an adjournment lacks any constitutional basis. The alternative of a rule that intersession pocket vetoes are not appropriate could seriously fru stra te th e in terest in p ro m p t re c o n sid e ra tio n in the case o f len g th y adjournm ents. '* See S . C on. R es 57, 97th C ong -. 1st Sess , 127 C ong. R ec. S15631 (daily ed Dec 16. 1981) 19 See H J . Res 37 7 , 97lh C ong , 1st Sess , 127 C ong. Rec. H 9638 (daily ed Dec 16, 1981). 145 It is our opinion, therefore, that the President may validly pocket veto bills during all intersession adjournm ents.20 Accordingly, the President’s pocket veto of H .R . 4353 was effective and prevented the bill from becoming law. C. Intrasession Adjournments Any decision to pocket veto legislation during an intrasession adjournment would in all probability be met with an im m ediate court challenge in which the prospects that the Executive’s position will be sustained are uncertain at best. Wright v. U nited States rejected the contention that the President could pocket veto legislation during a three-day intrasession adjournment of the House of origin. A lthough the Wright decision contained language that could be read as lim ited to adjournm ents of three days or less, for which the consent of the other H ouse is not required under A rticle I, § 5, clause 4, the subsequent decision in Kennedy went further. Kennedy involved, on its facts, a recess of both Houses for w hich the consent of the other House was required. Moreover, the court in Kennedy clearly stated that pocket vetoes are never appropriate during intrases­ sion adjournm ents. The rule adopted by the C ourt in Kennedy may best be understood by exam ining the interests underlying the pocket veto provision. The interest in m utuality is disserved by the pocket veto during intrasession adjournments because the President is not disabled from returning a bill with his objections so long as the H ouse of origin has em powered an agent to receive presidential m essages. The interest in prom pt reconsideration is served only during lengthy intrasession adjournm ents, which have always been uncommon and which have becom e increasingly rare in recent years. The interest in public certainty would be served by a hard-and-fast rule perm itting pocket vetoes during all adjourn­ ments of the H ouse of origin w hich require the consent of the other House under A rticle I, § 5, clause 4; but the Kennedy and Wright decisions indicate that the courts are m ore likely to endorse a flat rule against any pocket vetoes during intrasession adjournments. It could plausibly be argued, however, that the interest in public certainty is equally served by a rule permitting pocket vetoes during adjournm ents lasting m ore than a set period of time. For example, the interest in public certainty would be served by a rule permitting pocket vetoes during adjournm ents of ten days or more. A pocket veto during an intrasession adjournment would be directly contrary to the language in Kennedy and inconsistent with at least the spirit of Wright. The interests underlying the pocket veto provision do not clearly resolve the question w hether pocket vetoes are appropriate during intrasession adjournments. This is not to say that a pocket veto should never be considered during a session. There is room to argue that Kennedy was an erroneous decision and that the broad dicta in 20 P ocket vetoes d u rin g intersession adjournm ents are, we b eliev e, valid w hether o r not the H ouse o f o rigin has ap p o in ted an agent to receive presidential m essages It appears that the H ouse o f Representatives d id not appoint such an agent du rin g the intersession ad jo u rn m en t o f the 97th C ongress 146 Wright should not be followed today. It must be recognized, however, that such an argument would face an uphill battle in the courts. We would recommend that the President not pocket veto legislation during intrasession adjournm ents unless he is willing to risk an almost certain court challenge in which he may not be successful. If the President does wish to exercise his pocket veto, he may wish to choose a bill which would not appreciably damage his program if it were enacted into law.21 We would advise that the President not pocket veto bills unless the intrasession adjournm ent involved extends for a significant period of time— ten days at least— and that both Houses be in adjournment on the date set for return of the bill. D. One House Only Adjourns Sine Die An intermediate case is that in which one House adjourns sine die and the other remains in session.22 Read broadly, Wright v. United States would preclude a pocket veto since that case stated that the adjournment of one House only does not trigger the pocket veto provision. See 302 U .S. at 587-88. This clearly was not the basis for the C o u rt’s decision, however, since the Court expressly reserved the question whether a one-House adjournment lasting for more than three days would “ prevent” the return of a vetoed bill. Id. at 598. See Kennedy v. Sampson at 440 n.29. We are of the opinion that a pocket veto would be effective when the House of origin has adjourned sine die at the end of a final session. A similar conclusion is appropriate when the House o f origin has remained in session and the other House has adjourned sine die at the end of its final session, since it would be impossible in this situation for Congress as a whole to override the President’s veto. Somewhat more difficult is the situation in which the House of origin has adjourned sine die at the end of the first session and the other House has remained in session. This Office has advised that either a pocket veto or a return veto would be appropriate in this situation.23 However, a pocket veto would probably be ineffective when the House of origin remains in session and the other House adjourns sine die at the end of the first session. V. Miscellaneous Problems Finally, we address certain miscellaneous problems which have arisen in connection with the pocket veto. A. Procedure in Uncertainty The President is placed in a somewhat difficult position when he wishes to veto a bill but is uncertain whether or not he has authority to exercise the pocket veto. 21 H R. 4353, w hich the P resident pocket vetoed on D ecem ber 29, 1981, is an exam ple o fa g o o d test case. A s the President noted in his veto statem ent, the m easure “ w ould benefit the creditors o f a single large asset b an k ru p tcy ” and was in effect an “ effort to co n fe r special relief m the guise of general legislation." 17 W eekly Com p. Pres D oc. 1429 (1981) 22 D uring the first session o f th e 96th C ongress, for exam ple, the Senate adjourned sine die: the H ouse d id not adjourn sine die but held pro form a sessions up to and including the date it reconvened for the second sessio n . 23 M em orandum for H onorable Lloyd N Cutler, Jan 2. 1980 147 If the President attem pts a pocket veto, there is always the danger that his action will be ineffective and that the bill will be held to have become law without his signature. On the other hand, if h e attempts to return the bill with his objections to the House of origin, there is the danger that his actions will undermine the argum ent, which he might wish to make in a future case, that he was “ prevented” from returning the bill within the meaning of the pocket veto provision.24 This dilem m a is not fully resolvable; difficulties will persist so long as the contours of the pocket veto pow er remain indistinct. We believe that the President would be justified in taking eith er of two courses of action. First, he could establish a policy of pocket vetoing all bills during final adjournments, interses­ sion adjournm ents, and intrasession adjournments lasting for a set period of time or longer. This policy would have the virtue of consistency and would frame the constitutional issues sharply for a court challenge. On the other hand, it must be recognized that this policy would pose serious litigation risks if the policy was to pocket veto bills during intrasession adjournm ents of relatively brief duration. Second, the President could adopt a case-by-case approach to the problem, taking account of the degree o f litigation risk and of the importance to the President’s program that the bill not be enacted. If the bill is unimportant to the President’s program and the chances of success in court appear high, the better course may be to pocket veto.25 If the bill is im portant or the chances of success appear low, the better course may be to return the bill with objections which explicitly state that the President believes he would be within his right to pocket veto the legislation. B. Recess Appointments A rticle II, § 2, clause 3 of the Constitution provides: “ The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting C om m issions which shall expire at the end of their next Session.” The President’s power to make recess appointm ents has been the subject of some uncertainty and disagreement w ith Congress in recent years. The recess appoint­ m ent and pocket veto powers are related because of the similarity between the concepts of a “ recess” of the Senate in which the President can make temporary appointm ents w ithout obtaining the advice and consent of the Senate and an “ adjournm ent” o f the House o f origin w hich, if it prevents the return of a bill with objections, will permit th e President to prevent the bill from becoming law without subm itting his veto to a possible congressional override. Practice under 24 A d ifferent problem m ay a n se when th e P resident w ishes to en su re that a bill w hich has been presented to him less than ten days (S undays excepted) b efo re an adjournm ent b eco m es law. If the President fails to sign the b ill, there is no g u aran tee that the bill w ill autom atically becom e law upon the expiration o f the tim e period since it may have been pocket vetoed T h is problem does n o t pose a serious d ilem m a, however, for the President can sim ply sign the bill w ithin the ten-day p erio d , thus e n su rin g that the bill becom es law w h ile p reserving his argum ents under the pocket veto provision. It has long been se ttle d that the P resident m ay sign legislation after C ongress has adjourned See note 13, supra 25 To avoid an im plication that he has exercised a return rather than a pocket veto, the President should not deliv er a m essage to the H ouse o f origin stating h is objections if he intends to exercise the pocket veto power. 148 the pocket veto provision may therefore have some bearing on an interpretation of the scope of the recess appointm ent power. There are sound reasons to believe that the President has authority to make recess appointments in situations in which a pocket veto might well be inap­ propriate. First, even if “ recess” and “ adjournm ent” have the same meaning in the Constitution, this fact would not equate the pocket veto and recess appoint­ ment powers. The decisions holding that the President could not pocket veto bills during brief intrasession adjournments were not premised on the notion that these were not “ adjournments” in the constitutional sense; rather, they were bottomed on the theory that, although they were adjournments, they did not “ prevent” the return of disapproved bills. Second, it is by no means clear that “ adjournm ent” and “ recess” do have the same meaning in the Constitution. In common parlance, the word “ recess” connotes a brief break in continuity, whereas an “ adjournm ent” may include relatively brief periods but will more typically refer to a longer or indefinite suspension of activity. It is therefore possible that a very brief suspension will amount to a “ recess” but not an “ adjournment.” Despite the above analysis, the decisions in Wright v. United States and Kennedy v. Sampson counsel caution in making recess appointments. This Office has generally advised that the President not make recess appointments, if possible, when the break in continuity of the Senate is very brief. C. Nominations You have expressed concern that the President may prejudice his ability to pocket veto legislation if he sends nominations to the Senate during an interses­ sion adjournm ent. We assume that a nomination would be delivered to the Secretary of the Senate, who is typically designated by that body to receive messages from the President during adjournm ents.26 The sending of a nomination to the Senate would not, we believe, seriously prejudice the President’s stand on the pocket veto. Simply sending over a nomination has no legal significance unless and until the Senate takes action evidencing its understanding that a nomination has been validly made. At most, it would evidence the President’s understanding that the Secretary of the Senate is indeed authorized to receive presidential messages— a question which is not seriously in doubt in light of the Wright and Kennedy decisions and the explicit authorization to this effect ty p ­ ically approved by the Senate. However, we can perceive no strong reason to send nominations to the Senate during intersession adjournments. Theodore B. O lson Assistant Attorney General Office c f Legal Counsel 26 See, e.g ., 127 C ong Rec S 15632 (daily ed. D ec. 16, 1981) T h e Secretary o f the Senate m ay have inherent authority even in the absence of specific authonzation to receive presidential m essages See Wright v United States, 302 U .S at 599 (S tone, J , dissenting in part) 149

Write a legal research memo on the following topic.

(Slip Opinion) Reimbursing the Attorney’s Fees of Current and Former Federal Employees Interviewed as Witnesses in the Mueller Investigation The Department of Justice Representation Guidelines authorize, on a case-by-case basis, the reimbursement of attorney’s fees incurred by a current or former federal government employee interviewed as a witness in the Mueller Investigation under threat of subpoena about information the person acquired in the course of his government duties. October 7, 2020 MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CIVIL DIVISION You have asked for our opinion on the scope of the Attorney General’s authority to reimburse the attorney’s fees of federal employees who were interviewed as witnesses in connection with the investigation by Special Counsel Robert S. Mueller, III into possible Russian interference in the 2016 presidential election (“Mueller Investigation”). The Civil Division reviews requests for such reimbursement under long-standing Department of Justice (“Department”) regulations. See 28 C.F.R. §§ 50.15–50.16. You have asked specifically how certain elements of section 50.15 apply to the Mueller Investigation: (1) whether a person interviewed as a witness in the Mueller Investigation under threat of subpoena should be viewed as having been “subpoenaed,” id. § 50.15(a); (2) whether a witness interviewed about information acquired in the course of the witness’s federal employment appears in an “individual capacity,” id.; and (3) what factors should be considered in evaluating whether the reimbursement of the attorney’s fees of such a witness is “in the interest of the United States,” id. § 50.15(a)(4). We conclude that, under the regulation, the Attorney General or his designee may authorize the reimbursement of attorney’s fees incurred by current and former federal employees interviewed during the Mueller Investigation under threat of subpoena concerning information obtained during the course of performing their federal duties. We also conclude that such witnesses generally appear in their individual, not official, capacity. These conclusions are consistent with how the Department has 1 44 Op. O.L.C. __ (Oct. 7, 2020) treated requests for attorney’s fees under the now-lapsed Independent Counsel statute, which was the model for the Special Counsel regulations. See Memorandum for Dick Thornburgh, Attorney General, from William P. Barr, Assistant Attorney General, Office of Legal Counsel, Re: Reimbursement of Attorney Fees for Private Counsel Representing Former Government Officials in Federal Criminal Proceedings at 9 (Oct. 18, 1989) (“Barr Memorandum”). When the Department last addressed a similar question, then-Deputy Attorney General Eric Holder determined that “for purposes of analyzing representation and reimbursement requests” a Special Counsel investigation is “closely analogous” to an Independent Counsel investigation and should “be treated” as such. Memorandum for the Deputy Attorney General from Robin E. Jacobsohn, Deputy Assistant Attorney General, Civil Division, Re: Retroactive Reimbursement of Private Counsel Fees in Connection with Federal Criminal Proceedings at 4 n.3 (Dec. 8, 2000) (“Holder Memorandum”) (approved by the Deputy Attorney General). We agree with that conclusion and believe that it should apply to the Mueller Investigation as well. As we explain below, it will often be in the interest of the United States to provide reimbursement of such attorney’s fees, at least for any person who was a mere witness and not a subject or target of the investigation. 1 The Mueller Investigation, like the Independent Counsel investigations on which the Special Counsel regulation was modeled, operated in a politicized, publicized, and highly contentious environment, and addressed the actions of a number of senior government officials, including the President. Such investigations often require current and former federal employees to incur substantial attorney’s fees simply because they witnessed sensitive government deliberations in the course of doing their jobs. Absent reimbursement, the prospect of incurring such fees would deter individuals from serving in key government positions and from perform1 While we understand that a number of current and former federal employees interviewed by the Special Counsel are expected to make requests for reimbursement of attorney’s fees, we are informed that to date the Department has received only one such formal request. See Letter for Scott Schools, Associate Deputy Attorney General, from Dana J. Boente, Acting Assistant Attorney General, National Security Division at 1 (Jan. 2, 2018). We understand that the Civil Division has deferred consideration of whether Mr. Boente should be reimbursed for attorney’s fees until he resubmits his request in light of the fact that the Mueller Investigation has concluded. 2 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation ing their duties. Reimbursing the attorney’s fees of these witnesses therefore would generally be in the interest of the United States, at least for witnesses who were not a subject or a target of the investigation. I. The Attorney General has promulgated regulations providing for the appointment of a Special Counsel, who may be tasked with undertaking particularly sensitive investigations of high-ranking Executive Branch officials. See 28 C.F.R. pt. 600; see also Office of Special Counsel, 64 Fed. Reg. 37,038 (July 9, 1999). Those regulations were intended to replace authorities under the lapsed Independent Counsel statute. See Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 28 U.S.C. §§ 591–599); see also Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732 (1994) (extending authorities through 1999); see generally Morrison v. Olson, 487 U.S. 654 (1988). Like an Independent Counsel, a Special Counsel exercises federal prosecutorial power with a degree of autonomy; although a Special Counsel is subject to the supervision of the Attorney General, a regulation makes him removable only for cause. Compare 28 U.S.C. § 596(a)(1), with 28 C.F.R. §§ 600.6, 600.7(b), (d). On May 17, 2017, Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller, III to serve as Special Counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and related matters. Att’y Gen. Order No. 3915-2017 (May 17, 2017). In addition to the principal subject of the investigation, the Special Counsel also investigated whether the President had obstructed justice in connection with Russia-related investigations. See 2 Report on the Investigation into Russian Interference in the 2016 Presidential Election 1 (Mar. 2019) (“Mueller Report”), https://www.justice.gov/storage/report.pdf. The Special Counsel’s Office was well-resourced and its probe wideranging. The Special Counsel “assembled a team that at its high point included 19 attorneys”; “three paralegals”; and “an administrative staff of nine.” 1 Mueller Report at 13. These individuals “were co-located with and worked alongside” approximately 40 agents of the Federal Bureau of Investigation (“FBI”), as well as intelligence analysts, forensic account3 44 Op. O.L.C. __ (Oct. 7, 2020) ants, a paralegal, and professional staff assigned by the FBI to assist the Special Counsel’s investigation. Id. During the investigation, the Special Counsel “issued more than 2,800 subpoenas under the auspices of a grand jury sitting in the District of Columbia; executed nearly 500 search-and-seizure warrants; obtained more than 230 orders for communication records . . . ; obtained almost 50 orders authorizing use of pen registers; made 13 requests to foreign governments pursuant to Mutual Legal Assistance Treaties; and interviewed approximately 500 witnesses, including almost 80 before a grand jury.” Id. As of May 2019, when the Special Counsel resigned, the Special Counsel’s Office had spent about $16 million on the investigation, and other components of the Department had contributed another $15.5 million in support. U.S. Dep’t of Justice, Special Counsel Office’s Statement of Expenditures, May 17, 2017 Through February 25, 2020, at 2–3 (undated), https://www.justice. gov/sco/page/file/1266756/download. The Special Counsel’s investigation of obstruction of justice devoted substantial resources to interviewing federal employees, including many in the White House and some from the Department, concerning their conversations with the President and senior White House staff. The Special Counsel investigated, for example, the President’s dealings with James Comey, the former Director of the FBI, including the President’s response to Comey’s March 20, 2017, congressional testimony, and the decision to terminate him. See 2 Mueller Report at 38–41, 52–77. The Special Counsel also probed the President’s subsequent deliberations concerning the Special Counsel investigation and the recusal of Attorney General Jefferson B. Sessions III with respect to that investigation. Id. at 63–96, 107–11. All of these inquiries, and many others, entailed interviews with numerous current and former government employees concerning knowledge acquired in the course of their official duties. All told, we understand that the Special Counsel interviewed at least 40 current and former government employees, including many who worked in senior positions at the White House and the Department. With the exception of former National Security Advisor Michael Flynn, none of those employees was charged with any criminal offense. In March 2019, the Special Counsel concluded his investigation and submitted to Attorney General William P. Barr the confidential, twovolume Mueller Report summarizing his conclusions, charging decisions, 4 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation and the evidence the investigation had produced. See 28 C.F.R. § 600.8(c) (“At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”). We understand that you expect several current and former government employees interviewed in connection with the Mueller Investigation to seek reimbursement of attorney’s fees they incurred in connection with those interviews. See supra note 1. II. Congress has authorized the Attorney General to dispatch “[t]he Solicitor General, or any officer of the Department of Justice, . . . to attend to the interests of the United States” in any federal or state proceeding. 28 U.S.C. § 517. The Department provides representation automatically for federal employees who are subject to legal process in their official capacities—that is, when the government itself is the real party in interest, in the sense that court-ordered relief would be paid from the Treasury of the United States or direct federal employees in the performance of their official duties. See Memorandum for the Deputy Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Reimbursement of Anne M. Burford for Private Counsel Fees at 3 n.3 (May 3, 1983) (“Olson Memorandum”); see also Graham v. Kentucky, 473 U.S. 159, 165–66 (1985). The Attorney General’s authority also includes the power “to represent the personal interests of [federal] officers and employees who are sued in their personal capacities” where such interests “coincide” with “the interests of the United States.” Representation of Government Employees in Cases Where Their Interests Diverge from Those of the United States, 4B Op. O.L.C. 528, 531 (1980). If “private and public interests coincide, the representation of private interests is tantamount to representation of the interests of the United States.” Id. The prototypical instance of this convergence is when a federal employee is sued in his individual capacity for actions taken in the course and scope of his employment, such as a suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that seeks damages for allegedly unconstitutional conduct taken under color of the employee’s federal office. “In such 5 44 Op. O.L.C. __ (Oct. 7, 2020) proceedings, the United States ordinarily has interests substantially identical to those of the employee in establishing the lawfulness of authorized conduct on behalf of the United States and in relieving the employee of the threat and burden of litigation that might otherwise chill the performance of official duties.” Barr Memorandum at 9. After all, “[n]o man of common prudence would enter the public service if he knew that the performance of his duty would render him liable to be plagued to death with lawsuits, which he must carry on at his own expense.” Case of Captain Wilkes, 9 Op. Att’y Gen. 51, 52 (1857). At the same time, we have recognized that the Attorney General should not provide representation to vindicate interests that are “purely personal.” Representation of White House Employees, 4B Op. O.L.C. 749, 753 (1980). Examples of purely personal interests include “the interests in avoiding federal criminal prosecution, civil liability to the United States[,] or adverse administrative action by a federal agency.” Id. The Attorney General’s authority to represent federal employees includes the authority to “attend to the interests of the United States by authorizing the retention of private counsel at government expense, or the reimbursement of counsel fees incurred.” Barr Memorandum at 12 n.15; see also Memorandum for Glen E. Pommerening, Assistant Attorney General for Administration, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Authority for Employment of Outside Legal Counsel at 1 (Mar. 4, 1976) (“Scalia Memorandum”). “The conclusion that the Attorney General has such implied authority is based on that fact that he possesses not only representational authority, see 28 U.S.C. § 517, but executive authority as well, see 28 U.S.C. § 509, and the latter may be used in furtherance of the former.” Reimbursing Justice Department Employees for Fees Incurred in Using Private Counsel Representation at Congressional Depositions, 14 Op. O.L.C. 132, 135 (1990) (“Reimbursing Justice Department Employees”). Reimbursement of attorney’s fees paid to private counsel, rather than representation by government attorneys, may be warranted when representation of the federal employee would serve the interest of the United States, but government attorneys themselves may have a conflict of interest or otherwise be unable to provide representation. For example, it may serve the interest of the United States to represent an employee in a federal criminal investigation, but the government itself would have a conflict of interest in 6 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation representing the employee; in such a case, it may be appropriate for the employee to retain a private attorney and for the government to reimburse the employee’s attorney’s fees. See Scalia Memorandum at 6; Barr Memorandum at 16–17. The Attorney General has implemented these principles in regulations known as the “Representation Guidelines.” See 28 C.F.R. §§ 50.15–50.16. Section 50.15(a) of the Representation Guidelines provides for representation of current and former federal employees: [A] federal employee (hereby defined to include present and former Federal officials and employees) may be provided representation in civil, criminal and Congressional proceedings in which he is sued, subpoenaed, or charged in his individual capacity, not covered by § 15.1 of this chapter, when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States. Id. § 50.15(a). 2 Subsection (a)(4) applies to federal criminal proceedings, such as the Mueller Investigation. See id. §§ 600.1, 600.4(a). It provides: Representation generally is not available in federal criminal proceedings. Representation may be provided to a federal employee in connection with a federal criminal proceeding only where the Attorney General or his designee determines that representation is in the interest of the United States and subject to applicable limitations of § 50.16. In determining whether representation in a federal criminal proceeding is in the interest of the United States, the Attorney General or his designee shall consider, among other factors, the relevance of any non-prosecutorial interests of the United States, the importance of the interests implicated, the Department’s ability to protect those interests through other means, and the likelihood of a Section 15.1 of title 28 of the Code of Federal Regulations governs instances in which the United States is substituted as the defendant for a federal employee sued for actions taken in the course and scope of his employment, thus making the suit one against the United States itself and individual representation unnecessary. See 28 U.S.C. § 2679(b)(1), (d). 2 7 44 Op. O.L.C. __ (Oct. 7, 2020) conflict of interest between the Department’s prosecutorial and representational responsibilities. If representation is authorized, the Attorney General or his designee also may determine whether representation by Department attorneys, retention of private counsel at federal expense, or reimbursement to the employee of private counsel fees is most appropriate under the circumstances. Id. § 50.15(a)(4). Section 50.16 governs the retention of private counsel for the employee. The Department may approve the retention of counsel in advance and pay attorney’s fees as they are incurred. Id. § 50.16(c). Or the Department may reimburse after the fact the attorney’s fees an employee has incurred. Id. § 50.16(d). Reimbursement is limited to “legal work that is determined to be in the interest of the United States” and is not available “for legal work that advances only the individual interests of the employee.” Id. § 50.16(d)(1). In particular, “[r]eimbursement shall not be provided if the United States decides to seek an indictment of or to file an information against the employee seeking reimbursement, on a criminal charge relating to the conduct concerning which representation was undertaken.” Id. § 50.16(d)(4). III. You have asked how certain elements of the Representation Guidelines should apply to requests for reimbursement of attorney’s fees incurred by federal employees interviewed as witnesses in the Mueller Investigation concerning information obtained during the course of their federal duties. Specifically, you have asked: (1) whether such a witness interviewed under threat of subpoena should be viewed as “subpoenaed,” 28 C.F.R. § 50.15(a); (2) whether such a witness appears in his “individual capacity,” id.; and (3) what factors should be considered in evaluating “the interest of the United States,” id. § 50.15(a)(4), in reimbursing those fees. We address each question in turn. A. Section 50.15(a) provides that a present or former federal employee “may be provided representation in civil, criminal and Congressional 8 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation proceedings in which he is sued, subpoenaed, or charged in his individual capacity.” Id. § 50.15(a). The word “subpoenaed” clearly embraces a witness who is served with a subpoena. We think that the term also applies to a witness who submits to an interview under express or implied threat of subpoena. At first blush, section 50.15 might be read to require the formal service of a complaint, subpoena, or charge before an employee qualifies for representation. But we do not think the regulation requires such formality. A federal employee who submits to an interview under threat of subpoena may reasonably be considered to have been “subpoenaed” because he has complied with the request under threat of the potential penalties that would attach to a refusal to comply with the threatened subpoena. Similarly, we understand that the Civil Division has sometimes provided representation under the regulation when a federal employee has been threatened with a personal-capacity suit and requires representation. Just as the Representation Guidelines permit representation of an employee credibly threatened with a lawsuit, we think the regulation also permits representation for an interview conducted under threat of subpoena. It is common practice for an investigator with subpoena authority to negotiate for a witness’s voluntary appearance in lieu of the need for formal testimony in compliance with a subpoena. In federal criminal investigations, for instance, Department attorneys are encouraged to consider seeking the voluntary cooperation of a witness before issuing a grand jury subpoena. See U.S. Dep’t of Justice, Justice Manual § 9-11.254 (2018) (providing that “[b]efore issuing a grand jury subpoena, prosecutors should consider . . . whether a voluntary request . . . is available to obtain the information sought”). In congressional inquiries, the Executive Branch similarly expects congressional committees to seek the voluntary appearances of witnesses prior to the issuance of a subpoena, as part of the “constitutionally mandated accommodation process.” 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 *3 (Jan. 18, 2017) (“Authority to Pay for Private Counsel ”); see also Response to Congressional Requests for Information Regarding Decisions Made under the Independent Counsel Act, 10 Op. O.L.C. 68, 81 (1986) (explaining that “rarely do congressional requests for information result in a subpoena of an Executive Branch official” 9 44 Op. O.L.C. __ (Oct. 7, 2020) because “[i]n most cases the informal process of negotiation and accommodation . . . is sufficient to resolve any dispute”). We think it would be implausible to read the Representation Guidelines to be inapplicable in these common circumstances, in which the government interests at stake are not substantively different from when an employee is served with a formal subpoena. This conclusion is supported by Civil Division practice. In a 1995 memorandum, the Director of the Torts Branch explained that “[w]e have construed the ‘subpoena’ requirement to encompass situations where the employee appears voluntarily but would be subject to a subpoena but for his or her voluntary appearance.” Memorandum for Frank W. Hunger, Assistant Attorney General, Civil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division, Re: Payment of Private Counsel Fees in Connection with Whitewater Investigation at 2 n.1 (Aug. 10, 1995) (“Whitewater Memorandum”). Since then, we understand that the Civil Division has generally, although not uniformly, adhered to this view. 3 For example, in 2000, the Civil Division approved several requests for reimbursement of attorney’s fees incurred by federal employees who appeared as witnesses in connection with congressional inquiries without any indication that a congressional subpoena was ever issued.4 Moreover, in several instances the Civil Division has reimbursed employees for retaining a private attorney for a voluntary interview given to federal criminal investigators in lieu of testimony before a grand jury after the employee received a subpoena for such testimony. 5 It would make little 3 We are aware of one instance in which the Civil Division expressed a contrary view. See Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division at 2 (June 1, 2000) (“Mr. McLarty’s request for reimbursement is granted to the extent he seeks reimbursement of private counsel fees and costs incurred subsequent to being served with a subpoena . . . but denied to the extent he seeks reimbursement of private counsel fees and costs incurred prior to being served with a subpoena.”). 4 See, e.g., Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Aug. 3, 2000) (granting in part request from White House Counsel’s Office to reimburse attorney’s fees incurred by former Deputy Assistant to the President and Deputy Director of Presidential Personnel). 5 See Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division at 2 (Nov. 15, 2000) (granting reimbursement request of Department of Interior employee who “was 10 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation sense to read section 50.15(a) to authorize the reimbursement of attorney’s fees for a voluntary interview conducted after formal issuance of a subpoena, but not for one conducted under credible threat of subpoena. We thus do not construe the term “subpoenaed” to require issuance of a formal subpoena before the regulation becomes applicable. A contrary conclusion would establish a perverse incentive for federal employees to decline to cooperate and instead to trigger the issuance of formal subpoenas, which could result in additional attorney’s fees, potentially at the expense of the United States. 6 served with a grand jury subpoena” and “agreed to an interview in lieu of [a] grand jury appearance”); Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division at 2 (Nov. 15, 2000) (same); Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division at 3 (Aug. 3, 2000) (same with respect to request of former Deputy Assistant to the President and Deputy Director of Presidential Personnel). These memoranda briefly present the facts of the requests and convey the recommendations of the Director of the Torts Branch as to whether the Civil Division should approve them. A note-to-file affixed to each memorandum and bearing the same date indicates that each request was approved at least in part. 6 Even if a person were not “subpoenaed” within the meaning of section 50.15(a), the Attorney General would still have the authority under 28 U.S.C. § 517 to provide representation if it were in the interest of the United States to do so. Representation, including the reimbursement of private-counsel fees, may be provided outside the framework of the Representation Guidelines. See Reimbursing Justice Department Employees, 14 Op. O.L.C. at 134–37 & n.3. For instance, although the regulation covers only the representation of “present and former Federal officials and employees,” 28 C.F.R. § 50.15(a), the Attorney General may also represent non-governmental employees where it is in the interest of the United States to do so. See Hall v. Clinton, 285 F.3d 74, 80 (D.C. Cir. 2002) (holding that the Department may represent the First Lady under 28 U.S.C. § 517 “even if” she were a deemed a “purely private citizen at all times relevant”); Constitutional Torts Staff, Torts Branch, Civil Division, U.S. Dep’t of Justice, The Fundamentals of Individual Capacity Representation of Federal Employees in Civil and Criminal Proceedings 32 (Oct. 2018) (noting that “representation also may be provided to non-government employees under the general authority of 28 U.S.C. § 517”). And nothing in the Representation Guidelines is to the contrary; the regulations do not prohibit representing federal employees who have not been subpoenaed, but merely authorize representation to be provided to subpoenaed employees. 28 C.F.R. § 50.15(a). As a result, nothing in the Representation Guidelines precludes the Attorney General from authorizing representation under the statute even for a witness who was not “subpoenaed.” 11 44 Op. O.L.C. __ (Oct. 7, 2020) B. Section 50.15(a) also covers representation when a current or former federal employee is subpoenaed “in his individual capacity.” We believe that when an investigator, such as the Special Counsel, seeks information from such a person concerning matters within his personal knowledge, that person generally appears in his individual capacity, even when that information was acquired during the course of the performance of the witness’s federal duties. In determining whether a suit is brought against a government official in his official or individual capacity, the Supreme Court has examined “[t]he identity of the real party in interest.” Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017). “In an official-capacity claim,” the Court has explained, “the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.” Id. “This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation.” Id.; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that “official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent” (internal citations and quotation marks and omitted)). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer.” Hafer, 502 U.S. at 25 (emphasis added). We think the meaning of “individual capacity” in 28 C.F.R. § 50.15(a) tracks this distinction: a witness appears in his personal capacity when he is personally threatened with potential liability from a subpoena. The typical instance in which a federal employee receives government representation under this regulation, after all, is a constitutional tort suit against that employee under Bivens, which seeks to recover damages from the employee personally. Though such suits arise from actions taken by the employee in the course and scope of his government employment, such suits are nonetheless considered to be against the employee in his individual capacity. See FDIC v. Meyer, 510 U.S. 471, 485–86 (1994). Notably, the regulation does not apply to suits in which the United States has been substituted as the defendant for a federal employee sued for actions taken in course and scope of his employment, supra note 2, which relieves the employee of personal liability. That exemption underscores that the regu12 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation lation is concerned with proceedings in which a person is exposed to personal liability as a result of his official conduct as a government employee. And we have previously used the concept of whether such a person faces a threat of personal liability to distinguish official-capacity from individual-capacity proceedings under the Representation Guidelines. See Memorandum for Peter J. Wallison, Counsel to the President, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Re: Federal Retirement Thrift Investment Board at 1 (Sept. 24, 1986) (equating “personal capacity” under the Representation Guidelines with whether the employee’s “personal resources” were at stake); Memorandum for Glen L. Archer, Jr., Assistant Attorney General, Tax Division, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of Tax Division to Pay Legal Fees of Private Counsel at 2 (Feb. 28, 1984) (similar). A person interviewed in connection with the Mueller Investigation would generally be appearing in his individual capacity even if the person were conveying information he acquired in the course of performing his official government duties. Such information would generally be information in that individual’s personal knowledge, not information to be provided by virtue of his government office. In the case of a former employee, for example, the Special Counsel in most instances could not seek testimony from his successor in office, because the successor would not have personal knowledge of the matters being investigated. And should the person unlawfully refuse to provide the information, it would be he, and not the federal government, who would be subject to potential liability for civil and criminal contempt. See 18 U.S.C. § 401; 28 U.S.C. § 1826. Consider, for example, the Special Counsel’s request to interview Dana J. Boente. Mr. Boente served as the Acting Deputy Attorney General from February 8, 2017 to April 25, 2017. Special Counsel Mueller sought to interview Mr. Boente “because of his positions and his roles . . . [in] events in which he participated.” Letter for Chad A. Readler, Acting Assistant Attorney General, Civil Division, from Scott Schools, Associate Deputy Attorney General at 1 (Jan. 12, 2018) (emphasis added); see also Letter for Scott Schools, Associate Deputy Attorney General, from Dana J. Boente, Acting Assistant Attorney General, National Security Division at 1 (Jan. 2, 2018) (“Special Counsel Robert Mueller has asked to inter13 44 Op. O.L.C. __ (Oct. 7, 2020) view me[.] In the event I do not submit to an interview, Special Counsel Mueller would have the authority to issue a subpoena for my testimony[.]” (emphases added)). In other words, the Special Counsel sought information from Mr. Boente, not from the Office of the Deputy Attorney General. And had the Special Counsel served Mr. Boente with a subpoena, the obligation to testify (and any penalties for a failure to do so) would run against Mr. Boente personally—not the federal government. Thus, the real party in interest would be the witness, Mr. Boente. This conclusion does not mean that a federal employee subpoenaed in his official, rather than, individual, capacity would be ineligible for government representation. There are examples of official-capacity subpoenas. A custodian of records belonging to a federal agency who provides information about the records or the manner in which they are maintained, for example, does so in his official capacity as a representative of the agency. See, e.g., 20 C.F.R. § 423.3; 37 C.F.R. § 205.22(a)(1); 44 C.F.R. § 5.83; 45 C.F.R. § 4.2; see also 28 C.F.R. § 0.77(j) (instructing the Assistant Attorney General for Administration to accept service of subpoenas “directed to the Attorney General in his official capacity”). But “[r]epresentation of employees in their official capacities is provided automatically, without reference to the representation guidelines.” Olson Memorandum at 3 n.3. We are not aware that the Special Counsel, who received broad access to the records of the federal government, compelled witnesses or testimony from any person in an official government capacity. But if the Special Counsel did so, the witness’s official-capacity status would automatically entitle the witness to government representation without regard to the Representation Guidelines. C. The fact that a witness is subpoenaed to testify in his individual capacity about information acquired during the course of his federal employment does not alone justify reimbursing his attorney’s fees. The Department must also determine that reimbursement would be in the “interest of the United States.” 28 U.S.C. § 517; 28 C.F.R. § 50.15(a)(4). Although we are not in a position to make that determination as to any particular witness, you have asked us for guidance on how the Department should evaluate whether it is in the interest of the United States to reimburse the 14 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation attorney’s fees of witnesses interviewed in connection with the Mueller Investigation about information they acquired in the course of their government employment. 1. The Representation Guidelines provide that government representation “generally is not available in federal criminal proceedings.” 28 C.F.R. § 50.15(a)(4). This presumption reflects the fact that in federal criminal proceedings, the interest of the United States “ordinarily can be expected to be represented fully by the federal prosecutor, who is answerable in the executive branch hierarchy to the Attorney General, who in turn is directly accountable to the President.” Barr Memorandum at 10. That is especially true when the person seeking representation is a subject or target of the criminal investigation. 7 In such an instance, the interest of the United States lies in favor of enforcing the law against the subject or target, rather than assisting the person in avoiding criminal liability. Id. at 13–14. But even in federal criminal proceedings, there may be “situations in which representation of an employee who is a witness . . . would be completely consistent with the interests of the prosecution and in which it would be in the United States’ interest to provide representation.” Id. at 14. For example, “for Administration officials simply, and properly, doing their jobs” who are asked to provide information acquired in the course of their government duties, representation may be warranted to avoid the “specter of personal liability for attorneys fees.” Id. at 18 (internal quotation marks omitted). Accordingly, the Representation Guidelines recognize that there are circumstances where it is in the interest of the United States to represent current and former government employees in federal criminal proceedThe Department’s Justice Manual explains that “[a] ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant,” and “[a] ‘subject’ . . . is a person whose conduct is within the scope of the grand jury’s investigation.” U.S. Dep’t of Justice, Justice Manual § 9-11.151 (Jan. 2020). The Representation Guidelines also note that “[a]n employee is the subject of an investigation if, in addition to being circumstantially implicated by having the appropriate responsibilities at the appropriate time, there is some evidence of his specific participation in a crime.” 28 C.F.R. § 50.15(a)(5). 7 15 44 Op. O.L.C. __ (Oct. 7, 2020) ings. They establish no fixed formula governing that determination. Instead, they provide for consideration of, “among other factors, the relevance of any non-prosecutorial interests of the United States, the importance of the interests implicated, the Department’s ability to protect those interests through other means, and the likelihood of a conflict of interest between the Department’s prosecutorial and representational responsibilities.” 28 C.F.R. § 50.15(a)(4). 2. In analyzing the interests at stake when current or former government employees appear as witnesses in Special Counsel investigations, we are guided by the parallels to investigations conducted by Independent Counsels. The Department’s Special Counsel regulations “replace[d] the procedures set out in the Independent Counsel Reauthorization Act of 1994.” Office of Special Counsel, 64 Fed. Reg. at 37,038. This Office has previously recognized that the United States has a strong interest in reimbursing current or former government officials who incur attorney’s fees as a result of appearing as witnesses in Independent Counsel investigations. In 1989, we analyzed whether it was in the interest of the United States to reimburse attorney’s fees incurred by former President Ronald Reagan and former Deputy Assistant Attorney General Michael Dolan. We observed that Mr. Dolan had incurred substantial attorney’s fees for little reason other than he was “caught in a power struggle between Congress and the executive branch” that was the subject of the Independent Counsel investigation, which examined whether Department officials had committed perjury in connection with congressional testimony concerning federal environmental regulation. Barr Memorandum at 18 (internal quotation marks omitted). In such circumstances, the United States has a strong interest in avoiding the chilling effects that the prospect of liability for attorney’s fees would have on “Administration officials simply, and properly, doing their jobs,” which is akin to “the chilling effect of liability that support[s] indemnification of federal officers in Bivens actions.” Id. (internal quotation marks omitted). In accordance with this advice, the Department has a long practice of reimbursing the attorney’s fees of current or former federal employees who appeared as witnesses in connection with Independent Counsel 16 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation investigations. During the George H.W. Bush Administration, the Civil Division approved reimbursement requests from at least 14 employees of the White House and Central Intelligence Agency who were witnesses for the Independent Counsel in the Iran-Contra investigation. See Memorandum for the Deputy Attorney General from Donald M. Remy, Deputy Assistant Attorney General, Civil Division, Re: Implementation of Representation Guidelines in Federal Criminal Proceedings at 1, 3–4 (June 3, 1998). During the Clinton Administration, the Civil Division approved reimbursement requests from at least 9 employees who appeared in connection with numerous Independent Counsel investigations and congressional inquiries. 8 Early in the George W. Bush Administration, the Civil 8 See Letter for Karen Sprecher Keating, Associate Solicitor, Department of the Interior, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Nov. 15, 2000) (granting in part request of Deputy Assistant Secretary in connection with Independent Counsel investigation); Letter for Karen Sprecher Keating, Associate Solicitor, Department of the Interior, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Nov. 15, 2000) (granting in part request of Assistant to the Deputy Chief of Staff to the Secretary of Interior in connection with Independent Counsel investigation); Letter for John J. Kelleher, Chief Counsel, Department of the Treasury, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Nov. 15, 2000) (granting request from Secret Service agent in connection with Independent Counsel investigation) ; Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Aug. 28, 2000) (granting request from former Special Assistant to the President and Assistant to the Chief of Staff in connection with Independent Counsel investigation); Letter for Sam E. Hutchinson, Associate General Counsel, Department of Housing and Urban Development, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Aug. 24, 2000) (granting in part request from former Special Assistant to the Secretary of Housing and Urban Development in connection with Independent Counsel investigation); Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Aug. 3, 2000) (granting in part request from former Deputy Assistant to the President and Deputy Director of Presidential Personnel in connection with Independent Counsel investigation and three congressional inquiries); Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (June 1, 2000) (granting request from former Deputy Assistant to the President and Press Secretary to the First Lady in connection with five Independent Counsel investigations and four congressional inquiries); Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (June 1, 2000) (granting in part request from former Chief of Staff, Counselor, and Assistant to the President in connection with five Independent Counsel investigations and six congressional inquiries); Letter for Beth Nolan, Counsel to the President, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (June 1, 2000) (granting request from 17 44 Op. O.L.C. __ (Oct. 7, 2020) Division approved a reimbursement request from a former employee in the Clinton White House who appeared as a witness in an Independent Counsel investigation. See Letter for Jeffrey S. Jacobovitz from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Mar. 8, 2001) (granting request of former Director of White House Gift Office and staff member of the Office of the Social Secretary). In each instance, the Civil Division concluded that the witness should be reimbursed where it appeared from all available information that the questioning addressed matters occurring in the course of his government duties, where the witness was neither a subject nor a target of the investigation, and where there was no indication that he had acted inconsistently with the interest of the United States. 3. Considering this practice, and the factors set forth in the Representation Guidelines, we think that government representation, and reimbursement of attorney’s fees, will generally be in the interest of the United States for persons interviewed in Special Counsel investigations, such as the Mueller Investigation, concerning information acquired in the course of performing their government duties, where the witness was not a subject or target of the investigation. We see no reason to distinguish Independent Counsel investigations from Special Counsel investigations for this purpose. Special Counsel Mueller conducted his investigation under the auspices of regulations that provided autonomy similar to that exercised by Independent Counsels before him to investigate politically sensitive criminal matters. A Special Counsel is invested with the “full power” of a United States Attorney, 28 C.F.R. § 600.6, just as an Independent Counsel exercised “all investigative and prosecutorial functions and powers of the Department of Justice,” 28 U.S.C. § 594(a). That power is subject to supervision; a Special Counsel is generally supervised by the Attorney General, see 28 C.F.R. § 600.7, just as the Independent Counsel statute provided the Attorney General “several means of supervising or controlling,” former Director of White House Special Projects and Executive Assistant to the Chief of Staff in connection with Independent Counsel investigation and congressional inquiry). 18 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation Morrison v. Olson, 487 U.S. 654, 696 (1988), an Independent Counsel. But that supervisory power is limited in ways that closely parallel the Independent Counsel statute. Like the Independent Counsel statute, the Special Counsel regulations permit the Attorney General to remove the Special Counsel only for cause. Compare 28 U.S.C. § 596(a)(1) (“An independent counsel . . . may be removed from office . . . only for good cause, physical or mental disability (if not prohibited by law protecting persons from discrimination on the basis of such a disability), or any other condition that substantially impairs the performance of such independent counsel’s duties.”), with 28 C.F.R. § 600.7(d) (“The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”). Moreover, the Special Counsel regulations exempt the Special Counsel from the “day-to-day” supervision of any official within the Department. 28 C.F.R. § 600.7(b). The Attorney General may overrule the Special Counsel only where an “action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” giving “great weight to the views of the Special Counsel,” and should the Attorney General overrule the Special Counsel, he is obliged at the conclusion of the investigation to explain that decision to Congress. Id.; see also id. § 600.9(a)(3). Although the Special Counsel’s independence is a matter of regulation, rather than statute, so long as these regulations remain in effect, they insulate the Special Counsel from many of the usual mechanisms of control and accountability, similar to the Independent Counsel. For this reason, then-Deputy Attorney General Holder determined, shortly after the adoption of the Special Counsel regulations, that “for purposes of analyzing representation and reimbursement requests” a Special Counsel investigation is “closely analogous” to investigations under the Independent Counsel statute and should “be treated” as such. Holder Memorandum at 4 n.3. Independent Counsels and Special Counsels are not only similar in their insulation from supervisory control, but also with respect to the distinctive, politically sensitive matters that occasion their appointment and shape the character of their investigation. Both kinds of special prosecutor are appointed when the Department may have a conflict of interest, typically because there is a need to investigate a senior government official, 19 44 Op. O.L.C. __ (Oct. 7, 2020) including even the President. Compare 28 C.F.R. § 600.1, with 28 U.S.C. § 591. These prosecutors operate in a publicized, politicized, and contentious environment. Like an Independent Counsel, a Special Counsel is given a public charge to investigate an especially sensitive matter or group of matters, given substantial independence to pursue those subjects, and invariably faced with substantial political pressure to produce results. Armed with vast powers and resources, and a singular focus, Special Counsels have the incentive and means to leave no stone unturned, which often requires interviewing a wide range of witnesses who acquired relevant information in the ordinary course of their jobs as government employees. As the Department has long recognized in Independent Counsel investigations, these dynamics give the United States a strong “nonprosecutorial interest,” 28 C.F.R. § 50.15(a)(4), in ensuring that its employees who are called upon to provide information acquired as a result of their federal employment have a lawyer available at government expense. We have repeatedly recognized that the United States has a considerable interest in protecting “its employees from the burden of undergoing potentially hostile questioning and incurring legal fees as a result of actions taken in good faith” on behalf of the government, which could otherwise “chill the employees’ exercise of their official duties.” Authority to Pay for Private Counsel, 41 Op. O.L.C. __, at *13; Barr Memorandum at 9–10 (similar); Indemnification of Treasury Department Officers and Employees, 15 Op. O.L.C. 57, 62 (1991) (similar); Department of Justice Representation in Federal Criminal Proceedings, 6 Op. O.L.C. 153, 153–54 (1982) (similar). “[P]roviding counsel to employees facing such burdens serves important government interests in ensuring that Executive Branch employees acting in good faith may discharge their official duties and discretionary functions rigorously, without concern about potential reprisals or legal fees.” Authority to Pay for Private Counsel, 41 Op. O.L.C. __, at *13. And because a Special Counsel’s charge is to fulfill a broad prosecutorial mandate, and not to account for the investigation’s burdens on the federal workforce, it is not likely that a Special Counsel will “adequately represent[]” this interest of the United States. Barr Memorandum at 11 n.13. The Mueller Investigation unquestionably operated in a fraught and high-profile political environment. It was conducted by determined, 20 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation experienced, and well-resourced prosecutors under significant political and public scrutiny. The Special Counsel brought multiple charges for false statements for lying to government investigators, e.g., Superseding Information, United States v. Manafort, No. 17-cr-201-1 (D.D.C. filed Sept. 14, 2018); Superseding Information, United States v. Gates, No. 17cr-201-2 (D.D.C. filed Feb. 2, 2018); Information, United States v. Papadopoulos, No. 17-cr-182 (D.D.C. filed Oct. 3, 2017), and multiple charges for crimes that were separate from the principal purpose of the investigation, e.g., Superseding Indictment, United States v. Manafort, No. 18-cr83 (E.D. Va. filed Feb. 22, 2018) (charging 16 counts related to false individual income tax returns, 7 counts of failure to file reports of foreign bank and financial accounts, 5 counts of bank fraud conspiracy, and 4 counts of bank fraud). All told, the investigation consumed nearly $32 million in government resources. See supra Part I. And as noted, the Special Counsel interviewed no fewer than 40 federal government employees, who, with one exception, were not charged with any offense. The breadth and depth of such investigations creates a danger of forcing many federal employees to incur attorney’s fees for little reason other than doing their jobs. We recognize that, in an ordinary federal criminal investigation, it generally is not in the interest of the United States to pay the attorney’s fees of witnesses simply because those witnesses acquired relevant information in the course of government employment. Most witnesses do not need a lawyer to cooperate with investigators. But we cannot ignore that a Special Counsel investigation is not an ordinary criminal investigation. A careful and prudent government employee—with no interest or incentive to dissemble—may reasonably feel at personal risk in submitting to an interview and providing information to the Special Counsel, given the history of such interviews leading to further investigation of the witnesses themselves. Owing to the breadth of the federal criminal code, federal prosecutors have enormous charging discretion over a wide range of conduct. See Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583, 608–18 (2005). “Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation.” Morrison, 487 U.S. at 727 21 44 Op. O.L.C. __ (Oct. 7, 2020) (Scalia, J., dissenting). Many witnesses interviewed by the Special Counsel’s investigators were high-ranking Administration officials close to the President. The Special Counsel’s singular, high-profile mandate, and the politically fraught context in which he operated, mean that witnesses might have reasonably feared that the Special Counsel would “pick[] the man and then search[] the law books . . . to pin some offense on him.” Id. at 728 (quoting Robert H. Jackson, Attorney General, The Federal Prosecutor 5 (Apr. 1, 1940) (address at Second Annual Conference of United States Attorneys)). In this context, such witnesses might reasonably seek the advice and assistance of a lawyer, to be scrupulously careful that “the employee provides accurate and complete information” and to support the employee “in the face of potentially hostile questions,” interests that we have recognized would similarly justify the reimbursement of attorney’s fees in congressional investigations. Authority to Pay for Private Counsel, 41 Op. O.L.C. __, at *13. The Representation Guidelines do not permit the reimbursement of attorney’s fees for “legal work that advances only the individual interests of the employee.” 28 C.F.R. § 50.16(d)(1). Witnesses interviewed by the Special Counsel who may now seek reimbursement of attorney’s fees no doubt had personal interests in seeking representation. But “these interests are not ‘purely personal’; they are ‘incidental’ to, and in many cases overlap with, the substantial government interests implicated” in providing government representation. Authority to Pay for Private Counsel, 41 Op. O.L.C. __, at *16 (quoting Reimbursing Justice Department Employees, 14 Op. O.L.C. at 137). These incidental personal benefits do not change the important governmental interests advanced by reimbursing attorney’s fees: to avoid the substantial burdens that Special Counsel investigations place on the good-faith labors of government employees. 4. To be clear, we do not believe that reimbursement should be provided simply because a government official incurred attorney’s fees appearing as a witness in connection with the Mueller Investigation. The Civil Division still must conclude that doing so is in the interest of the United States, considering all the facts and circumstances of the specific request. 22 Reimbursing the Attorney’s Fees of Witnesses in the Mueller Investigation Most notably, if a witness were suspected of wrongdoing, then the calculus may change significantly. Reimbursing a witness who was, for example, a subject or the target of the Special Counsel’s investigation itself, may well be inappropriate. Providing government representation to such a person would conflict with the strong prosecutorial interests of the United States. Cf. 28 C.F.R. § 50.16(d)(4) (“Reimbursement shall not be provided if the United States decides to seek an indictment of or to file an information against the employee seeking reimbursement, on a criminal charge relating to the conduct concerning which representation was undertaken.”). Similarly, if the witness declined to cooperate with the investigation or affirmatively obstructed it, such facts would weigh against reimbursement of attorney’s fees. See Memorandum for Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division, from Helene M. Goldberg, Director, Torts Branch, Civil Division, at 2 (Feb. 23, 2001) (recommending that the Department deny reimbursement because the witness offered “evasive” and “unbelievable” answers); Letter for Nancy A. Healy, Chief, Civil Litigation Unit, Federal Bureau of Investigation, from Stuart E. Schiffer, Deputy Assistant Attorney General, Civil Division (Jan. 26, 2001) (denying reimbursement because the witness had failed to cooperate fully with a Special Counsel investigation). As always, the question is whether the representation was in the interest of the United States. Cf. 28 C.F.R. § 50.16(c)(2)(iv) (“Federal payment to private counsel for an employee will cease if . . . the Department of Justice . . . [d]etermines that continued representation is not in the interest of the United States.”). The United States unquestionably has a strong interest in ensuring that its employees facilitate enforcement of the law, an interest that may justify denying an attorney’s fees request by an employee who failed to do so. IV. We conclude that the Representation Guidelines authorize, on a caseby-case basis, the reimbursement of attorney’s fees incurred by a current or former federal government employee interviewed as a witness in the Mueller Investigation under threat of subpoena about information the person acquired in the course of his government duties. We also conclude that such a witness generally appears in his individual capacity for purposes of the Representation Guidelines. Finally, consistent with the De23 44 Op. O.L.C. __ (Oct. 7, 2020) partment’s treatment of Independent Counsel investigations, we conclude that the United States generally has a strong interest in ensuring that its employees have representation in connection with Special Counsel proceedings, which often will support reimbursing attorney’s fees incurred by employees interviewed as witnesses in such proceedings, and not as subjects or targets. HENRY C. WHITAKER Principal Deputy Assistant Attorney General Office of Legal Counsel 24

Write a legal research memo on the following topic.

Residence Requirement for Assistant United States Attorneys Under 28 U.S.C. § 545(a) Under 28 U.S.C. § 545(a), Assistant United States Attorneys must physically reside in or within 25 miles of the district that they serve. November 20, 2012 MEMORANDUM OPINION FOR THE GENERAL COUNSEL EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS Federal law provides that “[e]ach assistant United States attorney shall reside in the district for which he or she is appointed or within 25 miles” of that district. 28 U.S.C. § 545(a) (2006). In 1979, we interpreted the phrase “shall reside” to require the “physical presence” of Assistant United States Attorneys (“AUSAs”), reasoning that the ordinary meaning of the word “residence” as well as the legislative history established Congress’s intent to regulate where AUSAs could physically live while serving their districts. Assistant U.S. Attorney—Residence Requirement (28 U.S.C. § 545), 3 Op. O.L.C. 360 (1979) (“1979 Opinion”). You asked us to revisit the 1979 Opinion’s reading of section 545(a) in light of advances in technology that would make it possible for AUSAs to work remotely while living outside their districts. 1 Specifically, you asked whether maintaining a “virtual presence” in a district through a telework arrangement could satisfy the section 545(a) residence requirement. Although we appreciate that telework capabilities now allow some AUSAs to perform their duties even while stationed more than 25 miles from their districts, we believe that the 1979 Opinion correctly interpreted the statute and that AUSAs must physically reside in or within 25 miles of the district that they serve. 2 1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, from Jay Macklin, General Counsel, Executive Office for United States Attorneys (Oct. 1, 2012) (“EOUSA Letter”). 2 The 1979 Opinion interpreted an earlier version of the statute, which required all AUSAs, save those serving in the District of Columbia and the Southern District of New York, to reside within their appointing district. See 28 U.S.C. § 545(a) (1976). The current statute does not except AUSAs appointed for the District of Columbia and the Southern District of New York from the residence requirement, but rather allows all AUSAs, regardless of district, to live “in . . . or within 25 miles” of the district they 237 36 Op. O.L.C. 237 (2012) I. Section 545(a) states in its entirety: Each United States attorney shall reside in the district for which he is appointed, except that these officers of the District of Columbia, the Southern District of New York, and the Eastern District of New York may reside within 20 miles thereof. Each assistant United States attorney shall reside in the district for which he or she is appointed or within 25 miles thereof. The provisions of this subsection shall not apply to any United States attorney or assistant United States attorney appointed for the Northern Mariana Islands who at the same time is serving in the same capacity in another district. Pursuant to an order from the Attorney General or his designee, a United States attorney or an assistant United States attorney may be assigned dual or additional responsibilities that exempt such officer from the residency requirement in this subsection for a specific period as established by the order and subject to renewal. The text indicates, in a number of ways, that Congress intended section 545(a) to impose a physical residence requirement. To start, the statute focuses on where AUSAs (and U.S. Attorneys) must “reside”—a word that generally connotes physically living in a particular place. See Webster’s Third New International Dictionary 1931 (1993) (to reside is “to dwell permanently or continuously: have a settled abode for a time: have one’s residence or domicile”); Random House Dictionary of the English Language 1648 (1987) (to reside is “to dwell permanently or for a considerable time”); see also Black’s Law Dictionary 1423 (9th ed. 2009) (defining residence as “[t]he act or fact of living in a given place for some time”; “[t]he place where one actually lives, as distinguished from a domicile”; and “bodily presence as an inhabitant in a given place”). Beyond the use of the word “reside,” the way the statute marks the bounds of the residence requirement also indicates that Congress intended to regulate physical presence. AUSAs must reside in “or within 25 miles” of the district they serve, and U.S. Attorneys for D.C. and for New York’s serve. 28 U.S.C. § 545(a) (2006). Despite this change, the statute’s key phrase—which restricts where AUSAs “shall reside”—has remained constant, and the 1979 Opinion’s analysis is therefore relevant to the amended statute. 238 Residence Requirement for Assistant United States Attorneys Southern and Eastern Districts may live “within 20 miles” of their district. 28 U.S.C. § 545(a). By framing the residence requirements in terms of permissible geographic ranges, Congress indicated that it was using the phrase “shall reside” to specify where these federal attorneys must physically dwell. Other parts of section 545(a) reinforce this understanding of the residence requirement. The statute does not apply to federal attorneys “appointed for the Northern Mariana Islands who at the same time [are] serving in the same capacity in another district.” Id. Nor does it reach anyone to whom the Attorney General assigns “dual or additional responsibilities that exempt such officer from the residency requirement . . . for a specific period.” Id. 3 If U.S. Attorneys and AUSAs could satisfy the requirements of section 545(a) by maintaining a virtual presence in one district while residing in another, these exceptions for those that take on dual roles in different districts would not be necessary. See Corley v. United States, 556 U.S. 303, 314 (2009) (A statute “should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (internal quotation marks omitted)). Based on this and the other textual indications discussed above, we conclude that section 545(a) requires that AUSAs physically reside in or within 25 miles of the district they serve. 4 Since 2008, Congress has prohibited the use of funds “for the salary, benefits, or expenses of any United States Attorney assigned dual or additional responsibilities by the Attorney General . . . that exempt that United States Attorney from the residency requirements of 28 U.S.C. 545,” effectively rendering the dual-responsibilities exception inapplicable to U.S. Attorneys. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, div. B, § 215, 121 Stat. 1844, 1915 (2007); see also Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, div. B, § 214, 125 Stat. 552, 620 (2011) (same). By preventing U.S. Attorneys from taking on dual responsibilities that would take them away from their home districts, this appropriations rider presumes that section 545(a) regulates physical presence and further reinforces our reading of the statute. 4 We would not read the residence requirement to apply to special attorneys appointed under section 543 of title 28 of the U.S. Code, which authorizes “[t]he Attorney General [to] appoint attorneys to assist United States attorneys when the public interest so requires.” Even though special attorneys “assist” U.S. Attorneys, they are not the “assistant United States attorney[s]” to whom section 545(a) refers. Rather, section 545(a)’s use of the term “assistant United States attorneys” appears to be a reference only to attorneys appointed under section 542, which provides that “[t]he Attorney General may appoint one or more assistant United States attorneys.” (Emphasis added.) We draw support for 3 239 36 Op. O.L.C. 237 (2012) II. The legislative history confirms that section 545(a) requires physical residence. In 1896, when Congress first considered whether to authorize the appointment of AUSAs (then “assistant district attorneys”), the draft language did not include a residence requirement. Representative Johnson asked the bill sponsor whether assistants would need to be “actual residents of the district” for which they are appointed. 28 Cong. Rec. 2464 (1896). When the sponsor said no, Representative Johnson offered an ultimately successful amendment “for the purpose of imposing a restriction in that regard,” commenting that he did “not think that there ought to be anybody sent out to fill such positions in the State or Territory unless he lives there.” Id.; see also Act of May 28, 1896, ch. 252, 29 Stat. 140, 181 (providing that assistant district attorneys “must be residents of the district for which they are appointed”). Floor statements from the debates on subsequent amendments to the statute similarly indicate that Congress has long understood the statute to regulate physical presence. As your letter notes, EOUSA Letter at 2, the 1979 Opinion relied in part on two statements made during the 1941 debate on amending the statute, the first of which explains that the thencurrent version of the statute required attorneys to “move into the District and live in the District,” and the second of which states that it was in “the best interest of the people whom [AUSAs] serve to require [AUSAs] to live among such people during their tenure of office.” See 1979 Opinion, 3 Op. O.L.C. at 361; 87 Cong. Rec. 3269 (1941) (statements of Reps. McLaughlin and South). And when Congress considered another amendment in 1979, the sponsor described section 545(a) as “a codification of the policy that law enforcement officials should reside in the same community in which they enforce the law.” 125 Cong. Rec. 4164 (1979) (statement of Rep. DeConcini). We have found nothing in the legislative history to suggest that Congress has ever understood the residence requirement as anything other than a limit on where U.S. that reading from floor statements made by the sponsor of the original AUSA residence requirement. When asked whether the residence requirement would apply to “a special assistant,” the amendment’s sponsor responded that the restriction was “only for regular deputies, not the special deputies,” and that the Attorney General “has a right to employ special deputies at any time.” 28 Cong. Rec. 2465 (1896) (statement of Rep. Johnson). 240 Residence Requirement for Assistant United States Attorneys Attorneys and AUSAs may physically live, and we do not think the technological advances that make telework an option for some AUSAs undermine the current relevance of Congress’s stated purpose. III. We recognize that permitting remote work arrangements like the one you describe in your letter (through which an appellate attorney sought to telework for two years while his spouse completed an overseas assignment) could assist the Department’s retention efforts and alleviate potential difficulties arising from the hiring freeze.* And we are mindful that current technology could “ensure the availability” of at least some attorneys—and thereby achieve one of the important “purpose[s] of the residency requirement”—in ways that were not contemplated when Congress passed the first residence requirement in 1896, or even when we wrote the 1979 Opinion cited above. See 1979 Opinion, 3 Op. O.L.C. at 361. We nevertheless believe that the text and legislative history require us to adhere to the 1979 Opinion’s analysis—an analysis that is consistent with other past readings of both section 545(a) and a similar residence requirement for circuit judges. See Memorandum for Philip H. Modlin, Director, Executive Office for United States Attorneys, from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, Residence Requirement for U.S. Attorneys at 1 (July 11, 1974) (“Lawton Memo”) (considering section 545(a) and suggesting that “it is accepted almost without question that a public employee can be required to live in the district in which he works”); Memorandum for Dennis Mullins, Deputy Assistant Attorney General, Office of Legal Policy, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Residency Requirements for Circuit Judges at 4 (Sept. 26, 1984) (advising that a judicial nominee “establish his physical presence in California” to comply with the requirement under 28 U.S.C. § 44(c) that a circuit judge “be a resident of the circuit for which appointed”); E-mail for Kurt Didier from * Editor’s Note: The Department of Justice instituted a hiring freeze from 2011 to 2014 in response to budgetary problems. See Dep’t of Justice, Press Release, Attorney General Holder Announces Justice Department to Lift Hiring Freeze (Feb. 10, 2014), https://www.justice.gov/opa/pr/attorney-general-holder-announces-justice-departmentlift-hiring-freeze. 241 36 Op. O.L.C. 237 (2012) Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, Re: US Atty Residency Req’t (Aug. 2, 2002, 10:46 AM) (adhering to the 1979 Opinion’s interpretation of “reside” to conclude that “presence in the district seems to meet the statutory purpose”). This is not to say that a U.S. Attorney could never approve an AUSA’s request to telework away from the district in which he or she serves (and outside the 25-mile radius that the statute permits) for a reasonable period of time, subject to any requirements of the Department’s Telework Policy. See DOJ Policy Statement 1200.01 (approved on July 20, 2012), http://www.justice.gov/jmd/hr/doj1200-01.pdf. The residence requirement, we have said, “contemplates a home in which [AUSAs] are present most of the time,” not all of the time. Lawton Memo at 1. So while we do not think that an AUSA telecommuting overseas for a period of two years could fairly be considered “present most of the time” in his home district, other, short-term telework arrangements would be permissible under the statute, as long as the AUSA usually has a physical presence in or within 25 miles of the appointing district. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 242

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Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees S ection 219(a) o f Title 18 o f the United S tates C ode applies to m em bers o f federal advisory com m ittees, including the Advisory C om m ittee for T rade Policy and N egotiations, that are governed by th e Federal Advisory C om m ittee Act. Section 219(b) m ay be used to exem pt advisory com m ittee m em bers w ho are “special g o v ern ­ m ent em ployees,” but may not be used to exempt “representative” m em bers, w ho are generally not co n sid ered governm ent em ployees. T he E m olum ents C lause prohibits an individual w ho is an agent o f a foreign governm ent from serving on an advisory com m ittee, unless C ongress has consented to such service. April 29, 1991 M em orandum O p in io n f o r t h e Deputy Co u n sel to the P r e s id e n t This responds to your request for our opinion whether 18 U.S.C. § 219 applies to members of federal advisory committees generally, and in particu­ lar to the Advisory Committee for Trade Policy and Negotiations (“ACTPN”) Section 219(a) makes it a criminal offense for a “public official” to be or to act as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938 (“FARA”). We conclude that section 219(a) applies to members of federal advisory committees including ACTPN, that are governed by the Federal Advisory Committee Act. You have also asked whether the certification procedure in section 219(b) may be used to exempt members of federal advisory committees from the criminal prohibition in section 219(a). Section 219(b) may be used to ex­ em pt a d v iso ry com m ittee m em bers who are “ sp ecial G o v ern m en t employee[s],” but may not be used to exempt “representative” members, who are generally not considered Government employees. Moreover, absent congressional consent, the Emoluments Clause of the Constitution indepen­ dently bars any agent of a foreign government — as opposed to an agent of a private foreign entity — from being a member of a federal advisory com ­ mittee. Granting an advisory committee appointee an exemption under section 219(b) would not satisfy the requirement of congressional consent. Section 219(a) provides criminal penalties for any “public official, [who] 65 is or acts as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938, as amended.” Section 219(c) de­ fines “public official” as a Member of Congress “or an officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of Government thereof, . . . in any official function, under or by authority o f any such department, agency, or branch of Government.” M embers o f advisory committees governed by the Federal Advisory Com­ m ittee Act (“FACA”) fall within this definition. FACA provides that advisory committees are established or utilized “in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” 5 U.S.C. app. § 3(2). Pursuant to FACA, a designated federal official calls all meetings of an advisory committee, ap­ proves the agenda, chairs o r attends all meetings, and may adjourn any meeting of the committee whenever he determines it to be in the public interest. Id. § 10(e), (f).1 Members of advisory committees subject to FACA thus perform their official advisory duties “for” the Government and “un­ d e r” a g o v ern m e n t agency, w ithin the m eaning o f sectio n 2 1 9 .2 “Representative” members o f FACA committees — described in your re­ quest as members who appear before an agency, at the agency’s request, to present the views of a private organization or interest — are also “public official[s]” within the meaning of section 219: even assuming that “repre­ sentative” members are chosen for committee membership only to present the views of a private interest, they nevertheless perform their official com­ m ittee duties “for” the United States.3 ACTPN, like most advisory committees, is subject to FACA, 19 U.S.C. § 2155(f), and on that basis we conclude that members of ACTPN are subject to section 219. ACTPN’s specific functions reinforce that conclusion. ACTPN was established to give “overall policy advice” on United States negotiating objectives and bargaining positions in international trade negotiations. Id. § 2155(b)(1). ACTPN functions under the authority of the United States Trade Representative, an officer o f the United State Government. Id. § 2155(b). Accordingly, it is clear that members of ACTPN perform “official function[s]” for the United States “under” a federal agency, and that they are therefore “public o ffic ia ls]” within the meaning of section 219.4 1See also id. § 9(c)(D ),(E), (F) (advisory committee charter must state “the agency or official to whom the com m ittee reports,” “the agency responsible for providing the necessary support for the com m ittee,” and “a description o f the duties for which the committee is responsible”); id. § 12(b) (agency is respon­ sible for providing support services for advisory committees “reporting to it”). 2 T his conclusion is consistent with the judicial construction of the similar definition of “public offi­ cial” in the federal bribery statute, 18 U.S C. § 201(a), on which section 219 was modeled. See 130 Cong. Rec. 1295 (1984) (remarks of Sen. Demon). “[P]ublic official” in section 201(a) has been broadly interpreted to include persons holding “a position of public trust with official federal responsibilities.” Dixson v. U nited States, 465 U.S. 482, 496 (1984). 3 Individuals who appear before agencies in a "representative” capacity who are not advisory com m it­ tee m em bers are more properly viewed simply as witnesses. Such witnesses have no federal “official function" and are not “public officials]” within the meaning of section 219 4 The same general principles govern the application o f section 219 to employees, and to partners, of Continued 66 The certification procedure in section 219(b), by its terms, allows an exemption from section 219(a) only for individuals who are employed by the Government as “special Government employee[s].”5 Persons who serve on advisory committees as “representative” of private organizations gener­ ally are not considered “employees” of the United States. See Memorandum for C. Boyden Gray, Counsel to the President, from William P. Barr, Assis­ tant Attorney General, Office of Legal Counsel at 2 n.5 (May 15, 1989). Accordingly, the certification procedure in section 219(b) is not available to exempt “representative” members of federal advisory committees from the prohibition in section 219(a).6 Any other member of ACTPN could, how­ ever, be co n sid ered an “em ployee” o f the U nited S tates, s e e B arr Memorandum at 1-2 & n.5, and if the member serves no more than 130 days in any 365-day period, could be a “special Government employee” eligible for exemption under section 219(b). The Emoluments Clause of the Constitution, however, may constitute a bar to an individual’s appointment to a federal advisory committee ab initio. The Emoluments Clause provides that absent congressional consent, a per­ son holding an “Office of Profit or Trust” under the United States may not hold any position in, or receive any payment from, a foreign government. U.S. Const, art. I, § 9, cl. 8.7 4(....continued) advisory committee members. We believe that an employee who assists a member only in matters that are not part of the m em ber's advisory committee duties is not subject to section 219. We cannot cat­ egorically conclude, however, that employees of advisory committee members may not be subject to section 219 when they assist members in performing committee functions or duties. Cf. Dixson, 465 U.S. at 490-96 (officers o f local social service corporation administering HUD program may be “public officials" within meaning of bribery statute). Whether such persons are or are not subject to section 219 will depend upon the specific facts of each case. A partner of an advisory committee member is subject to section 219 only if the partner personally performs official functions “for" the United States. Conversely, section 219 does not im plicitly dis­ qualify an individual from serving as an advisory committee member simply because a partner or a firm of which he is a m ember is required by FARA to register as the agent of a foreign principal. Rule 202 of the FARA regulations provides that, where a firm or partnership has registered as an entity, a person within the firm or partnership who “does not engage directly in activity in furtherance o f the interests o f the foreign principal is not required to file a short form registration statement." 28 C.F.R. § 5.202(b). 5 The term “special Governm ent employee” is not defined in section 219, but is defined in 18 U.S.C. § 202(a) to include “an officer or employee o f the executive . . . branch of the United States Govern­ ment, . . . who is retained, designated, appointed or employed to perform, with or without com pensa­ tion, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, tem porary duties either on a full-time or intermittent basis.” Although section 202(a) provides that this definition applies “[f]or the purpose of sections 203, 205, 207, 208, and 209,” we believe that the term “special Government employee" as used in section 219(b) must be understood to have the same meaning. 6 It would arguably be possible to bring "representative” members of advisory committees within the scope o f section 219(b), by formally designating them as special Government employees. Any such designation, however, might subject the designees to provisions of the criminal conflict-of-interest laws that would otherwise not be applicable. See Barr Memorandum at 2-3. 7 This restriction is in many respects narrower than the prohibition in section 219(a) Section 219(a) applies to all “public official[s],” a category defined to include some persons who do not hold a federal position, whereas the Emoluments Clause applies only to persons who do hold such a position. M ore­ over, section 219(a), in addition to prohibiting a public official from serving as the ageiit o f a foreign government, also prohibits such service for certain nongovernmental foreign corporations, persons, and partnerships Thus, persons not in violation of the Emoluments Clause might nonetheless violate the prohibition in section 219(a). 67 Federal advisory committee members hold offices of profit or trust within the meaning of the Emoluments Clause. They hold positions that are ex­ p re ssly created by federal authority, they are charged w ith federal responsibilities, and they are often entrusted with access to government in­ formation not available to the public. Therefore, the Emoluments Clause effectively prohibits an individual who is an agent of a foreign government from serving on an advisory committee, unless Congress has consented to such service. We are not aware of any provision of law that provides con­ gressional consent to the service of foreign government agents on advisory committees. In particular, the certification procedure in section 219(b) does not provide the required congressional consent because it is only a means of exemption from the criminal prohibition in section 219(a), and therefore cannot be read to satisfy the Emoluments Clause. DOUGLAS R. COX Deputy Assistant Attorney General Office o f Legal Counsel 68

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Applicability of Certain Cross-Cutting Statutes to Block Grants Under the Omnibus Budget Reconciliation Act of 1981 Two block grant program s created by the O m nibus Reconciliation Act of 1981 are subject to four “cross-cutting” statutes barring discrim ination on grounds of race, sex, handicap, and ag e, and activities funded under those program s are subject to all of the regulatory and paperw ork requirem ents im posed by those statutes. The language and legislative history of the four nondiscrim ination laws at issue reveal that they were intended by C ongress to be statem ents of national policy broadly applicable to all program s or activities receiving federal financial assistance. T herefore, in the absence of a clear expression of congressional intent to exem pt a particular program from the obligations im posed by the four cross-cutting law s, those laws will be presum ed to apply in full force W hile the general purpose of the block grant concept is to consolidate and “defederalize" prior categorical aid to state and local governm ents, and to lighten federal regulatory burdens, there is no suggestion in the legislative history o f the two specific block grants at issue here that C ongress intended to exem pt program s or activities funded by them from the obligation not to discrim inate em bodied in the four cross-cutting statutes. January 18, 1982 M EM ORANDUM OPINION FOR THE COUNSEL TO THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET I. Introduction This responds to your request for our opinion concerning the applicability of four “cross-cutting”1 laws to two specific block grant programs created by the Omnibus Budget Reconciliation Act of 1981, Pub. L. N o. 97-35, 95 Stat. 357 [the Reconciliation Act], Although numerous cross-cutting laws are potentially applicable to the several block grants created by the Reconciliation A ct, you have inquired specifically about the applicability of four nondiscrimination statutes to two block grants administered by the Departments of Health and Human Services (HHS) and Education, respectively. These four nondiscrimination statutes are: (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; ’ T he use of the term "cro ss-cu ttin g ” refers lo the broad applicability o f the p articu lar statutes d iscussed herein to a w ide range o f program s o r activities receiving federal financial assistan c e. Because o u r analysis rel les heavily o n the legislative history o f th ese four statutes and the public policy reflected in them , o u r conclusions m ay not necessarily apply to other cross-cutting statutes. 83 (2) Title IX of the Education Amendments Act of 1975, 20 U .S.C . § 1681; (3) Section 504 of the Rehabilitation Act of 1973, 29 U .S .C . § 794; and (4) The Age Discrimination Act of 1975, 42 U .S.C . §§ 6101-6107. The tw o relevant block grants are the Social Services Block Grant and the Elem entary and Secondary Education Block Grant. These two block grants were enacted as part of the massive Omnibus Budget Reconciliation Act o f 1981, an unusual statute for its length, breadth, and relatively sw ift enactm ent. The legislative breadth of the Reconciliation bill was such that som e 30 committees in both Houses of Congress had jurisdiction over the bill. The Reconciliation bill adopted by the House, however, was not a product of the com m ittees but rather was an alternative known as the GrammLatta am endm ent. T he House considered the entire Reconciliation package in only tw o days of debate, and its vote occurred on the same day that the then 700page G ram m -Latta amendment was made available for general distribution.2 The H ouse and Senate bills required the “ largest and most complicated conference in the history of the C ongress.” S ee 127 Cong. Rec. H5759 (daily ed. July 31, 1981) (Sum m ary of Reconciliation Conference). In only a two-week period, 184 House conferees and 69 Senate conferees held a series of 58 “m iniconferences.” T he Reconciliation Act that resulted is over 570 pages long, see 95 Stat. 357-933, and although it is prim arily a “budget” act, it necessarily m akes changes in substantive law in the num erous areas it addresses.3 The unique and complex nature of the legislation and its unprecedented legislative history are noted because they are relevant to our analysis of the Reconciliation Act and congressional intent with respect to the four cross-cutting statutes. Your memorandum expresses the preliminary view that the four non­ discrim ination statutes do not apply to the Social Services and the Elementary and Secondary Education Block Grants. This conclusion is based on several considerations: (1) the fundamental intent of Congress in enacting block grants was to free the states from all federal encumbrances and regulations not specifi­ cally im posed by the statutes; (2) as of the date of your memorandum, the blockgrant regulations that had been issued by the agencies responsible for administer­ ing them were silent on applicability of the four nondiscrimination statutes to the two block grants in question; (3) six of the eight block grants applicable to the D epartm ents o f Education and H ealth and Hum an Services explicitly incorporate 2 A s a result o f the dim ensions of the legislation and its rapid m ovem ent through the legislative p ro cess, som e o p p o n en ts ex p ressed strong criticism over th e process as well a s expressing considerable confusion o v er som e asp ects o f th e pack ag e S e e .e .g . 127Cong. R ec H 3 9 I7 (daily ed June 26, 1981) (rem arks o f Rep. F bghetta) (“ I w ould not claim to know all that is in this v o lu m e of 700 pages, we only received shortly before noon today i have h ardly had a ch an ce to read it.” ), id H3920 (rem ark s o f Rep. F^netta) (“ We are dealin g here w ith over 250 pro g ram s, an d w e are d e a lin g w ith th ese changes in th is am endm ent w ith no co n sid eratio n , no com m ittee hearin g s, no co n su ltatio n , no d eb a te, and no opportunity to offer am endm ents to this kind o f broad s u b stitu te.” ) See also id. H 3924 (rem ark s o f Rep. F renzel, supporting G ram m -L atta 11) (“A ll o f us have been em barrassed by the tard in ess of th e receip t o f th e am en d m en t an d by the u n tid in ess o f the process 1 w ould invite each M em ber here . to raise his o r h er sig h ts above th e indignity o f a late, som ew hat-flaw ed, hard-to-follow bill ”) 3 T h e R econciliation A ct affected some 2 5 0 separate statutes. See 127 C o n g . Rec S 8988 (daily ed July 31, 1981) (rem ark s o f S en . D om enici) 84 nondiscrimination provisions, suggesting that the nondiscrimination require­ ments should not apply to the two block grants that omit them; (4) Congress itself deleted nondiscrim ination provisions from the original A dm inistration p ro ­ posals; and (5) except for Section 504, nonapplicability of the nondiscrimination provisions, which are largely redundant of constitutional or other statutory protections or are of minimal effect, will reduce the regulatory and paperwork aspects of enforcem ent of these rights without affecting to any significant extent the substantive obligation not to discriminate. The following additional views have also been expressed and we have consid­ ered them in our analysis: (1) The Secretary of Health and Human Services “ interprets existing laws against discrimination in Federally assisted pro­ grams as applying to the social services block grant.” See Interim Final Rules for the Block Grant Programs, 46 Fed. Reg. 48,585 (October 1, 1981) (to be codified in 45 C .F.R ., Parts 16, 74, and 96). While your memorandum indicated that the draft HHS regu­ lations did not purport to settle the issue, and that the regulations were silent on the question except for the above quoted “advisory statem ent,” the Interim Final Rules since issued articulate the view that federal regulations related to discrimination on the basis of race, color, national origin, handicap, or age are applicable to the Social Services Block G rant.4 (2) According to your memorandum, the legal staff of the Depart­ ment of Education has expressed its view that “all cross-cutting statutes are applicable to the block grants.” The Department of Education has not published regulations for the block grants. (3) The Civil Rights Division of the Department of Justice has forwarded to us a memorandum from Stewart Oneglia, Chief of the Coordination and Review Section, to Deputy Assistant A t­ torney General D ’Agostino. This memorandum disagrees with the position taken in your memorandum, and expresses the legal conclusion that the nondiscrimination statutes apply to the two block grants. 4 The H H S Interim Final R ules for the Block G rant Program s, 46 Fed Reg 4 8 ,5 8 5 (O ct 1, 1981), provide as follows C urrent regulations in 45 C F.R Parts 80, 81, 84. and 90. w hich relate to discrim ination o n the b asis of race, color, national origin, handicap, o r ag e , apply by their term s to all recipients o f Federal financial assistance and therefore apply to all block grants. In particular, 45 C .F.R 80 4 and 84.5 require certain assurances to accom pany applications for assistance In lieu o f the assurances required by Parts 80 and 84, the Secretary w ill accept the assurances required by the Act to be part of the applications for the preventive health and health services, alcohol and drug abuse and m ental health services, m aternal and child health services, and low -incom e hom e energy assistance block grants Those assurances incorporate the nondiscrim ination provisions pertinent to the block grants e ith er specifically o r as part of a general assurance that the applicant w ill com ply with block grant requirem ents For the com m unity services, prim ary ca re , and social services block grants, the States should furnish the assurances required by 45 C .F R . 80 4 and 84 5. 85 (4) You have provided us with a copy of a memorandum to you from Jim K elly of the Office of M anagement and Budget regard­ ing “A pplicability of Crosscutting Policy Requirements to Block G ran ts.” That memorandum recommends that Title VI, the Age D iscrim ination Act, and Section 504 should be considered to apply to all block grants, and that Title IX also should be consid­ ered to apply to the Education Block.G rant. See note 5, infra. For the reasons set forth in more detail below, we conclude that Congress evidenced no clear intent to exem pt the programs or activities funded by the two block grants from the obligations imposed by the four nondiscrimination stat­ u tes.5 In the absence of a clear indication of legislative intent to the contrary, we conclude that the block grant program s are subject to the nondiscrimination statutes. II. The Nondiscrimination Statutes A . C overa g es a h d Purposes All four of the relevant nondiscrimination statutes apply generally to programs or activities receiving “ federal financial assistance.” For example, Title VI, the earliest o f these four nondiscrimination statutes, provides in broad terms: N o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any pro g ra m o r activity receiving F ederal finan cial assistance. 42 U .S .C . § 2000d (1976) (emphasis added). The other three nondiscrimination statutes contain sim ilar prohibitions with respect to sex (in education programs),6 ag e ,7 and handicapped status.8 T he reach of these later three statutes is somewhat narrow er than that o f Title VI as to the programs or activities covered9 or the kind o f discrim ination prohibited.10 5 A ctual application o f the nondiscrim ination statutes to specific program s o r activities m ay depend o n individual circu m stan c es. S ince Title IX applies only to education p rogram s, for exam p le, its prohibition o f sex discrim ination m ay not apply to program s o r activities funded by the Social S ervices B lock G rant This m em orandum assesses only w h eth e r the nondiscrim ination statutes as w ritten and interpreted apply to the tw o block grants on the sam e basis as they w ould to other form s o f federal financial assistance 6 [N ]o person in the U nited States sh all, on the basis o f sex, be excluded from participation in , be d en ied the benefits of, o r be subjected to discrim ination under any education program or activity receiving Federal financial assistance . . 2 0 U .S C § 1681(a) (1976) (em phasis ad d e d ) 7 [N ]o person m the U nited Stales s h a ll, on the basis of age, b e excluded from participation in , be d en ied the benefits of, o r be subjected to discrim ination under any program or activity receiving Federal financial assistance 4 2 U S .C . § 6102 (1976) (em phasis added) 8 N o otherw ise qualified handicapped individual in the U nited S tates s h a ll, solely by reason of his handicap, be excluded from th e participation in, be denied the benefits of, o r be subjected to discrim ination u n d er any program or activity receiving Federal financial assistance . 29 U S .C .A . § 794 (1980 Supp. Pamph ) (em phasis added). 9 T itle IX applies only to certain education program s. 10 T h e A ge D iscrim ination A ct prohibits o n ly “unreasonable age discrim ination "S ee H R C onf. Rep N o 670. 94th C o n g ., 1st S ess 56 (1975) (em phasis in original). S ection 504 applies only to “otherw ise qualified” han d icap p ed individuals. 29 U .S C. § 794 86 (1) Title VI The Civil Rights Act of 1964 was a comprehensive legislative program aimed at eradicating the “moral outrage of discrim ination.” See 110 Cong. Rec. 1521 (1964) (remarks of Rep. Celler). Title VI, as part of the 1964 Act, sought to achieve that goal by ensuring “once and for all that the financial resources o f the Federal Government— the commonwealth of Negro and white alike— will no longer subsidize racial discrim ination.” See 110 Cong. Rec. 7054-55 (remarks of Sen. Pastore)." The requirement that federally assisted programs or activities be nondiscriminatory was based on Congress’ power to fix the terms by which federal funds are made available, see 110 Cong. Rec. 7063 (1964) (rem arks of Sen. Pastore), and the constitutional obligation not to discriminate. S ee Regents q f U niversity o f California v. Bakke, 438 U.S. 265, 284 (1978); note 15, infra. Title VI also had roots in a “basic fairness” concept: black citizens should not be required to subsidize with their federal tax money programs or activities that discrim inated against them . See 110 Cong. Rec. 7061 (remarks of Sen. Hart) (“we do not take money from everybody to build something, admission to which is denied to some”). Title VI represented a fundamental statement of national policy intended to apply across-the-board to all programs or activities receiving federal financial assistance. Senator Humphrey, the Senate m anager of H .R. 7152, which was to becom e the Civil Rights Act of 1964, identified in his opening statement on the bill several needs for Title VI. He noted first that Title VI was necessary because some federal statutes actually appeared to contemplate grants to racially segre­ gated institutions. Second, he noted that, although most federal agencies proba­ bly already had the authority to make nondiscrimination a condition of receipt of federal funds, “[e]nactment of Title VI will eliminate any conceivable doubts on this score and give express legislative support to the agency’s actions. It w ill p la ce C ongress squarely on record on a basic issue c f national p o lic y on which Congress ought to be on record.” Third, Title VI would “insure uniform ity an d perm anence to the nondiscrimination policy.” 110 Cong. Rec. 6544 (1964) (emphasis added). Finally, Senator Humphrey explained, enactment of Title VI would end the growing practice of having to debate nondiscrimination provisions each time a federal assistance program was before Congress: Many of us have argued that the issue of nondiscrimination should be handled in an overall, consistent way for all Federal programs, rather than piecemeal, and that it should be considered separately from the merits o f particular programs of aid to education, health, and the like. This bill gives the Congress an opportunity to settle the issue of discrimination once and for all, in a uniform, across11 See also Cannon v. University c f Chicago, 441 U S. 677, 704 n 36 (19 7 9 ). 110 Cong. Rec 7058 (rem ark s o f Sen ftislore) (“ F rom birth to d eath , in sickness and in w ant, in school, in jo b training, in distribution o f surplus food, in program staffing, in jo b referral, in school lunch program s, and in higher ed ucation, the N eg ro has consistently b een subjected to gross and extensive deprivation. A nd the Federal G overnm ent has paid the bill ”). 87 the-board manner, and thereby to avo id having to debate the issue in p ie c e m e a l fashion every tim e any one c f these Federal a ssist­ an ce p ro g ra m s is before the C ongress. Id. (em phasis added). The need to settle the issue “ once and for all” was a repeated theme of the debate surrounding Title VI. Senator Pastore, one of two Title VI “captains” on the Senate floor, referred to past occurrences of “acrimonious debate” on non­ discrim ination provisions, which had led to their defeat for fear that “if the provision prevailed, the Senate might become involved in prolonged or pro­ tracted debate, or even a filibuster, and the result might be no legislation whatever.” 110 Cong. Rec. 7061. Thus, Senator Pastore explained: “It is to avoid such a situation that Title VI w ould constitute as perm anent policy of the United States G overnm ent the principle that discrimination will not be tolerated. This would elim inate all the confusion and discussion that arise every tim e a grant bill com es before the Senate.” Id. (em phasis added). Furthermore, explained Senator Pastore, enactm ent of Title VI “ would also a vo id any b a sis fo r argum ent that the fa ilu re c f C on gress to adopt such nondiscrim ination am endm ents in connection with the particular program im plied con gression al approval of racial discrimina­ tion in that program .” 110 C ong. Rec. 7062 (emphasis added). This sam e them e was sounded in the House o f Representatives by Representa­ tive Celler, w ho was the original sponsor of H .R. 7152 and also chaired the H ouse Judiciary Committee, which had jurisdiction over the Civil Rights Act. R eferring to prior attempts to enact nondiscrimination provisions as parts of individual bills, C eller explained: “Title VI enables the Congress to consider the overall issue of racial discrimination separately from the issue of the desirability of particular Federal assistance program s.” 110 Cong. Rec. 2468 (1964). Fur­ therm ore, enactm ent o f Title V I “would tend to insure that the policy of non­ discrim ination would be continued in future years a s a perm anent p a rt of our n ation al p o lic y .” Id. (emphasis added). T hus, it is clear that Title VI was intended to address, “once and for all,” racial discrim ination in federally funded program s. It represented the desire both to make a statem ent of fundamental national policy and to avoid repeated debate over that national policy. In fact, Title VI was apparently thought to answer the contention that noninclusion of discrim ination prohibitions in particular legisla­ tion am ounted to endorsement o f discrim inatory practices. O f course, the Con­ gress that enacted Title VI could not make it permanent in the sense of its being irrevocable. N evertheless, it is clear that Title VI was intended to be applicable to all program s or activities receiving federal financial assistance, and it should therefore be considered inapplicable only when there is a clear indication that C o n g re ss d e lib e ra te ly exem pted c e rta in p ro g ram s or activ itie s from its provisions. (2) The O ther Cross-Cutting Statutes The legislative histories of the three other nondiscrimination statutes are less illum inating. This is probably attributable to the fact that Congress had already 88 debated the concept behind this kind of legislation when it enacted Title VI. It is clear that Title IX, Section 504, and the Age Discrimination Act were modeled after Title VI. See, e .g ., Cannon v. U niversity o f Chicago, 441 U.S. 677, 694 (1979) (Title IX patterned after Title VI); NAACP v. M ed ica l Center, Inc., 657 F.2d 1322, 1331 (3d Cir. 1981) (en banc) (§ 504 and Age Discrimination Act patterned after Title VI); Brown v. Sibley, 650 F.2d 760, 768 (5th Cir. 1981) (“Congress expressly modeled the discrimination prohibition contained in sec­ tion 504 after the prohibitory language contained in Title VI and Title IX”). Thus, the fundamental purpose of legislation like Title VI, which had been thoroughly debated when Title VI itself was adopted, was not a particular focus of the debates. Instead, Congress devoted its attention to possible areas of coverage. For exam ple, the Title IX debate focused not so much on the need to have a generally applicable prohibition of sex discrimination in federally funded educa­ tion programs but instead on which institutions would be subject to its proscrip­ tions— especially whether or to what extent religious, military, and single-sexundergraduate institutions would be covered. Nevertheless, it is clear that Title IX was intended to operate like Title VI, although it would apply in all aspects only to certain educational institutions. Thus, Representative Green, the floor manager of H.R. 7248, explained that Title IX (then Title X in the draft bill) was “really the same as the Civil Rights Act [Title VI] in terms of race.” S ee 117 Cong. Rec. 39256 (1971). And Senator Bayh, who sponsored the draft language in the Senate bill, S. 659, explained that Title IX was intended to have comprehensive application to the covered institu­ tions, in order to rem edy “one of the great failings of the American educational system . . . the continuation of corrosive and unjustified discrimination against wom en.” 118 Cong. Rec. 5803 (1972). Like Title VI, Title IX also reflected the “fairness” notion that American taxpayers should not be required to subsidize, through their taxes, program s, or activities that discriminated against som e of them. See 117 Cong. Rec. 39257 (remarks of Rep. Green quoting Secretary of HEW quoting President Nixon) (“N either the President nor the Congress nor the conscience of the Nation can perm it money which comes from all the people to be used in a way which discrim inates against some of the people.”); id. at 39252 (remarks of Rep. M ink) (“Millions of women pay taxes into the Federal treasury and we collectively resent that these funds should be used for the support of institutions to which we are denied equal access.”). That Section 504 has roots in Title VI and Title IX is also clear. Although Section 504 of the 1973 Rehabilitation Act was enacted with virtually no legislative history, the next year the Senate Labor and Public Welfare Committee included the following statement in the legislative history of the Rehabilitation Act Amendments of 1974: Section 504 was patterned after, and is almost identical to, the anti-discrimination language of section 601 of the Civil Rights Act of 1964, 42 U .S.C . 2000d—1 (relating to race, color, or national origin), and section 901 of the Education Amendments of 1972, 42 U .S .C . 1683 (relating to sex). The section therefore 89 constitutes the establishment of a broad government policy that program s receiving Federal financial assistance shall be operated w ithout discrimination on the basis of handicap. S. Rep. N o. 1297, 93d Cong., 2d Sess. 39-40 (1974).12 Thus, like Title VI and Title IX , Section 504 represents a broad statement of national policy intended to have application across-the-board. As explained in the 1974 Senate Report: “It is intended that Sections 503 and 504 be administered in such a manner that a con sisten t, uniform, an d effective F ederal approach to discrim ination again st h an d ica p p ed p e rso n s would resu lt.” Id. at 40 (emphasis added). The last of the nondiscrimination provisions under consideration is the Age D iscrim ination Act of 1975, w hich was enacted as part of the Older Americans A m endm ents o f 1975, a com prehensive package directed to problems of the elderly. Representative Brademas, the House manager of the Amendments, explained of the House version: “title III . . . will clearly enunciate national policy that discrim ination against the elderly based on their age will not be to le ra te d .. . .” 121 Cong. Rec. 9212(1975). The Act was intended to have broad coverage and to apply not just to the elderly but to “age discrimination at all age levels, from the youngest to the oldest.” Id. The broad applicability of the Age D iscrim ination Act was evidenced by explicit reference to its application to the most unrestricted kind of federal funding— general revenue sharing. See 42 U .S .C . § 6101 (1976) (“It is the purpose of this chapter to prohibit unreasonable discrim ination on the basis of age in program s or activities receiving Federal financial assistance, including program s or activities receiving funds under the State and Local Fiscal Assistance Act of 1972 (31 U .S .C . 1221 et seq.).”) (em phasis added). A lthough the statute was “modeled on Title V I,” see H .R . Conf. Rep. No. 670, 94th C o n g ., 1st Sess. 56(1975), its coverage is less extensive than Title VI in one significant way: it prohibits only “unreasonable” age discrimination. Further­ m ore, C ongress provided for delayed im plem entation of regulations as well as for preparation of an age-discrimination study, because of concerns that it had too little inform ation about either th e extent or the “reasonableness” of age discrim i­ nation in federally assisted program s. See 121 Cong. Rec. 37735 (1975) (rem arks o f Senator Eagleton). N onetheless, as to “unreasonable” age discrim i­ nation, the Age Discrimination Act was m odeled after Title VI and was intended to be a statem ent o f national policy. See 121 C ong. Rec. 9212 (remarks of Rep. Brademas). (3) G eneral Application of the Four Cross-Cutting Statutes The legislative histories of all four nondiscrim ination statutes thus evidence a congressional intent to implement as national policy their prohibitions against 12 A lthough su b se q u en t com m ents are not a substitute fo r statem ents of legislative intent at the tim e o f enactm ent, see Southeastern Com munity College v. Davis, 442 U .S . 3 9 7 ,4 1 1 (1979), this statem ent has been regularly referred to by the c o u rts, and § 504 is consistently construed as having its roots in Titles VI and IX . See, e.g , Pushkin v Regents o f U. c fC o lo ., 6 5 8 F.2d 1372 (1 0 th Cir. 1981). 90 discrimination. While the later statutes have less extensive histories, it is clear that Title VI was intended to end the need for a program-by-program debate about the prohibition of racial discrimination. There is ample basis for concluding that Congress was implementing that same intent with the other three statutes by choosing Title VI as the model for those statutes and by enacting essentially the same broadly applicable language. Nothing in the history suggests that Congress intended later Congresses to be required to specify the applicability of these statutes to individual funding legislation— in fact, the evidence is to the contrary. That the statutes have a broad sweep is also clear from their application not just to federal categorical programs, but to all “Federal financial assistance,” “by way of grant, loan, or con tract other than a contract of insurance or guaranty,” see 20 U .S.C . § 1682;42 U .S.C . § 2 0 0 0 d - l;4 2 U .S.C . § 6103(a)(4) (adding“entitle­ ment” to list) (emphasis added). See also 29 U .S .C . § 794a(2) (providing that remedies, procedures and rights set forth in Title VI shall be available under § 794). In fact, the Age Discrimination Act makes clear that the term “Federal financial assistance” includes general revenue sharing, see 42 U .S.C . § 6101, a form of federal assistance that is essentially unrestricted as to the purposes for which it may be used. Thus, the statutes are fundamental pieces of legislation intended to remedy perceived wrongs to those discriminated against on the basis of race, sex, handicapped status, and age. Their language and legislative histories evidence a broad purpose to be given effect through across-the-board application whether or not a particular program specifically incorporates the nondiscrimination statutes. B. Enforcement Procedures To achieve the goal of ending discrimination on the bases prohibited by the statutes, Congress has provided for an administrative scheme of enforcem ent, which favors conciliation over termination of funds and is designed to provide certain safeguards for fund recipients. See 110 Cong. Rec. 7066 (1964) (remarks of Sen. Ribicoff). Thus, the statutes direct the issuance of rules or regulations of general applicability and prohibit termination of funds until the recipient is informed of its failure to comply and the administrative agency has determined that voluntary com pliance cannot be secured. Termination may occur only after filing a report with Congress and the expiration o f a 30-day waiting period after filing such a report. Termination is limited to the particular noncomplying program. See 20 U .S .C . § 1682; 42 U .S .C ., § 2 0 0 0 d -l; id ., § 6 1 0 4 .13 Each agency that administers federal financial assistance issues clarifying regulations as to the relevant nondiscrimination statutes, setting forth the discriminations prohibited, assurances required, and com pliance information. See, e .g ., 45 C .F.R ., Parts 80, 81, 84, 90 (1980). By Executive Order 12250, the Attorney General is directed to coordinate implementation and enforcement of Title VI, Title IX , Section 504, and any other provision prohibiting discrimination in federally assisted programs. n By express provision. S ection 504 is to be adm inistered under the sam e term s as Title VI. 91 W hen C ongress has actually specified that the nondiscrimination provisions apply to particular legislation extending financial assistance, it often has also provided for a different or more detailed administrative enforcement mechanism than is provided in the underlying cross-cutting statutes, or has added to the categories of prohibited discriminations. See, e .g ., State and Local Fiscal Assist­ ance Act o f 1972, as amended, 31 U .S .C .A . § 6716 (1982); Community D evelopm ent B lock Grant of 1974, 42 U .S .C . § 5309 (1976); Omnibus Crime C ontrol and Safe Streets Act o f 1968, as am ended, id. § 3789d (1982). These differences may account for Congress’ making specific reference to the non­ discrim ination statutes. Thus, specific reference to the nondiscrimination statutes is not necessarily an indication that Congress believes the statutes to be otherwise in ap p licab le.14 14 T h e S tate and L ocal F iscal Assistance A ct provides: N o person in the U nited States s h a ll, on the ground of race, color, national origin, o r sex, be ex cluded from participation in .b e den ied the benefits of, o r be subjected to discrim ination un d er any p rogram o r activity o f a State governm ent o r unit of local governm ent, w hich governm ent o r unit receiv es funds m ade available under subchapter I . . . A ny prohibition against discrim ination on the basis o f ag e u n d e r the A ge D iscrim ination A ct o f 1975 [42 U .S C 6101 et seq .] or with respect to an o therw ise qu alified handicapped individual as provided in section [504] shall also apply 31 U S .C . § 1242(a)(1) (1976). T he inclusion o f a reference to the Age D iscrim ination A ct in this revenue sharing act illustrates that specific reference to a c ro ss-cu ttin g statute does not necessarily reflect a cong ressio n al determ ination that the cross-cutting statute is otherw ise in ap p licab le To the contrary, the A ge D iscrim ination A ct itself explicitly provides that “ federal financial assistan c e” includes revenue sharing under the Fiscal A ssistance A ct and w ould have been applicable in any event. T h e F iscal A ssistance Act did esta b lish d ifferen t en fo rcem en t procedures and broader applicability, h ow ever A s understood by the sponsor of th e 1976 nondiscrim ination am endm ent to the Fiscal A ssistance A ct, the p ro hibition against ag e discrim ination in th e revenue sharing act had independent significance T h is provision is sim ilar to the provisions o f the A ge D iscrim ination A ct o f 1975 T hat A ct prohibits '‘u n reaso n ab le” age discrim ination in program s and activities receiving Federal financial assistan c e, in cluding revenue sharing funds. T he C om m ittee intends that its am endm ent to the R evenue S h arin g A ct be considered a separate and independent statutory right that age discrim in a­ tio n not be p ractice d by governm ents receiving revenue sharing funds. It is im portant that the C o m m ittee am en d m en t be interpreted in this m anner, rather than be viewed strictly as an en d o rse­ m ent o f the C o n g ress’ actions in th e 1975 A ge D iscrim ination A ct U nlike the 1975 A ct, the C o m m ittee bill w ould prohibit age discrim ination in all activities o r program s o f revenue sharing recip ien ts, rather than m erely those in those program s and activities receiving revenue sharing funds A s indicated ab o v e, th e Com m ittee ad o p ted this approach in its bill because of the serious problem of the fungibility o f funds Also, u n lik e the 1975 A ct, the C om m ittee m easure establishes m ore d etailed and autom atic suspension a n d term ination procedures, and d o es not delay effectiveness of the provision until January I, 1979 Because o f these significant distinctions, in term s o f the b ro ad n ess o f th e p rohibition and the rem edies jsrovided, it is im perative that the C om m ittee bill not be su b jec t to a lim ited o r narrow interpretation based on the 1975 A ge D iscrim ination A ct Rather, the Committee bill and the 1975 legislation are to be viewed as independent yet complementary measures. B oth seek to insure the elim ination o f unreasonable age discrim ination w hich is federally financed, b u t they nevertheless establish different approaches to the overall prohibition as well as to the en fo rcem en t m echanism The C om m ittee intends that through cooperation agreem ents (d is­ cu ssed h erein after) the various D ep artm en ts responsible for enforcem ent under the tw o laws w ill co o rd in ate, to the g reatest extent p o ssib le , those enforcem en t efforts. H .R Rep. N o 1165, 94th C o n g ., 2d Sess 9 8 n.4a (1976) (additional views o f Rep. R o b ert F D rinan) (em phasis added). It also appears that inclusion o f a nondiscrim ination provision in the Safe S treets A ct need not be interpreted to signify a co n g ressio n al b e lie f that Title VI w o u ld otherw ise be inapplicable See H. Rep. N o. 249, 93d C o n g ., 1st S ess. 7 [1973]For the first tim e the A ct itself co n tain s provisions protecting civ il rights and civil liberties. In ad d itio n to deleting prohibitions ag a in st conditioning a g ran t on th e adoption by an applicant o f a q u o ta sy stem o r o th e r program to achieve racial b alan ce, the bill reiterates the an ti-d iscn m m atio n req u irem en ts o f title V I o f the Civil R ig h ts A ct of 1964, but also pro h ib its discrim ination on the basis o f sex T h e bill stren g th en s the ban on discrim ination by making clear that thefu n d cut-off provisions c f section 509 c f the Act and c f title VI c f the Civil Rights A c t o f 1964 both apply, an d that appropriate civ il actions m ay be filed by the A dm inistration and that “ pattern and practice” su its m ay be filed by the A ttorney G en eral. (E m p h asis added ) 92 C. Summary The statutory language and legislative histories of the four nondiscrimination statutes reveal that the statutes are congressional statements of fundamental national policy intended to have across-the-board application not just to federal categorical programs but to nearly all forms of federal financial assistance, including grants, loans, and most contracts. W hile Title VI and Title IX might be said to prohibit discrimination that is also prohibited by the Constitution, it is not clear that they are merely redundant of existing rights.15 In any event, Section 504 and the Age Discrimination Act prohibit discrimination not otherwise prohibited by the Constitution. Additionally, the four statutes provide for administrative means of enforcem ent that are designed to provide certain safeguards while also accomplishing the objective of ending discriminatory activities. See 110 Cong. Rec. 7066 (1964) (remarks of Sen. Ribicoff). Thus, the statutes stand as im portant components of the national body of antidiscrimination law, intended to apply to all programs or activities receiving federal financial assistance without being explicitly referenced in subsequent legislation. They should therefore be considered applicable to all legislation authorizing federal financial assistance— which includes not only grants and loans, but also most contracts— unless Congress evidences a contrary intent. III. The Block Grants A. Background Federal funding has traditionally been in the form of categorical grants, which can be used only for specific programs designated by Congress and as directed by usually detailed federal regulations.16 Two other forms of federal funding, block grants17 and general revenue sharing, provide for less restrictive use of federal funds by the states. Block grants generally consolidate several categorical programs into “ federal payments to state or local governments for generally 15 Language in the Bakke case suggests that T itle VI may be coextensive w ith constitutional guarantees. See Regents c f University c f California v. Bakke. 438 U .S 265. 284 (1978) (“ {ex am in atio n o f the v olum inous legislative history o f Title VI reveals a congressional intent to halt federal funding o f en tities that violate a prohibition of racial discrim ination sim ilar to that o f the C onstitution"). In Lau v Nichols. 414 U .S . 563 (1974). however, the S uprem e C ourt had applied a “d iscnm inatory-effects” test under Title VI It has been suggested that Bakke overruled Lau sub silentio, thus requiring pro o f of discrim inatory intent, see Washington v Davis, 4 2 6 U S. 229. 239 (1976), but the C ourt has declined to rule w hether Title VI incorporates the constitutional stan d ard . See Board c f Education v. Harris. 444 U S 130. 149 (1979) Som e courts therefore have applied an “ im pact-only” analysis to suits bro u g h t under the statutes See NAACP v Medical Center, Inc . 657 F 2d at 1331 (3d Cir. 1981) (en banc) (Title V I, § 5 0 4 , and A ge D iscrim ination A ct) ,6 “ W hat truly characterizes a categorical grant is that it is adm inistered by the Federal bureaucracy, and it is this aspect o f categorical program s that President Reagan finds m ost o b jectionab le.” 127 C ong R ec. S 682I (daily ed. June 2 4 , 1981) (rem arks of Sen Hatch). 17 Block grants are not new to the Budget R econciliation Act See, e g . . O m nibus C rim e C ontrol and S afe S treets A ct o f 1968, as am en d ed , 42 U S C §§ 3 7 0 1 -3 7 9 7 , C om m unity D evelopm ent Block G rant o f 1974, 42 U .S .C §§ 5 3 0 1 -5 3 2 0 See generally Block Grants' An O ld Republican Idea, l9 8 1 C o n g .Q 4 4 9 (M a r 14, 1981). In fact, the Social Services B lock G rant am ends Title XX o f the Social S ecurity A ct, 4 2 U .S .C § 1397, an existing block grant A lthough C ongress did not explicitly incorporate nondiscrim ination provisions in the ea rlier version o f T itle X X , it has been assum ed that nondiscrim ination provisions apply to program s o r activities receiving T itle XX assistance See Brown v. Sibley. 650 F 2d 7 6 0 .7 6 9 (5th Cir. 1981) (§ 504 inapplicable because no allegation that tw o program s funded by Title XX w ere discrim inatonly m anaged). 93 specified purposes, such as health, education, or law enforcement. The money must be spent on programs in the general area, but state or local officials make the decisions on specifically how the money is used.” 1981 Cong. Q. 449 (Mar. 14, 1981). Put another way, “what distinguishes a block grant [from a categorical grant] is that it is directed at a broad purpose, and is administered by the grant recipient.” S ee rem arks of Sen. Hatch, 127 Cong. Rec. S6822 (daily ed. June 24, 1981). General revenue sharing is considered to be at the opposite end of the scale from categorical grants, because its use is “virtually unrestricted.” See 1981 C ong. Q. 449. S ee also G oolsby v. B lum enthal, 581 F.2d 455, 465 (5th Cir. 1978) (Thom berry, J., dissenting) (revenue sharing is “vastly different” from block grants), opin ion adopted in relevant portion a s opinion of the court, 590 F.2d 1369 (5th Cir.) (en banc), cert, denied, 444 U.S. 970 (1979); Ely v. Velde, 497 F.2d 252, 256 (4th Cir. 1974) (“A block grant is not the same as unencum ­ bered revenue sharing, for the grant com es with strings attached.”). The initiative to replace categorical program s with block grants to the states stem s from several significant concerns. First, the block grants concept reflects a fundam ental belief that state and local entities are better suited to choosing the proper program s or activities fo r their citizens than is the federal governm ent.18 D ecentralization of allocational decisionm aking is also intended to result in increased efficiencies.19 As Senator Hatch explained in Senate debate over the R econciliation Act: The block grants will reduce bureaucratic overhead. They will give the states greater flexibility for efficient management and for the setting of priorities. Scarce dollars must be used for the most pressing needs in the m ost practical way. The huge and remote Federal bureaucracy is not suited to these purposes. The States are better situated to do the job. 127 Cong. Rec. S6821 (daily ed. June 24, 1981). Increased efficiency through elim ination of numerous regulatory requirements is intended to enable the federal governm ent to fund program s at lower levels than would otherwise be necessary and thus to result in substantial savings. 18 See L etter from S ecretary o f Education T .H . Bell to T h o m as P. O ’N eill, Jr (A pr 28, 1981) (transm itting p roposed E lem e n tary and S econdary E ducation C onsolidation A ct o f 1981) (“The proposed legislation w ould perm it S tates and lo calities to m ake the d ec isio n s, as they m o st appropriately can , as to how, when and w here educational services should be provided, ab o u t priorities am o n g needs, and about w hat services should be offered ” ), L etter from H H S Secretary R ichard Schw eiker to T hom as P. O ’Neill (transm itting proposed Social S ervices B lock G ran t) (“th e proposal will h elp to restore to the S tates the m ajor role w hich should be theirs in assessin g and responding to the social services needs of their population. By rem oving requirem ents and earm arks g iving priority to certain services and certain population gro u p s, the draft bill will greatly increase the ability o f S tate and local governm ents to concentrate th e ir resources on m eeting their m ost serious social service n eed s.” ) See also 1981 C ong Q 449 (M ar 14, 1981) (quoting A dm inistration's Mar. 10 budget “T he federal governm ent m W ashington has no special w isdom in dealing w ith m any o f the social and educational issues faced at the state and local level ” ) }9See, e g .. L etter from H H S Secretary R ic h ard Schw eiker, supra note 18 (“ by elim inating m any Federal adm inistrative req u irem en ts, reporting requirem ents, standards and the like, the draft bill w ill perm it more efficient adm inistration o f the S tates’ social services pro g ram s, thus freeing resources for the provision o f services and p ro d u cin g significant co st sav in g s” ). 94 B. The Education a n d the Social S ervices Block G rants The Elementary and Secondary Education Block Grant, known as the “Educa­ tion Consolidation and Improvement Act of 1981,” addresses two areas of education funding: (1) funding for the educational needs of disadvantaged children (Chapter 1) and (2) consolidation of federal programs previously under several other program s “to be used in accordance with the educational needs and priorities of State and local educational agencies as determined by such agen­ cies.” (Chapter 2.) In both chapters, Congress has clearly expressed its intent to place supervision, direction, and control in the hands of state and local au­ thorities. See §§ 552, 561(a)(6), 95 Stat. at 463, 562. Chapter 1 funding is to be accomplished “ in a manner which will eliminate burdensome, unnecessary, and unproductive paperw ork,” id. § 552, and Chapter 2 is designed to “greatly reduce the enorm ous administrative and paperwork burden imposed on schools at the expense of their ability to educate children.” Id. § 561(a). The Social Services Block Grant amends an existing social services block grant, Title XX o f the Social Security Act, 42 U .S.C . § 1397. S ee note 17, supra. Its purposes are consolidating Federal assistance to States for social services into a single grant, increasing State flexibility in using social service grants, and encouraging each State, as far as practicable under the conditions in that State, to furnish services directed at the goals of— (1) achieving or maintaining economic self-support to pre­ vent, reduce, or eliminate dependency; (2) achieving or maintaining self-sufficiency, including re­ duction or prevention of dependency; (3) preventing or remedying neglect, abuse, or exploitation of children and adults unable to protect their own interests, or preserving, rehabilitating or reuniting families; (4) preventing or reducing inappropriate institutional care by providing for community-based care, home-based care, or other forms of less intensive care; and (5) securing referral or admission for institutional care when other forms of care are not appropriate, or providing services to individuals in institutions. See § 2001, 95 Stat. at 867. Both of these block grants enacted by Congress are somewhat more limited than those initially proposed by the Administration. In the education area, for example, the Administration sought to consolidate 44 existing programs into two block grants. See 127 Cong. Rec. S4329 (daily ed. May 4, 1981) (remarks of Sen. Hatch introducing Administration’s draft legislation). Proposed Chapter 1 sought to consolidate federal assistance for several programs, including m ajor 95 federal program s for disadvantaged children (Title 1 of the Elementary and Secondary Education Act (ESEA)) and handicapped children (Pub. L. 94-142). C hapter 1 as enacted by Congress, however, left Title I of the ESEA intact as to form ula and m ethod of distributing funds, and purposes for using those funds, and did not consolidate programs for the handicapped. Chapter 2 consolidated approxim ately 30 smaller program s into a single block grant. S ee 127 Cong. Rec. H 5795-5796 (daily ed. July 3 1 , 1981) (rem arks of Rep. Ashbrook explaining Conference resolution). T he A dm inistration’s proposed Social Services Block Grant also sought to consolidate and repeal numerous programs: Title XX of the Social Security Act; the child welfare and foster care and adoption assistance programs under parts B and E of Title VI o f that Act; the authority in five titles of that Act for provisions of social services in the territories; the Developmental Disabilities Assistance and Bill o f R ights A ct; the Child A buse Acts of 1974 and 1978; the Runaway and H om eless Youth Act; the Rehabilitation Act of 1973 (except definition of “handicapped” and nondiscrimination provisions); and certain sections of the Com m unity Services Act of 1974. The Social Services Block Grant eventually adopted by Congress, however, essentially am ended Title XX, the existing social services block grant. A separate com m unity services block grant was also enacted. S ee § 671, 95 Stat. at 511. A lthough, Congress clearly intended the block grant mechanism to decrease federal involvem ent in program adm inistration, the Education and Social Serv­ ices Block G rants are not without federal requirements. Chapter 1 of the Educa­ tion Block G rant, for example, essentially leaves intact Title 1 of the Elementary and Secondary Education Act, although rem oving “those detailed requirements and instructions on how to conduct programs which caused most of a staggering 5 m illion hours o f paperwork each year. . . See 127 Cong. Rec. H5796 (daily ed. July 31, 1981) (remarks of Rep. Ashbrook explaining conference resolution). Funds must be used only for specified purposes and are distributed according to prior form ulas and methods. T he states may be required to keep records neces­ sary for fiscal audit and program evaluation, and local agencies may receive funds only after the state approves applications expressing intended uses of the funds. The application must contain assurances as to accurate recordkeeping, which m ust reflect that programs and projects are conducted in attendance areas with high concentrations of low-income children, and that the need for such program s, and their size, shape, and quality have been assessed and evaluated. S ee § 557(b), 95 Stat. at 466. Chapter 2 requires states to utilize an advisory com m ittee representing school children, teachers, parents, local boards, adm in­ istrators, institutions of higher education, and the state legislature, for advice and annual evaluation, and requires recordkeeping for fiscal accountability, as well as requiring that local agencies file applications with the states and keep necessary records. M aintenance-of-effort provisions are retained in a modified form. Subchapter A funds may be used for basic skills development. Subchapter B funds may be used for educational improvement and support services and subchapter C funds for special projects, with both subchapters providing a list of 96 specific “authorized activities.” The intent to decrease federal involvement is manifested not by a prohibition of federal regulations but rather by the authoriza­ tion of a relatively narrow range of regulations in matters related to “planning, developing, implem enting, and evaluating programs and projects. . . .” See § 591, 95 Stat. at 480. Similarly, under the Social Services Block G rant, the states are required to develop, make public, and submit to the Secretary of HHS a report on intended use of the funds, including information on the types of activities to be funded and the individuals to be served. Every two years, detailed reports regarding expend­ itures must be submitted by the states and audits must be conducted. Federal requirements as to amounts to be spent on welfare recipients and income levels of recipients are not included, however. The states are specifically prohibited from using the funds for seven forms of services, ranging from land purchases to cash payments. See gen erally H.R. Conf. Rep. No. 208, 97th C ong., 1st Sess. 654, 989-92 (1981). All block grants enacted by the Reconciliation Act are also subject to the provisions of §§ 1741—45 of that Act. Section 1742 requires each state to report on the proposed use of block grant funds, including: (I) goals and objectives; (2) activities to be supported, areas to be served, and “categories or characteristics” of individuals to be served; and (3) the criteria and method for fund distribution. Pursuant to § 1745, states are required to conduct financial and compliance audits of block grant funds. C. Theoretical A pplication c f the N ondiscrim ination Statutes to Block G rants The two block grants are not unrestricted grants of federal monies to be used by the states in any m anner they choose. While clearly consolidating and “defederalizing” prior program s, the block grants nevertheless specify the purposes for which the funds are to be used (though permitting some selection within the group of perm issible purposes) and impose reporting and other requirements designed to ensure the accountability of those receiving the funds. These require­ ments enable tracing of block grant funds to specific programs and activities. Thus, it appears that the cross-cutting requirements of nondiscrimination can be imposed on specific programs or activities receiving block grant funds. Addi­ tionally, fund termination, if necessary, can be accomplished as to those specific programs or activities found to have discriminated. Even general revenue sharing to state and local governments, which is a form of federal assistance not limited to specific areas or purposes, is subject to the nondiscrimination laws. Revenue sharing is generally considered to entail even less federal involvement than block grant funding. Congress has nevertheless made explicit its intention that the nondiscrimination statutes apply to a ll pro­ grams or activities of a recipient government. See note 14, supra. State or local governments may avoid the nondiscrimination requirements only by dem onstrat­ ing, “by clear and convincing evidence,” that the program or activity alleged to be discriminating is not funded in whole or in part with revenue-sharing funds. 97 S ee State and Local Fiscal A ssistance Act of 1972, as amended, 31 U .S.C . § 6716 (1982). That Congress made nondiscrimination requirements explicitly applicable to revenue sharing is not necessarily an indication that they would otherw ise be inapplicable. S ee note 14, supra. Moreover, it is clear that Congress chose to require more stringent enforcem ent— and to make its nondiscrimination provision applicable to all activities of a recipient government (except where com pletely unrelated to federal funding)— because of the poor nondiscrimination enforcem ent record of the revenue sharing program to date. See H.R. Rep. No. 1165, cited su pra note 14, at 13. Thus, even at the opposite end of the scale from traditional categorical funding, when providing federal assistance virtually unre­ stricted as to purpose or use, C ongress has made clear that the national policy against discrim ination applies. The cross-cutting statutes apply by their terms to all programs or activities “ receiving Federal financial assistance.” Absent evidence of congressional in­ tent to the contrary, there is no indication apparent from the language of the block grants that C ongress intended block grant funding to be other than “ federal financial assistance” subject to the provisions of the nondiscrimination statutes. In fact, the two relevant block grants specifically use the terms “ financial assistance” or “ Federal assistance.” S ee Elementary and Secondary Education Block G rant, §§ 552, 561; Social Services Block Grant, § 2001. Furthermore, application of the nondiscrimination statutes to the block grants is both consistent with the congressional intent to have the nondiscrimination statutes apply to all federal financial assistance, and consistent with the principle underlying passage of the cross-cutting statutes, that federal taxpayers should not be required to subsidize program s or activities that discrim inate against some of them. Thus, absent som e indication to the contrary in the language or legislative history of the two relevant block grants, the nondiscrimination statutes should be considered to apply to the block grant programs or activities. We therefore proceed to consider w hether C ongress has evidenced an intent that the statutes not apply. IV. The Applicable Legal Standard The Education and the Social Services Block Grants do not specifically exempt program s or activities funded by them from the obligations not to discriminate em bodied in Title VI, Title IX, Section 504, and the Age Discrimination Act. N evertheless, due to the importance of the question, it is appropriate to consider w hether there is any indication, in the statute or its legislative history, to suggest that C ongress actually intended such a result. The courts generally require a clear indication of such intent, because Congress is presumed to be aware of the entire body o f law, and thus to be aware of prior statutes when it enacts later ones. Presum ably C ongress would m ake express its intent to modify or preclude the applicability of a prior statute that would otherwise embrace the subject of the later enactm ent. S ee 1A, C. Sands, Sutherland Statutory Construction, § 23.10 (3d ed. 1972). C ourts are reluctant, therefore, to find that Congress effected a partial “ repeal” or “ am endm ent” of a prior statute by implication. See note 20, infra, and accom panying text. 98 The classic “ repeal by im plication” is a total abrogation of a previous statutory provision by enactment of subsequent legislation. See, e .g ., M orton v. M ancari, 417 U .S. 535 (1974) (rejecting contention that Equal Employment Opportunity Act impliedly repealed Indian preference provisions of Indian Reorganization Act); cf. U nited States v. U nited Continental Tuna C orp., 425 U.S. 164 (1976) (“ repeal” urged would not actually abrogate prior statute, but would make it ineffectual in nearly all cases). O ther implied changes, such as implied “ exem p­ tions,” see G oolsby v. Blumenthal, 581 F.2d455, 461 (5th Cir. 1978), re v'd en banc on other grounds, 590 F.2d 1369 (5th Cir.), cert, denied, 444 U.S. 970 (1979), or implied “ am endm ents,” see E ly v. Velde, 451 F.2d 1130, 1134 (4th Cir. 1971), however, are also analyzed according to the rules applicable to repeals by implication. Two recent Suprem e Court cases illustrate the rules of construction to be applied to questions such as the one presented by your memorandum. In A llen v. McCurry, 449 U .S. 90 (1980), the Court considered whether 28 U .S.C . § 1738 and traditional principles of collateral estoppel apply to suits brought under 42 U .S.C . § 1983. M cCurry had unsuccessfully sought to suppress evidence in his state criminal trial. H e ja te r brought a federal civil rights action under § 1983 against the police officers who had entered his home and seized evidence. M cCurry argued that he should not be bound by the state court’s disposition o f his federal constitutional claim because he had had no opportunity to litigate that claim in federal court. Thus, he asserted in effect that § 1738, which requires federal courts to give the same effect to state court judgments as the state court would, and traditional principles of collateral estoppel were inapplicable to his claim brought under § 1983. The Supreme Court analyzed this argument as one suggesting that § 1983 impliedly “ repealed” or “ restricted” both collateral estoppel principles and the statutory forerunner to § 1738. The Court rejected this argument, applying the maxim that repeals by implication are disfavored, even though “ one strong m otive” behind enactment of § 1983 was “ grave congressional concern that the state courts had been deficient in protecting federal rights,” see id. at 9 8 -9 9 , a motive that provided some support for the “ repeal” or “restriction” asserted by McCurry. Similarly, in TVA v. H ill, 437 U .S. 153 (1978), the Court was asked to decide whether the Endangered Species Act permitted an injunction against operation of the nearly completed Tellico Dam because of the dam ’s effect on an endangered species. Congress had continued to appropriate money for the dam notwithstand­ ing the Appropriations C om m ittee’s knowledge of the effect of the dam on the habitat of the endangered species. Tennessee Valley Authority (TVA) argued, therefore, that the subsequent appropriations constituted a congressional deter­ mination to permit operation of the dam despite the provisions of the Act. The Court, in an opinion by the Chief Justice, framed the issue in terms of “whether continued congressional appropriations for the [Dam] after 1973 constituted an implied repeal of the Endangered Species Act at least as to the pa rticu la r dam ." Id. at 156 (emphasis added). The Court determined that to find an implied 99 “repeal” under the circumstances of the case would violate the cardinal rule disfavoring such repeals. T h e se c a se s illu strate th a t it is a p p ro p riate to ap p ly the “ re p e a l” o r “am endm ent” by implication analysis to the contention that Congress did not intend these four nondiscrimination statutes to apply to programs or activities funded by the two block grants. Because the cross-cutting nondiscrimination statutes apply by their terms to all program s or activities “receiving Federal financial assistance,” they apply to the block grants unless Congress specifically exem pted the block grants or, by im plication, “amended” the cross-cutting provisions to prevent their otherwise automatic applicability. See also, e .g ., Watt v. A laska, 451 U .S. 259 (1981) (contention that Wildlife Refuge Revenue Sharing A ct, rather than earlier enacted M ineral Leasing Act, controls distribu­ tion of m ineral revenues from wildlife refuges) (dissent contended that disfavor of repeals by implication should have force only when “general statute, wholly occupying a field, eviscerates an earlier and m ore specific enactment of limited coverage . . . w ithout an indication of congressional intent to do so ,” id. at 280); R adzanow er v. Touche Ross & C o ., 426 U.S. 148 (1976) (contention that when bank is sued under Securities Exchange Act it is subject to venue provisions of that A ct, rather than to general venue provisions of previously enacted National Bank Act); U n ited S tates v. B orden C o ., 308 U .S. 188 (1939) (contention that A griculture M arketing Agreement Act removed agricultural marketing from purview of Sherm an Antitrust Act). T he Fourth Circuit has applied this standard under analogous circumstances. E ly v. Velde, 451 F.2d 1130 (4th Cir. 1971), required the Fourth Circuit to determ ine the im plied applicability of two other “cross-cutting” laws— the N a­ tional Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA)— to a law enforcement block grant— the Omnibus Crime Control and Safe Streets A ct o f 1968. Because the Safe Streets Act generally prohibited federal interference in the spending of grants except as expressly authorized, the Law Enforcem ent Assistance Administration (LEAA) argued that it could not apply the requirem ents of NHPA and NEPA. Id. at 1133. The court rejected the argum ent that the block grant and the cross-cutting laws were irreconcilable, however, applying the “strong presum ption against one statute repealing or am ending another by im plication,” see id. at 1134, to examine the purposes and policies of the allegedly conflicting statutes and give effect to all three. But cf. G o o lsb y v. B lum enthal, 581 F.2d 455, 464 (5th Cir. 1978) (Thomberry, J., dissenting) (Revenue-Sharing and Uniform Relocation Assistance Acts irrecon­ cilable; only acts specifically m entioned in Revenue-Sharing Act applicable) (distinguishing block grants from revenue sharing because revenue sharing provides for automatic distribution and because of difficulty in determining how revenue-sharing m oney is spent), opinion a d o p te d in relevant portion as opinion c f court, 590 F.2d 1369 (5th Cir.) (en banc), cert, denied, 444 U.S. 970 (1979). These and other cases establish (1) that C ongress’ intention to exempt the block grants from the nondiscrimination statutes should be assessed in the context o f w hether Congress intended the block grants to act as an implied partial 100 “repeal” of, or “am endm ent” to, the earlier statutes; and (2) such “repeals” or “amendm ents” by implication are not favored. See M orton v. M ancari, 417 U .S. at 549. In short, where possible, the earlier and later statutes will be read as consistent with each other, see Watt v. A laska, 451 U.S. 259, 267 (1981) and, absent a clear indication to the contrary, courts will presume that the later statute was enacted against the background of the earlier one, and was intended to be affected by it. This analysis applies both to the total abrogation of a statute, see id . , and to partial repeals or amendments affecting only a “tiny fraction” of cases brought under either the earlier or later statute, see Radzanower v. Touche Ross & C o ., 426 U .S. at 156. The presumption against implied repeals is classically founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation, and, therefore, if a repeal of the prior law is intended, expressly to designate the offending provisions rather than to leave the repeal to arise by necessary implication from the later enactment. Still more basic, however, is the assumption that existing statutory and common law, as well as ancient law, is representative of popular will. As traditional and customary rules, the presumption is against their alteration or repeal. The presumption has been said to have special application to important public statutes of long standing.20 1A, C. Sands, Sutherland Statutory Construction § 23.10 (4th ed. 1972) (foot­ notes omitted). The presumption against implied repeals o r amendments is given effect through a requirem ent that the legislature’s intention to repeal must be “clear and m anifest.” U nited S tates v. Borden C o., 308 U.S. 188, 198 (1939). “In practical terms, this ‘cardinal rule’ means that ‘[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.’ ” TVA v. H ill, 437 U .S. at 190 (quoting M orton v. M ancari, 417 U .S. at 550). The Supreme Court has explained: “We must read the statutes to give effect to each if we can do so while preserving their sense and purpose.” Watt v. Alaska, 451 U.S. 259, 267 (1981). Thus, we must examine whether Congress intended the cross-cutting statutes to be inapplicable to the Education and the Social Services Block Grants by first attempting to ascertain if Congress made a “clear and manifest” expres­ sion of such intention, especially whether it made an affirmative expression of 20 T he presum ption against im plied repeals and am endm ents, strongest w hen applied to longstanding im portant public statutes, has force w hen m ore m inor statutes are involved Compare Radzanower, 426 U S at 154, w ith id at 158, 164-65 (S tevens, J , dissenting) (arguing that the rule against im plied repeals should apply only to w ellestablished and clearly defined old rules reflecting im portant national policy, but not to m inor laws o f w hose existence and m eaning C ongress m ight have been unaw are). T he nondiscrim ination statutes, w hile not all of longstanding, clearly articulate im portant national policy M oreover, they are not the kind o f statutes o f w hich C ongress is likely to have been unaware T hus, the presum ption against their im plied repeal o r am en d m en t w ould seem to be particularly strong 101 such intent. If it did not do so, we must then examine whether the Education and the Social Services Block G rants and the four cross-cutting nondiscrimination statutes are irreconcilable. In the absence of either a clear expression of intent or irreconcilability between the tw o sets of statutes, the plain language of the nondiscrim ination statutes, which would otherwise require them to apply to these two block grants, will prevail. V. Application of the Legal Standard T here are three possible indicators of congressional intent not to apply the nondiscrim ination statutes to the Education and Social Services Block Grants: (A) the absence of any specific reference to the obligation not to discriminate; (B) C ongress’ failure to refer to the nondiscrimination provisions in these two block grants, w hile specifically referring to them in six other block grants; and (C) Congress’ apparent deletion o f nondiscrimination provisions from the Admin­ istration’s proposed block grant legislation. Because we conclude that none of these provides a clear indication of congressional intent, we also examine (D) w hether C ongress’ purposes in enacting these two block grants may be said to conflict with the nondiscrimination statutes, so as to require that the non­ discrim ination statutes be inapplicable to these block grants. A . A bsen ce o f Specific Reference to the N ondiscrim ination Statutes It is clear from their legislative histories that the nondiscrimination statutes were intended to apply to federal financial assistance without Congress having to consider their applicability every time it authorized such assistance. Further­ m ore, the block grants at issue authorize the grant of “Federal assistance” or “ financial assistance,” and the relevant federal agencies have generally applica­ ble regulations for enforcing the nondiscrimination statutes, which can be applied to the block grants without issuance of new regulations. See, e .g ., note 4, su pra. T hus, there is no facially apparent reason why the nondiscrimination statutes should be considered inapplicable to the Education and the Social Services Block G rants merely because Congress made no specific reference in those block grants to the obligation not to discriminate. Since a central purpose of the nondiscrim ination statutes was in fact to avoid the need for such specific application, we conclude that the mere absence of nondiscrimination provisions, w ithout m ore, does not suggest that the four nondiscrimination statutes should be considered inapplicable. B . The "E xpressio U nius” D octrine As an alternative indication o f congressional intent not to apply the non­ discrim ination provisions, we have also considered the fact that not all the block grants are m erely silent as to application of the nondiscrimination statutes. Six other HHS and Education block grants contain specific nondiscrimination provi­ sions. Four— (1) Preventive Health and Health Services, (2) Alcohol and Drug 102 Abuse and Mental Health Services, (3) Primary Care, and (4) Maternal and Child Health Services— specify in relevant part that, for purposes of applying Title VI, Title IX, Section 504, and the Age Discrimination Act, “programs and activities funded in whole or in part with funds made available under this title are considered to be program s and activities receiving F ederal financial assistance." See Reconciliation Act, §§ 901 (1908(a)(1); 1918(a)(1); 1930(a)(1)), 2192(a) (508(a)(1)) (em phasis added). T hese four block grants do not stop th ere, however, but also prohibit discrimination on the ground of sex or religion, and provide for a 60-day compliance period before resorting to enforcement under, inter alia, the cross-cutting statutes. Two other block grants— Community Serv­ ices, § 671, and Low-Income Home Energy Assistance, § 2601— prohibit dis­ crimination or exclusion from benefits on the basis of race, color, national origin, or sex, and further direct that “ [a]ny prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in section 504” shall apply. See id ., §§ 677, 2606. These two block grants also set forth procedures by which com pliance with their nondiscrimination provisions may be secured, including the 60-day compliance period before resorting to remedies under Title VI, Section 504, and the Age Discrimination Act, “as may be applicable.” Applying the maxim expressio unius est exclusio alterius, it could be argued that because Congress specified in some block grants that the nondiscrimination laws would apply, its failure to do so in others should be viewed as an intentional exclusion. See 2A , C. Sands, Sutherland Statutory Construction § 47.23 (4th ed. 1973). This reading o f an implied exclusion deserves particular attention, be­ cause the maxim is considered to have special force if a statute provides for something in one section but omits it in another. See id. There are, however, several reasons that might explain why Congress failed to include nondiscrimination provisions in the Education and the Social Services Block Grants. First, as discussed in subsection C below, Congress may simply have decided that existing laws against discrimination should apply without change. It appears that there is some support for this explanation in the language of the nondiscrimination provisions originally proposed, both of which can be interpreted as assum ing that existing law would apply, but attempting to add to or change it in some manner. Furthermore, the nondiscrimination provisions in the other six block grants are not merely repetitive of existing law but have independ­ ent significance: (1) all six prohibit discrimination on the basis of sex, although Title IX applies only to education programs; (2) four also prohibit discrimination on the basis of religion; and (3) all require that the chief executive officer of a state be given 60 days to secure compliance before the Secretary either refers the matter to the Attorney General or exercises the powers granted by Title VI, Section 504, or the Age Discrimination Act, “as may be applicable,” or takes “such other action as may be provided by law.” Because Congress was providing for new substantive obligations and remedies regarding nondiscrimination in the other six block grants, it would have been logical for Congress to have recited all of the nondiscrimination provisions applicable to those block grants, perhaps to 103 avoid a future contention that only discrim ination on the basis of sex or religion had been prohibited. By failing to include sim ilar provisions in the Education and the Social Services Block G rants, however, Congress may simply have intended that only existing nondiscrimination provisions, with their regular enforcement mechanism s— which apply to all programs or activities receiving federal finan­ cial assistance— should apply.21 Second, there is also a reason why Congress might have believed it to be unnecessary to mention the nondiscrim ination statutes in the Education and the Social Services Block Grants, but necessary to mention them in the other six grants. The four cross-cutting statutes apply by their terms to programs or activities receiving “Federal financial assistance.” Both the Education and the Social Services Block Grants specify that they are providing “federal” or “finan­ cial” assistance. The Elementary and Secondary Education Block Grant states in the Declaration of Policy in C hapter I, § 552, “ [t]he Congress declares it to be the policy o f the United States to continue to provide finan cial assistance to State and local educational ag en cies. . . , ” and in the Statement of Purpose in Chapter II, § 561, “ [i]t is the further purpose and intent of Congress to finan cially a ssist state and local educational agencies . . . .” (Em phasis added.) The Social Services Block G rant begins its statement of purpose with the following language: “For the purposes of consolidating F ederal assistan ce to States . . . .” § 2001 (em­ phasis added). In contrast, the four block grants that contain explicit statements that “ [f]or the purpose of applying the prohibitions against discrimination” under the four cross-cutting statutes, program s funded by them “are considered to be program s or activities receiving Federal financial assistance,” do not otherwise specifically refer to federal financial assistance. It is possible therefore that Congress sim ply wished to m ake clear that, in addition to its prohibition of sexual and religious discrimination, those four block grants were “federal financial assistance” for purposes of the four cross-cutting statutes. Similarly, the other two block grants containing nondiscrim ination provisions have no explicit refer­ ence to the fact that they authorize “federal financial assistance.” Thus, the language o f these block grants suggests another reason why Congress might have differentiated between the Education and the Social Services Block Grants on the one hand and the six other block grants on the other. The expressio unius maxim is not to be regarded as conclusive, especially when other factors suggest a different result. See M orris v. G ressette, 432 U .S. 491, 506 n.22 (1977) (express preclusion of judicial review in one section is relevant, but not decisive, as to reviewability in other sections).22 H ere, in addition to the existence of other explanations for the differences that initially appear to call for application o f the maxim, there are other factors at play. The block grants are not merely separate sections of a comprehensive statute, but are 21 T h is is also consistent w ith the fact that th e existing Title X X Social Services B lock G rant makes n o specific reference to the n ondiscrim ination provisions. 22 See also, e.g ., Wachovia Bank & Trust C o . v National Student Mktg Corp , 6 5 0 F.2d 342, 3 5 4 -5 5 (D .C . Cir. 1980) ( “T h e an c ien t m axim ‘expressio unius est exclusio alterius' is a d angerous road m ap w ith w hich to explore legislative in te n t.”), cert, denied, 452 U.S 9 5 4 (1981), 2 A , S utherlan d , supra, § 47 25 (“T he m axim . . . requires great caution in its a p p licatio n , and in all c a s e s is applicable only under certain conditions."). 104 in reality separate statutes relating to different substantive areas, pieced together for purposes of budget reconciliation. This suggests that application of the maxim, which assumes that Congress considered all possibilities together, has less force than it m ight in addressing a narrower statute. Cf. U nited S tates v. Exxon Corp., 628 F.2d 70, 75 (D .C . Cir.) (per curiam ) (rejecting application of maxim because, in ter alia, two titles at issue differ in structure and direction), cert, denied, 446 U .S . 964 (1980). Particularly in light of the length of the Reconciliation Act, the speed with which it was enacted, and the pressing circumstances that surrounded its enactment, as discussed earlier, it is uncertain that the maxim should be given as much weight as it might normally have. The presumption against finding a repeal or amendment by implication also tends to dilute the force of the maxim. See U nited States v. Exxon C orp., 628 F.2d at 75 (declining to read combination of legislative history and expressio unius theories as proof of repeal or am endm ent by implication). In attempting to assess congressional intent, the expressio unius maxim may serve as a guide to that intent, but it is inconclusive. Other factors, including the reasons for the differences, the nature of the legislation, and the legislative history,23 must also be considered in the effort to discern congressional intent. When all the factors are considered, we cannot conclude that the absence of nondiscrimination provisions in the Education and the Social Services Block Grants represents a congressional determination that Title VI, Title IX, Section 504, and the Age Discrimination Act not apply. Instead, Congress may merely have determined that existing law against discrimination should apply to these two block grants. Moreover, to the extent the expressio unius maxim might be said to provide some support for a finding that Congress intended nonap­ 23 It is not just the statute that is silent on inclusion or exclusion of the provisions C om m ittee h earings, floor debates, and the H ouse. S enate, and conference reports, w hich often discuss in som e detail the d iffering versions and congressional intent, are virtually silent on this significant issue In o u r review o f hundreds o f p ag es of testim ony, debate, and rep o rts, we found only oblique references to nondiscrim ination under the tw o relevent block grants Dr. James P. S cam m an. S uperintendent o f Schools in South B end, Indiana, said: To put it bluntly, if you are going to m ake a local decision m odel w ork, you are going to have to rescind 9 4 , 142, 50 4 , and at least unem ploym ent com pensation not to kick in until the fall term begins w hen people a re n 't assured of a jo b in the spnng. Hearings Before the Task Force on Human Resources and Block Grants c f the Committee on the Budget. H ouse o f R epresentatives, 97th C o n g ., 1st Sess , Part I, 232 (1981). A nother com m ent cam e from R epresentative B iaggi in floor debate, as he explained his opposition to block grants in general, apparently even those specifically co ntaining nondiscrim ination provisions: Let m e illustrate a genuine fear that I have about these block grants. A ge discrim ination is an insidious problem in this N atton and one of the areas where it is practiced the m ost are in federally funded p rogram s. W hen the C ivil Rights Com m ission identified 10 m ajor Federal program s w here age discrim ination w as ram pant. C ongress responded with the enactm ent o f the age discn m in atio n am endm ents. W hat recourse will we have if age discnm ination is practiced in the adm inistration of these grants on the State level? 127 C ong. Rec H 3 9 1 1 (daily ed . June 26, 1981) N either the com m ents o f a com m ittee w itness nor the co n cern s of a single R epresentative am ount to an expression of congressional intent to support the inference to be draw n from application of the expressio um us m axim T his is especially true here w here one reference (“9 4 , 142,504*’) is, at the least, obscure, and w here the other represents concern apparently unrelated to specific incorporation o f the nondiscrim ination provisions There w ere, o f course, som e other references in the legislative history to the nondiscrim ination provisions originally proposed by the A dm inistration T hese references were m inim al, however, and we do not believe that they support the theory that the laws prohibiting discrim ination were m eant to be inapplicable. See d iscu ssio n in subsection C , infra. 105 plicability, we cannot say that it is either “clear and manifest” or that it is the affirmative expression of intent required for finding a “repeal” or “amendment” by im plication. C . A pp a ren t D eletio n c f the N ondiscrim ination P rovisions There is an additional factor to consider in assessing the absence of non­ discrim ination provisions in these two block grants: Congress’ apparent deletion of nondiscrim ination provisions from the block grants as originally proposed by the Adm inistration. Based on o u r analysis of the legislative history of the block grants, however, we are unable to conclude that Congress ever intentionally “deleted” the nondiscrim ination provisions from the Administration’s proposals so as to m ake them inapplicable. (1) Education Block Grant T he nondiscrim ination provision of the Administration’s proposed Education B lock G rant provided: Sec. 307(a). W henever the Secretary determines that there has been a failure to comply with title VI of the Civil Rights Act of 1974, the Age Discrimination Act of 1975, section 504 of the Rehabilitation Act of 1973, or title IX of the Education Amend­ ments of 1972 in any program or activity receiving Federal financial assistance under this Act, he shall notify the chief executive officer of the State and afford him an opportunity to secure compliance. If within a reasonable period of time, not to exceed sixty days, the chief executive officer does not secure com pliance, the Secretary shall take such action as may be provided by law. The tim e afforded the chief executive officer under this subsection shall not reduce the time otherwise available to the Secretary to secure compliance. (b) W hen a matter is referred to the Attorney General pursuant to subsection (a) of this section, or whenever he has reason to believe that there has occurred a pattern or practice in violation of the civil rights provisions referred to in subsection (a) in any program or activity receiving Federal financial assistance under this A ct, the Attorney G eneral may bring a civil action in any appropriate United States district court for such relief as may be appropriate including injunctive relief. Proposed Elem entary and Secondary Education Consolidation Act of 1981, S. 1103 § 307a (127 C ong. Rec. S4332) (daily ed. May 4, 1981). The provision thus appears merely to have provided a method of enforcing the laws; it appears to have assum ed their applicability to the Block Grant. The summary provided by Senator Hatch when he introduced the bill stated: “Basic nondiscrimination provisions are p re se rv e d without change from current law. However, in case of 106 violations, as determined by the Secretary, the Governor has an additional 60 days to secure compliance before further action by the Department." Id ., S4336 (emphasis added). Thus, the omission of this provision, absent explanation, is equally consistent either with the possibility that Congress intended the non­ discrimination provisions not to apply or that it assumed they did, based on the indication that basic law was being “preserved without change,” and merely decided that the regular enforcement procedures would apply. Furthermore, because the Education Block Grant eventually enacted was not the one proposed by the Administration, it would be an overstatement to refer to the lack of such a provision in that bill as the result of a “deletion.” The Education Block Grant proposed by the Administration was more sweeping than the bill eventually enacted. There was extensive resistance to including some of the programs the Administration proposed to include and the final product was termed a more modest effort. See, e.g ., 127 Cong. Rec. S6821 (daily ed. June 24, 1981) (rem arks of Senator Hatch, Chairman of Comm, on Labor and Human Resources) (“O ur proposals are more modest than President Reagan’s. Our block grants do not compel the Nation to arrive at the new federalism on October 1. But they most definitely set us along President Reagan’s road.”). In the H ouse, Representative Ashbrook, the ranking minority m ember of the Education and Labor Com m ittee, tried to make clear that “Gramm-Latta II,” the am endm ent to the Committee reconciliation package approved by the House, was not authored by the Administration: And let me put to rest— at least for our committee— all this loose talk about the proposals in the Latta amendment having been written by OMB or the W hite House. That just is not true. We did cooperate with them and accommodate their concerns where possible. But the substance of our major proposals, and the figures we use, were fashioned by our staff acting on our instruc­ tions. In most areas there are very great differences from adm in­ istration proposals. This is particularly true with respect to educa­ tion program consolidation, child nutrition, impact aid, and the social services block grant. Id., H 3526-27 (daily ed. June 25, 1981). See also id., S6821 (daily ed. June 24, 1981) (remarks of Sen. Hatch) (“Some have suggested that the President has suffered a political defeat because we in the Senate have turned from his original block grant proposals. They are wrong, and they miss the point. The essential question is not whether we support these proposals, but whether we support the President’s ends. Obviously, we d o .”). The legislative history of the Education Block Grant is at best ambiguous with respect to w hether Congress “deleted” references to the nondiscrimination provi­ sions or m erely enacted a bill that, without explanation, contained none. The Education Block Grant, which received extensive attention on the House and Senate floors, was explained and debated in detail, without reference to the possibility that Congress had made nondiscrimination provisions inapplicable. 107 Given the tone of the discussion— an attempt to assuage concerns that not enough federal control rem ained in the block grants— it is difficult to infer a clear intent to make the federal nondiscrimination provisions inapplicable. We are reluctant to attach much significance to congressional omission of any reference to the nondiscrim ination provisions w hen they would normally have been applicable without any such reference, especially in the absence of any reference to such omission. (2) Social Services Block G rant Because the Social Services Block G rant received less attention in floor debate, it is even m ore difficult to determine whether Congress could be said intentionally to have deleted the nondiscrimination provisions. It is clear that the Adm inistration’s proposed block grant, which contained a nondiscrimination provision, was not finally enacted by Congress. However, even the proposed House Social Services Block G rant contained a nondiscrimination provision, including enforcem ent procedures differing from those provided in the four nondiscrimination statutes. T he Senate version and the ultimate conference version of the Social Services Block G rant, however, made no reference to nondiscrim ination. Although the absence of a provision in one of several versions might be said to suggest an intentional deletion, this does not seem to have been the case. First, the section-by-section analysis of the Administration’s proposed Social Services Block Grant, inserted into the Record by its sponsor, Representa­ tive A shbrook, is instructive: Section 10 of the d raft bill, modeled on a section of [the] Housing and Com m unity Developm ent Act of 1974, prohibits discrim ination on the ground of race, color, national origin, or sex in any program o f activity funded under the Act, and also express­ ly recognizes the application of section 504 of the Rehabilitation A ct of 1973, which prohibits discrimination against qualified handicapped persons, and the anti-discrimination provisions of the Age Discrimination Act of 1975. W henever the Secretary determ ines that there has been a failure to comply with these non­ discrim ination provisions, the Secretary must notify the Governor o f the State. The Governor is given up to 60 days to secure com pliance. If the Governor does not secure timely compliance, the Secretary may refer the matter to the Attorney General and recom m end the commencement of a civil action to secure com ­ pliance. Alternatively, the Attorney General may institute pro­ ceedings under current statutes, such as title VI o f the Civil Rights Act c f 1964, that now apply to discrimination. 127 Cong. Rec. E2194 (daily ed. M ay 6, 1981) (emphasis added). As understood by its sponsor, the nondiscrim ination provision did not “make” Section 504 and the A ge D iscrim in atio n Act a p p licab le, but rather “recognized” their a p ­ 108 plicability. The provision added sex discrimination as a general prohibition. Finally, Representative Ashbrook appeared to recognize that “current statutes, such as title V I,” provided an alternative method of proceeding. Id. Thus, it is conceivable that “deletion” of the provision was merely intended to leave current nondiscrimination law as the only method of proceeding. It is unclear w hether Congress even thought in terms of “deletion.” As explained in the sum m ary of the reconciliation conference: “the House receded from its Social Services block grant and conferees agreed to a Title XX block grant and a com m unity services block grant. Child welfare services and Foster Care and Adoption Assistance were retained as categorical program s.” 127 Cong. Rec. H5759 (daily ed. July 31, 1981). The conference report referred to the rejected House Social Services Block Grant as a “new freestanding” block grant repealing Title XX social services and training, the Child Abuse Preven­ tion, Adoption Reform , and Runaway and Homeless Youth Acts, and seven titles of the Com m unity Services Act. See H .R. Conf. Rep. No. 208, 97th C ong., 1st Sess. 989 (1981). The conference agreement, however, was to a more modest block grant, am ending Title XX to form a new block grant, which “generally follows the Senate am endm ent,” although not incorporating child welfare, foster care, and adoption assistance programs. See id. at 991. In the conference report’s rather detailed com parisons of the House and Senate versions, there is no reference to the absence of a nondiscrimination provision. Nor was there floor debate over inclusion or deletion of such a provision. Thus, like the Education Block G rant, it is unclear whether Congress intentionally deleted the non­ discrimination provision or merely enacted a different block grant that contained no such provision. Because of the enactment of a substantially different block grant from the one that contained a nondiscrimination provision, and in light of the absence of any reference to a “deletion” of the nondiscrimination provisions, and the presence of another plausible interpretation of any “deletion,” it is at best uncertain whether Congress intentionally “deleted” the nondiscrimination provi­ sions to make them inapplicable. It is as appropriate to conclude merely that Congress enacted a block grant silent as to their applicability. Therefore, the absence of the provisions from the final version, under these circum stances, provides no more than highly equivocal support for finding an implied “repeal” or “am endm ent,” when much clearer support is required. See Allen v. McCurry, 449 U .S. 90, 99 (1980). (3) Conclusion Regarding Intentional Deletion o f Nondiscrimination Provisions We conclude, therefore, that Congress’ intention to make the nondiscrim ina­ tion statutes inapplicable is at best ambiguous insofar as the finding of such an intention relies on the apparent “deletion” of nondiscrimination provisions from prior versions of these two block grants. There is no indication that Congress gave any thought to such a “deletion,” and the absence of nondiscrimination provisions is as consistent with a congressional determination to leave existing 109 law intact as it is with an intention to exempt the block grants from the four cross­ cutting statutes. D . Conflict Between the Block Grants and the Nondiscrimination Statutes Because there is no clear indication of congressional intent to make the nondiscrim ination statutes inapplicable to program s or activities funded by the Education and the Social Services Block G rants, they should be considered to be inapplicable only if there is an irreconcilable conflict between the block grants and the nondiscrim ination statutes. Your m emorandum suggests an important ground upon which the block grants and the nondiscrimination statutes may be in conflict: C ongress’ intent in enacting block grants to free the states of “federal encum brances and regulations other than those specifically imposed by the A ct.” To apply the nondiscrimination provisions, it is suggested, would be directly contrary to the intent. We have found no meaningful evidence, however, that the nondiscrimination statutes are the kinds of federal “interference” with which Congress or the Adm inistration was concerned. To reduce bureaucratic overhead and permit the states to set their own program priorities, the Education Block Grant expressed the intent in C hapter 1 that th e design and implementation c f the programs authorized under that Chapter be “mainly that of local educational agencies, school superintendents and principals, and classroom teachers and supporting personnel, because they have th e most direct contact with students and are most directly responsible to parents.” § 561(b) (emphasis added). In Chapter 2, C ongress directed that the Secretary issue no regulations in most matters “relat­ ing to the details o f planning, developing, implementing, and evaluating pro­ gram s and projects by state and local educational agencies.” § 591 (b) (emphasis added). The Social Services B lock Grant is intended to “increase State flex­ ibility” in furnishing social services directed at five goals. § 2352 (§ 2001). C ongress’ focus therefore appears to have been on reducing “those detailed requirem ents and instructions on how to conduct program s,” see 127 Cong. Rec. H 5796 (daily ed. July 31, 1981) (remarks of Rep. Ashbrook) (emphasis added), which force the states to spend great amounts of time and energy on federally im posed program details. As Senator Hatch, a strong proponent of block grants, said, the objection to categorical programs is the involvement of the federal bureaucracy in their administration. See note 16, supra. Block grants are intend­ ed to effect a significant reduction in this involvement. T he nondiscrim ination statutes clearly im pose regulatory burdens on fund recipients and decrease the “flexibility” of those recipients to the extent they would choose to use federal funds in a m anner otherwise prohibited by the cross­ cutting statutes; that is, by expending the money in ways that discriminate on the basis o f race, sex, age, or handicap. We believe, however, that this apparent conflict does not actually make the cross-cutting statutes and the two block grants irreconcilable, particularly when every attem pt must be made to read the two sets of statutes in a way that permits each to be effective. See, e.g., Morton v. 110 Mancari, 417 U .S. at 551. In applying NHPA and NEPA to a block grant, the Fourth Circuit stated, “ in the absence of unmistakable language to the contrary, we should hesitate to read the congressional solution to one problem— protection of local police autonomy— so broadly as unnecessarily to undercut solutions adopted by Congress to preserve and protect other societal values, such as the natural and cultural environm ent. It is not to be assumed lightly that Congress intended to cancel out two highly important statutes without a word to that effect.” Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971).24 The same analysis can be applied to this case. The congressional solution to the problem of excess federal involvement in matters of program choice and administration need not be read so broadly as to encompass in the concept of “program administration” the freedom to' discrim inate on otherwise prohibited grounds or to operate programs free from existing regulations regarding the nondiscrimination statutes. We believe, instead, that it is more likely that the lessened federal involvement anticipated by Congress was to be achieved by allowing state and local authorities to choose how best to use their allocations in programs or activities best suited to the needs of their citizens.25 There are several indications that this interpretation is consistent with con­ gressional intent. Clearly, the Administration believed that its block grants were capable of coexisting with nondiscrimination provisions, because the Admin­ istration’s own proposals assumed applicability of the nondiscrimination stat­ utes. There is no indication in the legislative history that Congress itself initiated any effort to eliminate or cut back on the operation o f the nondiscrimination statutes with respect to block grants. In fact, the two block grants enacted are described in the legislative debates as “more modest” in terms of centralizing, consolidating, and decreasing federal involvement than those proposed by the Administration. In the numerous attempts to explain the advantages of block grants as m inim izing federal interference and maximizing state flexibility, the nondiscrimination provisions were simply not at issue. Moreover, all the block grants share these goals of increased efficiency, decreased regulation, and increased local autonomy, including the six containing nondiscrimination provi­ sions. It thus does not appear that application of the nondiscrimination provisions is inherently inconsistent with the block grant concept. It is difficult to conclude, 24 Ely v Velde relied on the fact that the S afe S treets Act had as a dom inant concern not m erely th e “ sim ple desire to give the states m ore latitude in the spending o f federal m oney," but also “to guard against any tendency tow ards federalization o f local police an d law enforcem ent agencies " A pplication o f NHPA and NEPA d id not th reaten federalization o f local police effo rts See 451 F 2 d at 1136 A lthough the question before the court in Ely is not identical to the question b efo re u s, we think it is sim ilar to the extent that the block grants not on ly reflect co n cern about w ho decides how to spend federal money but also reflect concern that the federal governm ent not be involved in the details o f program administration, w hich are m ore appropriately left to local decisionm akers. 25 This appears to be consistent w ith the P resident’s understanding o f the value of block grants. See Interview w ith the President, 17 W eekly C o m p Pres D oc. 1326-27 (D ec 7 , 1981)* Now, having been a G overnor, I can tell you w hat th e categorical grants do. They com e to you with Federal money, but w ith enorm ous am ounts of redtape and regulation prescribing exactly what the priorities are and how this money must be spent W ell, no one in W ashington can set rules o f that kind that will fit N ew York C ity and som e sm all tow n in the urban area or a city in the South that d o esn ’t have the sam e problem s or the W est S o , it m akes these program s needlessly extravagant. (E m phasis added ) in therefore, that Congress viewed the nondiscrimination statutes as inconsistent with its purpose in enacting block grants. The policy disfavoring “repeals” or “am endm ents” by implication is par­ ticularly applicable when the allegedly repealed provision is a longstanding, important com ponent of a governm ent program . See Morton v. Mancari, 417 U .S. 535, 550 (1974). The cross-cutting statutes clearly represent important federal nondiscrim ination policies of broad applicability. It is difficult, if not im possible, to believe that Congress would choose to alter such fundamental policies without any discussion, and in the context of debates over the block grants, which focused on different concerns unrelated to the policies embodied in the nondiscrim ination laws. Because the policies inherent in the nondiscrim ina­ tion statutes and the block grants may be reconciled without apparent serious dam age to either, as indicated by the fact that other block grants and the Adm inistration’s own proposals specifically adopted nondiscrimination provi­ sions— in fact, added to the categories of prohibited discrimination— the non­ discrim ination statutes should be considered to apply to the block grants. See, e.g ., Morton v. Mancari, 417 U .S. 535; Ely v. Velde, 451 F.2d 1130.26 VI. Conclusion The circum stances surrounding enactm ent of the two block grants, as well as the purposes for which they were enacted, do not reveal a congressional intention ’.o make the nondiscrim ination statutes inapplicable to the Education and the Social Services Block Grants. The nondiscrim ination statutes were intended to be statem ents of national policy applicable to all programs or activities receiving federal financial assistance, freeing Congress from the need to give subsequent consideration to their applicability on a program-by-program basis. Block grant funding falls w ithin the literal term s of those statutes, and the nondiscrimination statutes should therefore be applied to these two block grants unless Congress actually intended otherwise, or unless the block grants and the nondiscrimination statutes cannot be reconciled so as to give effect to all. That Congress failed to include nondiscrimination provisions in the two block grants does not support a finding of an intention to m ake Title VI, Title IX, Section 504, and the Age Discrim ination Act inapplicable: The nondiscrimination statutes do not require specific reference in funding legislation; Congress may have included non­ discrim ination provisions in other block grants to effect changes in existing discrim ination law; and Congress’ failure to include nondiscrimination provi­ sions in the two block grants can be interpreted as an expression of intent to have *ISWe believe that this conclusion is not in consistent w ith Pennhurst State School & Hospital v Halderman, 451 U S . I (1981). in w hich the C o u rt stated that “ C ongress m ust express clearly its intent to im pose conditions on the grant o f federal funds so that the States can know ingly decide w h eth e r o r not to accept those fu n d s.” Id. at 24 In the four cro ss-cu ttin g nondiscrim ination statutes them selves. C ongress had clearly expressed its intent that they apply generally to all p rogram s o r activities rece iv in g federal financial assistance. See 1 10 C ong. Rec. 7063 (1964) (rem arks o f S en. fo sto re ) (T itle VI fixes th e conditions under w hich federal m oney is d istrib u ted ’ “ N o one is required to accept F ederal assistance or F ederal funds If anyone does so voluntarily, he m ust tak e it on the con d itio n s on w hich it is offered "). / 112 existing law apply. Finally, the block grants and the nondiscrimination statutes are not so irreconcilable that both cannot be given effect. In light of the fundamental expression of congressional intent underlying the nondiscrimination statutes, it should be presumed that Congress would have debated or made specific its intent to change their applicability. As long as it did not do so, and in light of the several possible reasons for its failure to include independent nondiscrimination provisions, we conclude that the nondiscrim ina­ tion provisions of Title VI, Title IX, Section 504, and the Age Discrimination Act apply to the Education and the Social Services Block Grants. T h e o d o r e B. O l s o n Assistant Attorney General Office c f Legal Counsel 113

Write a legal research memo on the following topic.

Payment of Private Counsel Fees Under the Department of Justice Representation Program W h e th e r fee sta te m e n ts su b m itted to th e g o v e rn m e m by p riv a te counsel retain ed to rep re sen t a g o v e rn m e n t e m p lo y e e m ay be disclosed to the public w ith o u t v iolating ap p licab le eth ical sta n d a rd s d e p e n d s upon the facts o f each case. T h e g o v e rn m e n t’s p ra c tic e o f p ay in g som e fees and expenses c h a rg e d by p riv a te counsel but not p ay in g o th e rs d o es n ot p resent a substantial eth ical question, as long as the p ra c tic e is c learly u n d e rsto o d by the em p lo y ee-clien ts and th eir p riv a te atto rn ey s. F ebruary 7, 1980 M E M O R A N D U M O P IN IO N F O R T H E A S S IST A N T A T T O R N E Y G E N E R A L , C IV IL D IV IS IO N W hen a governm ent em ployee is sued personally for som ething he did or om itted to do in the course o f his employm ent, he can usually turn to the Civil Division for help. T he Civil Division will assign one o f its ow n attorneys to defend him, or in some circum stances it may recom m end that he retain private counsel at governm ent expense.1 The conditions under w hich private counsel may be retained are set forth generally in the so-called “ Representation G uidelines.” See 28 C.F.R. §§ 50.15, 50.16. In the usual case, the precise term s and conditions of any fee agreem ent betw een private counsel and the G overnm ent are described in a w ritten contract signed by the Assistant A ttorney G en­ eral and the participating firm. As a m atter o f billing practice, the Civil Division requires all private attorneys participating in the representation program to submit m onthly fee statem ents to the Civil Division that describe in detail the services for w hich they seek compensation. T he attorneys have com plied with this requirem ent in the way that attorneys usually com ply with the demands o f an impecunious client w ho questions a fee: they have furnished the Civil Division w ith actual time records or other relatively raw and explicit descriptions o f how they spent their time. 1 In a series o f recent opinions rendered at the request o f the Civil Division, this O ffice has discussed the legal basis for the practice o f using governm ent attorneys and private attorneys to provide governm ent em ployees w ith free legal representation to p rotect their personal interests in civil litigation. G iven the perplexing questions that have been generated by those opinions and the practices they authorize, we express no view , for purposes o f this opinion, on the question w hether these practices o u g h t to be modified. 388 Because o f the large am ount of money that is being paid out in fees under the representation program , the Civil Division has determ ined that the public has a legitimate interest in knowing how this money is being spent. A ccordingly, the Civil Division has made available to the public much o f the relevant information. It has disclosed: (1) the iden­ tity o f each law firm participating in the program ; (2) the aggregate amount paid annually to each law firm under the program ; and (3) the basic terms o f the standard fee arrangement, including the agreed hourly rate. M oreover, despite the objection o f some o f the participat­ ing firms, the Civil Division has given some thought to the possibility o f releasing additional information, including the detailed records and descriptions of the services rendered by the participating firms. You have requested our views regarding the ethical aspects of such an undertaking. Is there anything in the Code o f Professional Responsibil­ ity that would prevent the Civil Division from disclosing information of that sort? 2 You have asked a second question that involves a related problem. On occasion, the Civil Division declines to pay for some o f the services for which firms seek compensation. F o r example, it will usually decline to pay for services rendered in connection with a counterclaim or ancillary “affirm ative” litigation. It may also decline to pay certain extraneous expenses (e.g., “entertainm ent” expenses). As a m atter of policy, the Civil Division has never refused to pay for services ren­ dered in connection with the developm ent o f an actual defense that was asserted in litigation, even though the defense may appear in retrospect to have been a waste o f time and therefore not “ reasonably necessitated by the defense” within the meaning o f the fee agreem ent. But because the decision concerning payment vel non may carry some potential for influencing the attorneys in the conduct o f their representation, and because the Canons generally require attorneys to exercise independent professional judgm ent on behalf o f their clients w ithout regard to eco­ 2 Y our question assumes that this D epartm ent has discretion to w ithhold this inform ation under the Freedom o f Inform ation A ct (F O IA ). W e express no view on that question, except to say in passing that there is probably a rough congruence betw een the relevant ethical concerns and the relevant F O IA considerations. If there is a solid ethical reason for delaying o r denying disclosure in a particular case, an exem ption from m andatory disclosure may be available under FO IA . Likewise, y our question assumes that there is no statutory bar to disclosure and that the Civil Division is legally free to disclose this inform ation if it can do so ethically. Because this inform ation relates to financial m atters and in some instances may reveal m ethods of professional operation not ordinarily made public in the course o f the attorney-client relationship, som e consideration ought to be given to the applicability in this context o f 18 U.S.C. § 1905, w hich bars public disclosure o f certain kinds of confidential business inform ation that com es into the hands o f governm ent officers by virtue o f reports and o th e r submissions from the private sector. T he recent decision in Chrysler v. Brown, 441 U.S. 281 (1979), is obviously relevant here, as will be the position taken by the G overnm ent regarding the scope and applicability o f § 190S on the rem and in that case. T h ere is very little legislative history relevant to § 1905. W e express no firm view regarding its applicability in this context. W e should say, how ever, that in o ur opinion there is a substantial question w h eth er C ongress intended this statute to subject governm ent officers to crim inal liability for disclosing to the public the am ount o f public m oney expended under governm ent co n tracts o r the nature o f the services provided the G overnm ent in return. 389 nomic o r o ther pressures exerted by third parties, you have asked w hether this practice o f paying some fees and expenses and not paying others, presents any ethical difficulty. O ur views on both questions are set forth below. I. The Ethics of Disclosure T he attorneys them selves have suggested that public disclosure o f the detailed billing inform ation may violate Canon 4 o f the Code. Canon 4 requires all attorneys to preserve the “confidences” and “secrets” of their clients. T he attorneys have argued that the fee statements submit­ ted to the Civil Division under the representation program do indeed contain the “confidences” and “secrets” o f the em ployee-defendants and that these “confidences” and “secrets” must be preserved. W e have three observations to make on this point: First, to the extent, if any, that these billing materials do contain “confidences” o r “secrets” within the scope o f Canon 4, we think this D epartm ent should preserve those confidences or secrets and should not disclose them publicly w ithout the consent o f the employees. We recognize that these em ployees are not the “clients” o f this D epart­ m e n t W e cannot say that public disclosure o f their confidences or secrets by the Civil Division w ould violate the letter o f the relevant disciplinary rules. But we think that disclosure would be inconsistent w ith the spirit o f Canon 4 and w ith the purposes o f the representation program itself. T he w hole purpose o f that program is to provide gov­ ernm ent employees w ith legal representation, and one o f the essential characteristics o f legal representation is that it protects the client’s interests by preserving his confidences and secrets. If the Civil Division w ere representing these people directly, Canon 4 w ould prevent it from disclosing their confidences or secrets.3 It seems to us that the practice should be the same w hen the Civil Division chooses to provide repre­ sentation indirectly. In both cases the purpose o f the exercise is to protect interests o f governm ent em ployees, not to expose their confi­ dences and secrets to the public.4 3 T h e general question w h eth er a go v em m en i law yer is ev er perm itted o r required by law o r the ethics o f his profession to disclose em barrassing, detrim ental, o r incrim inating inform ation concerning fellow em ployees w h o com e for legal advice o r professional help is a com plex one. T here are many different circum stances in w hich th e issue can arise, and the answ er can differ from case to case. We think it clear, ho w ev er, that w hen an atto rn ey from th e C ivil Division is assigned to appear as the atto rn ey o f reco rd for a governm ent em ployee w h o has been sued personally in a civil case, the atto rn ey 's d u ty under the C o d e (and therefore under departm ental regulations) is to preserve the confidences and secrets o f the client. See. e.g.. O pinion 73-1 o f the Professional E thics Com m ittee, Federal B ar A ssociation, 32 Fed. B. J. 71 (1973); A B A C om m , on E thics and Professional Responsibil­ ity, Inform al O p. 14)3 (1978). T h a t has been the traditional view o f this Office. 4 T h e basic justification for any discretionary disclosure o f the billing inform ation, including disclo­ sure o f any actual confidences o r secrets, is that disclosure will enable the public to m onitor the expenditure o f g o vernm ent resources. But g o vernm ent resources are expended w hen C ivil Division atto rn ey s provide representation directly. T h e only econom ic difference betw een direct representation and indirect representation is the difference betw een paying a salary and paying a fee. It is difficult to see h o w that difference can perm it the preservation o f secrets in the one case and require disclosure in the other. 390 Second, Canon 4 is designed to protect clients, not attorneys. If a client has no objection to a disclosure o f billing information, his attor­ ney has no reason to resist disclosure insofar as Canon 4 is concerned. Therein lies a possible solution to your problem. Most o f these employ­ ees will ultimately have no interest w hatever in preserving the confi­ dentiality o f the great bulk o f the billing information in question here. If they are requested at the proper time to review these docum ents with an eye to identifying those parts, if any, that record the substance o f confidential attorney-client com munications o r secret m atters that would be embarrassing or dam aging to their interests if disclosed, they may well be in a position to approve the disclosure o f all the rest. W e are not suggesting that they be asked to “ w aive” their right to protect embarrassing confidences or secrets, only that they be asked to review the relevant materials and separate the wheat from the chaff.5 T he ultimate substantive question, o f course, is w hether these docu­ ments do in fact contain “confidences” or “secrets” falling within the scope o f Canon 4. O ur reluctant conclusion is that this question cannot be answered categorically. It must be answered on a case-by-case basis after an examination o f each docum ent in light o f all the facts o f each case. We realize that this conclusion is an aw kw ard one from an administrative standpoint, but we see no way around it. W e will elabo­ rate briefly. Canon 4 protects tw o categories o f information against nonconsensual disclosure: (1) inform ation within the scope o f the evidentiary privilege for confidential com m unications between attorney and client (as defined by local law); and (2) a broader category o f “secret” information gained by an attorney from w hatever source “ in the profes­ sional relationship,” the disclosure o f w hich would be detrim ental to, or contrary to the wishes of, the client. Inform ation relevant to the nature and scope o f professional services rendered by an attorney for a client does not invariably fall into either o f these categories; and in o u r .view there are many circum stances in w hich it may be disclosed for any proper purpose w ithout raising ethical questions. This is frequently true with respect to services o f the kind that are o f concern to the Civil Division here, i.e., services rendered by attorneys o f record in actual litigation. T he point is a simple one. D uring litigation a great deal o f information about the client’s affairs, the scope o f the attorney’s em­ ployment, and the services rendered by him in the course o f the case is disclosed publicly as a m atter o f course; and m uch o f the undisclosed detail can be revealed, at least by the end o f the case, w ithout betraying the substance o f any privileged com m unication and w ithout disclosing * W h eth er at this late date their willingness to undertake such a review in good faith could be m ade a precondition to final reim bursem ent o f th eir attorneys is a question that depends entirely on an interpretation o f the co n tracts betw een the atto rn ey s and the C ivil Division. W e express no firm view on that question. W ith respect to future contracts, it may w ell be that som e thought should be given to establishing explicitly, by con tract, a review pro ced u re o f this kind. 391 any other “secret” that carries real potential for embarrassment to the client. Consider the following example: An attorney is retained to defend a tort case. He spends one hour interview ing the client, one hour prepar­ ing and filing an answer to the com plaint, tw o hours researching the applicability o f the relevant statute o f limitations, 30 minutes preparing a motion for summary judgm ent, six hours sitting in the courthouse, and 15 minutes arguing and winning the motion. It is possible that all of that information can be disclosed publicly at the end o f the case w ithout betraying any privileged com m unication,6 and because so much o f the relevant information is publicly available anyway, it is extrem ely unlikely that any other “secrets” relevant to the nature and scope o f the services perform ed w ould be em barrassing or harmful to the client if disclosed. W hen the w orld already knows that the attorney filed a motion for summary judgm ent on the client’s behalf, it does not hurt or embarrass the client for the w orld to learn that the attorney spent 30 minutes preparing that motion. On the other hand, it is clear that inform ation protected by Canon 4 can find its w ay into billing records. T he classic example is the diary entry that records the substance o f a confidential communication: “Tenm inute conference with client concerning possible divorce ” M ore fre­ quently, a billing record may contain a description o f actions taken by the attorney on the client’s behalf that should remain “secret” if the client’s interests are to be served. F o r example, if a defense attorney records in his diary that he has just spent tw o hours researching and 6 T h e attorney-client privilege pro tects the confidentiality o f inform ation obtained by the attorney from confidential com m unications w ith his client. G enerally speaking, it does not protect information obtained from o th er sources. Inform ation about the nature o f the services rendered by an attorney for a client is generated by the atto rn ey himself. He does not obtain it from his client, and he can often disclose it w ithout betraying the substance o f anything his client told him. T hat is the reason for the traditional view that an atto rn ey can “ usually” o r “o rd in arily ” disclose the nature o f the services he perform s for his client (e.g., 5 hours deposing piaintiff, 20 hours preparing for trial) w ithout disclosing anything p rotected by the privilege. See. e.g., Behrens v. Hironimus. 170 F.2d 627, 628 (4th Cir. 1948); 2 Louisell & M ueller, Federal E vidence 540-41 (1978). M oreover, the fact that the atto rn ey may at som e later d ate com m unicate inform ation concerning the nature o f his services to his client (in a bill, for exam ple) does not make the inform ation itself privileged. T h e m odern view is that th e privilege extends to confidential com m unications from a tto rn ey to client, ju st as it extends to confidential com m unications from client to attorney; but the privilege pro tects the confidentiality o f communications, not facts themselves. If a.i attorney believes that the sky is blue and advises his client to that effect, th e privilege prevents him from betraying his advice, but it does not prevent him from giving the sam e ad v ice—com m unicating the same fact—to the w orld at large. If the fact in the mind o f the atto rn ey is accessible to exam ination and disclosure before its com m unication to the client, it remains accessible afterw ards, though o f course there can be no dem and for disclosure o f the com m unication itself. See 2 Louisell Sl M ueller, Federal Evidence 540 (1978). T h e traditional interpretation o f the ethical d u ty o f an a tto rney to preserve the confidences o f his client w as tied to this concept o f privilege. T hus it w as th o ught that an attorney could ethically disclose the nature o f services rendered for a client, since that inform ation is not acquired by the a tto rn ey from a confidential com m unication w ith the client and may be otherw ise accessible to exam ination and disclosure w ithout betraying anything that passed betw een attorney and client. ABA Com m , on Professional E thics and G rievances, Form al Op. 154 (1936). T his view o f the ethical obligation does not, o f course, take into account the expanded scope o f the disciplinary rules, w hich pro tect, not only confidential com m unications, but “secrets" obtained from any source in the profes­ sional relationship. 392 preparing a motion to dismiss the com plaint for insufficiency o f process, that information should not be disclosed to the other side prior to the filing of the motion, since prem ature disclosure would deprive the client o f a legitimate tactical advantage in the litigation. We think it would be not only unprofessional but also unethical for an attorney to make a prem ature disclosure o f that sort, absent some adequate justifi­ cation. The disclosure would trench on Canon 4 and on Canons 6 and 7 as w ell.7 We can summarize our views on the question o f disclosure in the following way. It is unlikely that very much o f this billing information discloses the substance o f privileged communications o r any other “secrets” that would be embarrassing or detrim ental to any o f these employees if disclosed, but the ethical and policy questions that would be presented by a disclosure o f any given docum ent cannot be an­ swered w ithout examining that docum ent and determ ining w hether in fact it contains confidential or secret m atter protected by the Canon. The administrative difficulty o f attem pting to make that sort o f determ i­ nation in each case is obvious, and it is com pounded by the fact that the determination probably cannot be made prudently w ithout consulta­ tion with the attorney and the employee whose interests are at stake. T here is no litmus test. T he significance of a billing docum ent to a client depends on w hat the client’s interests are and on all the other facts and circumstances o f the case. T he unfortunate truth is that he and his attorney are the ones w ho understand those interests and those facts best. This brings us to the suggestion that we have already made. A t the end o f each o f these cases the Civil Division will be in a position to submit all the relevant billing records to the employee-client and to request that he determ ine w hether, in the light of: (1) the disposition o f the case; and (2) any liabilities or embarrassments that may yet be his, the records reveal anything that would be detrim ental to his interests if disclosed. T he objectionable parts can be redacted. T he rest can be disclosed w ithout provoking ethical concerns.8 7 Loss o f advantage in the litigation in w hich services are rendered is not o f course the only sort o f harm that can result from untimely disclosure o f professional services. F o r exam ple, if a corporate client is subject to regulation by an agency before w hich an atto rn ey practices, the very fact that the attorney has been retained by the client and has perform ed services for the client could, if know n to the agency, direct the agency’s attention to the client's affairs, causing expense and inconvenience; and there may be circum stances in w hich the atto rn ey could not ethically disclose inform ation o f that sort w ithout adequate justification. See O pinion No. 58, Com m ittee on Legal Ethics, D istrict o f C olum bia Bar. 8 In registering their objection to disclosure o f these materials, the attorneys have made at least three argum ents not <jiscussed in the preceding paragraphs. N one o f these argum ents alters o u r view o f the ethical question o r affects o u r advice to you. (1) Some o f the attorneys have argued that these billing materials, being inter-attorney com m unica­ tions relevant to litigation in w hich the U nited States has an interest, are w ithin the traditional rule that extends the attom ey-client privilege to com m unications betw een tw o or m ore attorneys w ho confer to prom ote the com m on interests o f their clients. T hat argum ent does not wash. E ven if one w ere willing to assume that these attorneys are som ehow representing th eir clients (not them selves) C onlinued 393 II. Paying Some Fees and Expenses but Not Others W e think that the practice o f paying some fees and expenses but not others presents no substantial ethical question. W e are assuming o f course that in all o f these cases the clients as well as their attorneys, after full disclosure o f the D epartm ent’s potentially conflicting interest, w ere made to understand w hat is stated explicitly in the fee contract itself: (1) that the clients and their attorneys are entirely free to deter­ mine what sort o f legal services ought to be perform ed on the client’s behalf; (2) that this D epartm ent will pay for some o f those services, but it may not pay for others; and (3) that if a client wants his attorney to render legal services for w hich the D epartm ent will not pay, he and his attorney must reach their ow n understanding regarding the fee, if any, that the attorney will charge. As long as all o f these points are under­ stood by the parties in interest, the fee arrangem ent is not unethical, in our view. A close analogy to this sort o f arrangem ent can be found in the private sector. It is quite com m on for liability insurance carriers to agree to pay for legal services reasonably necessitated by the defense of claims against their policyholders, even though the interest o f the carrier and the interests o f the policyholder are rarely identical. M ore­ over, it is usually made quite clear that the carrier will pay for some kinds o f services, but not others (e.g., the carrier usually will not pay for services rendered in connection w ith a counterclaim ). F or both o f w hen they submit these billing materials to the Civil Division, one w ould be hard put to conclude that these com m unications are for the purpose o f prom oting any “com m on interest” as betw een their clients and the U nited States w ithin the meaning o f the rule. It may be true that the U nited States has a general interest in providing legal representation for its em ployees, just as it has an interest in paying their salaries and in doing o th e r things that encourage people to enter governm ent service. But a dem and for paym ent o f a fee (w h eth er m ade directly o r th ro u g h an attorney) is a classic “a d v e rsa ria r demand. It does no m ore to prom ote a “com m on interest” as betw een the G overnm ent and a governm ent em ployee than w ould, say, a dem and for back salary. T hat it may be com m unicated to attorneys in the Civil Division w hile o th er attorneys in the Civil Division are representing the United States in the litigation out o f w hich the dem and arises is simply a com m entary on the peculiar w a y 'th e G overnm ent is forced to do business in these cases. T hat fact does not, in o u r view, enhance (or diminish) the privileged status o f w hat these materials contain. (2) Som e o f the attorneys have argued that these materials are “attorney w ork p roduct.” T here is authority that information contained in law firm statem ents may indeed, in proper circum stances, be regarded as “ attorney w ork p ro d u c t” and therefore privileged, at least for FO IA purposes. See Indian Law Resource Center v. Department o f Interior, A l l F. Supp. 144 (D .D .C . 1979). But our view o f the present case is that “w o rk -p ro d u ct” status o f these billing m aterials (if any) has no direct bearing on the ethical question o f discretionary disclosure. W h eth er o r not this inform ation was generated “ in anticipation o f litigation o r for trial,” w h eth er o r not it reflects the “ mental im pressions,” etc. o f these attorneys, the ethical question is simply w h eth er it discloses the confidences o r secrets o f the clients w ithin the meaning o f the Canon. T hat question turns upon the considerations discussed above. It does not turn upon Rule 26 o f the Federal Rules o f Civil Procedure. (3) Finally, some o f the attorneys have argued that discretionary disclosure o f these m aterials is prohibited by the Privacy A ct. W e have conferred w ith the Office o f Inform ation Law and Policy (O IL P ) on this question. T hey have expressed doubt that these records, w hich are filed and retrieved by the name o f the law firm that subm itted them, constitute a “system o f records” w ithin the meaning o f the A ct. See 5 U.S.C. § 552a(a)(5). M oreover, believing that there may be only a very slender basis for claim ing a FO IA exem ption for disclosure o f properly redacted billing m aterials at the end o f each case, O IL P is inclined to the view that the Privacy A ct is probably irrelevant anyw ay. It does not, o f course, forbid any disclosure that is m andated by F O IA . See 5 U.S.C. § 552a(b)(2). 394 these reasons, the tripartite fee arrangem ent harbors some potential for abuse, and it does in fact give rise to unethical conduct from time to time. But the traditional view has been that such an arrangem ent is not unethical in itself and that abuse can be avoided by firmly maintaining the principles that: (1) the attorney has the responsibility for acting solely in the interests o f his client, notw ithstanding the interests o f the com pany that pays his fee, see EC 5-23; and (2) the client must be free, and must be made to understand that he is free, to make other arrange­ ments, either with that attorney or with other attorneys, if it appears that services in addition to those paid by the com pany are necessary or desirable from his standpoint. Cf. D R 5 - 105(C). W e do have one suggestion regarding a technical point. T he standard contract that the Civil Division uses in the representation program is bilateral in form. It is a contract through which the D epartm ent o f Justice “retains” a private attorney to represent a governm ent em ­ ployee. It seems to us it would be helpful, both from the standpoint of the disclosure problem and from the standpoint o f preserving the inde­ pendence of private counsel, if this contract could be recast. Unless there is some reason to exclude the em ployee,9 he ought to be made a party; and the contract could then provide: (1) that he, the employee, has asked a private attorney to represent him, inasmuch as the D epart­ ment, for professional reasons, cannot; (2) that he and his attorney will determ ine w hat sort o f legal services need to be perform ed on his behalf; (3) that he and his attorney have entered into a collateral agreement with this D epartm ent regarding paym ent o f some, but per­ haps not all, o f the fees generated during the course o f this representa­ tion; (4) that if the employee and his attorney feel that services are desirable for w hich the D epartm ent will not pay, they must make their own arrangem ent regarding the fee; and (5) that he has entered into an agreem ent with this D epartm ent regarding the handling o f his confi­ dences and secrets and the disclosure o f billing information submitted to this D epartm ent by his attorney. M uch o f this is in the agreem ent already, but it seems to us that if the employee w ere inserted formally, it would be relatively easy to spell out the precise nature o f the rights and obligations o f all three parties and to deal directly with the sorts o f questions that have prom pted your ethical concerns. John M. H arm on Assistant Attorney General Office o f L egal Counsel 9 W e have review ed past O ffice o f Legal Counsel opinions on the question o f the authority o f the D epartm ent to contract w ith private attorneys to provide legal representation for governm ent em ploy­ ees. W e are unaw are o f any legal consideration that requires the exclusion o f the employee. 395

Write a legal research memo on the following topic.

Issuance of Passports to Aliens to Facilitate “Sting” Operation by State Department Inspector General The Department of State has authority to issue passports to aliens for the purpose of facil­ itating a “sting” operation conducted by the Department of State Inspector General. March 13, 1989 M emorandum O pin ion for the L egal A dvisor D epartm ent of S tate This responds to your request as to whether the Department of State has the authority “to issue U.S. passports to aliens to facilitate U.S. law enforcement and intelligence operations.”1You have previously advised the Deputy Secretary of State that in your opinion “there were no legal constraints to the issuance of U.S. passports to aliens to facilitate a Department of State Inspector General ‘sting’ operation.” Letter at 1. Contrary to that view, the Bureau of Consular Affairs (“CA”) at the Department of State appears to take the position that it is prohibited by 22 U.S.C. § 212, among other statutes, from issuing passports to those who do not owe their allegiance to the United States, even to facilitate law enforcement efforts.2 CA also relies in part on a statement in a 1977 OLC opinion permitting “false statements by CLA employees to obtain passports in alias and the use of passports so obtained, where neces­ sary to their otherwise lawful functions.”3 That opinion went on to 1Letter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from Abraham D Sofaer, The Legal Advisor, Department of State at 1 (Feb. 11, 1989) (“Letter"). Although the stated ques­ tion concerns issuing U S passports to aliens for both law enforcement and intelligence operations, we here address only the use of alias passports to aliens m law enforcement operations. As we understand it, the purpose of the Inspector General’s investigation is to detect the “subornation of a U.S. consular officer and a large network of fake passport brokers.” Action Memorandum for the Deputy Secretary of State, from Sherman M Funk and Abraham D. Sofaer, Re Passports f o r IG Investigation at 1 (Sept. 20, 1988) (“Action Memorandum”) A technical violation of the law by the sovereign in order to enforce the law seems to us a different question than violation of the law to achieve unstated intelligence objectives. Because the goal of the proposed “sting” operation is quite plainly to enforce the law, we address that question only. Should you wish us also to address the question of the legality of the use of such passports in intelligence operations, we will undertake to answer this question, which appears to be one of first impression for us. 2 Memorandum for Judge Abraham D Sofaer, from Joan M Clark, Re. Request fo r a Legal Opinion From the Department o f Justice, attached to Letter at Tab 2 3 Letter for Anthony A. Lapham, General Counsel, Central Intelligence Agency, from John M Harmon, Acting Assistant Attorney General, Office of Legal Counsel at 13 (Mar 24, 1977) (“Harmon Opinion"). 68 state, however, that “[o]nly United States nationals ... may obtain pass­ ports.” Id,4 We believe that the reasoning of a previous opinion of this Office per­ mits the issuance of passports to facilitate an IG sting operation. See Visa Fraud Investigation, 8 Op. O.L.C. 284 (1984). That opinion concludes that the United States officials may issue visas to aliens statutorily ineli­ gible to receive them in order to facilitate undercover operations for enforcement of our criminal laws. The statements from other OLC opin­ ions on which CA relies are taken out of context and do not in fact address the question of whether passports can be issued to aliens for law enforcement purposes. Accordingly, we do not believe that there is a con­ flict between the 1984 Opinion and any prior opinion of this Office. In 1984, this Office opined that “the Department of State may issue a visa to an ineligible alien in order to facilitate an undercover operation being conducted by the Immigration and Naturalization Service.” 8 Op. O.L.C. at 284. That judgment was based upon the rule, well-recognized by courts, that “it is generally lawful for law enforcement agents to disregard otherwise applicable law when taking action that is necessary to attain the permissible law enforcement objective, when the action is carried out in a reasonable fashion, and when the action does not otherwise violate the Constitution.” Id. at 287 (footnotes omitted). The prohibition at issue here is similar to the one discussed in the 1984 Opinion. There, where the purpose was to investigate an unlawful con­ spiracy to circumvent U.S. visa restrictions, we said the Department of State could issue a visa to a woman who was not an American citizen despite its knowledge that the marriage making her eligible for a visa was a sham. We said that the law banning consular officers from issuing visas to aliens that the officer “knows or has reason to believe ... [are] ineligi­ ble,” 8 U.S.C. § 1201(g)(3), did not bar the issuance of the visa to facilitate an effort to enforce the visa laws of the United States. 8 Op. O.L.C. at 288. Similarly, 22 U.S.C. § 212 makes it unlawful to give a passport to one who does not owe his allegiance to the United States.5 On its face, this would prevent State Department officials from giving a passport to an alien. But here, the alien is to be granted the passport — as was the case in the oper­ 4 CA relies as well on a prefatory statement in another 1977 OLC opinion. See infra note 7. 5 If a passport is characterized as a message to another government as to its holder's status, all deci­ sions regarding passports (as opposed to naturalization) may fall within the exclusive domain of the President. This is due to the President’s role as “the sole organ of the nation in its external relations, and its sole representative with foreign nations.” United. States v Curtiss-Wnght Export Coip., 299 U S 304, 319 (1936) (quoting 10 Annals of Cong 613 (1800) (Rep Marshall)) See Letter from Thomas Jefferson, Secretary of State, to Citizen Genet, November 22, 1793, 9 Writings o f Thomas Jefferson, 1789-1726 at 256 (Andrew A Lipscomb ed., Mem. ed. 1904) quoted in Edward S Corwin, The President• Office and Powers 1787-1984 at 208 (5th ed 1984) (The President is “the only channel of communication between the United States and foreign nations ”). Thus there is an argument (the validity of which we need not determine) that Congress may not restnct by statute the issuance of passports by the President or sub­ ordinates acting at his direction 69 ation approved in the 1984 opinion — to ensure that the passport laws of the United States are respected. This action, then, is consistent with the underlying purpose of the statute insofar as the short-term, controlled issuance of passports to aliens6 is actually to ensure that passports are being issued as a matter of general practice only to those statutorily enti­ tled to receive them. The issuance of the passports here may thus be said to be necessary to what is the functional equivalent of a legal audit of a consular official. We need not restate at great length the discussion of the caselaw and the analysis set forth in the 1984 Opinion, for it stands on its own and accurately reflects the views of this Office. It also accurately reflects the current law, best summarized by Judge Easterbrook in United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert, denied, 475 U.S. 1012 (1986). Upholding a conviction of Cook County judge who had accepted a bribe offered by an undercover government agent, Judge Easterbrook wrote that “[i]n the pursuit of crime the Government is not confined to behav­ ior suitable for the drawing room. It may use decoys, and provide the essential tools of the offense,” id. at 1529 (citations omitted). Other courts agree that the government may technically transgress the law in order to enforce it. See, e.g., United States v. Citro, 842 F.2d 1149 (9th Cir.) (government may supply counterfeit credit cards to uncover coun­ terfeit credit card scheme), cert, denied, 488 U.S. 866 (1988); United States v. Valona, 834 F.2d 1334 (7th Cir. 1987) (government agent may supply cocaine to uncover drug distribution racket); United States v. Milam, 817 F.2d 1113 (4th Cir. 1987) (government agents may sell coun­ terfeit currency to uncover scheme to distribute such currency); Shaw v. Winters, 796 F.2d 1124,1125 (9th Cir. 1986) (police officer may sell stolen food stamps to uncover fencing operation, stating “Government agents ... may supply the contraband which is at the heart of the offense”), cert, denied, 481 U.S. 1015 (1987). In addition, we do not believe that the 1984 Opinion contradicts the two previous OLC opinions on which CA relies. The question whether passports may lawfully be issued to aliens was not presented to the Office for decision in the Harmon Opinion. The “problem areas” identi­ fied by the FBI involved the “use [by the CIA] of forged birth certificates and false statements to obtain U.S. passports,” Harmon Opinion at 1, not whether passports could be issued to aliens. The sentence CA rests on — that “[o]nly United States nationals ... may obtain passports,” id. at 13 — accurately stated the relevant statutes, but neither considered nor discussed whether legitimate law enforcement objectives under controlled circumstances necessitate a technical departure from those statutes.7 0 We assume, therefore, that upon the successful completion of the sting operation the passports will be returned, or if not possible, that consular officials be notified not to accept them 70 In conclusion, we agree with you that CA may issue the passport requested by the Inspector General of the State Department for their lim­ ited and controlled use in the sting operation under the stated conditions — namely, that the Inspector General “work closely with CA to safeguard the passports, and to ensure strict compliance with CA’s procedural requirements.”8 D ouglas W. K miec Assistant Attorney General Office of Legal Counsel 7The second OLC opinion CA rests upon, issued in 1977 to the FBI on the use of government documents for undercover purposes, began by stating “(w]e assume for purposes of this opinion that only United States nationals acquire passports in alias in this manner.” Memorandum for Clarence M. Kelley, Director, Federal Bureau of Investigation, from John M Harmon, Acting Assistant Attorney General, Office of Legal Counsel at 1 (Feb 17, 1977) It is evident that this bnef statement, made in the nature of an introduction, was intended only to state the Office’s understanding of the scope of the request. The opinion was simply following the standard practice (followed in this memorandum as well) of setting forth at the beginning the question to be answered. The statement cannot be viewed as dispositive — or even persuasive — to the question now before us because the issue of whether passports could be given to aliens was not there presented or discussed 8Action Memorandum at 1. We have considered the issue presented with this limitation in mind. We do not here address the question of whether these passports may issue other than in compliance with CA’s procedural requirements and without adequate safeguards. 71

Write a legal research memo on the following topic.

Additional Questions Concerning Use of the EINSTEIN 2.0 Intrusion-Detection System The deployment of an intrusion-detection system known as the EINSTEIN 2.0 program on the unclassified computer networks of the Executive Branch is consistent with the federal and state laws discussed in this opinion. Under the best reading of the statute, the EINSTEIN 2.0 program would not violate section 705 of the Communications Act, because it would fall within section 705’s exception permitting a person to “divulge” a communication through “authorized channels of transmission or reception,” which allows either the sender or the recipient of an Internet communication to convey the required authorization by consenting to a communication’s disclosure, including by clicking through an approved log-on banner or signing the computer-user agreement in order to gain access to a government-owned information system. If section 2702(a)(3) of the Stored Communications Act applied to the EINSTEIN 2.0 program, the exception in section 2702(c)(1)(C) permitting disclosure based on “the lawful consent of the customer or subscriber” would also apply, because in this context the government, and no other party, should be understood as the “customer or subscriber” of the Internet service provider. If a state law imposed requirements on the EINSTEIN 2.0 program exceeding those imposed by these federal statutes, it would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and therefore be unenforceable under the Supremacy Clause of the Constitution. August 14, 2009 MEMORANDUM OPINION FOR THE ASSOCIATE DEPUTY ATTORNEY GENERAL You have asked us to address whether the deployment of an intrusion-detection system known as the “EINSTEIN 2.0” program on the unclassified computer networks of the Executive Branch is consistent with (1) section 705(a) of the Communications Act of 1934, as amended, 47 U.S.C. § 605(a) (2006); (2) the provision of the Stored Communications Act codified at 18 U.S.C. § 2702(a)(3) (2006); and (3) state laws concerning interception or electronic surveillance. For the reasons given below, we conclude that it is. 1 1 We solicited the views of the Criminal Division and National Security Division on each of these questions. Both components concur in our conclusions. 269 33 Op. O.L.C. 269 (2009) I. You have asked whether by engaging in any of the activities that are part of the EINSTEIN 2.0 program, 2 the Department of Agriculture (“USDA”), the Department of Homeland Security (“DHS”), or the relevant Internet service provider (“ISP”) would violate section 705(a) of the Communications Act of 1934, as amended, 47 U.S.C. § 605(a) (2006). Although this is a novel question, and the statute is hardly a model of clarity, we conclude that under the best reading of the statute, the EINSTEIN 2.0 activities would not violate section 705. In pertinent part, section 705 provides: Except as authorized by chapter 119, title 18 [i.e., the Wiretap Act], 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 distributing 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 subpena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. 47 U.S.C. § 605(a). 3 The Communications Act defines “person” in 47 U.S.C. § 153(32) (2006) to “include[] an individual, partnership, associaThese activities are described in detail in a memorandum of this Office. See Use of the EINSTEIN 2.0 Intrusion-Detection System to Protect Unclassified Computer Networks in the Executive Branch, 33 Op. O.L.C. 63 (2009) (“EINSTEIN 2.0 Opinion”). 3 Section 705 contains additional prohibitions, such as on the “intercept[ion] [of] any radio communication and divulg[ing] or publish[ing]” of its contents, and on the use for personal benefit of radio communications intercepted or received without authorization. 2 270 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System tion, joint-stock company, trust, or corporation.” “[C]ommunication by wire” is defined as “the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.” Id. § 153(52). 4 Although the scope of section 705’s prohibition is not entirely clear on its face, case law supports reading the provision as a general bar on a “person receiving, assisting in receiving, transmitting, or assisting in transmitting” wire or radio communications from “divulg[ing]” or “publish[ing]” such communications to persons other than the addressee, his agent or attorney, except “through authorized channels of transmission or reception,” as “authorized by” the Wiretap Act, or in the circumstances enumerated in clauses (2) through (6). In United States v. Finn, 502 F.2d 938, 942 (7th Cir. 1974), for instance, the court identified the “absurdities” that would result from a literal reading of the text, including that “[c]lauses (2) through (6) would be rendered meaningless, for all of those categories are completely covered by the more general clause (1).” Similarly, reading clause (6) as a prohibition “would forbid divulgence of a communication ‘on demand of other lawful authority,’” thereby “render[ing] all such demands unlawful and by its own terms [] eliminat[ing] the very category to which it refers.” Instead, the court concluded, clauses (2) through (6) should be read “as exceptions to the general prohibition of clause (1),” a construction the court viewed as “the only way to give effect to the Congressional intent.” Id. Finn is consistent with a line of precedents interpreting the pre-Wiretap Act version of this provision, Except for the first sentence of section 705 quoted above, these additional provisions extend only to “radio” communications, which are not at issue here. See 47 U.S.C. § 605(a); id. § 153(33) (defining “radio communication” to “mean[] the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds”). 4 This definition of “wire communication” is substantially similar to the definition of “electronic communication” under the Wiretap Act, 18 U.S.C. § 2510(12) (2006), which includes “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” Cf. id. § 2510(1) (defining “wire communication” under the Wiretap Act to mean an “aural transfer”). 271 33 Op. O.L.C. 269 (2009) which contained substantially similar language. For instance, in Nardone v. United States, 302 U.S. 379, 380–81 (1937), the Supreme Court characterized the version of section 705 then in effect as providing that “no person who, as an employee, has to do with the sending or receiving of any interstate communication by wire shall divulge or publish it or its substance to anyone other than the addressee or his authorized representative or to authorized fellow employees, save in response to a subpoena issued by a court of competent jurisdiction or on demand of other lawful authority.” 5 See also Hanna v. United States, 404 F.2d 405, 408–09 (5th Cir. 1968) (“[I]nformation thus lawfully obtained may be divulged ‘in response to a subpoena issued by a court of competent jurisdiction, or on demand of other lawful authority.’” (quoting section 705)); Bubis v. United States, 384 F.2d 643, 646–47 (9th Cir. 1967) (“[N]o . . . person shall divulge or publish the existence, contents, substance, purport, or effect of any such communication to anyone other than the addressee or his authorized representative, or to authorized fellow employees, or in response to a subpoena issued by a court of competent jurisdiction, or on The version of the statute at issue in Nardone provided that: No person receiving or assisting in receiving, or 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, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part therof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto . . . . Communications Act of 1934, Pub. L. No. 73-416, § 605, 48 Stat. 1064, 1103–04. 5 272 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System demand of other lawful authority.”); Brandon v. United States, 382 F.2d 607, 611 (10th Cir. 1967) (similar). Although our research has not uncovered any case law applying section 705 in the context of cybersecurity activities, we conclude that the EINSTEIN 2.0 program falls within section 705’s authorization to “divulge” a communication through an “authorized channel[] of transmission or reception.” We assume for purposes of this analysis—but do not decide—that federal-systems Internet traffic would constitute “communication[s] by wire” under section 705, that the EINSTEIN 2.0 program would involve “divulg[ence] or publi[cation]” of the contents of such communications, that DHS or USDA would be a “person receiving, assisting in receiving, transmitting, or assisting in transmitting” such communications, and that the program would not be “authorized by” the Wiretap Act. 6 A number of those assumptions may not be necessary, and thus there may be additional bases for concluding that the EINSTEIN 2.0 program would not violate section 705. An argument might be made, for instance, that program activities are “authorized by” the Wiretap Act for purposes of section 705 because they are not affirmatively prohibited by that Act. Compare United States v. Freeman, 524 F.2d 337, 340 & n.5 (7th Cir. 1976) (phrase “[e]xcept as authorized by [the Wiretap Act]” in section 705 “permits” telephone companies to protect their rights or property pursuant to the relevant exception in 18 U.S.C. § 2511(2)(a)(i)), with EINSTEIN 2.0 Opinion, 33 Op. O.L.C. at 103 (concluding that “the better reading” of a related exception in FISA for conduct “authorized by” the Wiretap Act was to refer to affirmative “orders” obtained under that Act, rather than activities that “merely are not prohibited by those statutes”). Although we need not, and do not, resolve this question here, we note that such a reading of section 705 would not only incorporate the Wiretap Act’s consent exception, see 18 U.S.C. § 2511(2)(a)(ii) (2006), but would also appear to import wholesale all of the statutory exceptions found in that Act, cf., e.g., id. § 2511(2)(a)(i) (“rights or property”), essentially collapsing section 705 and the Wiretap Act into a single standard, notwithstanding that section 705(a) retained, by its plain terms, an independent limitation regarding wire communications. It might separately be contended that any disclosure of communications by the service provider to DHS would occur on “demand of other lawful authority,” although here DHS has entered into an agreement with USDA and thus arguably is not “demand[ing]” disclosure of communications. Cf. Brown v. Continental Tel. Co., 670 F.2d 1364, 1365– 66 (4th Cir. 1982) (request for records and telephone bills served on telephone company by Attorney for the Commonwealth was a “demand of . . . lawful authority” under section 705 because the statute’s plain text contemplated the release of protected information “to appropriate authorities in response to a demand less compelling than a subpoena”). And with respect to any conduct of USDA or DHS that is potentially within the scope of section 705, there is some question whether the first sentence of section 705 applies to 6 273 33 Op. O.L.C. 269 (2009) We begin with the text of section 705, which expressly permits a “divulge[nce] or publi[cation]” of a wire communication made “through authorized channels of transmission or reception.” We believe the plain language of section 705 is fairly interpreted to include the EINSTEIN scanning sensors as a “channel[] of transmission or reception” of Internet communications, particularly where a party to the communication has, as here, expressly authorized such scanning. In reaching this conclusion, we have considered the potential ambiguities concerning both what constitutes a “channel of transmission or reception” and what constitutes a channel that has been “authorized” for purposes of section 705. As to the first issue, we are aware of a narrower construction of the phrase “channel[] of transmission or reception” that would be limited to the channel through which the communication actually passes from recipient to sender. Under such a reading, section 705 would prohibit, inter alia, forwarding of a mirror copy of federal systems Internet traffic to EINSTEIN 2.0 sensors for processing, see EINSTEIN 2.0 Opinion, 33 Op. O.L.C. at 67–68, or DHS’s disclosure to another federal agency if that disclosure did not involve transmitting the communication to its recipient, unless one of the other express exceptions in the statute applied. But the text of the section does not by terms compel that narrower reading, given the placement of the relevant phrase. That phrase is located where it could be read to qualify the prohibition against divulgence to third parties, and thus to indicate that the channels being referenced are those that might be used to reach third parties. Indeed, the phrase itself, in its second appearance in the section, is not limited to channels of transmission by “wire,” government employees. Compare United States v. Hall, 488 F.2d 193, 195 (9th Cir. 1973) (superseded on other grounds) (“The legislative history [] explicitly shows that Congress intended to exclude law enforcement officers from the purview of the new [section 705]”); S. Rep. No. 90-1097, at 108 (1968) (“[The first sentence of section 705] is designed to regulate the conduct of communications personnel.”); and Int’l Cablevision, Inc. v. Sykes, 75 F.3d 123, 131 n.4 (2d Cir. 1996) (similar), with Nardone, 302 U.S. at 381 (“Taken at face value the phrase ‘no person’ [in the pre-Wiretap Act version of section 705] comprehends federal agents[.]”); and United States v. Sugden, 226 F.2d 281 (9th Cir. 1955) (interpreting pre-Wiretap Act version of section 705 to permit FCC agents to “listen [to radio communications] for the purpose of enforcing the [Communications] [A]ct” but to require exclusion of evidence, in a criminal prosecution unrelated to violations of that Act, obtained by FCC agents who intercepted defendant’s short range radio transmissions). We need not, and do not, resolve these issues in light of our conclusion that the exercise falls within section 705’s “authorized channels of transmission” provision. 274 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System suggesting a potentially broad conception of the means by which communications may be passed along. Furthermore, the text is not clear that the channel in question must be the one through which the original communication travels, as the text specifically refers to the divulgence, not of the communication itself, but of its substance or meaning. Insofar as the phrase “channels of transmission or reception” qualifies the divulgence, as its placement indicates, it is clearly intended to refer to channels other than those through which the communication flows. As to whether the channel would be “authorized” for purposes of section 705, the dictionary defines “authorized” as “having authority[;] . . . recognized as having authority[;] . . . approved,” and defines “authority” as, inter alia, “justifying grounds: basis, warrant.” Webster’s Third New International Dictionary 146 (3d ed. 1993). The statute does not specify the source or nature of the “authoriz[ation]” required. As a matter of ordinary meaning, the term “authorized” is certainly broad enough to encompass either the sender or receiver of a communication expressly authorizing—by means of indicating consent to—divulgence or publication. This reading is also supported by the terms of section 705’s second sentence, which states that “[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish” that communication. 47 U.S.C. § 605(a) (emphasis added). That Congress chose the unqualified term “authorized” in the first sentence, while expressly limiting which party could authorize disclosure in the second, suggests an intent that the term be given a broader reading in the former instance. 7 We therefore would interpret the phrase “authorized channels of transmission or reception” to permit either the sender or the recipient of an Internet communication to convey the required authorization by consenting to a communication’s disclosure in the context of the EINSTEIN 2.0 system. Although we are not aware of any judicial precedent directly on point, we draw support for this reading of the statute from case law analyzing 7 Our reading of “authorized” arguably also draws support from, and is entirely consistent with, the use of the word “authorizing” in the text of section 705(b), which contemplates a “marketing system” for satellite communications in which “agents have been lawfully designated for the purpose of authorizing private viewing by individuals” and “individuals receiving [satellite] programming ha[ve] obtained authorization for private viewing under that [marketing] system.” 47 U.S.C. § 605(b). 275 33 Op. O.L.C. 269 (2009) consent by either the sender or receiver of a communication in determining whether interception or divulgence of a telephone call violated certain related provisions in section 705. In Rathbun v. United States, 355 U.S. 107 (1957), for instance, the Supreme Court held that the second clause of the version of section 705 then in effect (which provided that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person,” see supra note 5) was not violated where the recipient of a phone call asked the police to listen to the call on an extension telephone in his home. The Court concluded, notwithstanding the statute’s specific reference to the “authoriz[ation] [of] the sender,” that “there ha[d] been no ‘interception’ as Congress intended that the word be used.” 355 U.S. at 109. The Court looked to another related provision of section 705, which then prohibited any person from “receiv[ing] or assist[ing] in receiving any interstate or foreign communication by wire or radio and us[ing] the same or any information therein contained for his own benefit.” That provision, the Court explained, gave “[t]he clear inference . . . that one entitled to receive the communication may use it for his own benefit or have another use it for him.” Id. at 110. In dictum the Court further observed that even the defendant in that case conceded that under section 705 “either party may record the [telephone] conversation and publish it.” Id. Similarly, in Weiss v. United States, 308 U.S. 321 (1939), the Court held evidence to be inadmissible in a criminal trial where federal agents had violated the same provision of section 705 as in Rathbun (the prohibition against any person “not being authorized by the sender” intercepting and divulging communications) by tapping the defendant’s intrastate phone calls. In rejecting the government’s argument that the defendant’s trial testimony about the intercepted conversations constituted consent, the Court relied on the fact that “divulgence was not consented to by either of the parties to any of the telephone conversations.” Id. at 330 (emphasis added). More recently, in United States v. Hodge, 539 F.2d 898 (6th Cir. 1976), the court rejected a defendant’s claim that agents of the Drug Enforcement Agency had violated section 705 by recording telephone conversations between the defendant and a government informant. (The informant in the case had consented to the DEA monitoring.) The court quoted section 705 in full before tersely dismissing the defendant’s claim, explaining that “[i]t is well settled that there is no violation of the 276 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System [Communications] Act if the interception was, as here, authorized by a party to the conversation.” Id. at 905. 8 Although these cases do not interpret the phrase in section 705 upon which we rely here, they provide at least indirect support for reading the word “authorized,” which appears without qualification as to the scope of the persons encompassed by it, to permit the recipient of a communication (either a federal agency, in the case of communications directly to that agency, or individual federal employees, in the case of communications to those employees) to consent to and thereby authorize the communication’s disclosure in the context of the EINSTEIN 2.0 program. 9 At a minimum, our reading of the unqualified word “authorized” is consistent with what appears to have been the prior understanding that the statute was not, absent an express limitation regarding the scope of any consent exception, intended to require two-party consent for any such exception to apply. As we explain below, we believe that under our reading of section 705, the manifestations of consent by USDA in conjunction with those of A modern line of cases brought by plaintiff corporations to prevent the unauthorized reception or transmission of satellite television signals has focused on the consent of the sending party in determining whether a “divulg[ence]” was “authorized.” See, e.g., National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 916 –17 (6th Cir. 2001) (holding that private cable company had violated section 705 by selling the broadcast transmission of a boxing match to a commercial customer, when the company was only authorized by the program’s originator to distribute it to residential customers). We do not read these cases as negating the relevance of the precedents discussed above, which contemplate consent by either party to communications such as telephone calls. For one thing, the modern case law does not purport to overrule or limit the precedents discussed above. More significantly, in this line of cases there is no contention that the recipient of a licensed commercial broadcast—who often acts pursuant to a contractual agreement with the originator—is “authorized” to distribute the material beyond the terms of that agreement. 8 In light of this case law, we do not believe the existence of an express consent exception in the Wiretap Act requires a contrary interpretation of “authorized channel[] of transmission or reception” in section 705. When Congress reenacted the language of section 705 in the 1968 Wiretap Act, it did so against the settled background of case law interpreting the pre-Wiretap Act statute to allow consensual interception. By reenacting statutory text that was in large part identical to the preexisting language, and by indicating no disapproval of settled case law, Congress can be understood to have left in place the established meaning of the text it employed rather than to have impliedly precluded recognition of a consent exception. 9 277 33 Op. O.L.C. 269 (2009) individual federal employees using government information systems are sufficient to avoid a violation of that provision by the ISP, DHS, or USDA, in conjunction with the authorized operation of the EINSTEIN 2.0 system. First, with respect to potential violations by the service provider, we believe any “divulge[nce]” of communications would occur through an “authorized channel[] of transmission or reception.” As to any disclosure by the provider of communications between third parties and USDA, the agency has “authorized” the service provider to disclose such communications to DHS by virtue of the Memorandum of Agreement between USDA and DHS, which memorializes USDA’s consent to the scanning of its Internet traffic for cybersecurity purposes. As to disclosure by the service provider of communications addressed to or sent by individual employees, we have previously concluded that a federal employee’s valid, voluntary consent to the scanning of Internet traffic is apparent from his clicking through an approved log-on banner or signing the computer-user agreement in order to gain access to a government-owned information system, see EINSTEIN 2.0 Opinion, 33 Op. O.L.C. at 98, and we believe this consent would foreclose any claim that the service provider would violate section 705 by transmitting communications through the intrusiondetection sensors operated by DHS because it would authorize any resulting divulgence. We similarly conclude that the same consents—by USDA and USDA employees—“authorize” DHS to “divulge” the communications to any other authorized agency without running afoul of the prohibition in section 705. As to communications involving the agency itself, USDA has expressly consented to any such disclosures by DHS through the Memorandum of Agreement and other documents detailing the operation of the EINSTEIN 2.0 program. As to communications involving individual employees, the model log-on banner and computer-user agreement discussed in our EINSTEIN 2.0 Opinion state expressly that “[a]ny communications or data transiting or stored on this information system may be disclosed or used for any lawful government purpose.” 33 Op. O.L.C. at 70. The scope of the employee’s consent to disclosure for any “lawful government purpose” is informed by our separate conclusion in the context of 18 U.S.C. § 2511 that DHS is “authorized by law” to conduct an exercise involving EINSTEIN technology, as described in the implementation plan governing that exercise, by virtue of several affirmative statutory authorities, particularly a recent appropriations statute providing 278 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System funding for the precise exercise in question, as well as DHS’s organic statute and the Federal Information Security Management Act. Finally, we believe the log-on banner and computer-user agreements discussed above would also be sufficient to foreclose any claim that USDA would violate section 705 by divulging to DHS, through its participation in EINSTEIN 2.0, the contents of communications addressed to its employees. This reading of section 705 is consistent with the conclusion in our EINSTEIN 2.0 Opinion that the EINSTEIN 2.0 program would not violate parallel non-disclosure provisions contained in the Wiretap Act. Section 2511(3) of title 18, U.S. Code, provides that “a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication . . . while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient,” except “with the lawful consent of the originator or any addressee or intended recipient of such communication,” or “to a person employed or authorized, or whose facilities are used, to forward such communication to its destination.” Our EINSTEIN 2.0 Opinion concluded that EINSTEIN 2.0 would not unlawfully “divulge” the contents of Internet communications within the meaning of section 2511(3), both because the participating agency and its employees would have manifested consent to the scanning, and “because the federal government is ‘authorized,’ and its ‘facilities are used, to forward such communications to [their] destination.’” 33 Op. O.L.C. at 96. With respect to individual federal employees, we further noted that Internet communications cannot reach employees at work without routing through the government’s computer systems. Id. Thus, even if section 705 is not read by terms to incorporate this exception, we find it significant that the exception we conclude section 705 adopts is hardly a novel one in this area. We are also not aware of any legislative history that indicates a congressional intention to preclude recognition of such an exception here. II. We believe the EINSTEIN 2.0 system would also comply with the provision of the Stored Communications Act (“SCA”), codified at 18 U.S.C. § 2702(a)(3), that provides that “a provider of remote computing service 279 33 Op. O.L.C. 269 (2009) or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by [section 2702(a)(1) or (a)(2)]) to any governmental entity.” Insofar as the EINSTEIN 2.0 system examines, in real time, Internet traffic-flow data that is not retained by the ISP, there may be grounds to assert that this provision is simply inapplicable, because the data in question is not a “record or other information” within the possession of the ISP. Even assuming, however, that section 2702(a)(3) by its terms may apply to EINSTEIN 2.0, we believe that the statutory exception permitting disclosure based on “the lawful consent of the customer or subscriber” would apply. 18 U.S.C. § 2702(c)(1)(C) (2006). That is because we believe that in this context the government, and no other party, should be understood as the “customer or subscriber” of the ISP for purposes of this exception. On this view, even assuming that non-content information obtained from or with the assistance of the ISP regarding Internet traffic that passed onto or off of the government’s system would qualify as “record[s] or other information” under the SCA, these “record[s] or other information” would “pertain[] to” the government as a “subscriber to or customer of [the ISP’s] service,” and the government could therefore provide “lawful consent” to divulge this information. 18 U.S.C. § 2702(c)(2). This construction of the statute fits naturally with the plain text: insofar as a government agency has contracted with an ISP for Internet service, the government is indisputably a “customer” (if not also a subscriber) of the ISP. In accordance with this view, the Ninth Circuit has characterized a municipality as a “subscriber” of a text-messaging service where the municipality contracted with the service to provide two-way text pagers to police officers and other municipal employees. See Quon v. Arch Wireless Operating Co., 529 F.3d 892, 895, 903 (9th Cir. 2008). Insofar as end users such as individual employees hold a protected privacy interest in non-content information, the employer’s consent to disclosure might violate some legal obligation of the employer, but it would not create liability for the ISP under the SCA, since the ISP had obtained the necessary consent of its “customer or subscriber.” In any event, in our case, the individual employees have also consented to the disclosure, so disclosure should not violate any SCA-protected interest of theirs (even if they are also somehow “customers or subscribers” of the ISP). Nor 280 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System does there appear to be any Fourth Amendment issue with the disclosure. Not only have the employees here consented to the disclosure, but courts have generally concluded that there is no reasonable expectation of privacy in non-content information provided to an ISP. See, e.g., United States v. Perrine, 518 F.3d 1196, 1204–05 (10th Cir. 2008) (collecting cases); Freedman v. America Online, Inc., 412 F. Supp. 2d 174, 181–82 (D. Conn. 2005). We recognize the concern that non-content information pertaining to one customer or subscriber (such as the government in our case) could include information pertaining to other customers or subscribers of the ISP insofar as those other parties have sent or received traffic from the first customers/subscriber’s computers. But we do not believe the SCA should be read to require separate consent from both customers/subscribers in that circumstance. Such records or information “pertain” to the customer/subscriber providing consent, even if they reveal information about other customers/subscribers too, so under the plain text of the statute one-party consent seems sufficient for disclosure. Indeed, any other interpretation would yield the odd result that a customer’s ability to consent to disclosure of its information would depend on whether other parties it telephoned or emailed happened to be customers of the same provider. Also, unlike content information, which relates to discrete messages each with a particular sender and particular recipients, the “record or other information” covered by section 2702(a)(3) often involves an aggregation of data—the total record of a customer/subscriber’s Internet traffic or phone calls, for example—that is unique to the individual customer/subscriber and for which (as a result) no other party could provide meaningful consent. Information regarding other customers/subscribers who have not provided consent could of course be disclosed under this analysis only to the extent that such information is contained in a “record or other information” pertaining to the customer or subscriber who has provided lawful consent (here, the government). Furthermore, the SCA’s consent exception for content information expressly allows one-party consent—either the “originator” or the “addressee” or “intended recipient” of the communication may authorize disclosure of its contents, 18 U.S.C. § 2702(b)(3)—and it would be anomalous if the provisions on non-content information, which are generally less restrictive, imposed a more stringent consent requirement than those for content information. Cf. In re American Airlines, Inc. Privacy Litig., 370 281 33 Op. O.L.C. 269 (2009) F. Supp. 2d 552, 561 (N.D. Tex. 2005) (construing statute to allow any intended recipient of a communication to authorize disclosure of content information). Congress appears to have adopted the current SCA provisions on non-content information in part to bring those provisions more in line with provisions on content information. Before 2001, the SCA provided only that a provider could disclose “a record or other information pertaining to a subscriber to or customer of [the provider’s] service (not including [content information]) to any person other than a governmental entity” and that the provider generally could disclose such records or information to a governmental entity “only when the governmental entity . . . ha[d] the consent of the subscriber or customer to such disclosure” or satisfied one of several other enumerated exceptions. See 18 U.S.C. § 2703(c) (2000); Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1860 (1986). Congress amended the statute to provide that, even without an affirmative government request, the provider may disclose records and information covered by section 2702(a)(3) “with the lawful consent of the customer or subscriber” or in certain other specified circumstances. See 18 U.S.C. § 2702(c)(2) (Supp. I 2001); Pub. L. No. 107-56, § 212(a)(1)(E), 115 Stat. 272, 284 (2001). As explained in the legislative history, Congress intended this change “to allow communications providers to disclose noncontent information (such as the subscriber’s login records).” H.R. Rep. No. 107-236, pt. 1, at 58 (2001). Under pre-2001 law, the House Judiciary Committee explained, “the communications provider [was] expressly permitted to disclose content information but not expressly permitted to provide non-content information. This change would cure this problem and would permit the disclosure of the less-protected information, parallel to the disclosure of the more protected information.” Id.; see also 147 Cong. Rec. 19,001, 19,009 (statement of Sen. Leahy) (discussing 2001 amendments and observing that “the right to disclose the content of communications necessarily implies the less intrusive ability to disclose noncontent records”). In addition, although we are aware of little relevant legislative history bearing directly on the meaning of “consent” in section 2702(a)(3), the legislative history of the SCA as originally enacted suggests that Congress understood background legal principles to allow oneparty consent, which arguably supports construing consent provisions of the statute in accordance with that understanding. See S. Rep. No. 99-541, at 3 (1986) (observing that “because [information on remote computer systems] is subject to control by a third party computer operator, the 282 Additional Questions Concerning Use of EINSTEIN 2.0 Intrusion-Detection System information may be subject to no constitutional privacy protection” (citing United States v. Miller, 425 U.S. 435 (1976))). III. Finally, we do not believe the EINSTEIN 2.0 program impermissibly infringes state wiretapping and communication privacy laws. See, e.g., Fla. Stat. Ann. § 934.03(3)(d) (West 2009); 18 Pa. Cons. Stat. Ann. § 5704(4) (West Supp. 2009); Md. Code Ann., Cts. & Jud. Proc. § 10402(c)(3) (Lexis Nexis 2009); Cal. Penal Code § 631(a) (West 1999). To the extent that such laws purported to apply to the conduct of federal agencies and agents conducting authorized EINSTEIN 2.0 operations and imposed requirements that exceeded those imposed by the federal statutes discussed above and in our EINSTEIN 2.0 Opinion, they would “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” and be unenforceable under the Supremacy Clause. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000); Old Dominion Branch v. Austin, 418 U.S. 264 (1974); Bansal v. Russ, 513 F. Supp. 2d 264, 283 (E.D. Pa. 2007) (concluding that “federal officers participating in a federal investigation are not required to follow” state wiretapping law containing additional requirements not present in the federal Wiretap Act, because in such circumstances, “the state law would stand as an obstacle to federal law enforcement”); Johnson v. Maryland, 254 U.S. 51 (1920); cf. United States v. Adams, 694 F.2d 200, 201 (9th Cir. 1982) (“evidence obtained from a consensual wiretap conforming to 18 U.S.C. § 2511(2)(c) is admissible in federal court proceedings without regard to state law”). DAVID J. BARRON Acting Assistant Attorney General Office of Legal Counsel 283

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Constitutionality of Health Care Reform T h e p ro p o s e d H e alth S e c u rity A c t is w e ll w ith in th e a u th o rity o f C o n g re ss u n d e r th e C o m m e rc e C la u se , a n d it d o e s n o t v io la te T enth A m e n d m e n t o r o th e r p rin c ip le s o f fe d e ra lism . T h e p ro p o s a l c o n ta in s n o u n c o n stitu tio n a l ta k in g s o f p riv a te p ro p e rty o r in frin g e m e n t o f lib e rty in terests. T h e p ro p o s e d d e le g a tio n o f a d m in istra tiv e a u th o rity to th e N a tio n a l H e a lth B o a rd , and, fro m it, to state a llia n c e s , is n o t a n im p e rm is s ib le d e le g a tio n o f le g is la tiv e a u th o rity O c to b e r 2 9 , 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 a n d the A s s o c ia t e A t t o r n e y G e n e r a l The Health Security Act (“Act”) creates for all citizens the security that health care coverage will always be available to them. It accomplishes this by building on the existing American system for providing health care, which largely operates through employers. Much of the system will be administered by the states, which will have primary responsibility to ensure that regional health alliances are estab­ lished, to certify accountable health plans, and to provide mechanisms to resolve complaints and disputes. This legislation is well within the long-recognized authority of the federal gov­ ernment. It is fair to say that, just as the substantive contents of the legislation draw on existing models and approaches to health care delivery and financing, the structure, processes and mechanisms the legislation uses to accomplish its substan­ tive objectives draw on already existing and validated techniques that the national government has employed on numerous other occasions. Notwithstanding the well-established legitimacy of the means that the Act em­ ploys to achieve a public purpose o f paramount importance, some special interests have such financial stake in the current system that they have strong incentives to challenge the Act even on highly implausible grounds, if the consequences of do­ ing so were to alter the ultimate design of the system even slightly in their favor. Congressman Richard Gephardt has described the Act as the most historic piece of social legislation since the Social Security Act of 1935, and in a curious way the challenges to the constitutionality o f the Health Security Act’s basic structure re­ play arguments levelled at the Social Security Act and other New Deal legislation enacted over fifty years ago. These arguments were considered and dismissed then, they remain unsound to this day, and they should not be allowed in any way to deflect consideration of the merits of the President’s proposal — nor could they 124 C onstitutionality o f H ealth Care R eform succeed against that proposal without threatening to unravel numerous vital statutes enacted since the 1930’s. • The National Government Possesses the Constitutional Authority to Undertake National Health Care Reform. The most fundamental constitutional challenge to national health care reform is that it lies beyond the power of Congress and the President to enact. Fortunately, the Supreme Court has long since rejected the crabbed view of national legislative authority that necessarily lies behind such a challenge. During the m id-l930’s, when for a brief time the Court invalidated some as­ pects of the New Deal, a majority of the Justices accepted the argument that Con­ gress lacks the power “to protect the general public interest and the health and comfort of the people.” 1 That argument was predicated on an exceedingly narrow conception of the authority of the federal government to address problems of na­ tional dimension under the commerce clause of the Constitution. The Court quickly abandoned that attack on the New Deal as inconsistent with the text and structure of the Constitution and, indeed, with the Court’s own precedents.2 Noting that “there has long been recognition of the authority of Congress to obtain . . . social, health or economic advantages from the exercise of constitutional powers,”3 the Court concluded that Congress’s authority over “commerce among the several States” empowers the national government to address all activity, “whatever its nature . . . if it exerts a substantial economic effect on interstate commerce.”4 Up­ holding Congress’s power to regulate the sale and distribution of coal because of the impact of that industry on American economic and social life, the Court stated: If the strategic character of this industry in our economy and the chaotic conditions which have prevailed in it do not justify legisla­ tion, it is difficult to imagine what would. To invalidate this Act we would have to deny the existence of power on the part of Congress under the commerce clause to deal directly and specifically with those forces which in its judgment should not be permitted to dislo­ 1 C arter v. C airer C oal Co , 298 U S 238, 290 (1936). Justice C ardozo, jo in e d by Justices B randeis and Stone, d issented from the m ajority's denial to C ongress o f the pow er to deal w ith a problem — unrestrained com petition in the coal industry — that “choked and b u rd en ed '’ com m erce and had produced “bankruptcy and waste and ru in " Id at 331 (C ardozo, J , dissenting). Five years later, the Suprem e C ourt explicitly endorsed Justice C ard o zo 's understanding o f congressional p o w er w ith only one Justice in dissent See Sunshine A n th n u ite C oal Co v A dkins, 310 U S 3 8 1 ,3 9 5 (1940) The follow ing Term , a unanim ous C ourt dism issed the view s o f the C arter C oal m ajority as inconsistent w ith sound constitutional principle U nited States v. D a rb y, H12 U S. 100, 123 (1941) 2 The C o u rt's flirtation with a lim ited view o f national pow er was b rie f indeed. C arter C oal was decided on M ay 18, 1936. and effectively repudiated by a trilogy o f cases decided on A pril 12. 1937 See, t #., N LR B v Jones & Laughhn S teel C orp ,3 0 1 U S . I (1937) 3 C loverleaj B utter Co v Patterson, 3 15 U S 148, 163 (1942) 4 W ic k a rd v F ilh u m , 3 17 U S. I l l , 125 (1942) 125 Opinions o f th e Office o f L egal C ounsel cate an important segment o f our economy and to disrupt and bur­ den interstate channels of trade. . . . Congress under the commerce clause is not impotent to deal with what it may consider to be dire consequences of laissez-faire.5 The American health care industry is one of the largest and fastest growing segments of the American economy, and it has the most direct and crucial impact on the lives of all Americans. Spiralling health care costs and inequities in the provision of health care services have an immediate and massive effect on the na­ tional economy and thus upon interstate commerce. As a result Congress unques­ tionably possesses the power “to deal directly and specifically” with health care in order to obtain “social, health [and] economic advantages” for the American peo­ ple. • National Health Care Reform Preserves our Federal System. The President’s health care reform plan will invite state participation in the for­ mulation and administration of national health policy; if an individual state gov­ ernment should choose not to participate, the federal government will administer the health care system in that state. This type of cooperative federal-state program is now quite common in federal legislation. Examples range from many of the major modern environmental laws, including the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act, to much older legislation, such as Title IX of the Social Security Act, establishing a system for unemploy­ ment compensation. Challenges to such legislation based on constitutional princi­ ples of federalism were made during the New Deal, when it was alleged that the national reform legislation of that era stripped the states of powers that were re­ served to them by the Tenth Amendment. But that argument was wholly without merit then, and it remains wholly without merit today. In rejecting the notion that principles of federalism somehow rendered the old age benefits of the Social Security Act of 1935 invalid under the Tenth Amend­ ment, the Supreme Court admonished that “nation-wide calamities] . . . may be checked, if Congress so determines, by the resources of the Nation [in order] to save men and women from the rigors of the poor house as well as from the haunt­ ing fear that such a lot awaits them when journey’s end is near.”6 More funda­ mentally, that same day, the Court also rejected a Tenth Amendment challenge to elements of the Social Security Act that created a cooperative plan whereby states were free to provide unemployment compensation and thereby trigger benefits un­ der the Act for employers in the state. In so doing, the Court issued a resounding declaration that Congress may enact legislation that addresses a “problem . . . na­ 5 S u n sh in e A n th ra c ite C o a l Co. v A dkins, 310 U.S. a t 3 95-96 6 H e lve rin g v. D avis, 301 U .S. 619, 641 (1 9 3 7 ) 126 C onstitutionality o f H ealth Care R eform tional in area and dimensions” by providing the states with the option to share in the solution or not, at the choice of the individual state.7 The Court did not accept the claim that a state is “coerced” by Congress when, pursuant to federal legislation the state “cho[oses] to have relief administered under laws of her own making, by agents of her own selection, instead of under federal laws, administered by federal officers.”8 The Court described such legislation as “the creation of a larger free­ dom, the states and the nation joining in a cooperative endeavor to avert a common evil.”9 Similarly, under the President’s health care proposals, states will have the option to formulate specific plans for implementing the federally guaranteed pack­ age of benefits and to oversee the provision and quality of care to their residents as a means of addressing our “common” health care crisis. * Health Care Reform will Respect the Constitutional Rights of Individuals. The President’s plan will guarantee to all Americans an extensive package of health care benefits while protecting the individual’s right to make fundamental choices about health care. The plan will ensure the availability of health care by taking into account the economic needs of providers and freeing them from unnec­ essary paperwork. At the same time, as the President has stated, an essential prin­ ciple of national health care reform is the exercise of responsibility by health care providers and consumers. Reports in the media already suggest that opponents of health care reform are preparing to object to the plan as an intrusion into the Constitution’s protections of liberty or as a “taking” of private property.10 Neither argument can be sustained. Indeed, both arguments were pressed unsuccessfully by those who sought to un­ dermine the New Deal. Almost sixty years ago, the Supreme Court rejected the claim that New Deal-era regulation of the economic choices individuals or businesses make is unconstitu­ tional. While the Justices acknowledged that “[u]nder our form of government the use of property and the making of contracts are normally matters of private and not of public concern,” the Court stated that Equally fundamental with the private right is that of the public to regulate it in the common interest. . . . Thus has this court from the early days affirmed that the power to promote the general welfare is inherent in government. . . . [N]o exercise of the legislative pre­ rogative to regulate the conduct of the citizen [can be imagined] 7 S te w a rd M a ch in e Co. v D avis, 301 U S 548, 586 (1937) 8 Id al 590. 9 Id at 587. 10 See E dw ard Felsenthal, AM A to Fight Lim its on D o c to rs ’ F ees, W all Si. J., Sept. 9, 1993. 127 Opinions o f th e Office o f L egal C ounsel which will not to some extent abridge his liberty or affect his prop­ erty. But subject only to constitutional restraint the private right must yield to the public need.11 Three years later, the Court explained that the liberty protected by the Constitution “is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people.” 12 Health care reform will require responsible participation by providers and consumers alike “in the interests of the community.” 13 In doing so the President’s plan preserves ‘“ the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized soci­ ety.’” 14 The contention that health care reform would in some manner effect an uncon­ stitutional “taking” of the property o f providers rests on a mistaken equation of the Constitution’s requirements with the dictates of a particular economic theory.15 Health care reform undeniably will have an impact on the business decisions and economic interests of providers, and it will require financial contributions and per­ sonal accountability on the part of consumers. As such, however, the plan will be an “adjustm ent of] the benefits and burdens of economic life to promote the com­ mon good” 16 rather than a taking o f private property.17 11 N eh b ia v. N ew York, 291 U S 502, 5 2 3 -2 5 (1934) W hile the p articular question before the C ourt in N eb b ia c o n cern ed the relationship between ind iv id u al liberty and the pow er o f a state, the C ourt expressly stated that w ithin its sphere C o n g ress also p o ssesses the “p o w er to prom ote the general w elfare” : “Touching the m atters co m m itte d to it by the C onstitution, the U nited States possesses the pow er ” Id at 524 12 W est C o a st H o te l Co v P arrish, 300 U S. 379, 391 (1 9 3 7 ). As in N ebbia v N ew York, the Justices w ere ad d re ssin g the m eaning o f liberty in the context o f a challenge to state legislation but m ade it clear that th eir re a so n in g applied to the C onstitution’s restraints on the federal governm ent as well. 13 W est C o a st H o te l Co. v P a rrish , 300 U .S . at 391 14 P la n n ed P a re n th o o d v C asev, 505 U .S. 833, 850 (1 9 9 2 ) (O ’C onnor, K ennedy, & Souter, JJ.) (quoting P o e v . V U m an, 367 U.S 497, 542 (1961) (H arlan , J., d issen tin g )) 15 W hen a m ajority o f the Suprem e C o u rt's m em bers app eared to m ake ju st such an equation, Justice H olm es po in ted out the e rro r in their reasoning in a fam ous dissent T h e “constitution is not intended to e m body a p a rtic u la r eco n o m ic theory, w h e th er o f p aternalism and the organic relation o f the citizen to the S tate o r o f laissez faire." L o c h n e r v N ew York, 198 U S 45, 75 (1905) The C ourt cam e to decide that Ju stic e H o lm es w as right and the Lochner m ajo rity w rong m any decades ago. See F erguson v Skrupa, 372 U .S. 726, 7 2 9 -3 0 (1 9 6 3 ) (citin g Justice H o lm e s’s dissent and noting that ”‘[t]he doctrine that prevailed in Lochner . has long since b een discarded"). 16 P enn C en tra l T ransp Co v New York City’, 438 U .S 1 0 4 ,1 2 4 (1 9 7 8 ) By requiring responsibility on the part o f all, the plan clearly avoids econom ic im positions “disproportionately concentrated on a few p e r­ s o n s” — th e h allm ark o f an unconstitutional taking. Id 17 T h at h ealth care reform w ill have d ifferin g econom ic im pacts on different persons, w hile obviously true, does not m ean that those impacts w ill be “ tak in g s” w ithin the m eaning o f the C onstitution “G o v e rn m e n t hardly co u ld go on if to som e e x ten t values incident to property could not be dim inished w ith ­ o u t paying for every such change in the g en eral la w ” P en n sylva n ia C o a l Co v M ahon, 2 60 U S. 393, 413 (1 9 2 2 ) S e e a lso U n ited S ta te s v. Sperrv C o rp , 493 U .S. 52 (1989) 128 C onstitutionality o f H ealth Care R eform • The President and Congress May Establish a National Health Board and State Health Alliances to Implement National Health Care Reform. The health care reform initiative will set up a National Health Board and corre­ sponding state health alliances to implement the plan pursuant to congressionally prescribed standards. National level administrative agencies are commonplace components of many federal statutes, and are necessary for the sound administra­ tion of complicated systems. The devolution of some administrative responsibility to states, which then establish health alliances, is vital to the Act’s objective of building to the extent possible on the private sector aspects of our current health care delivery system. Once more, the Supreme Court’s New Deal jurisprudence clearly establishes the legitimacy of such delegations of administrative authority. The creation of admin­ istrative bodies to carry out legislative mandates was a touchstone of New Deal reforms. At first, the Court concluded that such schemes constituted impermissible delegations of legislative power.18 Quickly and firmly, however, the Court moved away from that approach — which was at odds with over a century of the Court’s own constitutional interpretations. For example, in sustaining actions taken by an official of the Department of Labor pursuant to the Fair Labor Standards Act against a delegation doctrine challenge, the Court admonished that the Constitution did not “preclude Congress from resorting to the aid of administrative officers or boards as fact-finding agencies whose findings, made in conformity to previously adopted legislative standards or definitions of Congressional policy, have been made prerequisite to the operation of its statutory command.” 19 Similarly, in re­ jecting a delegation doctrine challenge to actions of the Secretary of Agriculture under the Tobacco Inspection Act of 1935, the Court observed that the statute set forth Congress’s “policy for the establishment of standards . . . . [T]he provision that the Secretary shall make the necessary investigations to that end and fix the standards according to kind and quality is plainly appropriate and conforms to fa­ miliar legislative practice.”20 Relying on a constitutional precedent from the early days of the nation, the Court stated that [w]e have always recognized that legislation must often be adapted to conditions involving details with which it is impracticable for the legislature to deal directly . . . . In such cases, “a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.”21 18 See Panam a Refuting Co. v Ryan, 293 U S 388 ( 1935), S ch echter P oultry C orp v. U nited States, 295 U.S 495 (1935) 19 O pp Cotton M ills, Inc. v A d m in istra to r, 3 12 U S. 126, 144 (1941) 20 C urrin v. W allace, 306 U S . I, 16-17 (1939). 21 Id at 15 (quoting W avm an v Southard, 23 U S (10 W heat.) 1, 43 (1825)) 129 Opinions o f the O ffice o f L egal C ounsel The health care reform initiative is such a case. Simply put, the establishment of administrative bodies to implement the plan is entirely consistent with our con­ stitutional tradition. • Conclusion: The President’s Health Care Reform Plan is Legislation Based on Well-Established Constitutional Principles. As President Clinton has observed, finding a solution to the problems with our health care system will require a willingness to change, and his reform plan is a comprehensive proposal for far-reaching change in both the public and the private sectors. It is possible that some confusion concerning the constitutional legitimacy of the Health Security Act will arise precisely because it is so comprehensive and detailed, and thus necessarily will affect all the major components of our current health care delivery system. There may indeed be no historical analogue of a sin­ gle bill that does so many things at once. Its comprehensiveness, however, should not mask the fact that the basic means and mechanisms of the plan rest on longsettled principles of constitutional law, principles that seldom have been chal­ lenged since the New Deal and that stem ultimately from the work of the Founders of the Republic. The President’s plan, far from being constitutionally question­ able, rests on what has rightly been called “the first of the constitutional achieve­ ments of the American people . .. the formation of a national government that may lawfully deal with all national needs.”22 The Nation’s debate over how best to deal with the great national need for health care reform should proceed untrammelled by worries over the national gov­ ernment’s lawful powers that were laid to rest over half a century ago. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel H. JEFFERSON POWELL Attorney - Advisor 22 C h arle s L B lack, Jr., The H um ane Im a g in a tio n 1 2 0 (1 9 8 6 ) 130

Write a legal research memo on the following topic.

Constitutionality of Citizenship Requirement for Participation in Small Business Administration’s 8(a) Program The Sm all Business A dm in istration’s regulation im posing a citizenship requirem ent for participation in its 8(a) program fo r disadvantaged contractors is constitutional. March 4, 1996 M e m o r a n d u m O p in io n fo r th e A s s o c ia t e G e n e r a l C o u n s e l U .S . S m a l l B u s in e s s A d m i n i s t r a t i o n You have requested our opinion as to the constitutionality of a regulation of the Small Business Administration (“ SBA” ), 13 C.F.R. § 124.103, that limits eli­ gibility for the SBA’s 8(a) program for disadvantaged contractors to businesses owned by U.S. citizens.1 The SBA has defended the validity of its 8(a) citizenship requirement on the grounds that such a requirement is consistent with congres­ sional intent. We agree with this conclusion, although we do so based upon a different legal analysis than the one relied upon by the SBA. I. Through the Small Business Act (the “ Act” ), 15 U.S.C. §§631-656, Congress established the 8(a) program to “ promote the business development of small busi­ ness concerns owned and controlled by socially and economically disadvantaged individuals.” 15 U.S.C. § 631 (f)(2). The Act defines a “ small business concern owned and controlled by socially and economically disadvantaged individuals” as “ a small business concern . . . (i) which is at least 51 per centum uncondition­ ally owned by — (I) one or more socially and economically disadvantaged individ­ uals.” Id. § 637(a)(4)(A). Included among the groups specifically identified as “ socially disadvantaged” are “ Black Americans, Hispanic Americans, Native Americans, Indian tribes, Asian Pacific Americans, Native Hawaiian Organiza­ tions, and other minorities.” Id. §631(f)(1)(C). The Act mandates the creation of the SBA “ to carry out the policies of this chapter,” id. §633(a), and it authorizes the Administrator of the SBA to “ make such rules and regulations as he deems necessary to carry out the authority vested in him by or pursuant to this chapter.” Id. § 634(b)(6). Pursuant to this authority, in 1979, the SBA promulgated regulations establishing ownership requirements for 8(a) applicants: 1Letter for Walter E. Dellinger, Assistant Attorney General, Office o f Legal Counsel, from Eric S. Benderson, Associate General Counsel, U.S. Small Business Administration (July 19, 1995). It is our understanding that your request seeks advice with respect to a challenge to §124.103 originally raised by Mr. Eugene Foley, whose cor­ respondence to the SBA is attached to your request. Because Mr. Foley appears to challenge the constitutionality o f § 124.103, our analysis is limited to the validity o f the regulation under the Constitution. 85 Opinions o f the Office o f Legal Counsel in Volume 20 [I]n order to be eligible to participate in the 8(a) program, an appli­ cant concern must be one which is at least 51 percent uncondition­ ally owned by an individual(s) who is a citizen of the United States (specifically excluding permanent resident alien(s)) and who is de­ termined by SBA to be socially and economically disadvantaged. 13 C.F.R. §124.103. In its preamble to the interim rule, the SBA justified the citizenship requirement as follows: [T]he individual’s social disadvantage must be rooted in treatment which he or she has experienced in American society. Each of the statutorily designated groups has historically been abused in this country (e.g., the enslavement and subsequent disfranchisement of Blacks; the near-extermination of Native Americans). The 8(a) pro­ gram is in large part designed to overcome the effects of such past injustices. It is not designed to assist newcomers to America who have been oppressed in foreign lands. 45 Fed. Reg. 79,413, 79,414 (1980). II. The Supreme Court has made clear that, while states are strictly limited by the Equal Protection Clause of the Fourteenth Amendment in their ability to make distinctions between citizens and aliens,2 the federal government enjoys far broad­ er authority to classify on the basis of alienage. “ For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.” M athews v. D iaz, 426 U.S. 67, 81 (1976). As an aspect of its ple­ nary power over naturalization and immigration, Congress “ enjoys rights to distin­ guish among aliens that are not shared by the States.” Nyquist v. Mauclet, 432 U.S. 1, 7 n.8 (1977). However, the federal power over aliens is not “ so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens.” Hampton v. M ow Sun Wong, 426 U.S. 88, 101 (1976). While federal alienage classifications imposed by Con2 In Graham v. Richardson , 403 U.S. 365 (19 7 1), the Supreme Court held that Arizona and Pennsylvania statutes that imposed durational residency requirements o n aliens seeking welfare benefits violated the Equal Protection Clause o f the Fourteenth Am endm ent. State classifications based on alienage, the Court concluded, are “ subject to close judicial scrutiny.” 403 U.S. at 372. In reaching this conclusion, the Court identified aliens as a “ suspect class,” a “ prim e exam ple o f a ‘discrete and insular’ minority [citing United States v. Carotene Products, 304 U.S. 144, 152-53 n.4 (1?38)] for whom such heightened judicial solicitude is appropriate.” Id. 86 Constitutionality o f Citizenship Requirement fo r Participation in Small Business Administration’s 8(a) Program gress or the President are subject to “ relaxed scrutiny,” Nyquist, 432 U.S. at 7 n.8, and violate the Fifth Amendment only if they are “ wholly irrational,” M at­ hews, 426 U.S. at 83, similar restrictions established by executive agencies without clear statutory or presidential authorization may be entitled to less deference. See Hampton, 426 U.S. at 103. Our examination of the citizenship requirement of § 124.103, whether evaluated under Hampton v. M ow Sun Wong or more standard equal protection or due proc­ ess analyses, leads us to conclude that the regulation survives constitutional scru­ tiny. A. H am pton v. M ow Sun W ong In Hampton v. M ow Sun Wong, 426 U.S. 88 (1976), the Supreme Court ad­ dressed the question whether discriminatory restrictions imposed by executive agencies should be subjected to more careful scrutiny than those imposed by Con­ gress or the President. At issue in Hampton was a Civil Service Commission regu­ lation that excluded aliens from the federal competitive civil service. Respondents challenged the regulation under both the Equal Protection and Due Process compo­ nents of the Fifth Amendment. The Court framed the issue before it in both equal protection and due process terms: The rule enforced by the Commission has its impact on an identifi­ able class of persons who, entirely apart from the rule itself, are already subject to disadvantages not shared by the remainder of the community. . . . The added disadvantage resulting from en­ forcement of the rule — ineligibility for employment in a major sec­ tor of the economy — is of sufficient significance to be character­ ized as a deprivation of an interest in liberty. Hampton, 426 U.S. at 102. Rather than relying upon a standard equal protection or due process analysis, however, the Court instead crafted an alternative analyt­ ical approach, based upon due process:3 3 The Court specifically rejected respondents' suggestion that it apply an equal protection analysis: Respondents argue that this scrutiny requires invalidation o f the Commission rule under traditional equal protection analysis. It is true that our cases establish that the Due Process Clause o f the Fifth Amendment authorizes that type o f analysis o f federal rules and therefore that the Clause has a substantive as well as a procedural aspect. However, it is not necessary to resolve respondents' substantive claim, if a narrower inquiry discloses that essential procedures have not been followed. 426 U.S. at 103. The dissent took issue with this “ novel conception o f the procedural due process guaranteed by the Fifth A m endm ent," 426 U.S. at 117 (Rehnquist, J., dissenting), chastising the majority for “ inexplicably meld[ing] together the concepts o f equal protection and procedural and substantive due process." Id. at 119. 87 Opinions of the O ffice o f L egal Counsel in Volume 20 [W]e deal with a rule which deprives a discrete class of persons of an interest in liberty on a wholesale basis. By reason of the Fifth Amendment, such a deprivation must be accompanied by due proc­ ess. . . . When the Federal Government asserts an overriding na­ tional interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due proc­ ess requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest. If the agency which promulgates the rule has direct responsibility for fostering or pro­ tecting that interest, it may reasonably be presumed that the asserted interest was the actual predicate for the rule. Id. at 102-03. Applying this analysis, the Court dismissed various justifications put forth by the Commission— those related to foreign affairs, treaty negotiations, and immigration and naturalization— as being outside the agency’s legitimate area of responsibility. Id. at 115. The only proper concern of the agency — the pro­ motion of an efficient federal service — was, the Court concluded, not a legitimate basis for such a broad exclusionary rule. Id. As noted above, the test outlined in Hampton falls somewhere between a classic equal protection and due process analysis. Pursuant to the Hampton approach, where an agency adopts an alienage rule that has a serious impact on interests entitled to due process protection, and does so without clear statutory or presi­ dential authorization, the agency must make some showing of statutory responsi­ bility for the national interests it asserts as its goals. In our judgment, the SBA meets this requirement: the rule it wishes to adopt is directly related to its statutory task of administering the 8(a) program and is a reasonable means of doing so. B. E q u a l Protection The SBA’s regulation also passes muster under a more conventional equal pro­ tection analysis. Notwithstanding the fact that “ all persons, aliens and citizens alike,” are protected by the Equal Protection component of the Fifth Amendment, Congress may nevertheless enact rules for aliens “ that would be unacceptable if applied to citizens.” Mathews, 426 U.S. at 80. Under Mathews, congressional statutes that discriminate against aliens are subject only to minimal review, the “ wholly irrational” standard noted above. Recently, the Supreme Court confirmed that this minimal standard applies also to equal protection challenges to restrictions imposed by executive agencies. In Reno v. F lores, 507 U.S. 292 (1993), the Court reviewed an Immigration and Naturalization Service regulation requiring unaccompanied alien juveniles to be placed in detention, pending deportation proceedings. Rejecting the alien juve­ niles’ equal protection claim that they were being treated differently from juvenile 88 C onstitutionality o f C itizenship R equirem ent fo r P articipation in Sm all B usiness A dm inistration’s 8(a) P rogram U.S. citizens awaiting federal juvenile delinquency proceedings, the Court sum­ marily affirmed the rationality of the policy, stating simply: “ [T]he difference between citizens and aliens is adequate to support the [disparate treatment].” 507 U.S. at 306. Flores suggests that federal alienage classifications imposed by an executive agency are subject to the same minimal scrutiny under the Equal Protection com­ ponent of the Fifth Amendment as is applied to congressional statutes. The SBA’s asserted interest in its citizenship requirement— to ensure that the 8(a) program benefits members of groups that have historically been abused in the United States and not those who only have been oppressed in foreign lands— is sufficient to satisfy this minimal standard. C. D ue Process Finally, we conclude that the regulation raises no issue under a standard proce­ dural due process analysis because the Supreme Court’s decisions establish that no constitutionally protected liberty or property interest is infringed by §124.103. The Supreme Court has interpreted the “ liberty” protected by procedural due process to include “ ‘not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life,. . . and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.’ ” B oard o f Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting M eyer v. Nebraska, 262 U.S. 390, 399 (1923)). Generally, liberty interests include those “ human abilities that do not depend on the government.” Scott v. Village o f Kewaskum, 786 F.2d 338, 340 (7th Cir. 1986). The 8(a) program, however, is a creature of government: it upends the concept of “ liberty” to claim that there is a liberty interest in a statutory program conferring preferential treatment for government contracts. Cf. id. (“ The due proc­ ess clauses are designed to establish regular procedures for governmental interven­ tion in private affairs, and so the claim to process is at its strongest when a person simply wishes to go about life— be it personal or economic life — without en­ countering the prohibition of the state.” ); LRL Properties v. Portage Metro Hous­ ing Auth., 55 F.3d 1097 (6th Cir. 1995) (holding that property owners have no liberty interest in continued participation in Section 8 housing rental assistance program). In Hampton, the Supreme Court found that aliens’ “ ineligibility for employment in a major sector of the economy” — the federal government— was a disadvan­ tage “ of sufficient significance to be characterized as a deprivation of an interest in liberty.” 426 U.S. at 102. No comparably broad interest is implicated by an applicant’s participation in the SBA’s 8(a) program. By excluding aliens from the 8(a) program, the SBA is not imposing on them “ a stigma or other disability” 89 Opinions o f the Office o f Legal Counsel in Volume 20 that forecloses their freedom to take advantage of other business opportunities. Roth, 408 U.S. at 573. Nor does exclusion from the 8(a) program impair any property interests. To hold a property interest in a government benefit, an applicant must “ have a legiti­ mate claim of entitlement to it.” Roth, 408 U.S. at 577. The Supreme Court has never held that an applicant for a government benefit has a constitutionally pro­ tected property interest in receiving it. See, e.g., W alters v. N ational A ss’n o f Radi­ ation Survivors, 473 U.S. 305, 320 n.8 (1985). Thus, to the extent that participa­ tion in the 8(a) program can be considered a government “ benefit,” applicants have no property right to that benefit. See Software Systems Assocs., Inc. v. Saiki, 1993 WL 294782 (D.D.C. 1993) (finding that an applicant has no property interest in participation in SBA 8(a) program); see also Blackburn v. City o f Marshall, 42 F.3d 925, 941 (5th Cir. 1995) (“ [T]he mere existence of a governmental pro­ gram or authority empowered to grant a particular type of benefit to one such as the plaintiff does not give the plaintiff a property right, protected by the due process clause, to receive the benefit, absent some legitimate claim of entitle­ m en t — arising from statute, regulation, contract, or the like — to the benefit.” ). III. We conclude that the citizenship requirement of 13 C.F.R. § 124.103 is constitu­ tional. The SBA’s asserted interest in its citizenship requirement satisfies both the criteria set forth in Hampton and the more conventional minimal rationality standard under the Equal Protection guarantee of the Fifth Amendment. The regu­ lation is equally valid under Supreme Court decisions interpreting the Due Process guarantee of the Fifth Amendment. WALTER DELLINGER A ssistant Attorney General Office o f L egal Counsel 90

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Impermissibility of Deputizing the House Sergeant at Arms as a Special Deputy U.S. Marshal Appointment o f the House Sergeant at Arms as a Special Deputy U.S. Marshal would entail an overlap­ ping o f congressional and executive accountability that is incompatible with separation of powers requirements, and it would impermissibly involve the institution of Congress in executive branch law enforcement. April 10, 1995 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 Y o u have asked our opinion whether there is any constitutional impediment to the deputation of the Sergeant at Arms of the House of Representatives (“ HSA” ) as a Special Deputy United States Marshal (“ DUSM” ). Given the nature of the H SA ’s status and statutory duties as an Officer of the House — which include maintaining order in the House under the direction o f the Speaker— it would be virtually impossible to separate or segregate those duties from the law enforcement duties of a DUSM, giving rise to inherent conflicts in accountability between the two positions. Consequently, we conclude that the proposed arrangement would raise serious concerns under the constitutional sepa­ ration of powers. I. BACKGROUND On May 25, 1994, this office issued an opinion advising that the appointment of a United States Senator as a DUSM would be inconsistent with separation of powers principles.1 We primarily based that conclusion upon “ the principle recognized in Bowsher v. Synar, 478 U.S. 714 (1986), that Congress may not exceed its constitutionally prescribed authority by playing a direct role in exe­ cuting the laws.” 18 Op. O.L.C. at 125. Although such an appointment might raise additional problems under the Incompatability Clause of Article I, Section 6, we did not reach that issue in the earlier opinion. See U.S. Const, art. I, §6, cl. 2. We were subsequently asked whether the deputation of an employee on the personal staff o f a U.S. Senator, for purposes o f providing protection and personal security against threatened violence2, would be constitutionally permissible. We concluded that it would. Our views on that issue were reflected in a Memorandum from the Director of the United States Marshals Service (“ USM S” ) to you, reviewed and endorsed by this office, dated January 26, 1995. Memorandum for 1Deputization o f Members o f Congress As Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994). 2 The Senator in question was also President Pro Tempore o f the Senate and Chairman of the Armed Services Committee. 99 Opinions o f the Office o f Legal Counsel in Volume 19 the Deputy Attorney General, from Eduardo Gonzalez, Director, United States Marshal Service, Re: Continued D eputation (Jan. 26, 1995) (“ Joint Memo­ randum ” ). In concluding that deputation of the congressional staff member would not violate the separation of powers, the Joint Memorandum stated: The deputized staff person is not a Member of Congress and exer­ cises no legislative power under Article I of the Constitution; nor would Congress (or any member thereof) have the authority to grant or revoke his appointment as a special DUSM, or to control or supervise his official duties as such. Joint M emorandum at 2 (emphasis added). By letter dated February 27, 1995, to the USMS, the Sergeant at Arms of the House has requested special deputation as a DUSM. In justification of the requested deputation, the letter states in pertinent part: This letter would like to request special deputation to carry a weapon since I have been recently swom in as the Sergeant at Arms for the United States House of Representatives (House). As the Chief o f law enforcement, my duties involve the protection of House members, investigation of threats, enforcement of the com­ mands o f the House, which includes the execution of arrest and search warrants, and the maintenance of order of the House, and other duties relating to the investigation and enforcement of the laws relating to Members of Congress and the general public. By memorandum to you dated March 31, 1995 (“ USMS Memorandum” ), the Deputy Director o f the USMS has recommended against granting the requested deputation. In so recommending, the USMS memorandum asserts that the deputa­ tion in question would raise constitutional separation of powers issues, stating: If he were deputized by the Marshals Service, he would use the additional authority from that deputation in furtherance of his duties as the Sergeant at Arms of the House of Representatives. Thus, the purpose o f his deputation would be concurrent with his duties as the House Sergeant at Arms. Since the House Sergeant at Arms remains in office subject to removal by the House of Representa­ tives, 2 U.S.C. 83, the House, on its own initiative, could remove the Sergeant at Arms from the position which is intertwined with his deputation. USMS Memorandum at 2. 100 Impermissibility o f Deputizing the House Sergeant at Arms as a Special Deputy U.S. Marshal In light of our prior opinions in this area, you have now requested our analysis of whether the USMS is precluded on constitutional grounds from deputizing the House Sergeant at Arms. II. ANALYSIS The House Sergeant at Arms is an Officer of the Congress. 2 U.S.C. § 60—1(b)(1). As part of his duties he is required to attend the House during its sittings, to maintain order under the direction of the Speaker, and, pending the election of a Speaker or Speaker pro tempore, under the direction of the Clerk, execute the commands of the House and all processes issued by authority thereof, directed to him by the Speaker. 2 U.S.C. §78.3 The HSA is subject to removal by the House of Representatives. 2 U.S.C. §83. It is evident that the HSA’s appointment as a DUSM for the purposes outlined in his letter of request would entail unavoidable conflicts in accountability with his duties and responsibilities as an Officer of the House. The letter makes it clear that the deputation is sought for the purpose of facilitating the H SA ’s duties to maintain order in the House and to enforce “ the commands of the House.” In performing his duty “ to maintain order [in the House] under the direction o f the Speaker,” 2 U.S.C. §78 (emphasis added), the HSA could not maintain the accountability to the Director of the USMS, the Attorney General, and ulti­ mately the President, that is required of a DUSM. Such overlapping of congres­ sional and executive accountability is incompatible with separation of powers requirements. See Bowsher, 478 U.S. at 726-32 (Comptroller General, who is “ an officer of the Legislative Branch” and “ controlled by Congress,” cannot constitu­ tionally be permitted to execute the laws). Moreover, we believe that the proposed deputation of the House Sergeant at Arms, like the deputation of a Member of Congress, would impermissibly involve the institution of Congress in executive branch law enforcement. See id. at 7 2 6 31. In this context, we do not think the activities of the House Sergeant at Arms for which deputation is sought can be separated from the institution o f Congress for separation of powers purposes. The situation of the staff employee of a Senator whose re-deputation has been recently approved by this office is distinguishable in several important respects. Unlike the HSA, that person’s employment as a Senator’s aide did not involve institutional duties to enforce order within the congressional sphere which could 3 See also 2 U.S.C. §79, providing that, “ [t]he symbol of his [i.e., the HSA] office shall be the mace, which shall be borne by him while enforcing order on the floor.” 101 Opinions o f the Office o f Legal Counsel in Volume 19 come into conflict with his accountability to the Attorney General as a DUSM. As stated in the memorandum approving that deputation, neither Congress, the Senate, nor any member thereof would have legal authority to control or supervise his limited protective duties as a DUSM. The limited protective function for which he was deputized is not subject to congressional supervision, whereas the HSA seeks deputation in connection with the very activities as to which, by statute, he is “ under the direction of the Speaker” and subject to “ the commands of the House.” 2 U.S.C. §78. Additionally, we do not think that a staff employee of a Senator or Representa­ tive, who is not an Officer o f the Congress, see 2 U.S.C. §60-1 (b)(1), can be equated with the institution of Congress for purposes of assessing the issue pre­ sented here. Unlike the HSA, his employment, duties, and removal are not con­ trolled by either House as an institution; rather, he is hired, supervised, and remov­ able at the discretion of a single Member. RICHARD L. SHEFFRIN D eputy Assistant Attorney General Office o f L egal Counsel 102

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Continuing Effect of a Congressional Subpoena Following the Adjournment of Congress A congressional subpoena lacks present force and effect after the adjournm ent sine die of a Congress, and it therefore im poses no continuing duty to com ply with its directives; similarly, it will not support the continued exercise by C ongress of the power to punish for contem pt. Judicial construction o f the procedure by which a congressional com m ittee’s contem pt citation is certified for prosecution under 2 U .S .C . § 192 indicates that it would require action by the whole H ouse and not sim ply the Speaker if the contem pt occurs while Congress is in session. A ccording­ ly, if the contem pt in this case were not reported to th e House while it was still in session, o r if the H ouse failed to act on the resolution, the citation w ould die upon Congress’ adjournm ent and be of no fu rth er force and effect If a su ccesso r com m ittee in the subsequent Congress brought a civil action to enforce the prior co m m ittee’s subpoena, its success m ight depend upon w hether the court viewed the prior subpoena and refusal to comply as a historical fact w hose validity could not now be adjudicated. T h is rationale w ould support an action for declaratory relief, but not one for injunctive relief. December 14, 1982 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL You have asked us to consider the question of the continuing effectiveness of a congressional subpoena following the adjournment of a Congress. There are at least four situations in which the issue might arise, including whether the subpoena provides a basis for: (1) a continuing obligation to produce the re­ quested documents; (2) congressional contempt proceedings within the inherent power of Congress; (3) criminal contempt prosecution under 2 U.S.C. § 192 (1976); and (4) civil enforcement in the district court. We believe that the better view is that the subpoena is not effective as a predicate for the first three proceedings but that it might be for the last. For the first two, there could be no continuing assertion of congressional authority because the subpoena will have lost present force and effect. For the third, judicial interpretation of the process by which a committee’s citation for con­ tempt is certified under 2 U.S.C. § 194 for prosecution under 2 U.S.C. § 192, coupled with appropriate separation of powers principles, should prevent further congressional action after adjournment.1 For the last, the issue is whether the 1 This memorandum does not address the separate issue whether 2 U.S.C. § 192 and§ 194 can ever be applied to executive officials See Letter of June 18, 1956, from William P. Rogers, Deputy Attorney General, to Hon. John E. M oss, Chairm an, Government Information Subcommittee, Committee on Government Operations, reprinted in Availability c f Information from Federal D epartments and Agencies Hearings Before a Subcomm c f the House Comm, on Government Operations, 84th C ong , 2d Sess. 2891 (1956) 744 historical fact of the viability of the subpoena and lack of compliance in the past is a sufficient basis for further congressional action. I. Continuing Obligation to Produce Documents It is clear that upon the adjournment sine die of a Congress, a House subpoena would cease to have any current effectiveness as far as imposing a continuing obligation to produce documents. This lapse in effectiveness of the subpoena results from the same factors that produce, at that same time, the death of all pending legislation not enacted, see F. Riddick, The United States Congress 56 (1949), and the termination of congressional authority to hold a contumacious witness in custody. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821); Marshall v. Gordon, 243 U.S. 521, 542 (1917). Because the subpoena would lack any present force or effect, it would impose no continuing duty to comply. II. Inherent Congressional Power to Punish for Contempt It is similarly clear from Anderson and Marshall that any confinement for contempt imposed by Congress in the exercise of its inherent constitutional powers must terminate upon adjournment sine die. See United States v. Fort, 443 F.2d 670, 676 (D.C. Cir. 1970), cert, denied, 403 U.S. 932 (1971). The duration of confinement, in fact, is measured by the session, and not the term, of Congress. This shorter duration seems to indicate that the limitation is imposed not merely out of a recognition that the subpoena lacks any present force or effect and will therefore not support the continued exercise of the power to impose a penalty for contempt. Whatever the alternative rationale which requires the more strenuous limitation, the result is clear that the effect of adjournment is the end of congressional power. III. Criminal Prosecution Under 2 U.S.C. § 194 Section 194 of Title 2, United States Code, provides: Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint com­ mittee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to 745 certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States Attorney, whose duty it shall be to bring the matter before the grand jury for its action. The predicate offense under § 192 of refusal to testify or produce papers is set out in the footnote.2 Section 194 appears to require a vote by a committee of Congress to hold the witness in contempt and a report by that committee of such fact to the House or the Senate while Congress is in session or to the Speaker of the House or the President of the Senate when Congress is not in session. The Speaker or the President of the Senate shall then certify the facts to the United States Attorney for prosecution. Judicial interpretation, however, has placed several important glosses on the statute. In Wilson v. UnitedStates, 369 F.2d 198 (D.C. Cir. 1966), the court considered the procedures for a contempt committed and reported while Congress was not in session. The court held that the Speaker of the House did not have a mandatory duty to certify the statements to the United States Attorney; “ his automatic certification, under a disclaimer denying his jurisdiction to make any inquiry or take any different course, was invalid.” Id. at 200. The court reasoned that the apparently mandatory language of § 194 regarding certification was the same whether Congress was in session or not. Yet it had been the practice of Congress since 1857 that the Speaker was not under a mandatory duty to certify the report of the committee when Congress was in session. Instead, a member of the committee would offer a resolution for the considera­ tion of the House involved. The court stated: It is clear that where the alleged contempts are committed while Congress was in session, the Speaker may not certify to the United States Attorney the statements of fact prepared by the Committee until the report of alleged contempt has been acted upon by the House as a whole. 369 F.2d 202. The court supported its conclusion by a brief discussion of prior judicial construction.3 The court also rejected the argument that even if House or Senate consideration was necessary if Congress was in session, the statute contemplated automatic 2 Every person who having been summoned as a witness by the authonty of either House of C ongress to give testimony or to produce papers upon any matter under inquiry before either House, o r any jo in t committee established by a jo in t or concurrent resolution of the two Houses of Congress, o r any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a com m on jail for not less than one m onth nor more than twelve months. 2 U .S C § 192. 3 In re Chapman, 166 U .S. 661 (1897) (holding that the Speaker or the President of the Senate may not certify the facts to the United States Attorney if a contempt resolution is defeated by the House whose action initiated the contempt action); U nited States v. Costello, 198 F.2d 200, 204-05 (2d C ir), cert. denied. 344 U S. 874 (1952) (referring to resolution of the Senate citing defendant to contempt as “ required by 2 U .S.C . § 194” ). 746 certification without further legislative consideration if Congress was not in session. The court reasoned that the single statutory phrase could not have such two radically different readings. Moreover, by scheduling hearings when Con­ gress was not in session or postponing reports until after adjournment, a commit­ tee might be able to insulate its actions on contempt matters from consideration by the full House or Senate. The 1936 amendment to the statute, which added the certification requirement, precluded an interpretation that would allow that result.4 If certification were mandatory, there would be no such check on the committee. The court then concluded that the established legislative practice required the interpretation that 2 U.S.C. § 194 “ vests jurisdiction in the Speaker of the House and the President pro tempore of the Senate, when Congress is not in session, to provide a substitute for the kind of consideration which would be provided by the house involved if it were still in session.” 369 F.2d 203-04. From the text of § 194, as construed by Wilson, and certain well-established rules of legislative practice, the following principles seem clear. After the committee vote, a written report is required. If the report is prepared while Congress is in session, it must be submitted to the full House5 in the form of a resolution directing the Speaker to certify the facts to the United States Attorney. If the House votes down the resolution, the committee citation is of no further force or effect; adjournment of the Congress presents no novel issue in this situation. Similarly, if the House fails to act on the resolution before adjourn­ ment, the resolution also dies; again, no novel issue is presented by the particular kind of resolution. If the House votes in favor of the resolution, it would be certified to the United States Attorney.6 If the committee fails to report the fact of the contempt while Congress is in session, Wilson, as well as general principles of separation of powers, can be read to preclude the committee from submitting the report to the Speaker for his action.7 The Wilson court stated that if the contempt occurred while Congress was in session, the Speaker could not certify the statement of facts until the report was acted upon by the House as a whole.8Given the clear preference of the courts 4 Both committee reports on the 1936 amendment state that “ the requirement that the statement of facts first be filed with the President of the Senate or the Speaker of the House constitutes a check against hasty action on the part of a committee ” H R Rep No 1667, 74th C ong., 1st Sess 2(1935), S Rep. No 2037, 74th Cong , 2d Sess. 2 (1936) 5 See also Kinoy v. District c f Columbia, 400 F 2d 761, 765 n 6 (D.C. C ir 1968) Appellant, however, forcefully argues that there are both substantive and procedural advantages lo a contempt proceeding, the most important of which is that where Congress calls upon the courts lo prosecute a contempt charge under 2 U .S.C . § 192 (1964), affirmative action by the subcommittee, the full committee and finally by the House (if it is in session) is required. 2 U S.C. § 194 ( 1964) See Wilson v. United States, 125 U S. App D.C 153, 369, F 2d 198 (1966). 6 Again, this procedure assumes that §§ 192 and 194 would be applicable to an Executive Branch official. B ut see note 1, supra 7 This conclusion does not depend on whatever requirement might be imposed by internal committee or House rule lhat all action of the committee be reported to the House while Congress is in session; whether the committee could meet dunng the adjournment to prepare the report; o r whether, even regardless of the general rules for reporting committee action, the report of a contempt would be treated differently, given that § 194 at least on its face seems to reflect the possibility of action by the Speaker and not the full House 8 It may be argued that this interpretation extends Wilson too far. The statement in Wilson, in context, appears to stand only for the point that certification by the Speaker is not mandatory because House action would be required if Congress were in session. 747 for action by the full House before anyone is held to answer for an alleged contem pt,9 Wilson could be read to require action by the House and not merely the Speaker if the contempt occurs while Congress is in session. These concerns are especially important in the context of a dispute between the Executive and the Congress which arises because of a clash between the Ex­ ecu tiv e’s enforcem ent responsibilities and C ongress’ investigative respon­ sibilities. In that situation, there seems additional reason to believe that a court would require the judgment of the full House that an Executive Branch official, acting directly pursuant to a direction from the President, should be held in contempt of Congress. Under this reading of § 194, if the committee failed to report the contempt to the House before the adjournment, or, as noted above, if the House failed to act on the resolution, the citation would be of no further force and effect. It would die upon adjournment as does all uncompleted committee action.10 IV. Civil Enforcement of the Subpoena Whether a civil action to enforce the subpoena could be brought following the adjournment might depend on whether a successor committee in the subsequent Congress again issued a subpoena for the documents and was again refused or whether it merely tried to bring an action based on the subpoena issued and refused in this Congress. The availability of relief might also depend on whether the action were brought for declaratory or injunctive relief. A . Subpoena and Refusal in the New Congress It seems clear that the successor committee in the new House could request the same documents again and that, upon the Executive’s refusal to produce, it could seek authority from the Congress, if it does not already exist, to bring a civil action to enforce the subpoena. Declaratory relief would be available; and if the court rejected the claim of executive privilege, it could order injunctive relief. Senate Select Comm ittee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) ( en banc). B. Enforcement by the New Congress c f the Prior Subpoena An argument can be made that the new House committee could not bring an action upon the prior subpoena because the House is not a continuing body. See 9 As noted above, the Wilson court expressed its concern that a committee might insulate its actions by postponing reports until after adjournment Even though discretionary review by the Speaker when Congress was not in session, which the Wilson court required, would alleviate this concern to some extent, action by the Speaker alone still does not provide the same statement of congressional intent as would action by the full House See also Kinoy v District c f Colum bia, supra, note 5. 10 It may be, however, that if a court accepted the view that action by the Speaker alone was inconsistent with appropriate respect for the Executive, the court might allow the Speaker to refer the matter to the House in the next C ongress out of a similar respect for the Legislature. 748 Gojack v. United States, 384 U.S. 702, 706-07 n.4 (1966)." It is possible, however, that the court might view the prior subpoena and refusal as a historical fact, the validity of which could be adjudicated notwithstanding the adjournment of Congress. Thus, if the civil action were authorized by existing law or specific action by the new Congress, the court might entertain it even without a repeated request for and refusal of the documents. The limitation recognized in Gojack arose in the context of a criminal prosecu­ tion in which current committee authority was a predicate for committee action and thus the contempt prosecution. A similar limitation might not be imposed if the House were to seek instead civil adjudication based on the prior fact of the alleged contempt.12 Other references to the termination of the legislative existence of the particular Congress are also inconclusive. These statements were made in the context of Congress’ inherent power to punish contempt. In Anderson v. Dunn, supra, the Court held that Congress had the inherent constitutional power to impose confinement for contempt but limited the duration of confinement to the session of Congress: [B]y the nature of things, since the existence of the power that imprisons is indispensable to its continuance; and although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolu­ tion. It follows that im prisonment must terminate with that adjournment. 19 U.S. at 231. The limitation, however, seems not to reflect the absence of legislative exist­ ence and thus power in the traditional sense, which is measured not by a session of Congress but by a term. Thus, the limitation seems to have been imposed because the power was implied, and not express; the Court therefore held that the extent of the punishing power was limited to “ the least possible power adequate to the end proposed.” I d . 13 Confinement imposed pursuant to a criminal con­ tempt conviction, in fact, is not similarly limited to the term of Congress. Marshall v. Gordon, supra. To these distinctions should be added two additional considerations. First, it is possible that a court might rely on traditional notions of mootness, which preserve for court review disputes which are capable of repetition yet evading review. See, e.g.. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514—16 (1911). Second, the Supreme Court has recognized the desirability of adjudicat­ 11 This rule might be different for the Senate, which is a continuing body. See McGrain v Daugherty, 273 U.S 135, 181 (1927) 12 Even (he conclusion in McGrain. supra. note 11, that the Senate is a continuing body is not unambiguous because the Court went on to invoke traditional considerations of mootness, which would not have been necessary if the Court were relying on some continuing authonty of the Senate denved from its status as a continuing body 13 Other considerations of separation of powers and due process may also have been involved The Court might have wanted to avoid having itself to decide what limitation on confinement should be imposed and yet have been unwilling to accept that there might be no limitation 749 ing issues of executive privilege in a civil action and not a contempt proceeding. U nited States v. Nixon, 418 U .S. 683 (1974). One lower court has expressed a clear preference for determining constitutional privilege in a civil action and not a criminal prosecution. Tobin v. U nited States, 306 F.2d 270,276 (D.C. Cir.), cert, denied, 371 U.S. 902 (1962).14 It may be, therefore, that there is no absence of congressional power to proceed upon the prior fact of refusal to produce documents in response to a subpoena. Under this view, a question would be raised about what kind of relief could be obtained in the civil action. The above rationale would support an action for declaratory relief based upon the historical facts. It might not support injunctive relief if the court were to conclude that the successor committee was not an entity entitled to receive the documents requested by its predecessor. In that situation, however, the new committee could rely upon an adjudication that the prior refusal was not supported by executive privilege, and could seek the documents by a new subpoena. T h eo d o r e B . O lso n Assistant Attorney General Office c f Legal Counsel 14 W hether these considerations would be persuasive only if Congress did not seek criminal sanctions in addition to the civil action is not clear. It is possible that the court would find that Congress elected its remedy in the criminal prosecution and thus refuse it additional consideration in the context of a civil action 750

Write a legal research memo on the following topic.

Post-Employment Restriction of 12 U.S.C. § 1812(e) A Director of the Office of Thrift Supervision who resigns at the President’s request is not subject to the two-year restriction, under 12 U.S.C. § 1812(e), against working for an insured depository institution or a depository institution holding company. September 4, 2001 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE TREASURY AND THE CHIEF COUNSEL OFFICE OF THRIFT SUPERVISION You have asked for our opinion whether the Director of the Office of Thrift Supervision (“OTS”), Department of the Treasury, will be subject to a two-year restriction against working for an insured depository institution or a depository institution holding company, when her resignation, which she offered at the President’s request, takes effect. 12 U.S.C. § 1812(e)(1)(A)(ii) (1994). See Letter for Daniel Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, Department of Justice, from Carolyn J. Buck, Chief Counsel, Office of Thrift Supervision (July 24, 2001) (“July 24, 2001 Letter”). We believe that the two-year restriction would not apply. The possible restriction arises from the OTS Director’s position on the Board of Directors of the Federal Deposit Insurance Corporation (“FDIC”). That Board consists of three members appointed to the Board by the President, with the Senate’s advice and consent; the Comptroller of the Currency; and the Director of OTS. 12 U.S.C. § 1812(a)(1). For two years after leaving the Board, former members are barred from “any office, position, or employment in any insured depository institution or any depository institution holding company”; but the bar does not apply “to any member who has ceased to serve on the Board . . . after serving the full term for which such member was appointed.” Id. § 1812(e)(1)(A)(B). In a letter to the President, the Director of OTS stated that the President had asked her to resign and that she therefore was tendering her resignation, effective upon the confirmation and appointment of a successor. Letter for the President, from the Director of the Office of Thrift Supervision at 1 (July 3, 2001) (“July 3, 2001 Letter”). The issue here is whether, having resigned in these circumstances, the Director of OTS has “serv[ed] the full term for which [she] was appointed.” 12 U.S.C. § 1812(e)(1)(B). A similar issue arose in 1961, when the Comptroller of the Currency resigned at the request of President Kennedy. At that time, the General Counsel of the Treasury concluded that “resignation at the request of the President is equivalent 184 227-329 VOL_25_PROOF.pdf 194 10/22/12 11:10 AM Post-Employment Restriction of 12 U.S.C. § 1812(e) to removal” and that “service until removal by receipt of a requested resignation constitutes service for a full term of office as Comptroller of the Currency.” Letter for Erle Cocke, Sr., Chairman, FDIC, from Robert M. Knight, General Counsel, Department of the Treasury at 1 (Nov. 7, 1961). Relying on these judgments, the Chairman of the FDIC, on the advice of his General Counsel, determined that the two-year post-employment restriction would not apply. See Letter for Robert M. Knight, General Counsel, Department of the Treasury, from Erle Cocke, Sr., Chairman, FDIC at 1 (Nov. 7, 1961). According to a memorandum in the files of the Treasury Department, that Department’s General Counsel showed Assistant Attorney General Nicholas Katzenbach, then the head of our Office, the letter from the Treasury General Counsel and a draft of the reply later sent by the FDIC Chairman, and Mr. Katzenbach “expressed his concurrence with the two letters.” Memorandum for the Files, from Robert M. Knight, General Counsel, Department of the Treasury (Nov. 7, 1961). We have located no confirmation of this approval in our Office’s files, but a letter sent to the Comptroller of the Currency in 1964 by Norbert Schlei, then the Assistant Attorney General for our Office, stated: I am aware of the case of your immediate predecessor in office, who resigned at the request of President Kennedy before completing the five-year term authorized by section 325 of the Revised Statutes, as amended (12 U.S.C. § 2). I agree with the conclusion reached by the General Counsel of the Treasury Department, and concurred in by the Chairman of the [FDIC], that a resignation under those circumstances marked the end of a full term for the purposes of the exception to the employment restriction in 12 U.S.C. § 1812 and left open to your predecessor the possibility of immediate employment with an insured bank. Letter for the Comptroller of the Currency, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel at 1 (Sept. 2, 1964). Two years later, our Office reached the same conclusion again. Letter for Fred B. Smith, General Counsel, Department of the Treasury, from Frank Wozencraft, Assistant Attorney General, Office of Legal Counsel (Nov. 10, 1966). An internal memorandum prepared a few weeks earlier laid the groundwork for the letter. Memorandum for the Files, from Nathan Siegel, Office of Legal Counsel, Re: Eligibility of a Comptroller of the Currency for Employment in an Insured Bank Under 12 U.S.C. § 1812 (Sept. 21, 1966) (“1966 Memorandum”). The rationale for this view of the statute, which is not an obvious interpretation of the language, was never explained at length, but it appears to have consisted of a two-step argument. First, a Comptroller of the Currency removed by the President has served a full term. He has served as long as the law—given the 185 227-329 VOL_25_PROOF.pdf 195 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 President’s action—would permit, see id. at 3-4; and application of the postemployment restriction, in those circumstances, would not serve the statute’s purpose, which is to prevent an official from (intentionally) exploiting a short stay in office to make contacts that lead to private employment. Id. at 2. Second, “when the holder of the office responds to the President’s request to resign it is in substance a forced separation from office” and so equivalent to a removal. Id. at 3. These prior opinions, without more, might seem to settle the issue whether the Director of OTS, whose office (like that of the Comptroller of the Currency) entails service on the FDIC Board, will have served her full term when her resignation at the President’s request becomes effective. In two respects, however, the situation here might differ from the one we previously considered. First, under 12 U.S.C. § 2 (1994), the Comptroller of the Currency “shall hold his office for a term of five years unless sooner removed by the President, upon reasons to be communicated by him to the Senate.” This provision could be read as expressly defining a term that ends either in five years or upon removal of the President. By contrast, the Director of OTS “shall be appointed for a term of 5 years.” Id. § 1462a(c)(2). Because the language of this provision could not be said expressly to define a term that ends upon removal by the President, a Director of OTS who is removed or resigns at the President’s request arguably would not have served a full term. It is far from evident that our earlier opinions rested in any way on an argument that the statutory language defined the Comptroller of the Currency’s term by reference to the President’s power of removal. At any rate, drawing this distinction would lead to a serious anomaly. Of the members of the Board, only the Comptroller of the Currency serves under a statute that contains the “unless sooner removed by the President” language. Thus, if a distinction were made on the basis of this language, the distinction would give a special benefit to the Comptroller of the Currency that would be unavailable to the other members of the FDIC’s Board: only the Comptroller of the Currency would be relieved of the two-year bar when the President removed him or he resigned at the President’s request. We would not infer that Congress intended such an anomaly. On the contrary, the legislative history suggests that the Comptroller of the Currency and the other members of the Board were to be subject to the same post-employment restrictions. Until 1950, when the Board consisted of the Comptroller of the Currency and two appointed members, the two-year bar was absolute as to the Comptroller of the Currency, and only the appointed members gained exemption from the bar by serving their full terms. See 12 U.S.C. § 264(b) (1946). In 1950, Congress repealed the absolute bar that had applied to the Comptroller of the Currency, “thereby placing him in the same position in that respect as the two appointive members of the Board.” H.R. Rep. No. 81-2564, at 5 (1950) (emphasis added); see also 1966 Memorandum at 2-3 (citations omitted). But if the exception for officials who have served a “full term” is available to a Comptroller of the 186 227-329 VOL_25_PROOF.pdf 196 10/22/12 11:10 AM Post-Employment Restriction of 12 U.S.C. § 1812(e) Currency removed from office only because his term is “five years unless sooner removed,” and if that exception is unavailable to the other members of the Board because the statutes applicable to them do not contain that language, the 1950 amendment, rather than placing the Comptroller of the Currency in the same position as the appointed members, would have put him in an appreciably better position. Second, the Director of OTS’s letter of resignation suggests, without actually asserting, that the Director of OTS might not serve at the pleasure of the President. See July 3, 2001 Letter at 2. Such an assertion would be in tension with the view that the President, by asking for the Director of OTS’s resignation, had effectively removed her from office and that she thus had served the full term allowed by the law under the circumstances. We do not endorse the view that tenure protection for the Director should be inferred under the statute here. The statute gives no express protection. Furthermore, as the Director of OTS observes, see July 24, 2001 Letter at 1, OTS is within the Treasury Department, and the Secretary of the Treasury has “general oversight” power over the Director. 12 U.S.C. § 1462a(b)(1). At any rate, it is sufficient for present purposes to note that the Director of OTS did not actually claim that the President would have lacked authority to remove her. Therefore, under the approach of our prior opinions and for purposes of the question here, her resignation “is in substance a forced separation from office.” See 1966 Memorandum at 3. We therefore do not believe that the present case should be distinguished from our earlier opinions. Because the Director of OTS resigned at the President’s request, she has served a “full term” within the meaning of the statute as our Office has interpreted it, and she may claim the benefit of the exception to the two-year post-employment bar. DANIEL L. KOFFSKY Acting Assistant Attorney General Office of Legal Counsel 187 227-329 VOL_25_PROOF.pdf 197 10/22/12 11:10 AM

Write a legal research memo on the following topic.

NLRB Quorum Requirements The National Labor Relations Board may issue decisions even when only two of its five seats are filled, if the Board, at a time when it has at least three members, delegates all its powers to a three-member group and the two remaining members are part of this group and both participate in the decisions. March 4, 2003 MEMORANDUM OPINION FOR THE SOLICITOR NATIONAL LABOR RELATIONS BOARD Your office has asked for our opinion whether, having delegated all of its powers to a group of three members, the National Labor Relations Board (“Board”) may issue decisions and orders in unfair labor practice and representation cases once three of the five seats on the Board have become vacant.1 We believe that the Board may issue such decisions and orders if the two remaining members are part of the three-member group to which the Board delegated all of its powers and if they both participate in such decisions and orders.* I. The Board consists of five members, who are appointed by the President with the advice and consent of the Senate and serve staggered terms of five years. 29 U.S.C. § 153(a) (2000). The Board may “delegate to any group of three or more members any or all of the powers which it may itself exercise.” Id. § 153(b). Although a “vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board,” the Board is subject to quorum requirements: “[T]hree members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to” the provision on delegation to groups of three or more members. Id. The “primary function of the Board is to adjudicate any contested issues that arise in . . . unfair labor practice and representation cases, i.e. to issue final decisions and orders in the cases, usually after an initial or recommended decision has been issued by an administrative law judge (in unfair labor practice cases), or by a hearing officer or regional director (in representation cases).” Board Letter at 1 Letter for Jay Bybee, Assistant Attorney General, Office of Legal Counsel, from Henry S. Breiteneicher, Acting Solicitor, National Labor Relations Board, Re: Request for OLC Opinion (May 16, 2002) (“Board Letter”). In accordance with our Office’s policies, the Board has agreed to be bound by the present opinion. Id. at 7. * Editor’s Note: In New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2640 (2010), the Supreme Court reached a contrary conclusion, interpreting section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), to require “that the delegee group [of Board members] maintain a membership of three in order for the delegation to remain valid” (emphasis in original). 82 NLRB Quorum Requirements 3–4 (footnotes omitted); see 29 U.S.C. §§ 158, 159 (2000). As a matter of prudence, when the membership on the Board has fallen to two members, the Board has not issued decisions and orders in such cases. Board Letter at 2. The Board has not attempted to resolve whether a Board with three serving members could delegate its powers to itself as a three-member group and, when the membership of the Board and of the group fell to two, continue to issue decisions and orders on the theory that a quorum of two for the three-member group would remain. See id. at 2–3.2 II. In our view, if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained. A. The statute permits the Board to “delegate to any group of three . . . members any or all of the powers which it may itself exercise.” 29 U.S.C. § 153(b). In the proposed arrangement, the three remaining members of the Board would constitute themselves a “group” of the Board and would delegate to that group “all of the [Board’s] powers.” The statute further declares that, where the Board has delegated power to a group of three or more members, a quorum of the group shall be two members. Id. The provision for a two-member quorum of such a group is an express exception to the requirement that a quorum of the Board shall be three members: “[T]hree members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated” by the Board. Id. Moreover, the statute states that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” Id. (emphasis added).3 We therefore conclude that the plain terms of section 153(b) provide that the Board could form a “group” that could exercise all of the Board’s powers as long as it had a quorum of two members. 2 The Board Letter might be read to leave open the possibility that the last two members, even without a delegation from three members, could act as a group with a two-member quorum. Because only “[t]he Board is authorized to delegate to any group of three or more members any or all of [its] powers” and “three members of the Board shall, at all times, constitute a quorum of the Board,” 29 U.S.C. § 153(b), it is unclear how the remaining two members could take action in those circumstances. 3 In the construction of an Act of Congress, “unless the context indicates otherwise—words importing the singular include and apply to several persons, parties, or things.” 1 U.S.C. § 1 (2000). Thus, the provision under which “[a] vacancy in the Board shall not impair the right of the remaining members,” 29 U.S.C. § 153(b), also applies to more than one vacancy, as long as the quorum requirement is met. Cf. R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1341 (D.C. Cir. 1983) (interpreting term “vacancies”). 83 Opinions of the Office of Legal Counsel in Volume 27 There is judicial authority for reading this statute to mean that the departure of one member of a three-member group designated by the Board would not prevent the remaining two members from acting. In Photo-Sonics, Inc. v. NLRB, 678 F.2d 121 (9th Cir. 1982), the Ninth Circuit upheld the decision of a three-member group when one member’s resignation had become effective on the day that the group’s decision had been issued. The court ruled that even if the resignation precluded the member from taking part in the decision, “a decision by two members of the panel would still be binding.” Id. at 122. The court relied specifically on section 153(b)’s provision that two members of a group to which the Board has delegated powers shall constitute a quorum. Id. (referring to section 153(b) as section 3(b) of the National Labor Relations Act). In defining the term “quorum,” the court drew an analogy to cases where courts having three members “have issued decisions by a quorum of two judges when the third died or was ill.” Id. (citations omitted). In these cases, “[c]ourts have interpreted ‘quorum’ to mean the ‘number of the members of the court as may legally transact judicial business.’” Id. (quoting Tobin v. Ramey, 206 F.2d 505, 507 (5th Cir. 1953)). Applying the analogy to the Board, the Ninth Circuit held that “[u]nder the view that ‘quorum’ means the number of members that may legally transact business, the Board’s decision in this case is valid . . . because a ‘quorum’ of two panel members supported the decision.” Id. The resignation of one member thus did not take away the remaining members’ power to act. We note that the legislative history of the statute, though far from exact on this point, is consistent with the view that delegations to groups of members may be used to ensure the Board’s capacity to accomplish its business—a capacity that would otherwise be destroyed in the circumstances you have posited. The provision on delegations to groups of three or more members was first enacted in 1947 as part of the Taft-Hartley Act. The bill, as passed by the House, provided for a Board of three members—the same number as under prior law. See 93 Cong. Rec. 3549 (1947). The Senate bill called for expanding the Board to seven members, of whom four would be a quorum, and allowing delegation to any group of three members, of whom two would be a quorum. See S. Rep. No. 80-105, at 33 (1947). The purpose of this arrangement was to “permit [the Board] to operate in panels of three, thereby increasing by 100 percent its ability to dispose of cases expeditiously in the final stage, and to leave the remaining member, not presently assigned to either panel, to deal with the problems of administration[,] personnel, expenditures, and the preparation of the budget.” Id. at 8. The conference committee, without giving any reasons, settled on a Board of five members, but retained the provisions for delegations to groups of three. H.R. Conf. Rep. No. 80-510, at 37 (1947). The intent thus seems to have been generally to enable the Board to handle more cases by dividing itself into panels. As the District of Columbia Circuit declared in a case upholding the National Mediation Board’s delegation of its authority to a single member expected to remain in office, “it would seem that if the [National Mediation] Board can use its authority to delegate in order to 84 NLRB Quorum Requirements operate more efficiently, then a fortiori the Board can use its authority in order to continue to operate when it otherwise would be disabled.” R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1340 n.26 (D.C. Cir. 1983).4 B. We recognize that, here, the Board would be creating a three-member “group” with the intent that it operate as a two-member group upon the departure of the third member. In Photo-Sonics, where the Ninth Circuit upheld the decision of a group whose membership had fallen to two, the Board evidently had not created the three-member group with the intent that it function with only two members, and there appears even to have been a dispute whether in fact only two members of the group had participated in the decision. 678 F.2d at 122. Furthermore, in Photo-Sonics, the Board as a whole continued to have four members, even after one member of the “group” resigned. See 254 Decisions and Orders of the National Labor Relations Board, at III (1982). Here, the Board itself would lack its quorum of three members, and the proposed arrangement would be designed with the purpose of dealing with that situation. Nevertheless, the statute provides that once a delegation is made to a group of three or more members, the quorum of the group becomes two. It imposes no requirement that the group continue to have three members, as long as the twomember quorum continues. Furthermore, even if the three-member quorum of the Board as a whole no longer exists, a prior delegation of the Board would remain valid, because a vacancy in the position of a delegating authority does not invalidate prior delegations of institutional power by that authority. See, e.g., Yardmasters, 721 F.2d at 1343; Champaign Cnty. v. U.S. Law Enforcement Assistance Admin., 611 F.2d 1200, 1207 (7th Cir. 1979); but see Yardmasters, 721 F.2d at 1346–47 (Wald, J., dissenting). In addition, when the Board’s membership has fallen to three members, the Board has developed a practice of designating those members as a “group” in cases where one member will be disqualified, and then proceeding to a decision with a quorum of the two members able to participate. Board Letter at 5–6. This practice suggests that three-member groups may be constituted even when it is foreseen that only two members will actually participate in a decision. We also recognize that our conclusion arguably is in tension with dictum in Yardmasters. There, a divided panel of the District of Columbia Circuit held that a 4 But cf. Hunter v. Nat’l Mediation Bd., 754 F.2d 1496, 1498 n.1 (9th Cir. 1985) (because the final administrative action in the case was taken by a quorum of the NMB, the court does not “reach the question of the limits of NMB authority to delegate powers in the event of . . . vacancies” and “adopt[s] the rationale of Yardmasters only insofar as necessary for [the] conclusion that interim actions by [the single Board member] did not affect the ultimate validity” of the NMB’s action); Scheduled Skyways, Inc. v. Nat’l Mediation Bd., 738 F.2d 339, 341 (8th Cir.) (the “question of one-member certification” had become moot, and the court did not reach the issue), appeal dismissed, 746 F.2d 456 (1984). 85 Opinions of the Office of Legal Counsel in Volume 27 single member of the National Mediation Board (“NMB”), acting under a delegation, could exercise the powers of that body when vacancies on the NMB temporarily had deprived it of its statutory quorum. The court ruled that the statutory provision allowing for delegation did not limit the powers that could be delegated; that the loss of a quorum on the NMB did not vitiate the delegation, because the statute provided that vacancies on the NMB would not affect the powers of the remaining members; and that the delegation did not conflict with the quorum requirement, because the statutory provision on delegation provided an independent mode for the NMB to conduct its business, apart from transacting business at NMB meetings. In answering the dissenting judge’s argument that a single member could abuse the powers vested in the NMB, the court stressed that, “[u]nlike the National Labor Relations Board, the [NMB] is not principally engaged in substantive adjudications” and “does not adjudicate unfair labor practices or seek to enforce individual rights under [its governing statute].” 721 F.2d at 1345. The court might thus be understood to have disapproved of the use of delegations to deal with the lack of a quorum where an agency exercises the sort of substantive power that is vested in the Board. The court, however, did not analyze the statute applicable to the Board, and, under this statute, there is a separate quorum requirement for a three-member group. The arrangement that would be used to deal with vacancies on the Board, therefore, would not confer power on a number of members smaller than the number for which Congress expressly provided in setting the quorum. The possible abuse of the delegation power that the dissenting judge raised in Yardmasters, and the majority sought to avoid, would not arise under the statute governing the Board. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 86

Write a legal research memo on the following topic.

Legality of EEOC’s Class Action Regulations The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised with respect to the Equal Employment Opportunity Commission’s class action regulations. The Equal Employment Opportunity Commission’s class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners suggested by the United States Postal Service: the regulations do not purport to prevent claimants from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and they do not forestall the running of the limitations period. September 20, 2004 MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL UNITED STATES POSTAL SERVICE You have asked whether certain class action regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) applicable to administrative complaints against federal government agencies are contrary to Title VII of the Civil Rights Act of 1964. We conclude that they are not inconsistent with Title VII in the manners you suggest. I. We begin with a brief overview of the applicable statutory and regulatory provisions at issue. Section 2000e-16 of title 42, U.S. Code, provides that personnel actions of the federal government, including those of the United States Postal Service (“USPS”), “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a) (2000). Section 2000e-16 then specifically assigns the EEOC the authority to enforce this requirement: Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies . . . and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. Id. § 2000e-16(b). In pursuance of this authority, the EEOC has created a detailed administrative procedure for resolving claims of discrimination by federal employees or applicants for federal employment, including hearings before administrative law judges and appeals to the EEOC itself. The complaining employee or applicant may, subject to conditions, seek relief in the federal courts if he is dissatisfied with the results of this administrative process. Id. § 2000e- 254 Legality of EEOC’s Class Action Regulations 16(c). An agency, however, may not seek judicial review of the decisions of the EEOC. See id. § 2000e-16(b), (c). Your specific questions involve the EEOC’s administrative process for resolving class action complaints. See 29 C.F.R § 1614.204 (2003). This process begins when an aggrieved individual, after completing a counseling process, files a class complaint with the agency that allegedly discriminated against him. See id. § 1614.204(b), (c). The agency then has thirty days to forward the complaint to the EEOC, which assigns the complaint to an administrative judge. Id. § 1614.204(d). The administrative judge first must decide whether to recommend certification of the class, which he may do if the proposed class meets the requirements of numerosity, commonality and typicality, and if the complainant who is the proposed agent for the class will “fairly and adequately protect the interests of the class.” Id. § 1614.204(a)(2), (d)(2). Once the administrative judge makes his recommendation, the agency must, within forty days, decide whether or not to accept the complaint. Id. § 1614.204(d)(7). If the agency dismisses the class complaint, the complainant may appeal to the EEOC or file a civil action. Id. If the agency accepts the class complaint, it must notify the class members. Id. § 1614.204(e). Discovery then begins and lasts not less than sixty days. Id. § 1614.204(f). Once discovery has concluded, the administrative judge conducts a hearing and issues a report and recommendations on the merits of the complaint. Id. § 1614.204(h), (i). Upon receipt of this report, the agency has sixty days to issue a “final decision” stating whether it will “accept, reject, or modify the [administrative judge’s] findings.” Id. § 1614.204(j)(1). This “final decision . . . shall, subject to subpart D of this part [addressing the appeal rights of the complainant and the agency], be binding on all members of the class and the agency.” Id. § 1614.204(j)(6). The agency must then notify the complainants of its final decision, as well as of their appeal rights under subpart D. Id. § 1614.204(j)(7), (k). Where the agency has found discrimination, members of the class may then file claims for individual relief. Id. § 1614.204(l). If the class agent or any member who has filed a claim for individual relief is unsatisfied with the final action of the agency, he may either appeal to the EEOC or file a civil action in federal court. Id. §§ 1614.401(c), 1614.407. In addition, if at any time during this process, more than 180 days has passed since the filing of the initial complaint, an individual or the class may file an action in federal court. Id. § 1614.407. With respect to appeals to the EEOC, the EEOC has delegated the responsibility for handling them to the Office of Federal Operations (“OFO”). Id. § 1614.403–.405. There is no time limit in which the OFO must act; however, 180 days after the filing of the appeal, the class or a member who has filed a claim for individual relief may file a civil action in federal court. Id. § 1614.407(d). Alternatively, the class may await the decision of the OFO and, if dissatisfied, may file a civil action within ninety days of that decision. Id. § 1614.407(c). The 255 Opinions of the Office of Legal Counsel in Volume 28 agency is not authorized to proceed in federal court should it be dissatisfied with the results of the administrative process. See id. §§ 1614.407, 1614.502. The class agent and the agency may resolve the complaint by written agreement at any time. Id. § 1614.204(g)(2), (3). Notice of the resolution must be provided to all class members, who may then petition to have the resolution vacated on the ground that it is “not fair, adequate and reasonable to the class as a whole.” Id. § 1614.204(g)(4). The administrative judge considers these petitions. If he finds that the resolution is fair, adequate and reasonable, then the resolution binds all members of the class. Id. If, on the other hand, the administrative judge determines that the proposed resolution is unfair to the class as a whole, he vacates the resolution and restarts the adjudicatory process. Id. With this statutory and regulatory background in mind, we now turn to the legal questions presented by your request. II. We first address the EEOC’s arguments that, under Executive Orders 12067 and 12146, we should refrain from resolving the legal questions you raise. For the reasons explained below, we conclude that neither argument establishes that this Office lacks the authority to resolve the legal questions here presented. A. The EEOC first argues that section 1-307 of Executive Order 12067 prohibits this Office from addressing the merits of the legal questions at issue. Section 1307(b) provides: Whenever a dispute which cannot be resolved through good faith efforts arises between the Equal Employment Opportunity Commission and another Federal department or agency concerning the issuance of an equal employment opportunity rule, regulation, policy, procedure, order or any matter covered by this Order, the Chairman of the Equal Employment Opportunity Commission or the head of the affected department or agency may refer the matter to the Executive Office of the President. Such reference must be in writing and may not be made later than 15 working days following receipt of the initiating agency’s notice of intent publicly to announce an equal employment opportunity rule, regulation, policy, procedure or order. If no reference is made within the 15 day period, the decision of the agency which initiated the proposed issuance will become effective. Exec. Order No. 12067, 3 C.F.R. § 208 (1979). The EEOC argues that USPS “should not be permitted to raise a matter under the general dispute resolution mechanism of E.O. 12146 that could have and should have been raised under the 256 Legality of EEOC’s Class Action Regulations more specific process for resolving disputes between agencies over EEO-related regulations” set forth in section 1-307(b). Letter for Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, Associate Legal Counsel, Equal Employment Opportunity Commission, Re: EEOC’s Class Complaint Regulation at 2 (Nov. 14, 2003) (“EEOC Letter”). We disagree with the EEOC’s interpretation of Executive Order 12067. The EEOC’s argument appears to rest on the assumption that section 1-307 sets forth the exclusive mechanism by which an agency may challenge an equal employment opportunity rule, regulation, policy, procedure or order. Were this true, then, for example, the only recourse open to an agency that has, after issuance and in light of practical experience, come to believe that a particular regulation reflects bad public policy, would be to seek an amendment to the Executive Order. It could not simply seek to have that regulation withdrawn or amended through ordinary interagency processes, since, under the EEOC’s view of Executive Order 12067, such processes would be precluded by operation of section 1-307(b). Nothing in section 1-307(b) requires such a result. Rather, section 1-307(b) simply establishes a process that must be followed before a proposed rule or regulation can take effect. As the last sentence of that section states, “[i]f no reference is made within the 15 day period, the decision of the agency which initiated the proposed issuance will become effective.” Section 1-307(b) does not, however, preclude an agency from challenging a rule or regulation—be it on policy or legal grounds—after the regulation has been issued.1 We thus conclude that section 1-307 poses no bar to our addressing the legal questions you have raised. B. The EEOC also argues that this Office lacks authority to address the questions presented under Executive Order 12146. Sections 1-401 and 1-402 of that Order provide: 1-4. Resolution of Interagency Legal Disputes 1-401. Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a 1 Although we have not previously addressed the issue raised by the EEOC here, we have in the past responded to requests for opinions that challenged EEOC regulations after they had been issued. See, e.g., Authority of the Equal Employment Opportunity Commission to Impose Monetary Sanctions Against Federal Agencies for Failure to Comply With Orders Issued by EEOC Administrative Judges, 27 Op. O.L.C. 24 (2003) (discussing whether the EEOC has the authority to award attorney’s fees against an agency as the EEOC had pursuant to 29 C.F.R. § 1614.109 and Management Directive 110). 257 Opinions of the Office of Legal Counsel in Volume 28 particular activity, each agency is encouraged to submit the dispute to the Attorney General. 1-402. Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is a specific statutory vesting of responsibility for a resolution elsewhere. Exec. Order No. 12146, 3 C.F.R. § 411 (1980). The EEOC makes two arguments with respect to section 1-4 of this Executive Order, both of which we find unpersuasive. First, the EEOC argues that section 1-402 is inapplicable because the Postmaster General “does not serve at the pleasure of the President.” EEOC Letter at 2. Even if so, section 1-402 does not prevent us from resolving the merits of this dispute. As we recently explained, section 1-402 does not prohibit an agency from requesting, or the Attorney General from rendering, an opinion properly requested pursuant to some other authority, such as section 1-401 of the Executive Order. See Applicability of Anti-Discrimination Statutes to the Presidio Trust, 28 Op. O.L.C. 84, 85–90 (2004) (“Presidio Trust”). Rather, “all that section 1-402 does is establish a requirement that agencies must satisfy before they are permitted to bring action in court.” Id. at 87. Thus, even if the head of the USPS does not serve at the pleasure of the President—a question on which we express no view—that would simply mean that the USPS is not bound by the procedural requirements of section 1-402. It would not, however, prevent the USPS from seeking our views or prohibit us from addressing the questions you have raised. This brings us to the EEOC’s second argument: that we lack authority to resolve this issue under section 1-401 of the Executive Order because there is no unresolved dispute here within the meaning of that section. In particular, the EEOC states that “[a]lthough EEOC met with USPS last year to discuss our class complaint regulation, USPS did not raise any of the specific objections raised in its August 13 letter [to this Office].” EEOC Letter at 2. Thus, explains the EEOC, “[n]ot only has there been no attempt to resolve the ‘dispute’ at hand, EEOC did not learn of USPS’[s] allegation that our class complaint regulation violates Title VII until we received a copy of their letter from your office.” Id. We would, of course, encourage agencies to attempt to resolve legal disputes amongst themselves prior to seeking the views of this Office. But the failure to do so does not deprive us of authority under section 1-401 to render an opinion on the legal questions that USPS has presented. Nothing in section 1-401 establishes a procedure by which agencies must attempt to resolve a dispute before seeking an opinion from the Attorney General: all that is required by that section is the presence of a legal dispute that they have been “unable to resolve.” And here, the letters to us from the EEOC and the USPS make clear that these agencies have 258 Legality of EEOC’s Class Action Regulations been “unable to resolve” the question whether the EEOC’s class action regulations are contrary to Title VII. Compare Letter for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, Vice President and General Counsel, United States Postal Service, Re: EEOC Class Actions at 1 (Aug. 13, 2003) (“USPS Letter”) (“The Commission’s class action regulations are invalid because they are contrary to three fundamental principles embodied in Title VII of 1964.”), with EEOC Letter at 3 (“We believe that USPS is misinterpreting our regulation, and disagree with their allegations that our regulation conflicts with Title VII.”). See also Presidio Trust, 28 Op. O.L.C. at 86 n.4 (noting that “as the submissions to us from the Trust and the EEOC make clear, the Trust and the EEOC have not resolved their dispute on this broader legal issue”) (internal citation omitted). We therefore reject the view that USPS’s failure to raise with the EEOC the legal basis for its challenge before coming to us deprives us of the authority to resolve this ongoing dispute. III. We now turn to the merits of the legal questions you have raised. In particular, you have challenged the EEOC’s class action regulations as “contrary to three fundamental principles embodied” in Title VII, the statutory scheme they are intended to enforce. USPS Letter at 1. First, you state that the regulations purport to bind complainants to EEOC determinations in violation of their statutory right to bring an action in federal court once they have exhausted their administrative remedies. Id. at 1, 2–4. Second, you state that the regulations are inconsistent with applicable exhaustion requirements because they frustrate the agency’s ability to resolve administrative complaints and because they create the possibility that class members will be able to sue in federal court without having filed an administrative complaint. Id. at 1, 4–7. And third, you state that the regulations are inconsistent with the applicable statute of limitations, again because, by creating the possibility that class members will be able to sue in federal court without having filed an administrative complaint and by failing to provide for notice of final agency action to non-filing members, they forestall the running of the statutory limitations period with respect to such members. Id. at 1, 7–8. For the reasons explained below, we do not believe that the EEOC’s class action regulations are inconsistent with Title VII in the manners you suggest.2 2 Our opinion is limited to whether EEOC’s class action regulations are contrary to the statute on the three bases you indicate; we do not address here any other possible grounds for challenging the regulations. 259 Opinions of the Office of Legal Counsel in Volume 28 A. Resolution of the legal issues presented here is guided by the administrative law principles applied by the Supreme Court in United States v. Mead Corp., 533 U.S. 218 (2001), the Court’s recent extended application of the doctrine first set out in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In Mead, the Court addressed both the circumstances in which deference under Chevron is owed to an agency’s implementation of a statute as well as the substantive scope of that deference. With respect to the former, the Court explained that Chevron deference is due where “the agency’s generally conferred authority and other statutory circumstances” suggest that “Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” Mead, 533 U.S. at 229. Paradigmatic of such circumstances are “express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed.” Id. As the Court summarized: [A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. Id. at 226–27; see also id. at 230 (“It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force . . . . Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.”). Notice-and-comment rulemaking, however, is not a prerequisite for Chevron deference, provided that “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority,” a delegation, the Court explained, that “may be shown in a variety of ways.” Id. at 226–27. In Mead, the Court thus observed that “as significant as notice-andcomment rulemaking is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded.” Id. at 230–31. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997) 260 Legality of EEOC’s Class Action Regulations (An agency’s “interpretation of [its own regulations] is . . . controlling unless ‘plainly erroneous or inconsistent with the regulation.’ “). And even where an agency rule does not qualify for Chevron deference, it still may be entitled to deference under a lesser standard. See Mead, 533 U.S. at 234–35. Where Chevron deference is due, the Court explained that the scope of an agency’s regulatory authority is broad indeed: When Congress has ‘explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,’ and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Mead, 533 U.S. at 227 (quoting Chevron, 467 U.S. at 843–44); see also id. at 229 (where Chevron deference is due, “a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise, but is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation is reasonable”). Here, it is clear that the EEOC’s class action regulations are entitled to Chevron deference: Congress has specifically authorized the EEOC “to enforce the provisions of subsection (a) of this section through appropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section,” 42 U.S.C. § 2000e-16(b), and in furtherance of this authority, the EEOC promulgated these regulations pursuant to notice-and-comment rulemaking, in which federal government agencies fully participated. See 57 Fed. Reg. 12,634 (Apr. 10, 1992); 64 Fed. Reg. 37,644 (July 12, 1999).3 It is for this reason, perhaps, that you have not suggested that these regulations are “procedurally defective” or “arbitrary or capricious in substance.” Mead, 533 U.S. at 227. The question before us, then, is whether they are “manifestly contrary to the statute” that they are intended to 3 It is true that the Supreme Court has not accorded Chevron deference to certain of the EEOC’s substantive regulations. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976). But that is because “‘Congress, in enacting Title VII, did not confer upon the EEOC’” such authority. Arabian Am. Oil Co., 499 U.S. at 257 (quoting Gen. Elec. Co., 429 U.S. at 141). Here, the EEOC’s regulations are procedural in nature, and Congress has expressly granted the EEOC the authority “to enforce the provisions of subsection (a) of this section through appropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section.” 42 U.S.C. § 2000e-16(b). See also Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002) (noting that “[t]he first [threshold question] is whether the [EEOC’s] rulemaking exceeded its authority to adopt ‘suitable procedural regulations,’ 42 U.S.C. § 2000e-12(a), and instead addressed a substantive issue over which the EEOC has no rulemaking power”) (citations omitted); id. at 122–23 (O’Connor, J., concurring). 261 Opinions of the Office of Legal Counsel in Volume 28 implement in any of the three ways you have indicated. Id. It is to these questions that we now turn. B. You have asserted three ways in which you believe that the EEOC’s class action regulations are contrary to Title VII. We address each in turn. 1. You first state that the EEOC’s regulations are inconsistent with Title VII because they purport to “bind” complainants when, pursuant to the statute, complainants may proceed in federal court if they are dissatisfied with the results of the administrative proceeding. USPS Letter at 1, 2–4. In particular, you note several portions of the class action regulations that state or suggest that class members are “bound” by the results of the administrative proceeding, including 29 C.F.R. § 1614.204(e)(2)(iii) (requiring the agency to provide complainants with “[a]n explanation of the binding nature of the [agency’s] final decision or resolution of the complaint on class members”), 29 C.F.R. § 1614.204(g)(4) (“If the administrative judge finds that the resolution [of the complaint by the agency and the agent of the class] is fair, adequate and reasonable to the class as a whole, the resolution shall bind all members of the class.”), and 29 C.F.R. § 1614.204(j)(6) (“A final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.”). See USPS Letter at 2 (citing the foregoing authorities); see also id. at 2 n.5 (citing EEOC Management Directive (“MD”) 110, ch. 8, § V.C (“The class members may not ‘opt out’ of the defined class”), available at http://www.eeoc.gov/federal/md110/chapter8.html (last visited Sept. 14, 2004)). In contrast, you note that Title VII expressly provides that “an employee or applicant for employment, if aggrieved by the final disposition of his complaint . . . may file a civil action” in federal district court. 42 U.S.C. § 2000e-16(c). It is your view that the former regulatory provisions are inconsistent with the latter statutory one. We disagree. If the cited regulations purported to preclude a complainant from filing a civil action in federal district court, then your assertion might have merit. But they do not. Quite to the contrary, the regulations expressly permit the filing of an action by a complainant in federal court once administrative remedies are exhausted. They thus expressly provide that “[a] final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.” 29 C.F.R. § 1614.204(j)(6) (emphasis added). Subpart D, in turn, details, in relevant part, the manner in which the complainant may file a civil action in federal district court. Id. § 1614.401–.409. In particular, subpart D authorizes class agents and class members who have “filed an individual complaint [or] a claim for individual relief pursuant to a class complaint” to file an action directly 262 Legality of EEOC’s Class Action Regulations in federal court either within ninety days of receipt of notice of final agency action or 180 days after the date of filing the class complaint. Id. § 1614.407(a), (b). The regulation also recognizes the right to file a complaint in federal district court following the completion of the EEOC appeals process or 180 days after the filing of the appeal. Id. § 1614.407(c), (d). To be sure, several of the EEOC’s regulations refer to various aspects of the administrative process as “binding” complainants. But read in context—particularly in the context of the regulatory provisions expressly authorizing a complainant to bring a civil action in federal district court—it is evident that these references mean only that complainants are “bound” insofar as the administrative process is concerned.4 Indeed, one of the regulations that you cite expressly so recognizes. See id. § 1614.204(j)(6) (“A final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.”) (emphasis added); see also id. § 1614.204(j)(7) (“The final decision shall inform the agent of the right to appeal or to file a civil action in accordance with subpart D of this part and of the applicable time limits.”) (emphasis added). And the other regulatory provisions that you cite in no way purport to close the federal court avenue that other regulatory provisions (and the statute) expressly recognize as open. In short, as the EEOC acknowledges, its “regulation is binding in the administrative, not the judicial, process.” EEOC Letter at 4. It may well be, as you state in your letter, that “[t]he Commission’s intent to bind agencies to a class action process that cannot bind class members is contrary to the proper purpose of class action regulations,” USPS Letter at 3, and we recognize that the ability of dissatisfied class members to bring suit in federal court may significantly hamper an agency’s ability to resolve complaints on a truly class-wide basis. But the distinction between complainants and agencies is drawn in Title VII itself, which guarantees a right to proceed in federal court only to complainants. See 42 U.S.C. § 2000e-16(c). Nor are we entitled to second-guess EEOC policy choices made within the bounds of the law. It is the EEOC, and not this Office or the USPS, that Congress directed to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section.” 42 U.S.C. § 2000e-16(b) (emphasis added). 4 This conclusion is true even with respect to an individual who did not file an administrative complaint that, had it been filed, would have been subsumed within a class complaint. If the EEOC were to reject the class complaint on the merits, and this individual were then to file an administrative complaint, then the individual likely would be “bound” by the EEOC’s prior decision in the administrative context. In other words, the EEOC likely would reject this individual’s complaint under principles of res judicata. See 29 C.F.R. § 1614.107(a)(1); id. § 1614.204(d)(2). Nothing in the EEOC’s regulations, however, prohibits this individual from then proceeding to file an action in federal court. Likewise, nothing in those regulations prohibits a class member from filing a civil action if he is dissatisfied with a resolution of a class complaint approved by the administrative judge in accordance with 29 C.F.R. § 1614.204(g). 263 Opinions of the Office of Legal Counsel in Volume 28 2. You next assert that the EEOC’s class action regulations frustrate the ability of agencies to resolve claims within the 180-day period that Congress prescribed. USPS Letter at 1, 4–7. You thus explain that, in your view, 42 U.S.C. § 2000e16(c) reflects Congress’s intention that an agency have the opportunity to resolve an employment discrimination claim within 180 days. That statutory provision provides that a complainant may file a civil action in federal district court “after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit . . . if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint.” Id. The EEOC’s class action regulations, you explain, frustrate an agency’s ability to resolve a claim within this 180-day period in two distinct ways. We address each separately and conclude that neither demonstrates an inconsistency between the regulations and 42 U.S.C. § 2000e-16. a. The first way in which you believe that the EEOC’s class action regulations are inconsistent with 42 U.S.C. § 2000e-16(c)’s 180-day period is that, where the administrative judge takes longer than 180 days to decide whether to certify a class, the practical effect of the regulations is to prevent an agency from considering the merits of individual claims of discrimination until after the 180-day period has run. In particular, MD 110 states that an “agency shall, within thirty (30) days of receipt of a decision dismissing a class complaint, . . . process . . . each individual complaint that was subsumed into the class complaint.” MD 110, ch. 8, § III.C.5 Since the regulations prescribe no time limit for the administrative judge’s decision, it is possible that such decision will not issue until shortly before or even after the 180-day period has run. If so (and for purposes of this opinion, we will assume arguendo that this is a common scenario), then it is your contention that an individual complainant will be authorized to file a civil action in federal district court before the agency has ever had an opportunity to resolve the claim administratively. The premise of this argument is that 42 U.S.C. § 2000e-16(c) accords an agency the right to address a complaint during the 180-day period. Even assuming 5 Unlike the EEOC’s regulations, MD 110 was not promulgated pursuant to notice-and-comment rulemaking. We need not decide whether it is entitled to Chevron deference, however, because, for the reasons set forth in text, we believe it clear that the quoted provision is consistent with 42 U.S.C. § 2000e-16(c)’s 180-day rule, see Edelman, 535 U.S. at 114 (“Because we so clearly agree with the EEOC, there is no occasion to defer and no point in asking what kind of deference, or how much.”), and because the USPS has identified no other basis upon which the portion of the management directive that it cites could be called into question. 264 Legality of EEOC’s Class Action Regulations arguendo that this interpretation of that provision is an accurate one,6 there simply is nothing in EEOC regulations or MD 110 that precludes an agency from acting upon a class complaint or an individual complaint subsumed therein within the 180-day period, regardless of whether an administrative judge has rendered the class certification decision. With respect to individual complaints, the EEOC regulations generally require an agency to act within 180 days. See 29 C.F.R. § 1614.108(e). All that MD 110 does is relieve the agency of this obligation with respect to class complaints and individual complaints subsumed therein, replacing it with the obligation to act “within thirty (30) days of receipt of a decision dismissing a class complaint.” MD 110, ch. 8, § III.C. Nothing in the regulations or MD 110, however, prohibits the agency from acting sooner, as the EEOC acknowledges. See EEOC Letter at 6–7 (“[T]he agency can always attempt to resolve the class complaint during the first 180 days that it is pending.”).7 b. Second, you believe that individuals who do not file administrative complaints may, under the EEOC’s regulations, be entitled to initiate a civil action in federal district court, again preventing the agency from ever having an opportunity to resolve that complaint administratively. This argument, as we understand it, is predicated on the notion that an individual who, had he filed an administrative complaint, would have been subsumed into the certified class, but who does not in fact file an administrative complaint, would be allowed to initiate a suit in district court in the same manner as those class members who did file administrative claims. This argument, again, as we understand it, is predicated upon the so-called “single-filing rule,” pursuant to which lower federal courts have allowed an individual who did not file an administrative complaint to join the civil suit of another individual who did exhaust the administrative process, where the claims of the two individuals are sufficiently similar. See, e.g., Snell v. Suffolk Cnty., 782 F.2d 1094, 1100–02 (2d Cir. 1986); De Medina v. Reinhardt, 686 F.2d 997, 1012– 13 (D.C. Cir. 1982); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1380–81 (11th Cir. 1983); Greene v. City of Boston, 204 F. Supp. 2d 239, 241–43 (D. Mass. 2002). 6 It is not at all clear that this assumption is a correct one. The EEOC argues that 42 U.S.C. § 2000e-16(c) is simply a “restriction on the employee’s right to file suit,” EEOC Letter at 5; it does not, in other words, entitle or require an agency to do anything. We need not resolve this issue, however, because even assuming arguendo that USPS’s characterization of section 2000e-16(c) is correct, it is not in conflict with EEOC’s class action regulations. 7 It is true that some EEOC administrative decisions suggest that the normal course of action is for an agency to consider the merits of the complaint after the certification issue is decided. See, e.g., Fosnacht v. Apfel, Appeal No. 01992528, 2000 WL 361743 (EEOC Mar. 29, 2000); Travis v. Potter, Appeal No. 01992222, 2002 WL 31359446 (EEOC Oct. 10, 2002). These decisions, however, did not address whether, much less hold that, an agency is prohibited from acting until after it receives the class certification decision. 265 Opinions of the Office of Legal Counsel in Volume 28 Again, however, this argument points to no inconsistency between the EEOC’s class action regulations and Title VII. The only individuals EEOC’s class action regulations specifically authorize to initiate an action in federal court are those who file individual complaints, those who file class complaints, and those who have filed a claim for individual relief pursuant to a class complaint. See 29 C.F.R. § 1614.407 (“A complainant who has filed an individual complaint, an agent who has filed a class complaint or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized . . . to file a civil action in an appropriate United States District Court.”). Nothing in these regulations authorizes individuals who do not file administrative complaints or claims for individual relief to bring civil actions in federal court; it therefore follows that nothing in these regulations authorizes an individual to bring a civil action notwithstanding the exhaustion requirement set out in 42 U.S.C. § 2000e-16(c), which, as we have explained, authorizes an individual to bring a civil action only 180 days after he has filed an administrative complaint. And significantly, the EEOC itself seems to accept this view of its regulations, explaining to us: Our regulations only recognize suit rights for class members who file individual complaints, class complaints, or individual claims for relief under a class complaint. Therefore, if class certification is denied or class discrimination is not found, those individuals who did not file individual complaints may have lost the ability to file suit. In other words, filing an individual complaint is the only way for a potential class member to ensure his or her right to sue with certainty. EEOC Letter at 6. It is true that under the so-called “single-filing rule,” some courts have allowed an individual who did not file an administrative complaint to join the civil suit of another individual who did exhaust the administrative process, where the claims of the two individuals are sufficiently similar. But even assuming that courts would extend this rule in the manner that you suggest—such that an individual who did not file an administrative complaint but whose claim, had it been filed administratively, would have fallen within the class, could initiate a civil action in federal district court to the same extent as a class member who did file an administrative complaint8—the result would still point to no inconsistency between 42 U.S.C. § 2000e-16(c) and the EEOC’s class action regulations. The single-filing rule does not rest on an interpretation of EEOC regulations; rather, it rests on an interpretation of 42 U.S.C. § 2000e-16(c) or other analogous provisions—one in which the statutes have been construed to permit an individual who did not exhaust his 8 But see Commc’n Workers of Am. v. N.J. Dep’t of Personnel, 282 F.3d 213, 218 (3d Cir. 2002) (“[I]f plaintiffs choose to bring suit individually, they must first satisfy the prerequisite of filing a timely EEOC charge.”) (citation and quotation omitted). 266 Legality of EEOC’s Class Action Regulations administrative remedies to piggyback upon an individual who did. See, e.g., Snell, 782 F.2d at 1100–02 & n.7; Greene, 204 F. Supp. 2d at 240. The EEOC’s regulations do not expressly expand the single-filing rule in the manner you suggest, and to the extent that the courts may construe them to do so, the courts would construe them so as to be consistent with—not to conflict with—the statute. (Conversely, were it determined that 42 U.S.C. § 2000e-16(b) does not permit the single-filing rule to be extended in the manner that you suggest, we have little doubt that the regulations too would be similarly construed.9) Accordingly, the possibility you have presented—that an individual would be permitted to initiate an action in federal court without ever having to file an administrative complaint—again points to no inconsistency between the statute and EEOC’s regulations in implementation thereof. 3. Finally, you contend that EEOC’s class action regulations are inconsistent with the limitations period set forth in 42 U.S.C. § 2000e-16(c), which allows a complainant to file a civil action in federal district court only within ninety days of receipt of notice of final agency or EEOC action. As you note, this ninety-day period does not begin to run until “receipt of notice of final action” on a complaint of discrimination. 42 U.S.C. § 2000e-16(c). But, you state, under the EEOC’s regulations, not all members who have a right to bring suit in federal court will receive the required notice; these class members who never receive notice, therefore, will be entitled to bring suit in federal court even after the ninety-day period. USPS Letter at 7. Under the EEOC’s regulations, however, every complainant who files an administrative claim will receive the requisite notice of final agency or EEOC action. If the class is certified, then “[t]he agency shall notify class members of the final decision and relief awarded, if any.” 29 C.F.R. § 1614.204(k). If the class is not certified, then, in addition to notifying the class agent, id. § 1614.204(d)(7), the agency “shall, within thirty (30) days of receipt of a decision dismissing a class complaint . . . issue the acknowledgment of receipt of an individual complaint . . . and process . . . each individual complaint that was subsumed into the class complaint,” MD 110, ch. 8, § III.C. And if the class complaint is settled, “[n]otice of the resolution shall be given to all class members . . . [including notification] that . . . any member of the class may petition the administrative judge to vacate 9 To the extent your argument is based on case law arising under Rule 23 of the Federal Rules of Civil Procedure (and hence, outside of the administrative context), see, e.g., USPS Letter at 6 & n.29, we believe it fails for the same reason. If such case law were extended to permit an individual who fails to satisfy the administrative exhaustion requirement nevertheless to file suit in federal court, this apparently unprecedented application of Rule 23 case law would necessarily be predicated upon an interpretation of Title VII and regulations that rendered them consistent, rather than in conflict with, one another. 267 Opinions of the Office of Legal Counsel in Volume 28 the resolution.” 29 C.F.R. § 1614.204(g)(4). Every individual who files an administrative complaint, in other words, will receive notice of final agency action and thus will be fully subject to 42 U.S.C. § 2000e-16(c)’s ninety-day limitation period. See also EEOC Letter at 7 (“The regulation requires notice to all individuals except those potential members of a class that was not certified who did not file individual complaints.”). That leaves only individuals who do not file an administrative complaint. But with respect to these, your arguments fail for the same reasons discussed in Part II.B.2.b, supra: First, the regulations on their face only authorize those individuals who have filed an administrative complaint to bring suit in federal court; these individuals, we have explained, will receive notice and thus will be subject to the ninety-day period. And second, to the extent that courts would allow individuals who have not filed administrative claims to bring suit in federal court notwithstanding 42 U.S.C. § 2000e-16(c), this result would follow from a construction of the statute itself, not a construction of the regulations that would render them inconsistent with the statute. IV. For the foregoing reasons, we conclude that the EEOC’s class action regulations are not contrary to Title VII in any of the three ways you have suggested. NOEL J. FRANCISCO Deputy Assistant Attorney General Office of Legal Counsel 268

Write a legal research memo on the following topic.

Legality of EEOC’s Class Action Regulations The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised with respect to the Equal Employment Opportunity Commission’s class action regulations. The Equal Employment Opportunity Commission’s class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners suggested by the United States Postal Service: the regulations do not purport to prevent claimants from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and they do not forestall the running of the limitations period. September 20, 2004 MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL UNITED STATES POSTAL SERVICE You have asked whether certain class action regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) applicable to administrative complaints against federal government agencies are contrary to Title VII of the Civil Rights Act of 1964. We conclude that they are not inconsistent with Title VII in the manners you suggest. I. We begin with a brief overview of the applicable statutory and regulatory provisions at issue. Section 2000e-16 of title 42, U.S. Code, provides that personnel actions of the federal government, including those of the United States Postal Service (“USPS”), “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a) (2000). Section 2000e-16 then specifically assigns the EEOC the authority to enforce this requirement: Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies . . . and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. Id. § 2000e-16(b). In pursuance of this authority, the EEOC has created a detailed administrative procedure for resolving claims of discrimination by federal employees or applicants for federal employment, including hearings before administrative law judges and appeals to the EEOC itself. The complaining employee or applicant may, subject to conditions, seek relief in the federal courts if he is dissatisfied with the results of this administrative process. Id. § 2000e- 254 Legality of EEOC’s Class Action Regulations 16(c). An agency, however, may not seek judicial review of the decisions of the EEOC. See id. § 2000e-16(b), (c). Your specific questions involve the EEOC’s administrative process for resolving class action complaints. See 29 C.F.R § 1614.204 (2003). This process begins when an aggrieved individual, after completing a counseling process, files a class complaint with the agency that allegedly discriminated against him. See id. § 1614.204(b), (c). The agency then has thirty days to forward the complaint to the EEOC, which assigns the complaint to an administrative judge. Id. § 1614.204(d). The administrative judge first must decide whether to recommend certification of the class, which he may do if the proposed class meets the requirements of numerosity, commonality and typicality, and if the complainant who is the proposed agent for the class will “fairly and adequately protect the interests of the class.” Id. § 1614.204(a)(2), (d)(2). Once the administrative judge makes his recommendation, the agency must, within forty days, decide whether or not to accept the complaint. Id. § 1614.204(d)(7). If the agency dismisses the class complaint, the complainant may appeal to the EEOC or file a civil action. Id. If the agency accepts the class complaint, it must notify the class members. Id. § 1614.204(e). Discovery then begins and lasts not less than sixty days. Id. § 1614.204(f). Once discovery has concluded, the administrative judge conducts a hearing and issues a report and recommendations on the merits of the complaint. Id. § 1614.204(h), (i). Upon receipt of this report, the agency has sixty days to issue a “final decision” stating whether it will “accept, reject, or modify the [administrative judge’s] findings.” Id. § 1614.204(j)(1). This “final decision . . . shall, subject to subpart D of this part [addressing the appeal rights of the complainant and the agency], be binding on all members of the class and the agency.” Id. § 1614.204(j)(6). The agency must then notify the complainants of its final decision, as well as of their appeal rights under subpart D. Id. § 1614.204(j)(7), (k). Where the agency has found discrimination, members of the class may then file claims for individual relief. Id. § 1614.204(l). If the class agent or any member who has filed a claim for individual relief is unsatisfied with the final action of the agency, he may either appeal to the EEOC or file a civil action in federal court. Id. §§ 1614.401(c), 1614.407. In addition, if at any time during this process, more than 180 days has passed since the filing of the initial complaint, an individual or the class may file an action in federal court. Id. § 1614.407. With respect to appeals to the EEOC, the EEOC has delegated the responsibility for handling them to the Office of Federal Operations (“OFO”). Id. § 1614.403–.405. There is no time limit in which the OFO must act; however, 180 days after the filing of the appeal, the class or a member who has filed a claim for individual relief may file a civil action in federal court. Id. § 1614.407(d). Alternatively, the class may await the decision of the OFO and, if dissatisfied, may file a civil action within ninety days of that decision. Id. § 1614.407(c). The 255 Opinions of the Office of Legal Counsel in Volume 28 agency is not authorized to proceed in federal court should it be dissatisfied with the results of the administrative process. See id. §§ 1614.407, 1614.502. The class agent and the agency may resolve the complaint by written agreement at any time. Id. § 1614.204(g)(2), (3). Notice of the resolution must be provided to all class members, who may then petition to have the resolution vacated on the ground that it is “not fair, adequate and reasonable to the class as a whole.” Id. § 1614.204(g)(4). The administrative judge considers these petitions. If he finds that the resolution is fair, adequate and reasonable, then the resolution binds all members of the class. Id. If, on the other hand, the administrative judge determines that the proposed resolution is unfair to the class as a whole, he vacates the resolution and restarts the adjudicatory process. Id. With this statutory and regulatory background in mind, we now turn to the legal questions presented by your request. II. We first address the EEOC’s arguments that, under Executive Orders 12067 and 12146, we should refrain from resolving the legal questions you raise. For the reasons explained below, we conclude that neither argument establishes that this Office lacks the authority to resolve the legal questions here presented. A. The EEOC first argues that section 1-307 of Executive Order 12067 prohibits this Office from addressing the merits of the legal questions at issue. Section 1307(b) provides: Whenever a dispute which cannot be resolved through good faith efforts arises between the Equal Employment Opportunity Commission and another Federal department or agency concerning the issuance of an equal employment opportunity rule, regulation, policy, procedure, order or any matter covered by this Order, the Chairman of the Equal Employment Opportunity Commission or the head of the affected department or agency may refer the matter to the Executive Office of the President. Such reference must be in writing and may not be made later than 15 working days following receipt of the initiating agency’s notice of intent publicly to announce an equal employment opportunity rule, regulation, policy, procedure or order. If no reference is made within the 15 day period, the decision of the agency which initiated the proposed issuance will become effective. Exec. Order No. 12067, 3 C.F.R. § 208 (1979). The EEOC argues that USPS “should not be permitted to raise a matter under the general dispute resolution mechanism of E.O. 12146 that could have and should have been raised under the 256 Legality of EEOC’s Class Action Regulations more specific process for resolving disputes between agencies over EEO-related regulations” set forth in section 1-307(b). Letter for Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, Associate Legal Counsel, Equal Employment Opportunity Commission, Re: EEOC’s Class Complaint Regulation at 2 (Nov. 14, 2003) (“EEOC Letter”). We disagree with the EEOC’s interpretation of Executive Order 12067. The EEOC’s argument appears to rest on the assumption that section 1-307 sets forth the exclusive mechanism by which an agency may challenge an equal employment opportunity rule, regulation, policy, procedure or order. Were this true, then, for example, the only recourse open to an agency that has, after issuance and in light of practical experience, come to believe that a particular regulation reflects bad public policy, would be to seek an amendment to the Executive Order. It could not simply seek to have that regulation withdrawn or amended through ordinary interagency processes, since, under the EEOC’s view of Executive Order 12067, such processes would be precluded by operation of section 1-307(b). Nothing in section 1-307(b) requires such a result. Rather, section 1-307(b) simply establishes a process that must be followed before a proposed rule or regulation can take effect. As the last sentence of that section states, “[i]f no reference is made within the 15 day period, the decision of the agency which initiated the proposed issuance will become effective.” Section 1-307(b) does not, however, preclude an agency from challenging a rule or regulation—be it on policy or legal grounds—after the regulation has been issued.1 We thus conclude that section 1-307 poses no bar to our addressing the legal questions you have raised. B. The EEOC also argues that this Office lacks authority to address the questions presented under Executive Order 12146. Sections 1-401 and 1-402 of that Order provide: 1-4. Resolution of Interagency Legal Disputes 1-401. Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a 1 Although we have not previously addressed the issue raised by the EEOC here, we have in the past responded to requests for opinions that challenged EEOC regulations after they had been issued. See, e.g., Authority of the Equal Employment Opportunity Commission to Impose Monetary Sanctions Against Federal Agencies for Failure to Comply With Orders Issued by EEOC Administrative Judges, 27 Op. O.L.C. 24 (2003) (discussing whether the EEOC has the authority to award attorney’s fees against an agency as the EEOC had pursuant to 29 C.F.R. § 1614.109 and Management Directive 110). 257 Opinions of the Office of Legal Counsel in Volume 28 particular activity, each agency is encouraged to submit the dispute to the Attorney General. 1-402. Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is a specific statutory vesting of responsibility for a resolution elsewhere. Exec. Order No. 12146, 3 C.F.R. § 411 (1980). The EEOC makes two arguments with respect to section 1-4 of this Executive Order, both of which we find unpersuasive. First, the EEOC argues that section 1-402 is inapplicable because the Postmaster General “does not serve at the pleasure of the President.” EEOC Letter at 2. Even if so, section 1-402 does not prevent us from resolving the merits of this dispute. As we recently explained, section 1-402 does not prohibit an agency from requesting, or the Attorney General from rendering, an opinion properly requested pursuant to some other authority, such as section 1-401 of the Executive Order. See Applicability of Anti-Discrimination Statutes to the Presidio Trust, 28 Op. O.L.C. 84, 85–90 (2004) (“Presidio Trust”). Rather, “all that section 1-402 does is establish a requirement that agencies must satisfy before they are permitted to bring action in court.” Id. at 87. Thus, even if the head of the USPS does not serve at the pleasure of the President—a question on which we express no view—that would simply mean that the USPS is not bound by the procedural requirements of section 1-402. It would not, however, prevent the USPS from seeking our views or prohibit us from addressing the questions you have raised. This brings us to the EEOC’s second argument: that we lack authority to resolve this issue under section 1-401 of the Executive Order because there is no unresolved dispute here within the meaning of that section. In particular, the EEOC states that “[a]lthough EEOC met with USPS last year to discuss our class complaint regulation, USPS did not raise any of the specific objections raised in its August 13 letter [to this Office].” EEOC Letter at 2. Thus, explains the EEOC, “[n]ot only has there been no attempt to resolve the ‘dispute’ at hand, EEOC did not learn of USPS’[s] allegation that our class complaint regulation violates Title VII until we received a copy of their letter from your office.” Id. We would, of course, encourage agencies to attempt to resolve legal disputes amongst themselves prior to seeking the views of this Office. But the failure to do so does not deprive us of authority under section 1-401 to render an opinion on the legal questions that USPS has presented. Nothing in section 1-401 establishes a procedure by which agencies must attempt to resolve a dispute before seeking an opinion from the Attorney General: all that is required by that section is the presence of a legal dispute that they have been “unable to resolve.” And here, the letters to us from the EEOC and the USPS make clear that these agencies have 258 Legality of EEOC’s Class Action Regulations been “unable to resolve” the question whether the EEOC’s class action regulations are contrary to Title VII. Compare Letter for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, Vice President and General Counsel, United States Postal Service, Re: EEOC Class Actions at 1 (Aug. 13, 2003) (“USPS Letter”) (“The Commission’s class action regulations are invalid because they are contrary to three fundamental principles embodied in Title VII of 1964.”), with EEOC Letter at 3 (“We believe that USPS is misinterpreting our regulation, and disagree with their allegations that our regulation conflicts with Title VII.”). See also Presidio Trust, 28 Op. O.L.C. at 86 n.4 (noting that “as the submissions to us from the Trust and the EEOC make clear, the Trust and the EEOC have not resolved their dispute on this broader legal issue”) (internal citation omitted). We therefore reject the view that USPS’s failure to raise with the EEOC the legal basis for its challenge before coming to us deprives us of the authority to resolve this ongoing dispute. III. We now turn to the merits of the legal questions you have raised. In particular, you have challenged the EEOC’s class action regulations as “contrary to three fundamental principles embodied” in Title VII, the statutory scheme they are intended to enforce. USPS Letter at 1. First, you state that the regulations purport to bind complainants to EEOC determinations in violation of their statutory right to bring an action in federal court once they have exhausted their administrative remedies. Id. at 1, 2–4. Second, you state that the regulations are inconsistent with applicable exhaustion requirements because they frustrate the agency’s ability to resolve administrative complaints and because they create the possibility that class members will be able to sue in federal court without having filed an administrative complaint. Id. at 1, 4–7. And third, you state that the regulations are inconsistent with the applicable statute of limitations, again because, by creating the possibility that class members will be able to sue in federal court without having filed an administrative complaint and by failing to provide for notice of final agency action to non-filing members, they forestall the running of the statutory limitations period with respect to such members. Id. at 1, 7–8. For the reasons explained below, we do not believe that the EEOC’s class action regulations are inconsistent with Title VII in the manners you suggest.2 2 Our opinion is limited to whether EEOC’s class action regulations are contrary to the statute on the three bases you indicate; we do not address here any other possible grounds for challenging the regulations. 259 Opinions of the Office of Legal Counsel in Volume 28 A. Resolution of the legal issues presented here is guided by the administrative law principles applied by the Supreme Court in United States v. Mead Corp., 533 U.S. 218 (2001), the Court’s recent extended application of the doctrine first set out in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In Mead, the Court addressed both the circumstances in which deference under Chevron is owed to an agency’s implementation of a statute as well as the substantive scope of that deference. With respect to the former, the Court explained that Chevron deference is due where “the agency’s generally conferred authority and other statutory circumstances” suggest that “Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” Mead, 533 U.S. at 229. Paradigmatic of such circumstances are “express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed.” Id. As the Court summarized: [A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. Id. at 226–27; see also id. at 230 (“It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force . . . . Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.”). Notice-and-comment rulemaking, however, is not a prerequisite for Chevron deference, provided that “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority,” a delegation, the Court explained, that “may be shown in a variety of ways.” Id. at 226–27. In Mead, the Court thus observed that “as significant as notice-andcomment rulemaking is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded.” Id. at 230–31. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997) 260 Legality of EEOC’s Class Action Regulations (An agency’s “interpretation of [its own regulations] is . . . controlling unless ‘plainly erroneous or inconsistent with the regulation.’ “). And even where an agency rule does not qualify for Chevron deference, it still may be entitled to deference under a lesser standard. See Mead, 533 U.S. at 234–35. Where Chevron deference is due, the Court explained that the scope of an agency’s regulatory authority is broad indeed: When Congress has ‘explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,’ and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Mead, 533 U.S. at 227 (quoting Chevron, 467 U.S. at 843–44); see also id. at 229 (where Chevron deference is due, “a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise, but is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation is reasonable”). Here, it is clear that the EEOC’s class action regulations are entitled to Chevron deference: Congress has specifically authorized the EEOC “to enforce the provisions of subsection (a) of this section through appropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section,” 42 U.S.C. § 2000e-16(b), and in furtherance of this authority, the EEOC promulgated these regulations pursuant to notice-and-comment rulemaking, in which federal government agencies fully participated. See 57 Fed. Reg. 12,634 (Apr. 10, 1992); 64 Fed. Reg. 37,644 (July 12, 1999).3 It is for this reason, perhaps, that you have not suggested that these regulations are “procedurally defective” or “arbitrary or capricious in substance.” Mead, 533 U.S. at 227. The question before us, then, is whether they are “manifestly contrary to the statute” that they are intended to 3 It is true that the Supreme Court has not accorded Chevron deference to certain of the EEOC’s substantive regulations. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976). But that is because “‘Congress, in enacting Title VII, did not confer upon the EEOC’” such authority. Arabian Am. Oil Co., 499 U.S. at 257 (quoting Gen. Elec. Co., 429 U.S. at 141). Here, the EEOC’s regulations are procedural in nature, and Congress has expressly granted the EEOC the authority “to enforce the provisions of subsection (a) of this section through appropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section.” 42 U.S.C. § 2000e-16(b). See also Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002) (noting that “[t]he first [threshold question] is whether the [EEOC’s] rulemaking exceeded its authority to adopt ‘suitable procedural regulations,’ 42 U.S.C. § 2000e-12(a), and instead addressed a substantive issue over which the EEOC has no rulemaking power”) (citations omitted); id. at 122–23 (O’Connor, J., concurring). 261 Opinions of the Office of Legal Counsel in Volume 28 implement in any of the three ways you have indicated. Id. It is to these questions that we now turn. B. You have asserted three ways in which you believe that the EEOC’s class action regulations are contrary to Title VII. We address each in turn. 1. You first state that the EEOC’s regulations are inconsistent with Title VII because they purport to “bind” complainants when, pursuant to the statute, complainants may proceed in federal court if they are dissatisfied with the results of the administrative proceeding. USPS Letter at 1, 2–4. In particular, you note several portions of the class action regulations that state or suggest that class members are “bound” by the results of the administrative proceeding, including 29 C.F.R. § 1614.204(e)(2)(iii) (requiring the agency to provide complainants with “[a]n explanation of the binding nature of the [agency’s] final decision or resolution of the complaint on class members”), 29 C.F.R. § 1614.204(g)(4) (“If the administrative judge finds that the resolution [of the complaint by the agency and the agent of the class] is fair, adequate and reasonable to the class as a whole, the resolution shall bind all members of the class.”), and 29 C.F.R. § 1614.204(j)(6) (“A final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.”). See USPS Letter at 2 (citing the foregoing authorities); see also id. at 2 n.5 (citing EEOC Management Directive (“MD”) 110, ch. 8, § V.C (“The class members may not ‘opt out’ of the defined class”), available at http://www.eeoc.gov/federal/md110/chapter8.html (last visited Sept. 14, 2004)). In contrast, you note that Title VII expressly provides that “an employee or applicant for employment, if aggrieved by the final disposition of his complaint . . . may file a civil action” in federal district court. 42 U.S.C. § 2000e-16(c). It is your view that the former regulatory provisions are inconsistent with the latter statutory one. We disagree. If the cited regulations purported to preclude a complainant from filing a civil action in federal district court, then your assertion might have merit. But they do not. Quite to the contrary, the regulations expressly permit the filing of an action by a complainant in federal court once administrative remedies are exhausted. They thus expressly provide that “[a] final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.” 29 C.F.R. § 1614.204(j)(6) (emphasis added). Subpart D, in turn, details, in relevant part, the manner in which the complainant may file a civil action in federal district court. Id. § 1614.401–.409. In particular, subpart D authorizes class agents and class members who have “filed an individual complaint [or] a claim for individual relief pursuant to a class complaint” to file an action directly 262 Legality of EEOC’s Class Action Regulations in federal court either within ninety days of receipt of notice of final agency action or 180 days after the date of filing the class complaint. Id. § 1614.407(a), (b). The regulation also recognizes the right to file a complaint in federal district court following the completion of the EEOC appeals process or 180 days after the filing of the appeal. Id. § 1614.407(c), (d). To be sure, several of the EEOC’s regulations refer to various aspects of the administrative process as “binding” complainants. But read in context—particularly in the context of the regulatory provisions expressly authorizing a complainant to bring a civil action in federal district court—it is evident that these references mean only that complainants are “bound” insofar as the administrative process is concerned.4 Indeed, one of the regulations that you cite expressly so recognizes. See id. § 1614.204(j)(6) (“A final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the class and the agency.”) (emphasis added); see also id. § 1614.204(j)(7) (“The final decision shall inform the agent of the right to appeal or to file a civil action in accordance with subpart D of this part and of the applicable time limits.”) (emphasis added). And the other regulatory provisions that you cite in no way purport to close the federal court avenue that other regulatory provisions (and the statute) expressly recognize as open. In short, as the EEOC acknowledges, its “regulation is binding in the administrative, not the judicial, process.” EEOC Letter at 4. It may well be, as you state in your letter, that “[t]he Commission’s intent to bind agencies to a class action process that cannot bind class members is contrary to the proper purpose of class action regulations,” USPS Letter at 3, and we recognize that the ability of dissatisfied class members to bring suit in federal court may significantly hamper an agency’s ability to resolve complaints on a truly class-wide basis. But the distinction between complainants and agencies is drawn in Title VII itself, which guarantees a right to proceed in federal court only to complainants. See 42 U.S.C. § 2000e-16(c). Nor are we entitled to second-guess EEOC policy choices made within the bounds of the law. It is the EEOC, and not this Office or the USPS, that Congress directed to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section.” 42 U.S.C. § 2000e-16(b) (emphasis added). 4 This conclusion is true even with respect to an individual who did not file an administrative complaint that, had it been filed, would have been subsumed within a class complaint. If the EEOC were to reject the class complaint on the merits, and this individual were then to file an administrative complaint, then the individual likely would be “bound” by the EEOC’s prior decision in the administrative context. In other words, the EEOC likely would reject this individual’s complaint under principles of res judicata. See 29 C.F.R. § 1614.107(a)(1); id. § 1614.204(d)(2). Nothing in the EEOC’s regulations, however, prohibits this individual from then proceeding to file an action in federal court. Likewise, nothing in those regulations prohibits a class member from filing a civil action if he is dissatisfied with a resolution of a class complaint approved by the administrative judge in accordance with 29 C.F.R. § 1614.204(g). 263 Opinions of the Office of Legal Counsel in Volume 28 2. You next assert that the EEOC’s class action regulations frustrate the ability of agencies to resolve claims within the 180-day period that Congress prescribed. USPS Letter at 1, 4–7. You thus explain that, in your view, 42 U.S.C. § 2000e16(c) reflects Congress’s intention that an agency have the opportunity to resolve an employment discrimination claim within 180 days. That statutory provision provides that a complainant may file a civil action in federal district court “after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit . . . if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint.” Id. The EEOC’s class action regulations, you explain, frustrate an agency’s ability to resolve a claim within this 180-day period in two distinct ways. We address each separately and conclude that neither demonstrates an inconsistency between the regulations and 42 U.S.C. § 2000e-16. a. The first way in which you believe that the EEOC’s class action regulations are inconsistent with 42 U.S.C. § 2000e-16(c)’s 180-day period is that, where the administrative judge takes longer than 180 days to decide whether to certify a class, the practical effect of the regulations is to prevent an agency from considering the merits of individual claims of discrimination until after the 180-day period has run. In particular, MD 110 states that an “agency shall, within thirty (30) days of receipt of a decision dismissing a class complaint, . . . process . . . each individual complaint that was subsumed into the class complaint.” MD 110, ch. 8, § III.C.5 Since the regulations prescribe no time limit for the administrative judge’s decision, it is possible that such decision will not issue until shortly before or even after the 180-day period has run. If so (and for purposes of this opinion, we will assume arguendo that this is a common scenario), then it is your contention that an individual complainant will be authorized to file a civil action in federal district court before the agency has ever had an opportunity to resolve the claim administratively. The premise of this argument is that 42 U.S.C. § 2000e-16(c) accords an agency the right to address a complaint during the 180-day period. Even assuming 5 Unlike the EEOC’s regulations, MD 110 was not promulgated pursuant to notice-and-comment rulemaking. We need not decide whether it is entitled to Chevron deference, however, because, for the reasons set forth in text, we believe it clear that the quoted provision is consistent with 42 U.S.C. § 2000e-16(c)’s 180-day rule, see Edelman, 535 U.S. at 114 (“Because we so clearly agree with the EEOC, there is no occasion to defer and no point in asking what kind of deference, or how much.”), and because the USPS has identified no other basis upon which the portion of the management directive that it cites could be called into question. 264 Legality of EEOC’s Class Action Regulations arguendo that this interpretation of that provision is an accurate one,6 there simply is nothing in EEOC regulations or MD 110 that precludes an agency from acting upon a class complaint or an individual complaint subsumed therein within the 180-day period, regardless of whether an administrative judge has rendered the class certification decision. With respect to individual complaints, the EEOC regulations generally require an agency to act within 180 days. See 29 C.F.R. § 1614.108(e). All that MD 110 does is relieve the agency of this obligation with respect to class complaints and individual complaints subsumed therein, replacing it with the obligation to act “within thirty (30) days of receipt of a decision dismissing a class complaint.” MD 110, ch. 8, § III.C. Nothing in the regulations or MD 110, however, prohibits the agency from acting sooner, as the EEOC acknowledges. See EEOC Letter at 6–7 (“[T]he agency can always attempt to resolve the class complaint during the first 180 days that it is pending.”).7 b. Second, you believe that individuals who do not file administrative complaints may, under the EEOC’s regulations, be entitled to initiate a civil action in federal district court, again preventing the agency from ever having an opportunity to resolve that complaint administratively. This argument, as we understand it, is predicated on the notion that an individual who, had he filed an administrative complaint, would have been subsumed into the certified class, but who does not in fact file an administrative complaint, would be allowed to initiate a suit in district court in the same manner as those class members who did file administrative claims. This argument, again, as we understand it, is predicated upon the so-called “single-filing rule,” pursuant to which lower federal courts have allowed an individual who did not file an administrative complaint to join the civil suit of another individual who did exhaust the administrative process, where the claims of the two individuals are sufficiently similar. See, e.g., Snell v. Suffolk Cnty., 782 F.2d 1094, 1100–02 (2d Cir. 1986); De Medina v. Reinhardt, 686 F.2d 997, 1012– 13 (D.C. Cir. 1982); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1380–81 (11th Cir. 1983); Greene v. City of Boston, 204 F. Supp. 2d 239, 241–43 (D. Mass. 2002). 6 It is not at all clear that this assumption is a correct one. The EEOC argues that 42 U.S.C. § 2000e-16(c) is simply a “restriction on the employee’s right to file suit,” EEOC Letter at 5; it does not, in other words, entitle or require an agency to do anything. We need not resolve this issue, however, because even assuming arguendo that USPS’s characterization of section 2000e-16(c) is correct, it is not in conflict with EEOC’s class action regulations. 7 It is true that some EEOC administrative decisions suggest that the normal course of action is for an agency to consider the merits of the complaint after the certification issue is decided. See, e.g., Fosnacht v. Apfel, Appeal No. 01992528, 2000 WL 361743 (EEOC Mar. 29, 2000); Travis v. Potter, Appeal No. 01992222, 2002 WL 31359446 (EEOC Oct. 10, 2002). These decisions, however, did not address whether, much less hold that, an agency is prohibited from acting until after it receives the class certification decision. 265 Opinions of the Office of Legal Counsel in Volume 28 Again, however, this argument points to no inconsistency between the EEOC’s class action regulations and Title VII. The only individuals EEOC’s class action regulations specifically authorize to initiate an action in federal court are those who file individual complaints, those who file class complaints, and those who have filed a claim for individual relief pursuant to a class complaint. See 29 C.F.R. § 1614.407 (“A complainant who has filed an individual complaint, an agent who has filed a class complaint or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized . . . to file a civil action in an appropriate United States District Court.”). Nothing in these regulations authorizes individuals who do not file administrative complaints or claims for individual relief to bring civil actions in federal court; it therefore follows that nothing in these regulations authorizes an individual to bring a civil action notwithstanding the exhaustion requirement set out in 42 U.S.C. § 2000e-16(c), which, as we have explained, authorizes an individual to bring a civil action only 180 days after he has filed an administrative complaint. And significantly, the EEOC itself seems to accept this view of its regulations, explaining to us: Our regulations only recognize suit rights for class members who file individual complaints, class complaints, or individual claims for relief under a class complaint. Therefore, if class certification is denied or class discrimination is not found, those individuals who did not file individual complaints may have lost the ability to file suit. In other words, filing an individual complaint is the only way for a potential class member to ensure his or her right to sue with certainty. EEOC Letter at 6. It is true that under the so-called “single-filing rule,” some courts have allowed an individual who did not file an administrative complaint to join the civil suit of another individual who did exhaust the administrative process, where the claims of the two individuals are sufficiently similar. But even assuming that courts would extend this rule in the manner that you suggest—such that an individual who did not file an administrative complaint but whose claim, had it been filed administratively, would have fallen within the class, could initiate a civil action in federal district court to the same extent as a class member who did file an administrative complaint8—the result would still point to no inconsistency between 42 U.S.C. § 2000e-16(c) and the EEOC’s class action regulations. The single-filing rule does not rest on an interpretation of EEOC regulations; rather, it rests on an interpretation of 42 U.S.C. § 2000e-16(c) or other analogous provisions—one in which the statutes have been construed to permit an individual who did not exhaust his 8 But see Commc’n Workers of Am. v. N.J. Dep’t of Personnel, 282 F.3d 213, 218 (3d Cir. 2002) (“[I]f plaintiffs choose to bring suit individually, they must first satisfy the prerequisite of filing a timely EEOC charge.”) (citation and quotation omitted). 266 Legality of EEOC’s Class Action Regulations administrative remedies to piggyback upon an individual who did. See, e.g., Snell, 782 F.2d at 1100–02 & n.7; Greene, 204 F. Supp. 2d at 240. The EEOC’s regulations do not expressly expand the single-filing rule in the manner you suggest, and to the extent that the courts may construe them to do so, the courts would construe them so as to be consistent with—not to conflict with—the statute. (Conversely, were it determined that 42 U.S.C. § 2000e-16(b) does not permit the single-filing rule to be extended in the manner that you suggest, we have little doubt that the regulations too would be similarly construed.9) Accordingly, the possibility you have presented—that an individual would be permitted to initiate an action in federal court without ever having to file an administrative complaint—again points to no inconsistency between the statute and EEOC’s regulations in implementation thereof. 3. Finally, you contend that EEOC’s class action regulations are inconsistent with the limitations period set forth in 42 U.S.C. § 2000e-16(c), which allows a complainant to file a civil action in federal district court only within ninety days of receipt of notice of final agency or EEOC action. As you note, this ninety-day period does not begin to run until “receipt of notice of final action” on a complaint of discrimination. 42 U.S.C. § 2000e-16(c). But, you state, under the EEOC’s regulations, not all members who have a right to bring suit in federal court will receive the required notice; these class members who never receive notice, therefore, will be entitled to bring suit in federal court even after the ninety-day period. USPS Letter at 7. Under the EEOC’s regulations, however, every complainant who files an administrative claim will receive the requisite notice of final agency or EEOC action. If the class is certified, then “[t]he agency shall notify class members of the final decision and relief awarded, if any.” 29 C.F.R. § 1614.204(k). If the class is not certified, then, in addition to notifying the class agent, id. § 1614.204(d)(7), the agency “shall, within thirty (30) days of receipt of a decision dismissing a class complaint . . . issue the acknowledgment of receipt of an individual complaint . . . and process . . . each individual complaint that was subsumed into the class complaint,” MD 110, ch. 8, § III.C. And if the class complaint is settled, “[n]otice of the resolution shall be given to all class members . . . [including notification] that . . . any member of the class may petition the administrative judge to vacate 9 To the extent your argument is based on case law arising under Rule 23 of the Federal Rules of Civil Procedure (and hence, outside of the administrative context), see, e.g., USPS Letter at 6 & n.29, we believe it fails for the same reason. If such case law were extended to permit an individual who fails to satisfy the administrative exhaustion requirement nevertheless to file suit in federal court, this apparently unprecedented application of Rule 23 case law would necessarily be predicated upon an interpretation of Title VII and regulations that rendered them consistent, rather than in conflict with, one another. 267 Opinions of the Office of Legal Counsel in Volume 28 the resolution.” 29 C.F.R. § 1614.204(g)(4). Every individual who files an administrative complaint, in other words, will receive notice of final agency action and thus will be fully subject to 42 U.S.C. § 2000e-16(c)’s ninety-day limitation period. See also EEOC Letter at 7 (“The regulation requires notice to all individuals except those potential members of a class that was not certified who did not file individual complaints.”). That leaves only individuals who do not file an administrative complaint. But with respect to these, your arguments fail for the same reasons discussed in Part II.B.2.b, supra: First, the regulations on their face only authorize those individuals who have filed an administrative complaint to bring suit in federal court; these individuals, we have explained, will receive notice and thus will be subject to the ninety-day period. And second, to the extent that courts would allow individuals who have not filed administrative claims to bring suit in federal court notwithstanding 42 U.S.C. § 2000e-16(c), this result would follow from a construction of the statute itself, not a construction of the regulations that would render them inconsistent with the statute. IV. For the foregoing reasons, we conclude that the EEOC’s class action regulations are not contrary to Title VII in any of the three ways you have suggested. NOEL J. FRANCISCO Deputy Assistant Attorney General Office of Legal Counsel 268

Write a legal research memo on the following topic.

Constitutionality of the Matthew Shepard Hate Crimes Prevention Act The prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate Crimes Prevention Act—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived race, color, religion, or national origin of any person”—would be a permissible exercise of Congress’s authority to enforce the Thirteenth Amendment, at least insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment. The prohibition in proposed section 249(a)(2) of S. 909 —against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person”—would be a permissible exercise of Congress’s authority under the Commerce Clause, because it would require the government to allege and prove beyond a reasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce. June 16, 2009 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL OFFICE OF LEGISLATIVE AFFAIRS You have asked for our views on the constitutionality of a pending bill, the Matthew Shepard Hate Crimes Prevention Act, S. 909, 111th Cong. (as introduced in the Senate, Apr. 28, 2009). In particular, you have asked us to review section 7(a) of S. 909, which would amend title 18 of the United States Code to create a new section 249, which would establish two criminal prohibitions called “hate crime acts.” First, proposed section 249(a)(1) would prohibit willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived race, color, religion, or national origin of any person.” This provision is similar to an existing federal law, 18 U.S.C. § 245 (2006), the principal difference being that the new section 249(a)(1), unlike section 245, would not re240 Constitutionality of the Matthew Shepard Hate Crimes Prevention Act quire the prosecutor to prove that the victim was or had been “participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof.” Second, proposed section 249(a)(2) would prohibit willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person,” S. 909, sec. 7(a), § 249(a)(2)(A), but only if the conduct occurs in at least one of a series of defined “circumstances” that have a specified connection with or effect upon interstate or foreign commerce, id. § 249(a)(2)(B). This new provision would prohibit certain forms of discriminatory violence—namely, violence committed because of a person’s actual or perceived gender, sexual orientation, gender identity or disability—that are not addressed by the existing section 245 of title 18. 1 S. 909 is, in these respects, nearly identical to a bill this Office reviewed in 2000. 2 In our analysis of that proposed legislation, which your Office transmitted to Congress, we concluded that the bill would be constitutional. See Letter for Edward Kennedy, United States Senate, from Robert Raben, Assistant Attorney General, Office of Legislative Affairs, Department of Justice (June 13, 2000); see also S. Rep. No. 107-147, at 15–23 (2002) (“Senate Report”) (reprinting the OLA letter containing the 2000 OLC analysis as an explanation of the constitutional basis for such legislation). In 2007, however, the Office of Management and Budget indicated to the 110th Congress that one provision of such legislation would raise constitutional concerns, see Statement of Administration Policy on H.R. 1592 (May 3, 2007), as did the Attorney General, see Letter for Carl Levin, Chairman, Senate Committee on Armed Services, A new proposed section 249(a)(3) would make the same conduct unlawful if done within the special maritime or territorial jurisdiction of the United States—a provision that does not raise any serious questions with respect to Congress’s authority. See United States v. Sharpnack, 355 U.S. 286, 288 (1958). 2 The principal material difference is that section 249(a)(2) of S. 909 encompasses violence on the basis of a person’s real or perceived gender identity, something that the 2000 legislation did not address. 1 241 33 Op. O.L.C. 240 (2009) from Michael B. Mukasey, Attorney General, at 6 (Nov. 13, 2007) (regarding section 1023 of H.R. 1585). We have carefully reviewed the relevant legal materials and now conclude, as we did in 2000, that the legislation is constitutional. The Attorney General concurs in this view. I. As we explained in 2000, see Senate Report at 16–18, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery. Congress may rationally determine, as it would do in S. 909, that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude,” and that “[s]lavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race.” S. 909, § 2(7); see also H.R. 1585, 110th Cong. § 1023(b)(7) (2007) (same). 3 Like the current 18 U.S.C. § 245, proposed section 249(a)(1) of title 18 would not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed “because of the actual or perceived race, color, religion, or national origin of any person.” S. 909 explains that “in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments.” Id. § 2(8). As we have previously concluded, under existing case law the proscription of violence motivated by “religion” and “national origin” would constitute a valid exercise of Congress’s Thirteenth Amendment authority insofar as “the violence is directed at members of those religions or national origins that would have been considered races at the time of the Given our conclusion that Congress possesses authority to enact this provision under the Thirteenth Amendment, we do not address whether Congress might also possess sufficient authority under the Commerce Clause or the Fourteenth Amendment. See United States v. Nelson, 277 F.3d 164, 174–75 & n.10 (2d Cir. 2002). 3 242 Constitutionality of the Matthew Shepard Hate Crimes Prevention Act adoption of the Thirteenth Amendment.” Senate Report at 17–18; see also Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610–13 (1987) (holding that the prohibition of race discrimination in 42 U.S.C. § 1981, a Reconstruction-era statute that was enacted pursuant to, and contemporaneously with, the Thirteenth Amendment, extends to discrimination against Arabs, as Congress intended to protect “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics”); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (holding that Jews can state a claim under 42 U.S.C. § 1982, another antidiscrimination statute enacted pursuant to, and contemporaneously with, the Thirteenth Amendment, because Jews “were among the peoples [at the time the statutes were adopted] considered to be distinct races”); Hodges v. United States, 203 U.S. 1, 17 (1906) (“Slavery or involuntary servitude of the Chinese, of the Italian, of the AngloSaxon, are as much within its compass as slavery or involuntary servitude of the African.”); United States v. Nelson, 277 F.3d 164, 176–78 (2d Cir. 2002) (concluding that 18 U.S.C. § 245 could be applied constitutionally to protect Jews against crimes based on their religion, because Jews were considered a “race” when the Thirteenth Amendment was adopted). While it is true that the institution of slavery in the United States, the abolition of which was the primary impetus for the Thirteenth Amendment, primarily involved the subjugation of African Americans, it is well established by Supreme Court precedent that Congress’s authority to abolish the badges and incidents of slavery extends “to legislat[ion] in regard to ‘every race and individual.’” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (quoting Hodges, 203 U.S. at 16–17). 4 Although “there is strong precedent to support the conclusion that the Thirteenth Amendment extends its protections to religions directly, and thus to members of the Jewish religion, without the detour through historically changing conceptions of ‘race,’” Nelson, 277 F.3d at 179, it remains an open question whether and to what extent the Thirteenth Amendment empowers Congress to address forms of discrimination short of slavery In McDonald, for example, the Supreme Court held that 42 U.S.C. § 1981, a Reconstruction-era statute that was enacted pursuant to, and contemporaneously with, the Thirteenth Amendment, prohibits racial discrimination in the making and enforcement of contracts against all persons, including whites. 427 U.S. at 286–96. 4 243 33 Op. O.L.C. 240 (2009) and involuntary servitude with respect to religions and national origins that were not considered “races” in 1865. Accordingly, to the extent violence is directed at victims on the basis of a religion or national origin that was not regarded as a “race” at the time the Thirteenth Amendment was ratified, prosecutors may choose to bring actions under the Commerce Clause provision of S. 909, i.e., proposed 18 U.S.C. § 249(a)(2), if they can prove the elements of such an offense. See Senate Report at 15. Proposed section 249(a)(1) differs from the current 18 U.S.C. § 245 in that it would not require the government to prove that the defendant committed the violence because the victim was or had been “participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof.” 5 The outer limits of the expansive list of specified activities in section 245 have not Section 245(b)(2) makes it a crime, “whether or not acting under color of law, by force or threat of force willfully [to] injure[], intimidate[] or interfere[] with, or attempt[] to injure, intimidate or interfere with . . . any person because of his race, color, religion or national origin and because he is or has been— 5 “(A) enrolling in or attending any public school or public college; “(B) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof; “(C) applying for or enjoying employment, or any perquisite thereof, by any private employer or any agency of any State or subdivision thereof, or joining or using the services or advantages of any labor organization, hiring hall, or employment agency; “(D) serving, or attending upon any court of any State in connection with possible service, as a grand or petit juror; “(E) traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air; “(F) enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment which provides lodging to transient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility which serves the public and which is principally engaged in selling food or beverages for consumption on the premises, or of any gasoline station, or of any motion picture house, theater, concert hall, sports arena, stadium, or any other place of exhibition or entertainment which serves the public, or of any other establishment which serves the public and “(i) which is located within the premises of any of the aforesaid establishments or within the premises of which is physically located any of the aforesaid establishments, and “(ii) which holds itself out as serving patrons of such establishments.” 244 Constitutionality of the Matthew Shepard Hate Crimes Prevention Act been conclusively defined, but courts have concluded that the section protects, inter alia, drinking beer in a public park (see United States v. Allen, 341 F.3d 870 (9th Cir. 2003)), and walking on a city street (see Nelson, 277 F.3d 164). Although it is not clear that Congress included the activities element of section 245 in order to justify an exercise of its Thirteenth Amendment enforcement powers, 6 the courts have held that section 245 is proper Thirteenth Amendment legislation. See, e.g., Nelson, 277 F.3d 164; Allen, 341 F.3d 870. The Supreme Court’s decisions in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and Griffin v. Breckenridge, 403 U.S. 88 (1971), support the further judgment that the Thirteenth Amendment does not require such a federal-activities element. In Jones, the Court upheld section 1 of the Civil Rights Act of 1866 (now 42 U.S.C. § 1982) as a valid exercise of Congress’s Thirteenth Amendment enforcement authority. The statute in Jones was limited to discriminatory interferences with the rights to make contracts and buy or sell property, but the Court did not rest its approval on that limitation. Instead, the Court wrote, “[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” 392 U.S. at 440. Similarly, in Griffin, the Court held that the Thirteenth Amendment supported application of the Ku Klux Klan Act (now 42 U.S.C. § 1985) to a case of racially motivated violence intended to deprive the victims of what the Court called “the basic rights that the law secures to all free men,” 403 U.S. at 105—which in that case, according to the complaint, included the “right to be secure in their person” and “their rights to travel the public highways without restraint,” id. at 91–92. The Court again endorsed the broad Jones formulation, which contains no interference-with-protectedactivities limitation: “Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Id. at 105. To be sure, “there exist indubitable connections See Nelson, 277 F.3d at 191 n.26 (explaining that Congress included the “participating in or enjoying civil rights” requirement in section 245 for purposes of providing a basis for the provision under the Fourteenth Amendment and possibly also the Fifteenth Amendment). 6 245 33 Op. O.L.C. 240 (2009) . . . between post Civil War efforts to return freed slaves to a subjugated status and private violence directed at interfering with and discouraging the freed slaves’ exercise of civil rights in public places.” Nelson, 277 F.3d at 190. But there are also such “indubitable connections” “between slavery and private violence directed against despised and enslaved groups” more generally. Id. 7 In light of these precedents, and consistent with our conclusion in 2000, see Senate Report at 16–17, we think it would be rational at the very least for Congress to find that “[s]lavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race” and that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude,” S. 909, § 2(7), regardless of whether the perpetrator in a particular case is attempting to deprive the victim of the use of the activities covered by the current section 245. We therefore conclude, as we did in 2000, that the prohibition of discriminatory violence in proposed section 249(a)(1) would be a permissible exercise of Congress’s broad authority to enforce the Thirteenth Amendment. II. Proposed section 249(a)(2) would be a proper exercise of Congress’s authority under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, because it would require the government to allege and prove beyond a reasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce. 7 As the Second Circuit noted in Nelson, the Supreme Court has limited the scope of Congress’s enforcement authority under section 5 of the Fourteenth Amendment in a series of recent cases. 277 F.3d at 185 n.20. But as that court also noted, these precedents do not address the Thirteenth Amendment, which contemplates an inquiry that the Supreme Court has referred to as the “inherently legislative task of defining involuntary servitude.” Id. (quoting United States v. Kozminski, 487 U.S. 931, 951 (1988)). The court of appeals in Nelson further explained that “the task of defining ‘badges and incidents’ of servitude is by necessity even more inherently legislative.” Id. Finally, we note that the Thirteenth Amendment, unlike the Fourteenth Amendment, contains no state-action requirement, a distinction of relevance in determining Congress’s authority to regulate private, racially motivated violence. See Senate Report at 18. 246 Constitutionality of the Matthew Shepard Hate Crimes Prevention Act In particular, it would require that the offense have occurred “in any circumstance described in [proposed 18 U.S.C. § 249(a)(2)(B)].” Those enumerated circumstances are that: (i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim— (I) across a State line or national border; or (II) using a channel, facility, or instrumentality of foreign commerce; (ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A); (iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or (iv) the conduct described in subparagraph (A)— (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or (II) otherwise affects interstate commerce. S. 909, sec. 7(a), § 249(a)(2)(B). As we explained in 2000, see Senate Report at 18–23, requiring proof of at least one of these “jurisdictional” elements would “ensure, through case-by-case inquiry, that the [offense] in question affects interstate commerce.” United States v. Lopez, 514 U.S. 549, 561 (1995). Nothing in the law since 2000 calls this analysis into question. 8 8 See, e.g., United States v. Dorsey, 418 F.3d 1038, 1045–46 (9th Cir. 2005) (upholding 18 U.S.C. § 922(q)(2)(A), which makes it a crime “knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable cause to believe, is a school zone”); United States v. Capozzi, 347 F.3d 327, 335–36 (1st Cir. 2003) (upholding the Hobbs Act, 18 U.S.C. § 1951(a), which makes it a federal crime to commit or attempt to commit extortion that “in any way or degree, obstructs, delays or affects [interstate] commerce”). 247 33 Op. O.L.C. 240 (2009) III. For these reasons we adhere to our 2000 conclusion that the new criminal offenses created in S. 909 would be wholly constitutional. MARTIN S. LEDERMAN Deputy Assistant Attorney General Office of Legal Counsel 248

Write a legal research memo on the following topic.

Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools Section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice. November 16, 2004 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL OFFICE OF JUSTICE PROGRAMS You have asked us whether section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (2000), generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice. We conclude that it does.1 I. We begin our analysis with an overview of the relevant interpretive principles. The Supreme Court “ha[s] stated time and again” that we “must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253– 54 (1992) (citations omitted). When addressing the effects of statutes governing Indian tribes, however, the Court has articulated two additional canons of construction. First, in what is really a variation of the plain meaning rule, the Court has said that “it is now well settled by many decisions of th[e] [Supreme] Court 1 The original opinion request, sent to us by your predecessor, framed the question as “whether the doctrine of tribal sovereign immunity” would prevent the Office of Justice Programs from investigating an allegation of discrimination by a tribal school. See Memorandum for Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, from Mary Lou Leary, Acting Assistant Attorney General, Office of Justice Programs, Re: Request for Office of Legal Counsel Review (Nov. 29, 2000). The doctrine of tribal sovereign immunity, however, is inapplicable to investigations brought by the federal Government. See, e.g., United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382–83 (8th Cir. 1987); Fla. Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126, 1134–35 (11th Cir. 1999); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459–60 (9th Cir. 1994). We therefore address whether section 504 of the Rehabilitation Act generally applies to tribally controlled schools. We have also solicited the views of other components of the Department of Justice and agencies that would be affected by this opinion. See Memorandum for Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, Re: Applicability of Certain Civil Rights Statutes to Indian Tribes and Tribally-Operated Entities (Aug. 21, 2001); Memorandum for Leslie Simon, Attorney-Adviser, Office of Legal Counsel, from Timothy W. Joranko, Deputy Director, Office of Tribal Justice, Re: Applicability of Civil Rights Statutes to Indian Tribes and Tribally-Operated Entities (Sept. 20, 2001); Letter for Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, from Steve Winnick, Deputy General Counsel, Dep’t of Education (Aug. 17, 2001). (The Department of the Interior and the Environmental Protection Agency did not provide formal views in response to our request.) 276 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools that a general statute in terms applying to all persons includes Indians and their property interests.” Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). Thus, it is an established “rule[] . . . that general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.” Id. at 120. See also Superintendent of Five Civilized Tribes v. Comm’r of Internal Revenue, 295 U.S. 418, 420 (1935) (upholding application of federal income tax to Indians where “[t]he terms of the . . . Act are very broad, and nothing there indicates that Indians are to be excepted”). Second, the Supreme Court has also recognized “a principle deeply rooted in this Court’s Indian jurisprudence: ‘[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’” Cnty. of Yakima v. Confederated Tribes, 502 U.S. 251, 268–69 (1992) (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985)). At first blush, one might think these two canons to be in tension: On the one hand, general statutes apply to Indians unless they are expressly excluded, while on the other, any statutory ambiguities should be construed to the benefit of Indians. In fact, however, they are easily reconciled. A generally worded statute the plain terms of which naturally encompass Indian tribes or tribal entities is not ambiguous, and a statute that is ambiguous as to whether it encompasses Indian tribes is not a generally worded statute the plain terms of which naturally encompass Indian tribes. See South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506 (1986) (“The canon of construction regarding the resolution of ambiguities in favor of Indians . . . does not permit reliance on ambiguities that do not exist . . .”); Chickasaw Nation v. United States, 534 U.S. 84, 88–89 (2001) (declining to find ambiguity despite poor drafting of statute). In other words, a broad statute the terms of which naturally encompass Indian tribes is unambiguously broad, and so unambiguously encompasses Indian tribes. In such a case, the ambiguity-resolving canon is simply inapplicable. The cases setting forth these two canons are illustrative. Those applying the former rule—viz., that general statutes apply to Indian tribes unless specifically excepted—involve broad but unambiguous statutory language. Tuscarora, for example, held that tribally owned lands were subject to the eminent domain powers of the Federal Power Act, which authorized the condemnation of “‘the lands or property of others necessary to the construction, maintenance, or operation’” of licensed development projects. Tuscarora, 362 U.S. at 115 (quoting section 21 of the Federal Power Act) (emphasis added). As the Court explained, “[t]hat section does not exclude lands or property owned by Indians, and, upon the authority of the cases cited, we must hold that it applies to these lands owned in fee simple by the Tuscarora Indian Nation.” Id. at 118. Likewise, Choteau v. Burnet, 283 U.S. 691 (1931), held that the Revenue Act, which “subjects the income of ‘every individual’ to tax” and “includes income ‘from any source whatever,’” id. at 693, 694 (quoting the Revenue Act) (emphases added), applied to the income of an Indian derived from his shares in the oil and gas leases of an 277 Opinions of the Office of Legal Counsel in Volume 28 Indian tribe, observing that “[t]he intent to exclude must be definitely expressed, where, as here, the general language of the Act laying the tax is broad enough to include the subject-matter,” id. at 697. See also Superintendent of Five Civilized Tribes, 295 U.S. at 419–20 (holding that an Indian’s income derived from tribal lands was subject to the Revenue Act) (citing Choteau); Henkel v. United States, 237 U.S. 43, 49 (1915) (holding that Secretary of the Interior could purchase or condemn Indian-owned land pursuant to the Reclamation Act of 1902, which authorized him “‘to acquire [by purchase or condemnation] any rights or property’” necessary to carry out the provisions of the Act and “‘to perform any and all acts . . . necessary and proper for the purpose of carrying the provisions of this act . . . into effect’”) (quoting Reclamation Act of 1902) (emphases added); Okla. Tax Comm’n v. United States, 319 U.S. 598, 600, 607 (1943) (holding that the estate of an Oklahoma Indian was subject to state inheritance and estate taxes; noting that “[t]he language of the statutes does not except either Indians or any other persons from their scope” and that “[i]f Congress intends to prevent the State of Oklahoma from levying a general non-discriminatory estate tax applying alike to all its citizens, it should say so in plain words”). In contrast, the Supreme Court’s cases applying the latter ambiguity-resolving canon did not involve broad statutes of general application, but rather, statutes or treaties that the Court actually regarded as ambiguous as to their application to particular Indians. In Yakima, for example, the Court concluded that a statute that authorized a state to subject certain Indian-owned land to state “‘taxation of . . . land,’” 502 U.S. at 258 n.1 (quoting 25 U.S.C. § 349), did not authorize the state to subject such land to an “excise tax on sales of fee land,” id. at 268 (emphasis added). Justice Scalia, writing for the Court, explained: [T]he General Allotment Act explicitly authorizes only “taxation of . . . land,” not “taxation with respect to land,” “taxation of transactions involving land,” or “taxation based on the value of land.” Because it is eminently reasonable to interpret that language as not including a tax upon the sale of real estate, our cases require us to apply that interpretation for the benefit of the Tribe. Id. at 269. Likewise, in Bryan v. Itasca County, 426 U.S. 373 (1976), the Court held that the statute that gave the “‘civil laws of such State . . . that are of general application . . . the same force and effect within such Indian country as they have elsewhere,’” id. at 377 (quoting 28 U.S.C. § 1360(a)), did not allow a state to impose its tax laws on reservation Indians. Read in the context of a statute that was intended “to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes,” the Court concluded that the emphasized phrase merely “authorize[d] application by the state courts of their rules of decision to decide such disputes.” Id. at 383–84. And in 278 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools Montana v. Blackfeet Tribe, 471 U.S. 759, 767–68 (1985), the Court held that a 1938 statute that repealed “‘[a]ll . . . or parts of Acts inconsistent herewith,’” id. at 764 (quoting the 1938 Act), did not leave intact a 1924 statute authorizing states to tax the income from Indian oil and gas leases: the 1938 Act’s repealer clause, the Court explained, “[could not] be taken to incorporate consistent provisions of earlier laws,” id. at 767. See also id. at 767–68 (“The tax proviso in the 1924 Act states that ‘the production of oil and gas and other minerals on such lands may be taxed by the State in which said lands are located . . . .’ Even applying ordinary principles of statutory construction, ‘such lands’ refers to ‘[u]nallotted land . . . subject to lease for mining purposes . . . under section 397 [the 1891 Act].’ When the statute is ‘liberally construed . . . in favor of the Indians,’ it is clear that if the tax proviso survives at all, it reaches only those leases executed under the 1891 Act and its 1924 amendment.”) (citations omitted). In the same vein, the Court has refused to resort to the ambiguity-resolving canon in the face of unambiguous statutory language. See, e.g., Negonsott v. Samuels, 507 U.S. 99, 110 (1993) (declining to apply ambiguity-resolving canon where a federal statute “quite unambiguously confers jurisdiction on the State” to prosecute Indians for violations of state criminal law). This point, that ambiguity-resolving canons do not overcome unambiguously broad statutory text, is further illustrated in a Supreme Court case discussing a similar—though even more restrictive—canon of construction: that “absent an ‘unmistakably clear’ expression of intent to ‘alter the usual constitutional balance between the States and the Federal Government,’ we will interpret a statute to preserve rather than destroy the States’ ‘substantial sovereign powers.’” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208–09 (1998). In Yeskey, the Court addressed the applicability of the Americans with Disabilites Act (“ADA”) to state prisons, concluding that even though state prisons were nowhere specifically mentioned in the ADA, the statute’s broad terms were unambiguous. The Court found that the broadly defined term “public entity,” which included “‘any department, agency, special purpose district, or other instrumentality of a State or States or local government,’” id. at 210 (quoting 42 U.S.C. § 12131(B)), “plainly covers state institutions without any exception that could cast the coverage of prisons into doubt.” Id. at 209. It likewise rejected the contention that prisons do not provide to prisoners the “benefits of the services, programs, or activities of a public entity,” id. at 210 (quoting 42 U.S.C. § 12132): “Modern prisons,” the Court explained, “provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners (and any of which disabled prisoners could be ‘excluded from participation in’).” Id. See also id. at 210–11 (rejecting argument that the term “qualified individual with a disability” was ambiguous as applied to prisoners). In short, ambiguity-resolving canons do not overcome a broad but otherwise unambiguous statutory command. To the contrary, a broad, generally worded 279 Opinions of the Office of Legal Counsel in Volume 28 statute the plain terms of which naturally encompass Indians should normally be deemed to so apply unless Indians are expressly excluded from its application. II. With these general principles in mind, we now turn to applying them to section 504 of the Rehabilitation Act. Section 504 provides: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. 29 U.S.C. § 794(a) (emphases added). The question we must resolve is whether a federally funded, tribally controlled school is a “program or activity” within the meaning of this statute. Applying standard canons of statutory construction, we believe that a “program or activity” under section 504 unambiguously encompasses tribally controlled schools. Section 504 defines a “program or activity” to include, among other things, “all of the operations of” (1) “a local educational agency (as defined in section 7801 of Title 20), system of vocational education, or other school system,” 29 U.S.C. § 794(b)(2)(B) (emphasis added); and (2) a “college, university, or other postsecondary institution.” Id. § 794(b)(2)(A).2 These terms—“other school system,” “other postsecondary institution”—are broadly phrased and admit of no 2 The full definition of a “program or activity” is as follows: For the purposes of this section, the term ‘program or activity’ means all of the operations of—(1) (A) a department, agency, special purpose district, or other instrumentality of a State or local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or (B) a local educational agency (as defined in section 7801 of Title 20), system of vocational education, or other school system; (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship—(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assistance. 29 U.S.C. § 794(b). 280 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools exception for such entities merely because they are controlled by Indian tribes. Congress, in fact, has used the precise phrase “school system” in other statutes to refer to schools that receive funding from the Bureau of Indian Affairs (“BIA”), including those that are tribally controlled, thus confirming that such schools are covered under the Rehabilitation Act. See, e.g., 20 U.S.C.A. § 6316(g)(4) (West 2003) (corrective action must “take into account the unique circumstances and structure of the Bureau of Indian Affairs-funded school system”); 25 U.S.C.A. § 2000 (West Supp. 2003) (acknowledging federal Government responsibility for the “Bureau of Indian Affairs funded school system”). We do not mean to say that every tribally controlled school would automatically fall within these terms. To be sure, we would expect that most tribally controlled primary and secondary schools would be part of a “system of vocational education” or “other school system,” and a tribally controlled school of higher education would quite obviously be a “college, university, or other postsecondary institution.” But we at least acknowledge the theoretical possibility that some individual primary or secondary schools might not be considered part of an overall “school system.” 29 U.S.C. § 794(b)(2)(B) (emphasis added). While such a school might nevertheless fall within another category of “program[s] or activit[ies]”—a term that includes “an entire corporation, partnership, or other private organization, or an entire sole proprietorship . . . which is principally engaged in the business of providing education,” id. § 794(b)(3)(A)(ii)—and thus still be covered by section 504, it would be imprudent for us to draw such a conclusion as a general matter outside the context of a specific case. For now, it is enough to say that the general definition of a “program or activity” extends to tribally controlled schools, provided that such schools meet the other specific requirements of that definition. Our conclusion that under standard principles of construction section 504 of the Rehabilitation Act covers tribally controlled schools is confirmed by the numerous other statutes that reflect this precise understanding. “[S]ubsequent legislation declaring the intent of an earlier statute,” the Supreme Court has explained, “is entitled to great weight in statutory construction.” Loving v. United States, 517 U.S. 748, 770 (1996) (citations omitted).3 And here, Congress has consistently expressed in statutes its understanding of the scope of section 504. The Education Amendments of 1978, for example, directed the Secretary of the Interior to “immediately begin to bring all schools, dormitories, and other facilities operated by the Bureau [of Indian Affairs] or under contract with the Bureau in connection 3 Although subsequent legislation is entitled to great weight in statutory interpretation, the same is not true of the legislative history that accompanies the subsequent legislation. “With respect to subsequent legislation, . . . Congress has proceeded formally through the legislative process. A mere statement in a conference report of such legislation as to what the Committee believes an earlier statute meant is obviously less weighty.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980). 281 Opinions of the Office of Legal Counsel in Volume 28 with the education of Indian children into compliance with . . . section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794).” Pub. L. No. 95-561, § 1125, 92 Stat. 2143, 2319 (1978). Congress recently reiterated this position in the No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002), which requires that “[t]he Secretary shall immediately begin to bring all schools, dormitories, and other Indian education-related facilities operated by the Bureau or under contract or grant with the Bureau, into compliance with . . . section 794 of Title 29 [section 504]; and . . . the Americans with Disabilities Act of 1990.” 25 U.S.C.A. § 2005(b)(1) (West Supp. 2003). Cf. 25 U.S.C.A. § 4131(b)(6) (West Supp. 2003) (providing explicit exemption from the broad anti-discrimination requirements of Title VI for “actions by federally recognized tribes and the tribally designated housing entities of those tribes” under the Native American Housing Assistance and Self-Determination Act of 1996). These provisions serve to confirm what the plain text of section 504 otherwise dictates: that tribally controlled schools are covered by its requirements. Before moving on, we pause to address a possible counter-argument. The definition of the term “local educational agency” that is incorporated in 29 U.S.C. § 794(b)(2)(B)’s definition of “program or activity” specifically includes certain tribally controlled schools, but only for a limited purpose. In particular, the Elementary and Secondary Education Act defines “[l]ocal educational agency” as including: an elementary school or secondary school funded by the Bureau of Indian Affairs but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this chapter with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs. 20 U.S.C.A. § 7801(26)(C) (West 2003) (emphasis added). It could be argued that because at least some tribally controlled schools—viz., “elementary school[s] or secondary school[s] funded by the Bureau of Indian Affairs,” id.—are “local educational agenc[ies],” Congress did not intend them also to be included as an “other school system,” else inclusion in the former would be superfluous. See United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute.’”) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). The syllogism, in other words, would run as follows: (1) a tribally controlled school is a “program or activity” only to the extent that it is a “local educational agency”; (2) a tribally controlled school is a “local educational agency” “only to the extent that including the school” in the 282 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools definition of a “local educational agency” renders it eligible to receive certain funds for which it would otherwise be ineligible; and (3) therefore, a tribally controlled school is not a “local educational agency,” and hence, not a “program or activity,” for any other purpose, including section 504’s substantive antidiscrimination provisions. We find this argument highly strained and implausible. The inclusion of BIAfunded schools generally within the term “other school system” in section 504 does not render superfluous the inclusion of some BIA-funded schools in the generally applicable definition of “local educational agency.” Their inclusion in that latter definition serves a specific function: It gives BIA-funded schools access to non-BIA funds for which only local educational agencies are eligible and for which, absent this definition, BIA-funded schools would be ineligible. See, e.g., 20 U.S.C.A. § 1413 (2000 & West Supp. 2003) (local educational agencies eligible for assistance for educating children with disabilities); 20 U.S.C.A. § 6302 (West 2003) (authorization of grants to local educational agencies). At the same time, this definition prevents BIA-funded schools from double-dipping into funds for which both local educational agencies and BIA-funded schools are eligible. See, e.g., 20 U.S.C.A. § 7269(a) (West 2003) (authorizing grants, contracts, and cooperative agreements with “State educational agencies, local educational agencies, or Indian tribes, for the purpose of increasing student access to quality mental health care”); 20 U.S.C.A. § 7253c(a)(1) (West 2003) (authorizing grants and contracts with “State educational agencies, local educational agencies, institutions of higher education, other public agencies, and other private agencies and organizations (including Indian tribes and Indian organizations . . .) to assist . . . in carrying out programs or projects . . . designed to meet the educational needs of gifted and talented students”). In contrast, inclusion of tribally controlled schools in the “other school system” prong of the Rehabilitation Act’s definition of “program or activity” serves the entirely separate purpose of rendering these schools subject to that Act’s substantive requirements.4 Each provision, in other 4 We note that the statutory and legislative history of this provision is consistent with our conclusion. The Rehabilitation Act’s definition of “program or activity” has long included “local educational agencies” as defined in the Elementary and Secondary School Act. Prior to 1994, however, the definition of “local educational agency” (“LEA”) in the Elementary and Secondary School Act made no mention of Indian tribes or BIA-funded schools. The Improving America’s Schools Act of 1994 (“IASA”) amended this definition to extend to BIA-funded schools for the sole purpose of allowing such schools to receive federal funds for which they would otherwise not be eligible. See Pub. L. No. 103-382, § 101, 103 Stat. 3518, 3889 (1994); 20 U.S.C. § 8801(18)(C) (1994); see also 140 Cong. Rec. 27,842, 27,848 (1994) (remarks of Sen. Kennedy) (“Under current law, Bureau schools are not covered by the definition of LEA, so, except for a few programs in which they have been specifically included, these schools could not benefit from the wide range of Federal grants and services available to public schools through the eligibility of their LEA’s. . . . The first provision defines virtually all Bureau funded schools as LEA’s, except in those cases where a specific statute already makes provision for their eligibility, as in Chapter 1 and Even Start. This exception ensures that there is no double benefit for Bureau schools.”). 283 Opinions of the Office of Legal Counsel in Volume 28 words, serves a separate and independent function, and neither provision renders the other superfluous. Accordingly, we conclude that under standard canons of statutory construction, section 504 of the Rehabilitation Act would encompass tribally controlled schools.5 III. The conclusions above have rested on the application of the standard principles of construction described in Part I, supra. Several courts of appeals, however, have applied yet another canon of construction. These courts have found an exception to the Tuscarora rule for a statute that “touches ‘exclusive rights of self-governance in purely intramural matters,’” unless the law specifically references Indian tribes. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985) (citation omitted).6 In such a case, these courts have explained, the Tuscarora rule is inapplicable, and instead, the generally worded statute is deemed not to apply to Indian tribes unless it explicitly states to the contrary.7 As described in Part III.A, 5 Nor are tribally controlled schools exempt from the Rehabilitation Act under the Tribally Controlled Schools Act of 1988 (“TCSA”), 25 U.S.C.A. §§ 2501–2511 (2001 & West Supp. 2004). The TCSA provides, in relevant part, that “[f]unds allocated to a tribally controlled school . . . shall be subject to the provisions of this chapter and shall not be subject to any additional restriction, priority, or limitation that is imposed by the Bureau [of Indian Affairs] with respect to funds provided under—(i) title I of the Elementary and Secondary Education Act of 1965; (ii) the Individuals with Disabilities Education Act; or (iii) any Federal education law other than title XI of the Education Amendments of 1978,” and that “Indian tribes and tribal organizations to which grants are provided under this part, and tribally controlled schools for which such grants are provided, shall not be subject to any requirements, obligations, restrictions, or limitations imposed by the Bureau that would otherwise apply solely by reason of the receipt of funds provided under any law referred to in clause (i), (ii), or (iii).” 25 U.S.C. § 2503(b)(1) (emphasis added). According to the Departments of Education and the Interior, this provision simply means “that the BIA cannot impose additional requirements under Title I, IDEA and other federal education laws beyond what is required in the federal law.” Letter for Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, from Brian W. Jones, General Counsel, Dep’t of Education at 2 (July 15, 2004); see also Letter for Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, from Christopher B. Chaney, Associate Solicitor, Dep’t of the Interior (Sept. 14, 2004) (agreeing with the Department of Education on this point). In addition, the Rehabilitation Act is not a “Federal education law,” any more so than would be a law that generally prohibits robbery, including robberies that take place on school grounds. It is, rather, a general antidiscrimination law that applies to a broad range of institutions, including schools, and to all federal financial assistance programs, not just those administered by the BIA under federal education laws. 6 See, e.g., Fla. Paraplegic Ass’n, 166 F.3d at 1129; Smart v. State Farm Ins. Co., 868 F.2d 929, 935 & n.5 (7th Cir. 1989); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 175, 179 (2d Cir. 1996); Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1462–63 (10th Cir. 1989); EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 249 (8th Cir. 1993). 7 These courts have also recognized two other “exceptions” to the Tuscarora rule: (1) where “the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties’”; and (2) where “there is proof ‘by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.’” Coeur d’Alene Tribal Farm, 751 F. 2d at 1116. We do not address these applications of the rule except to note that they have a stronger basis than the one discussed in 284 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools infra, the basis for this exception is unclear. In any event, for the reasons described in part III.B, infra, we conclude that this canon is inapplicable to the question whether section 504 of the Rehabilitation Act extends to tribally controlled schools. A. The Supreme Court has never explicitly adopted an exception to the Tuscarora rule for generally applicable statutes that “touch[] ‘exclusive rights of selfgovernance in purely intramural matters.’” The “self-governance” exception appears to have originated in the Ninth Circuit’s decision in United States v. Farris, 624 F.2d 890, 893 (9th Cir. 1980).8 It has since been recognized by a number of courts of appeals, see supra note 6, though significantly, we are aware of only a few instances in which the self-governance exception has actually been applied to narrow an otherwise applicable generally worded statute.9 It is unclear, however, whether this exception is consistent with Supreme Court precedent. text. The first involves a conflict between two laws—an Indian treaty and a broadly worded statute; the choice to give one preference over the other is therefore unavoidable. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202–03 (1999) (“Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so.”). And the second exception involves nothing more than determining the statute’s meaning by reference to its legislative history, which is different from limiting the otherwise plain reach of a statute’s broad commands. Neither of these applications is here at issue, because we face no treaty with which section 504 of the Rehabilitation Act would conflict, nor any legislative history that would limit section 504’s otherwise broad reach. 8 In Farris, the court suggested that “reservation Indians may well have exclusive rights of selfgovernance in purely intramural matters, unless Congress has removed those rights through legislation explicitly directed at Indians.” 624 F.2d at 893. As examples of such “purely intramural matters,” the court subsequently listed “conditions of tribal membership, inheritance rules, and domestic relations.” Coeur d’Alene Tribal Farm, 751 F.2d at 1116. As discussed below, see infra Part. III.B, the Supreme Court has recognized tribal authority to regulate these three areas in the absence of federal law to the contrary. See, e.g., United States v. Wheeler, 435 U.S. 313, 322 (1978). The Supreme Court, however, did not suggest that federal law overcomes such tribal authority only if it is explicitly directed at Indians. 9 No court of appeals has addressed the application of the self-governance exception in the context of tribal schools. Most court of appeals cases have addressed whether a tribe’s commercial activities fell within this exception, with the majority holding that they did not. See Farris, 624 F.2d at 893; Fla. Paraplegic Ass’n, 166 F.3d at 1129–30 (ADA applicable to tribally owned and operated restaurant and entertainment facility); Coeur d’Alene Tribal Farm, 751 F.2d at 1116 (OSHA applicable to tribally owned and operated farm); Dep’t of Labor v. Occupational Safety & Health Comm’n, 935 F.2d 182, 186 (9th Cir. 1991) (OSHA applicable to tribally owned timber mill); Smart, 868 F.2d at 935 & n.5 (ERISA applicable to benefit plan of tribally owned health care center operating solely on reservation); Mashantucket Sand & Gravel, 95 F.3d at 175, 179 (OSHA applicable to tribally owned construction business that functioned as “an arm of the tribe”); NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003) (NLRA applicable to contractor that provided health care to tribal members); cf. United States v. Funmaker, 10 F.3d 1327, 1332 (7th Cir. 1993) (“The decision-making power of Indian tribes ends . . . at the point when those decisions violate federal law designed to safeguard important federal interests”; finding that district court had jurisdiction to apply criminal law alleged to interfere with tribal self-governance). We are aware of just three cases in which courts of appeals have 285 Opinions of the Office of Legal Counsel in Volume 28 The self-governance exception certainly seems to be in facial tension with the Tuscarora rule, which itself acknowledges no exception to the principle that “general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.” Tuscarora, 362 U.S. at 120. See also Choteau, 283 U.S. at 696 (“The intent to exclude must be definitely expressed, where, as here, the general language of the Act laying the tax is broad enough to include the subject matter.”). Indeed, the exception seems to adopt, at least in limited circumstances, the very rule that Tuscarora rejected. In particular, Tuscarora confronted an earlier Supreme Court decision that had held that “‘[u]nder the Constitution of the United States, as originally established, . . . [g]eneral Acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them,’” see Tuscarora, 362 U.S. at 115–16 (quoting Elk v. Wilkins, 112 U.S. 94, 99–100 (1884))—precisely the rule adopted by the self-governance exception for laws that “touch[] ‘exclusive rights of selfgovernance in purely intramural matters.’” Tuscarora, however, explicitly rejected this rule, explaining that “[h]owever that may have been, it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests.” 362 U.S. at 116. Tuscarora acknowledged no exception to this general principle for laws that “touch[] actually asserted the self-governance exception as the basis for exempting tribal entities from otherwise generally applicable federal statutes. In one, the court, contrary to the decisions above, applied the exception to a tribal commercial entity in an employment dispute. See, e.g., Fond du Lac, 986 F.2d at 249 (Age Discrimination in Employment Act (“ADEA”) inapplicable to a dispute involving a tribe member and tribally owned and operated construction company). Another applied the exception to an employment dispute between the tribal housing authority and a tribal employee, see EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1073 (9th Cir. 2001) (finding ADEA inapplicable), and a third held certain federal civil rights laws inapplicable to a claim that tribal membership had been denied to certain individuals on account of their race, see Nero, 892 F.2d at 1463 (noting that “no right is more integral to a tribe’s self-governance than its ability to establish its membership”). Cf. Taylor v. Ala. Intertribal Council, 261 F.3d 1032 (11th Cir. 2001) (apparently applying self-governance exception to find employment discrimination suit barred by tribal sovereign immunity). Although four other cases are sometimes cited in support of the self-governance exception, on close analysis, we find these cases inapposite. Reich v. Great Lakes Indian Fish & Wildlife Commission, 4 F.3d 490 (7th Cir. 1993), and NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002), are, in our view, best understood as involving the ambiguity-resolving canon, not the self-governance exception to Tuscarora. See Great Lakes, 4 F.3d at 494 (finding an “extrinsic ambiguity” in the statute because “[a] literal reading of [it] would create a senseless distinction between Indian police [who were literally covered by the statute] and all other public police [who were explicitly exempted from it]”); Pueblo of San Juan, 276 F.3d at 1191–98 (repeatedly citing the ambiguity-resolving canon to hold that a tribal right-to-work ordinance was not preempted by the National Labor Relations Act). And Donovan v. Navajo Forest Products Industries, 692 F.2d 709 (10th Cir. 1982), and EEOC v. Cherokee Nation, 871 F.2d 937, 938–39 (10th Cir. 1989), involved conflicts between a generally applicable statute and a treaty right, which, we have explained, stands on different footing than the exception for intramural activities. See supra note 6. See also Navajo Forest, 692 F.2d at 711 (“Tuscarora did not . . . involve an Indian treaty. Therein lies the distinguishing feature between the case at bar and the Tuscarora line of cases, which stand for the rule that under statutes of general application Indians are treated as any other person, unless Congress expressly excepts them therefrom.”); Cherokee Nation, 871 F.2d at 938 n.3 (asserting that “the socalled Tuscarora rule is not applicable to treaty cases such as this one”). 286 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools ‘exclusive rights of self-governance in purely intramural matters.’” This is significant because the law at issue in that case, the Federal Power Act, authorized the recipient of a federal license to condemn land owned by an Indian tribe—a law that would seem to affect tribal self-government. Id. at 123–24. Indeed, it was the impact of the Federal Power Act on “the tribal way of life” that caused Justice Black to dissent in that case. Id. at 131–42 (Black, J., dissenting) (objecting to majority’s application of Federal Power Act to tribal homeland in the absence of clear congressional authorization as contrary to Congress’s longstanding policy of protecting Indian reservations). Nor does the Supreme Court case law cited by the courts of appeals seem to support a self-governance exception to the Tuscarora rule. These courts have generally cited the following Supreme Court cases in support of the exception: Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Roff v. Burney, 168 U.S. 218 (1897); Jones v. Meehan, 175 U.S. 1 (1899); United States v. Quiver, 241 U.S. 602 (1916); United States v. Dion, 476 U.S. 734 (1986); and Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). See, e.g., Farris, 624 F.2d at 893; Fond du Lac, 986 F.2d at 248–49; Navajo Forest, 692 F.2d at 713. But it is difficult to see how any of these cases supports the self-governance exception. Unlike numerous decisions of the courts of appeals, none of these Supreme Court cases explicitly acknowledges an exception to the Tuscarora rule. Nor do they seem to support such an exception by implication. Two, for example, did not involve generally applicable statutes, but rather, statutes that specifically applied to Indians and Indian tribes; the only issue, then, was the scope of their coverage. See Santa Clara Pueblo, 436 U.S. at 55–56 (interpreting the scope of the Indian Civil Rights Act); Quiver, 241 U.S. at 605 (interpreting a statute providing that “‘so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country’”). Others, while recognizing certain areas of regulation as central to Indian self-government, involved no conflict with federal law, generally applicable or otherwise. See Roff, 168 U.S. at 222 (tribal citizenship); Jones, 175 U.S. at 29 (inheritance rights); Jicarilla Apache Tribe, 455 U.S. at 141 (tribal authority to tax non-Indians who conduct business on reservation). And one, in addition to involving a purported conflict with a treaty (as opposed to an undefined notion of self-government), see supra note 7, actually found that the treaty right was abrogated by the generally applicable federal law. See Dion, 476 U.S. at 738 (Eagle Protection Act abrogated Indian treaty hunting rights). In short, we simply cannot say with any confidence that the self-governance exception to the Tuscarora rule reflects a proper reading of Supreme Court precedent. In the end, however, we need not resolve this question. For the reasons explained below, we conclude that this self-governance exception, even assuming its validity, does not bar application of section 504 of the Rehabilitation Act to tribally controlled schools. 287 Opinions of the Office of Legal Counsel in Volume 28 B. Even assuming arguendo that there is an exception to the Tuscorora rule for general acts of Congress that touch upon the tribes’ “exclusive rights of selfgovernance in purely intramural matters,” we conclude that this self-governance exception is inapplicable to this case. First of all, it is unclear whether this exception would encompass tribal schools at all. It is, of course, true that, as a general matter, education is central to selfgovernment. But this exception to Tuscarora (assuming it exists) arguably is more limited. That is, it arguably encompasses not any activity that is central to selfgovernment, but rather, only those activities that have, as a historical matter, been left to the control of the Indian tribes, free from federal interference, as part of their residual sovereignty—in other words, only those activities that have in fact been left within the control of the Indian tribes. Hence, in describing the rights of Indian tribes that are central to their internal self-government, the Supreme Court has consistently limited its enumeration to rules governing tribal membership, inheritance, and domestic relations. See, e.g., Wheeler, 435 U.S. at 322 & n.18 (“unless limited by treaty or statute, a tribe has the power to determine tribe membership, to regulate domestic relations among tribe members, and to prescribe rules for the inheritance of property”) (citations omitted); Santa Clara Pueblo, 436 U.S. at 55–56 (citing “membership,” “inheritance rules,” and “domestic relations” as examples of tribes’ “power to make their own substantive law in internal matters”). See also Farris, 624 F.2d at 893 (identifying “tribal membership,” “inheritance rules,” and “domestic relations” as possible examples of “exclusive rights of self-governance in purely intramural matters”); supra note 8 (citing cases).10 Tribal schools, in contrast, have, as a historical matter, been subject to extensive federal control. See, e.g., Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832, 839–40 (1982) (“The Federal Government’s concern with the education of Indian children can be traced back to the first 10 We acknowledge, as discussed above, that some courts have taken a broader view of the exception. See Fond du Lac, 986 F.2d at 249 & n.3 (subjecting employment relationship between tribal member and tribal business to federal control and supervision “dilutes the sovereignty of the tribe”; recognizing disagreement with other courts); Karuk Tribe, 260 F.3d at 1080–81 (exception applies to purely internal employment dispute between tribal member and tribal government, where tribal government is providing a governmental service). These decisions, however, are in tension with those of other courts that have interpreted the exception more narrowly. See, e.g., Mashantucket Sand & Gravel, 95 F.3d at 179 (“tribal power, even regarding exclusively internal conflicts, may be limited by treaty or federal statute, including statutes that are silent as to Indians,” noting that “the Coeur d’Alene intramural exception does not include all aspects of sovereignty”) (citations omitted); Smart, 868 F.2d at 935 & n.5 (rejecting view that exception applies whenever a statute “affects self-governance as broadly conceived,” noting that “[a]ny federal statute applied to . . . a Tribe has the arguable effect of eviscerating self-governance since it amounts to a subordination of the Indian government”); see also supra note 8 (citing other cases). Moreover, neither Fond du Lac nor Karuk Tribe addresses the impact of any congressional statutes that state Congress’s understanding of the scope of the statute in question or the extensive federal regulation of the subject matter to which the statute arguably applies. 288 Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools treaties between the United States and the Navajo Tribe. Since that time, Congress has enacted numerous statutes empowering the BIA to provide for Indian education both on and off the reservation”) (footnote omitted) (citing statutes); 25 U.S.C.A. § 2000 (declaring “that the Federal Government has the sole responsibility for the operation and financial support of the Bureau of Indian Affairs funded school system that it has established on or near Indian reservations and Indian trust lands throughout the Nation for Indian children”).11 11 The BIA school system includes 184 elementary and secondary schools on 63 reservations in 23 states, of which 64 are operated directly by the BIA and 120 are operated by tribes under contract or grant with the BIA; the BIA also operates two postsecondary institutions and provides funding to 25 tribal colleges and universities. See U.S. Dep’t of the Interior, Bureau of Indian Affairs, Office of Indian Education Programs, Fingertip Facts 2004 at 7, available at http://www.oiep.bia.edu/ (last visited Oct. 6, 2004)); see also Susan Faircloth & John W. Tippeconnic III, Issues in the Education of American Indian and Alaska Native Students with Disabilities (Dec. 2000) (ERIC Clearinghouse EDORC-00-3) (of the approximately 500,000 Indian and Alaska Native children who attend elementary and secondary schools, about 90% attend regular public schools, about 10% attend BIA-funded schools, and a small number attend private schools). See also Felix S. Cohen, Handbook of Federal Indian Law 680–83 (1982) (setting forth a detailed history of the BIA school system). These schools are subject to extensive federal regulation. See, e.g., 25 U.S.C. § 2502(e) (Supp. I 2001) (grants provided to tribally controlled schools “shall not terminate, modify, suspend, or reduce the responsibility of the Federal Government to provide a program”); 25 U.S.C. § 450a(c) (2000) (“The Congress declares that a major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being.”); 25 U.S.C.A. § 2016 (West Supp. 2003) (authorizing the Secretary of the Interior to “prescribe such rules and regulations as are necessary to ensure the constitutional and civil rights of Indian students attending Bureau-funded schools, including such students’ rights to—(1) privacy under the laws of the United States; (2) freedom of religion and expression; and (3) due process in connection with disciplinary actions, suspensions, and expulsions”); 25 C.F.R. § 32.4(b), (w) (2004) (directing the Assistant Secretary for Indian Affairs to “[e]nsure the constitutional, statutory, civil and human rights of all Indian and Alaska Native students” and “[e]stablish and enforce policies and practices to guarantee equal opportunity and open access to all Indian and Alaska Native students in all matters relating to their education programs consistent with the provisions of the Privacy and Freedom of Information Acts”). In addition, tribally controlled schools must, as a condition of receiving federal grants and contracts, expressly agree to comply with section 504 of the Rehabilitation Act. See, e.g., 28 C.F.R. § 33.41(f)(10) (2003) (requiring assurance in application for Department of Justice grant programs that applicant and all subgrantees “will comply . . . with the non-discrimination requirements of . . . section 504 of the Rehabilitation Act of 1973”); id. § 33.52 (2003) (funding recipients are subject to section 504); id. § 42.504(a) (2003) (“Every application for Federal financial assistance [from the Department of Justice] shall contain an assurance that the program will be conducted in compliance with the requirements of section 504 . . . .”); Grants and Cooperative Agreements with State and Local Governments, OMB Circular No. A-102 (1997) (requiring executive agencies to use standard assurances forms when awarding grants or cooperative agreements to tribal governments as well as state and local governments); cf. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1286–89 (11th Cir. 2001) (fact that tribal government signed assurance did not waive tribal sovereign immunity against private suit); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 n.2 (8th Cir. 2000) (same). See also Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 605 (1986) (acceptance of funds under section 504 and similar statutes is “in the nature of a contract . . . the recipient’s acceptance of the funds triggers coverage under the nondiscrimination provision”); Barnes v. Gorman, 536 U.S. 181, 186 (2002) (same). 289 Opinions of the Office of Legal Counsel in Volume 28 In the end, however, we need not decide whether the self-governance exception would extend to tribal schools at all, for whatever the outer limits of the exception, we do not believe it applies where, as here, Congress has specifically stated in statutes its belief that a particular statute applies to Indians. At most, the selfgovernance exception is a tool to infer whether Congress intended a statute to apply to Indians where the statute does not explicitly so provide. And, as we have explained, it is a tool that is in some tension with the ordinarily dispositive rule that where a statute’s meaning is plain, that plain meaning must govern—a rule reflected in Tuscarora. In this light, it is difficult to understand how a statute could be interpreted contrary to its plain meaning, pursuant to a canon intended to infer congressional intent in the face of silence, where Congress has, in other statutes, unequivocally stated its understanding of the statute in question. And that is precisely the situation that we confront. For Congress has specifically and explicitly stated its view that section 504 of the Rehabilitation Act applies to tribally controlled schools. As we have explained, the Education Amendments of 1978 directed the Secretary of the Interior to “immediately begin to bring all schools, dormitories, and other facilities operated by the Bureau or under contract with the Bureau in connection with the education of Indian children into compliance with . . . section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),” Pub. L. No. 95-561, § 1125, 92 Stat. at 2319, and the No Child Left Behind Act of 2001 requires that “[t]he Secretary shall immediately begin to bring all schools, dormitories, and other Indian education-related facilities operated by the Bureau or under contract or grant with the Bureau, into compliance with . . . section 794 of Title 29 [section 504].” 25 U.S.C. § 2005(b)(1). Accordingly, the self-governance exception is simply inapplicable to this case. We therefore conclude that section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice. NOEL J. FRANCISCO Deputy Assistant Attorney General Office of Legal Counsel 290

Write a legal research memo on the following topic.

Filling the Vacancy Following the Death of the Secretary of War The performance of the duties of the Secretary of War by an acting secretary may not extend beyond thirty days from the date of the death of the late Secretary of War, and it will be necessary for a new Secretary of War to be appointed in accordance with the provisions of the Appointments Clause of the Constitution to perform those duties after that date. There is some doubt whether the duties specifically imposed by Congress upon the Secretary of War may be performed by the President, as Commander in Chief of the Army, or by any other person not serving as the Secretary of War. September 21, 1936 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Reference is made to the request of Mr. Marvin H. Mclntyre, Assistant Secretary to the President, for your opinion concerning the necessity of the appointment of a successor to the late Secretary of War.* The Act of August 7, 1789, ch. 7, § 1, creating the Department of War, provides: That there shall be an executive department to be denominated the Department of War, (a) and that there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on, or entrusted to him by the President of the United States . . . . 1 Stat. 49, 49–50. This statute is silent as to the method of appointing the Secretary, and no subsequent legislation relative thereto has been enacted. The appointment of the Secretary is therefore left under the provisions of Article II, Section 2 of the Constitution, which, in prescribing the duties of the President, provides in part: [H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments 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, * Editor’s Note: The version of this opinion that was transcribed in the Unpublished Opinions of the Assistant Solicitor General contained a footnote here cross-referencing another short memorandum regarding the President’s authority to recess-appoint a Secretary of War. That memorandum, dated September 25, 1936, is included at the end of this opinion. 32 Filling the Vacancy Following the Death of the Secretary of War in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Provision is made by sections 177 and 179 of the Revised Statutes for the temporary filling of the office of the head of a department. Those sections read as follows: In case of the death, resignation, absence, or sickness of the head of any Department, the first or sole assistant thereof shall, unless otherwise directed by the President, as provided by section one hundred and seventy-nine, perform the duties of such head until a successor is appointed, or such absence or sickness shall cease [§ 177]. In any of the cases mentioned in the two preceding sections, except the death, resignation, absence, or sickness of the Attorney-General, the President may, in his discretion, authorize and direct the head of any other Department or any other officer in either Department, whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease [§ 179]. Rev. Stat. §§ 177, 179 (2d ed. 1878), 18 Stat. pt. 1, at 28 (repl. vol.), recodified at 5 U.S.C. §§ 4, 6 (1934). The filling of such office under sections 177 and 179 of the Revised Statutes, however, is temporary only, and section 180 (as amended) reads as follows: A vacancy occasioned by death or resignation must not be temporarily filled under the [three preceding sections] for a longer period than thirty days. 5 U.S.C. § 7 (1934). Reading sections 177, 179, and 180 together, it is my opinion that the temporary filling of a vacancy occasioned by the death or resignation of the head of a department may not be for a period of more than 30 days. This view has long been adhered to by your predecessors. (Section 178 pertains only to bureaus.) In an opinion dated December 31, 1880, Attorney General Devens, replying to a letter of the Secretary of the Treasury informing him that the period of 10 days, for which Honorable Alexander Ramsey, Secretary of War, was designated to act as Secretary of the Navy under the provisions of sections 177 and 180 of the 33 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Revised Statutes, expired the day before, and inquiring whether any person after such expiration could properly sign requisitions as Acting Secretary of the Navy for payments on account of the Navy, stated: In answer, I would say that, in my opinion, the vacancy in the office of the Secretary of the Navy created by the resignation of Hon. R.W. Thompson cannot be filled by designation of the President beyond the period of ten days. This power of the President is a statutory power, and we must look to the statute for its definition. An examination of the statutes which precede that statute of 1868 embodied in section 180 Revised Statutes satisfactorily shows that the period for which the vacancy can be filled by designation is limited to ten days. It would not, therefore, be in the power of the President, after such ten days, to designate another officer, or the same officer, to act for an additional period of ten days. The statutory power being exhausted, the President is remitted to his constitutional power of appointment. No appointment has been made, and there is, and can be, no person authorized by designation to sign requisitions upon the Treasury Department on account of Navy payments as Acting Secretary of the Navy. Appointments Ad Interim, 16 Op. Att’y Gen. 596, 596–97 (1880). In an opinion to the President dated March 31, 1883, Attorney General Brewster, construing sections 177, 178, 179, and 180 of the Revised Statutes with reference to the necessity of appointing a successor to Postmaster General Howe, deceased, said: [T]hose sections have received an interpretation by Mr. AttorneyGeneral Devens, as appears on reference to volume 16 of AttorneyGenerals’ opinions, pages 596 and 597. It was there held by that officer that the President has power to temporarily fill by an appointment ad interim, as therein prescribed, a vacancy occasioned by the death or the resignation of the head of a Department or the chief of a bureau therein, for a period of ten days only. When the vacancy is thus temporarily filled once for that period, the power conferred by the statute is exhausted; it is not competent to the President to appoint either the same or another officer to thereafter perform the duties of the vacant office for an additional period of ten days. After carefully reading those sections and examining the history of their enactment, I concur in that opinion. 34 Filling the Vacancy Following the Death of the Secretary of War Appointments Ad Interim, 17 Op. Att’y Gen. 530, 530–31 (1883). In an opinion to the President dated September 11, 1884, rendered in connection with the death of Secretary of the Treasury Folger, Attorney General Brewster, referring to his former opinion of March 31, 1883, submitted upon the death of Postmaster General Howe, affirmed that opinion and advised that the conclusions therein applied to the case under consideration. Performing Duties of Vacant Office, 18 Op. Att’y Gen. 58, 58–59 (1884). In an opinion to the President dated January 31, 1891, rendered in connection with the death of Secretary of the Treasury Windom, Attorney General Miller said: It seems to me impossible to escape the effect of section 180 in limiting to a period of ten days the time during which the vacant office may be filled, either by the statutory succession provided in section 177, or the designation by the President provided in section 179, or by both. Vacancy in Head of Departments, 20 Op. Att’y Gen. 8, 9 (1891). At and prior to the time the opinion of Attorney General Miller above referred to was rendered, the limitation in section 180 was 10 days. After that opinion was rendered, the Congress, by the Act of February 6, 1891, ch. 113, 26 Stat. 733, 733, amended the section so as to extend the time to 30 days, but did not otherwise change the section. In an opinion dated March 15, 1920, Acting Attorney General Ames, in answer to the letter of the Undersecretary of State advising that the 30 days of his incumbency as Acting Secretary of State expired on that date and inquiring what action would be appropriate for him and other officers of the department to take pending the confirmation by the Senate of the nomination of Mr. Colby as Secretary of State, stated: The President not having “otherwise directed,” you held as “the first or sole assistant” under section 177. While that section provides that such an assistant shall “perform the duties of such head until a successor is appointed,” this language must be construed in connection with section 180 as amended, which limits the time to 30 days. The vacancy to be filled under section 177 is manifestly to be filled only “temporarily,” whether filled by the assistant or in such other manner as the President may direct. It can not be properly held that the 30 days’ limitation applies only to a case in which the President otherwise directs and not to a case in which the assistant is acting under the statute, because the person acting in either contingency is acting temporarily, and because section 180 as amended specifically limits the period for temporary action to 30 days. 35 Supplemental Opinions of the Office of Legal Counsel in Volume 1 .... In the absence of a specific case it is difficult to suggest what course you and the other officers of the department should take pending the confirmation of Mr. Colby’s nomination. It is probably safer to say that you should not take action in any case out of which legal rights might arise which would be subject to review by the courts. Vacancy in Office of Secretary of State, 32 Op. Att’y Gen. 139, 141 (1920). An examination of the legislative history of the act of February 6, 1891, changing the limitation in section 180 from 10 days to 30 days, is instructive. The opinion of Attorney General Miller advising the President that it was necessary to appoint a successor to Secretary of the Treasury Windom within 10 days was dated January 31, 1891. Vacancy in Head of Departments, 20 Op. Att’y Gen. 8 (1891). On the same date President Harrison addressed to the Congress the following message: The sudden death of the honorable William Windom, Secretary of the Treasury, in New York, on the evening of the 29th instant, has directed my attention to the present state of the law as to the filling of a vacancy occasioned by the death of the head of a Department. I transmit herewith an opinion of the Attorney-General, from which it will be seen that under the statutes in force no officer in the Treasury Department, or other person designated by me, can exercise the duties of Secretary of the Treasury for a longer period than ten days. This limitation is, I am sure, unwise and necessarily involves, in such a case as that now presented, undue haste and even indelicacy. The President should not be required to take up the question of the selection of a successor before the last offices of affection and respect have been paid to the dead. If the proprieties of an occasion as sad as that which now overshadows us are observed possibly onehalf of the brief time allowed is gone before, with due regard to the decencies of life, the President and those with whom he should advise can take up the consideration of the grave duty of selecting a head for one of the greatest Departments of the Government. Hasty action by the Senate is also necessarily involved, and geographical limitations are practically imposed by the necessity of selecting some one who can reach the Capital and take the necessary oath of office before the expiration of the ten days. 36 Filling the Vacancy Following the Death of the Secretary of War It may be a very proper restriction of the power of the President in this connection that he shall not designate, for any great length of time, a person to discharge these important duties who has not been confirmed by the Senate; but there would seem to be no reason why one of the Assistant Secretaries of the Department wherein the vacancy exists might not discharge the duties of Secretary until a successor is selected, confirmed, and qualified. The inconvenience of this limitation was made apparent at the time of the death of Secretary Folger. President Arthur, in that case, allowed one of the Assistant Secretaries, who had been designated to act in the absence of the Secretary, to continue in the discharge of such duties for ten days, then designated the same person to discharge the duties for a further term of ten days, and then made a temporary appointment as Secretary, in order to secure the consideration that he needed in filling this important place. I recommend such a modification of the existing law as will permit the first or sole Assistant, or, in the case of the Treasury Department, where the Assistants are not graded, that one who may be designated by the President to discharge the duties of the head of the Department until a successor is appointed and qualified. 22 Cong. Rec. 2015 (message to Senate), 2060 (identical message to House). Upon the receipt of this message in the House, Mr. McKinley introduced a bill (H.R. 13453) to amend section 180 of the Revised Statutes to read as follows: A vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period than thirty days. 22 Cong. Rec. 2064 (Feb. 2, 1891). When motion to suspend the rules and pass the bill was seconded by Mr. McMillin, the bill was by unanimous consent considered and passed by the House without being referred to a committee. Id. at 2065. Mr. McKinley, in presenting the bill, stated: [T]he President of the United States on last Saturday sent a message to the House of Representatives, as well as to the Senate, calling the attention of Congress to the fact that under existing law he could designate an officer to a Cabinet place for ten days, and ten only, and recommended that an extension of the time be given by public law. Doubtless gentlemen on both sides of the House have read the message in question and are aware of the occasion which led to its 37 Supplemental Opinions of the Office of Legal Counsel in Volume 1 transmission to Congress. The bill I have sent to the desk proposes to amend section 180 of the Revised Statutes, which reads as follows: Sec. 180. A vacancy occasioned by death or resignation must not be temporarily filled under the three preceding sections for a longer period than ten days. Section 177 applies to the case which gives rise to this bill and is in the following words: Sec. 177. In case of the death, resignation, absence, or sickness of the head of any Department the first or sole Assistant thereof shall, unless otherwise directed by the President, as provided by section 179, perform the duties of such head until a successor is appointed or such absence or sickness shall cease. Section 180 limits the power of the President to appoint a successor until a permanent appointment is made and confirmed by the Senate, limiting it to a period of ten days, in which time the appointment must be made. Now, this bill follows the language of section 180, which is in the same words, except that we insert “thirty” instead of “ten” days, so that it gives the President thirty days’ time within which he may designate a head of a Department to hold until his successor is qualified or appointed and confirmed. Id. at 2064–65. Mr. McMillin, who had seconded the motion for suspension of the rule and passage of the bill, stated: Mr. Speaker, lest my demand for a second on the motion of the gentleman from Ohio should be misunderstood, I wish to say that I do not see any reason why this bill may not be passed. If I remember correctly this is one of the statutes placed on the books in order to control President Johnson. I am not sure about it, but that is my memory. I do not, however, assent to the reasoning embodied in the President’s message and am unable to see how he can reason as he does to reach the conclusion at which he has arrived. The principal part of the message is taken up with a statement that it is indecorous to the dead to proceed to carry out the statutes for the benefit of the living. I do not think that would be an act of indecorum; and hence I should 38 Filling the Vacancy Following the Death of the Secretary of War not vote for this proposition on that ground. But I can see that the period of ten days is a limit too short for the action which may be necessary in the appointment of the head of an Executive Department, and the Chief Executive might find himself at a great disadvantage in making that calm and judicious decision which should characterize his action. Id. at 2065. In the Senate the bill as passed by the House was referred to the Committee on Finance which reported an amendment striking out all after the enacting clause and thereafter considerably revising sections 177, 178, and 179 of the Revised Statutes and repealing section 180. The following is a part of the discussion of the Senate Finance Committee amendment on the floor of the Senate: MR. GORMAN. I ask the Senator from Vermont if that [referring to the part of the amendment which repealed section 180, Revised Statutes] is not a very radical change and whether there ought not to be some limitation. We all know that gentlemen are selected for assistants of these Departments, for the great Treasury Department, and there might be some question as to whether favorable action was to be had in selecting a head of that Department. It does not seem to me that there ought to be a limit. Formerly I understand the time was six months, and afterwards during President Johnson’s time it was limited to ten days. Now, we are going back and throwing it open and permitting these officers to be designated and to act for any length of time. .... MR. HALE. I should be very glad to have the Senator who reports this bill state to the Senate what reasons there were for going so largely into the question of the tenure of certain officers and their appointment. The emergency that arose was one that was clearly defined and was the subject of a special message from the President. The House of Representatives evidently took the matter up in that spirit, and passed a simple bill of a few lines, which I am bound to say suits me very much better than this long bill reported by the Senator from Vermont and sought to be put through now certainly without my being able to understand it. It occurs to me that the better thing to do would be to do just what the House of Representatives did, take that simple bill and pass it without any amendment. .... 39 Supplemental Opinions of the Office of Legal Counsel in Volume 1 MR. EVARTS. Mr. President, I have made a careful examination of the clauses in the statute book now relating to this subject, and have come to the conclusion, without reference to the bill introduced into the Senate, which I had not seen nor heard of till this morning, that all that is necessary either for permanent legislation or for this exigency is to enlarge the period within which authority for temporary appointment is needed. This I understand now has been provided for by a bill which passed the other House, simply by substituting the word “thirty” for “ten,” as the statute now reads. Whether any new regulations should be made hereafter (and I can not foresee their necessity) this measure is all that is needed for this exigency, and so far as I can see all that is necessary for any supervening exigencies hereafter. .... MR. ALLISON. If the Senator will allow me, the provisions of the amendment are perfectly clear as proposed by the Senate committee. Instead of making the term thirty days, an Assistant Secretary is appointed who shall hold indefinitely until the President shall have selected a Secretary. That is the difference between the House bill and the Senate amendment, and the only difference. MR. REAGAN. The effect of that might be that we should have the head of a Department holding indefinitely without the consent of the Senate, and I do not think that ought to be. I prefer the House bill. .... MR. HALE. It appears to me that the very fact that this debate has arisen here and that doubts have come up in the minds of Senators as to the operation of this amendment is in itself a conclusive argument against the amendment. The other branch of the national Legislature took the subject up at once and unanimously passed the simple bill that disposes of the question, the only real question that there is in it, as the President desired undoubtedly—I do not pretend to speak for him—but that seems to be his desire as indicated by his message. I do not understand that there has been any serious inconvenience in the Departments heretofore, excepting upon this ten days’ limitation, and the only thing that was sought to be done in the other branch was to relieve that, and I, for one, hope we may follow in the line they have taken. 40 Filling the Vacancy Following the Death of the Secretary of War .... MR. DAWES. I should like to hear from the Committee on Finance the reasons they have to give for extending the time indefinitely; why it is better to put it in the power of the President to have an adviser without the consent of the Senate than to have one for thirty or forty days, a time sufficient for all the purposes that could be expected or desired except for the purpose of having an adviser without the consent of the Senate. .... MR. GORMAN. Mr. President, I have not looked into the subject particularly and it is comparatively new. My understanding, however, is that originally in the very first act passed upon this subject, during General Washington’s Administration, six months was the limit. MR. MORRILL. It was. MR. GORMAN. I understand from the Senator from Vermont that I am correct in that statement. Congress was jealous about this matter and would not permit a designation to extend beyond the period of six months. So we ran along until we came to the exciting scenes during President Johnson’s Administration, when the majority of Congress at that time thought there was some abuse by the President, even within that limit, in the appointment of his Cabinet officers and designating others to act in their place, and at that time a law was passed limiting the designations to ten days. From that period until now we have had a great many cases where the Administration, I have no doubt, has been embarrassed. I think we had one in the case of Secretary Manning, who was sick for quite a long time. Secretary Folger also during his service as Secretary of the Treasury was sick and afterwards died. MR. EDMUNDS. If the Senator from Maryland will pardon me right on that point, in the instance of Secretary Manning, Mr. Fairchild was the Assistant Secretary, whose office was fixed by law and who had been confirmed by the Senate under the law and with the idea that, in the illness of his chief, the duty would devolve upon him by operation of law, and not necessarily by any designation of the President. It is the law which provides it. Therefore, in my opinion, as the law now stands, an Assistant Secretary may proceed until the President chooses to oust him by designating somebody else, or, which is the same thing, the business of any Department can go on 41 Supplemental Opinions of the Office of Legal Counsel in Volume 1 indefinitely by the deputy named by law, as distinguished from the selection by the President, until the vacancy is filled, and in that way Mr. Fairchild was enabled to go on. The only difficulty is in what I think is a wrong construction placed by a former Attorney General in a very brief opinion upon this right of the lawful deputy or assistant to act for more than ten days, who held in one instance under the law that the Assistant Secretary could only act for ten days, which I think is a great mistake; but as the committee has reported this amendment, instead of leaving the law to operate upon the Assistant Secretary upon whom the duty is devolved, namely, the First Assistant, it authorizes the President to step in and take his choice for an indefinite period, which I do not think is right. Id. at 2078–79. The amendment proposed by the Senate Finance Committee was rejected and the bill as sent over by the House was passed by the Senate. Id. at 2079. From this action by the Congress under the circumstances existing, and especially in view of the discussion of the bill and the proposed Senate Finance Committee amendment on the floor of the Senate, it seems clear that Attorney General Miller’s construction of the statute correctly represents the intent of the Congress. In view of the above, it is my opinion that the performance of the duties of the Secretary of War by an acting secretary may not extend beyond thirty days from the date of the death of the late Secretary of War, and that it will be necessary for a Secretary of War to be appointed in accordance with the provisions of Article II, Section 2 of the Constitution to perform those duties after that date. It has been suggested that the President, as Commander in Chief of the Army, would be authorized under his constitutional powers to perform the duties of the Secretary of War. It will be noted, however, that in addition to the original duties placed upon the Secretary of War by the Act of August 7, 1789, creating the Department of War, to “perform and execute such duties as shall from time to time be enjoined on, or entrusted to him by the President of the United States,” 1 Stat. at 50, the Congress has from time to time imposed upon the Secretary of War specific statutory duties, as will be seen by reference to sections 184–219, title 5, U.S. Code; to title 32, U.S. Code, relating to the National Guard; and to various other statutes. It cannot, of course, be contemplated that the President will actually serve as Secretary of War, and I have some doubt whether the duties specifically imposed by the Congress upon the Secretary of War as such officer can be performed by any person not serving as Secretary of War. Moreover, it seems to me that the Constitution and the acts of Congress together evince the intent that the President shall appoint a successor to a deceased or resigned Secretary of War within thirty days from the time the office becomes vacant. In my opinion his failure to do this will subject him to unfavorable criticism, and will be immediately seized upon by those who have persistently 42 Filling the Vacancy Following the Death of the Secretary of War sought to create the impression that the President has no regard for the Constitution and the laws. This is particularly true in view of the legislative history of the statutes and the many published opinions of the Attorneys General construing them. Should the President not desire to make the permanent appointment until after the convening of the next Congress, a resignation would not be necessary, since the appointment at that time by the President of a new Secretary of War, concurred in by the Senate, would ipso facto vacate the office as of the date the new appointment became effective. See Blake v. United States, 103 U.S. 227, 237 (1880). If the President may appoint a Secretary of War, it would seem that the President at his pleasure at any time may require his resignation and appoint someone else as Secretary of War to fill such vacancy. It may be that the President could, if he so desired, designate the person appointed at this time as Acting Secretary of War, as an indication that the appointment was to be in the nature of a temporary one. Such an appointee would, however, in my opinion, be Secretary of War, and if elevated to that office from some other position in the Department I have serious doubt whether he could later resume his former office without reappointment and, if the nature of the office required it, confirmation by the Senate. Moreover, such an appointment might result in the President being charged with subterfuge, and might subject him to the same kind of unfavorable criticism as that to which he would probably be subject if no appointment were made at this time. GOLDEN W. BELL Assistant Solicitor General 43 Supplemental Opinions of the Office of Legal Counsel in Volume 1 September 23, 1936 SUMMARY OF MEMORANDUM OPINION FOR ATTORNEY GENERAL* I. The Act of August 7, 1789, creating the Department of War provides that “there shall be a principal officer therein, to be called the Secretary for the Department of War.” The statute does not provide the method of appointing a secretary nor has any subsequent legislation done so. Such appointment therefore is governed by Article II, Section 2 of the Constitution under which the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” the Secretary of War. The same section 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.” II. The only statutory authority for the President in the event of the death or resignation of the head of a department to designate a person to perform the duties of the vacant office until a successor is appointed is to be found in sections 177 and 179 of the Revised Statutes, the former providing that “the first or sole assistant thereof shall, unless otherwise directed by the President, perform the duties of such head until a successor is appointed”; and the latter (except in case of death or resignation of the Attorney General) that the President may authorize “the head of any other Department or any other officer in either Department, whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed.” III. Section 180 of the Revised Statutes, referring to sections 177 and 179 (also section 178 which pertains only to bureaus), provides that “a vacancy occasioned by death or resignation must not be filled under the three preceding sections for a longer period than 30 days.” Since sections 177 and 179 contain the sole authorization to the President to designate someone to perform the duties of the Department whose head has died or resigned, the President is restricted to designating one of the persons therein described to act during the vacancy. He therefore has no authority to appoint to act during the vacancy a person who does not fall within the categories specified in sections 178 and 179. IV. The Opinions of the Attorneys General from 1880 to the present time have construed the above-mentioned sections to mean that in case of a vacancy occasioned by the death or resignation of the head of a department the President may not designate a person to perform the duties of such head for a period of more than 30 days. * Editor’s Note: This summary, dated two days later, appears immediately after the full memorandum opinion in the Unpublished Opinions of the Assistant Solicitor General. 44 Filling the Vacancy Following the Death of the Secretary of War V. The legislative history of the above-mentioned provisions shows that originally the period during which the duties of a deceased or resigned head of a department might be performed by a person properly designated by the President was six months; that later the period was reduced to 10 days for the purpose of controlling appointments of President Johnson; that President Harrison protested the period of 10 days as too short; that thereupon an endeavor was made to repeal the restrictive legislation to permit the president to designate such officers to act for any length of time; that such endeavor was unsuccessful but the time was extended from 10 to 30 days—the existing provision. VI. While the original duties placed upon the Secretary of War by the act of August 7, 1789, “to perform and execute such duties as shall from time to time be enjoined, on, or entrusted to him by the President of the United States,” might be performed by the President as Commander in Chief of the Army during a vacancy in the office, subsequent legislation has from time to time imposed upon the Secretary of War specific statutory duties. Since it was not contemplated that the President should in fact serve also as Secretary of War, it is at least doubtful whether the duties specifically imposed by the Congress upon the Secretary as such can be performed by one who is not in fact serving as Secretary. VII. Since the intent of the Constitution and the above-mentioned acts of Congress seems to be to require the President to appoint a successor to a deceased or resigned Secretary of War within 30 days from the time the office becomes vacant, failure by the President to do so within that time will probably result in criticism of the President. VIII. Should the President desire not to appoint a permanent Secretary of War until after the convening of the next Congress, he could now appoint a Secretary of War and appoint another person as such after the convening of the Congress, which latter appointment, if concurred in by the Senate, ipso facto, would vacate the office as of the date the new appointment becomes effective. Blake v. United States, 103 U.S. 227, 237 (1880). IX. If the President may appoint a Secretary of War, it would seem that the President at his pleasure at any time may require his resignation and appoint someone else as Secretary of War to fill such vacancy. GOLDEN W. BELL Assistant Solicitor General 45 Supplemental Opinions of the Office of Legal Counsel in Volume 1 September 25, 1936 MEMORANDUM FOR THE ATTORNEY GENERAL* Mr. Forster of the White House telephoned me this afternoon, advising that the President had concluded to appoint a Secretary of War to fill the existing vacancy. He inquired whether in preparing the commission it would be proper to insert in it a clause indicating that it was an “interim” appointment or restricting it to a certain time. I informed him that in my opinion it would not be proper for this to be done, since there is no authority for the President to limit the term of one appointed to this office, and in view of the fact that after appointment, he is removable, in any event, at the pleasure of the President. There has been no call for a formal opinion, and I assume that final disposition of the matter has thus been made, unless it shall be later brought to your attention. GOLDEN W. BELL Assistant Solicitor General * Editor’s Note: This follow-up memorandum included a postscript: “Bell—Your view is correct, I am sure.—HSC.” Presumably “HSC” was Attorney General Homer S. Cummings. On the same date, President Roosevelt recess-appointed Harry H. Woodring as Secretary of War to fill the vacancy left by the passing of George J. Dern on August 27, 1936. 46

Write a legal research memo on the following topic.

Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies T h e D ep artm en t o f D efense has statutory authority to assist civilian law enforcem ent agencies to id en tify o r confirm suspected illegal drug production w ithin structures located on private p ro p erty by p ro v iding them w ith aerial reconnaissance that uses Forw ard Looking Infrared R ad ars technology. February 19, 1991 M em orandum O p in io n fo r t h e Depa rtm ent o f D G eneral Coun sel efen se This memorandum is in response to your request for our opinion whether, under existing statutory authority, the Department of Defense may assist civilian law enforcement agencies to identify or confirm suspected illegal drug production within structures located on private property by providing them with aerial reconnaissance that uses Forward Looking Infrared Radars technology. We conclude that such assistance is authorized by 10 U.S.C. § 374(b)(2)(B), and not prohibited by 10 U.S.C. § 375. I. Forward Looking Infrared Radars (“FLIR”) is a passive technology that detects infrared radiation generated by heat-emitting objects. Infrared rays are received by the FLIR system, electronically processed, and projected on a screen as a visual image in the shape o f the object that is emitting the heat. The warm er the object, the brighter the image of the object appears. See U nited States v. Sanchez , 829 F.2d 757, 759 (9th Cir. 1987); United States v. K ilgu sy 571 F.2d 508, 509 (9th Cir. 1978). FLIR is not an x-ray technology. We have been informed that it cannot provide information concerning the interior o f an object or structure. It detects only heat emanating from sur­ faces that are directly exposed to the FLIR system. Thus, for example, if there were heat-producing objects within a building, FLIR could detect that m ore infrared radiation was being emitted from the building’s roof than if the building were empty, but the system could not identify the shapes of 36 heat-emitting objects located within the structure. Nor could the system identify the source of the heat or the precise location of the heat source within the structure. Law enforcement agencies believe that FLIR technology can be useful in identifying buildings that house marijuana crops, or methamphetamine or other drug processing laboratories. In particular, FLIR can aid law enforce­ ment officials in establishing probable cause that criminal activity is ongoing within a particular building by determining whether the building is radiating unusually large amounts of heat (due to the use of high intensity lighting or combustion generators) or unusually small amounts of heat (due to heavy insulation). Recently, therefore, federal and state law enforcement agencies have requested that military aircraft equipped with FLIR fly over suspect buildings on private lands and produce infrared images of those structures. The Department of Defense (“DoD”) has informed us of three requests for assistance that present the question whether such military assistance is authorized. The Drug Enforcement Administration (“DEA”) has asked the Army to conduct infrared imaging of a bam on private land in which the DEA suspects that marijuana is being cultivated. Second, a law enforcement agency has requested that an Army flight crew conduct a training mission over certain private lands and buildings in the vicinity of Wichita, Kansas, using an Army helicopter equipped with FLIR, to identity suspected illegal marijuana cultivation. And third, the DEA has asked that the Army under­ take flights in OH-58D helicopters equipped with FLIR, at a height o f at least 500 feet above ground, to identify dwellings and other structures on private land in Arizona that the DEA suspects contain methamphetamine laboratories. The requesting agencies maintain that the Defense Department has the authority to provide the requested assistance under the provisions of 10 U.S.C. §§ 371-378, which are designed to promote cooperation between military personnel and civilian law enforcement officials. II. Chapter 18 of title 10, which was enacted by Congress in 1981 and sub­ sequently amended in 1988 and 1989, authorizes DoD to provide several forms of assistance to civilian law enforcement officials. Sections 371 through 373 permit the Secretary of Defense to provide these officials with informa­ tion collected during training missions; equipment or facilities needed for law enforcement purposes; and training or advice relevant to equipment that is provided. Section 374 authorizes the Secretary to make DoD personnel available for the operation and maintenance of equipment in connection with a limited number of law enforcement purposes. Each of these authorizations is subject to the limitations in section 375 that the Secretary o f Defense prevent “direct participation by a member of the Army, Navy, Air Force, or 37 Marine Corps in a search, seizure, arrest, or other similar activity.” Id. § 375.1 We believe it is clear from the language and legislative history of sections 371 through 374 that FLIR surveillance is authorized by those sections, subject to the restrictions of section 375.2 Section 372 permits the Secretary of Defense to make available to any federal, state or local law enforcement official “any equipment” for law enforcement purposes, and obviously FLIR constitutes “equipment.” Section 374, as amended, allows DoD personnel to operate such equipment for the purpose o f “aerial reconnaissance,” which is precisely what is contemplated in the requests that have been made. 10 U.S.C. § 374(b)(2)(B).3 The normal meaning of the term “reconnaissance” is “an exploratory or preliminary survey, inspection, or examination made to gain information.” Webster's Third New International Dictionary 1897 (1986). FLIR surveillance from aircraft is clearly “aerial reconnaissance,” so de­ fined. The only limitation on aerial reconnaissance even suggested by the legislative history is that it should “be used for reconnaissance of property and not for surveillance of persons.” H.R. Conf. Rep. No. 989, 100th Cong., 2d Sess. 451 (1988) (“1988 Conference Report”). Here, of course, the pro­ posed reconnaissance is of property, not persons. We conclude, therefore, 'T h e scope of section 375 is itself restricted by 10 U.S.C. § 378, which states that “[n]othing in this chapter shall be construed to limit the authority of the executive branch in the use o f military personnel or equipm ent for civilian law enforcement purposes beyond that provided by law before D ecember 1, 1981.” Thus, if FLIR surveillance o f private buildings would not have been prohibited by the Posse C om itatus Act, 18 U.S.C. § 1385, before 1981, section 375 does not proscribe such surveillance. See infra note 16. 2All parties who have reviewed the requests for DoD assistance that are at issue here appear to agree with this conclusion. Memorandum for Terrence O’Donnell, General Counsel, Department of Defense, from Robert M . Sm ith, Jr., at 32-33 (Sept. 19,1980) (“Smith Memorandum”); Memorandum for Office of the Deputy C h ief of Staff for Operations and Plans, from Patrick J. Parrish, Assistant to the General Counsel, D epartm ent o f the Army at 1 (Sept. 17, 1990) (“Parrish M emorandum” ); M emorandum for Joint C hiefs o f Staff, from Lt. Col. C.W. Hoffman, Jr., Deputy LLC at 1 (Aug. 14, 1990) (“Hoffman M em orandum ” ). 3O riginally, section 374 authorized D oD personnel to operate equipment “only to the extent the equip­ m ent is used for m onitoring and communicating the movement of air and sea traffic," and in certain em ergency circum stances. Department o f Defense Authorization Act, 1982, Pub. L. No. 97-86, tit. IX, § 905(a)(1), 95 Stat. 1099, 1115 (1981). At the time, Congress believed these were the “primary type[s] o f assistance sought and needed by Federal drug enforcement agencies.” H.R. Conf. Rep. No. 311, 97th Cong., 1st Sess. 120 (1981) (“ 1981 Conference Report”). W hen it added the authority for m ilitary aerial reconnaissance assistance in 1988, Congress intended to perm it m ilitary assistance not only in connection with the interdiction of drugs bound for the United States from foreign countries, but also in connection with the eradication of dom estically produced narcotics. Several witnesses before the House and Senate Armed Services Committees testified that DoD assistance in the domestic “drug w ar” was in high priority. See The Role o f the M ilitary in Drug Interdiction: Joint Hearings Before the House and Senate Armed Services Committees, 100th Cong.. 2d Sess. 187 (1988) (statement of Larry L. Orton, Special Agent in Charge, El Paso Intelligence Center, Drug E nforcem ent Agency) ("We further believe that the National Guard [should] help us in the role that we have here domestically in the United States, and that is the eradication o f domestically grown m arijuana in the national fo rce .. .. We actually need people to go in, fly over them and locate them, and then go into the patches to eradicate."); id. at 242 (statement of Don Siegelman, Attorney General o f A labam a) (“ M ilitary equipment and certain personnel should be made available, under specified conditions, to assist civilian authorities conduct air and land marijuana spotting and eradication. M ili­ tary helicopters and pilots could make a significant contribution to the systematic aerial surveying of suspected m arijuana growing areas.” ); id. at 257 (statem ent of Edward Koch, M ayor of New York, New York) (“I believe that those helicopters should be flying over identifying the marijuana fields. . . . Then you notify the local cops, and the cops go in and make the arrest.”). 38 that FLIR surveillance of buildings on private property is authorized aerial reconnaissance under sections 371-374, subject only to the restrictions set forth in section 375.4 III. Section 375 requires the Secretary of Defense to prescribe regulations ensuring that activity undertaken pursuant to sections 371 to 374 does not result in “direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity.” 10 U.S.C. § 375. The Secretary has promulgated regulations, based upon an earlier version of the statute, that prohibit military personnel from conduct­ ing “[a] search or seizure.” 32 C.F.R. § 213.10(a)(3).5 We understand DoD to take the position that the term “search” in the regulations is intended to have the same meaning as does the statutory term “search,” and we assume for purposes of this opinion that this is correct. DoD has assumed that the statutory term “search” was intended to be coextensive with the same term in the Fourth Amendment and thus that the applicability of the section 375 prohibition to the assistance requested here turns on whether the FLIR surveillance constitutes a “search” within the meaning of the Fourth Amendment.6 Proceeding on this assumption, DoD has concluded that FLIR surveillance is a “search,” and therefore that sec­ tion 375 prohibits the military from providing the FLIR surveillance assistance to civilian law enforcement agencies. We conclude from the language, struc­ ture, and legislative history of section 375 that, contrary to DoD’s assumption, the meaning of the term “search” was not intended to be coextensive with the meaning of the same term in the Fourth Amendment. Instead, when Con­ gress used the term “search” in section 375, it intended that the term encompass at most only searches involving physical contact with civilians or their 4 Section 371 authorizes the Secretary of Defense to provide to civilian law enforcement officials “any information collected during the normal course o f military training or operations that may be relevant to a violation o f any Federal or State law.” DoD’s provision of FLIR surveillance information obtained during training missions in the vicinity of Wichita, Kansas, would thus appear to be separately autho­ rized by section 371 if the requested FLIR surveillance were conducted in'the “normal course of military training." ! The regulations promulgated by the Department of Defense state' Except as otherwise provided in this enclosure, the prohibition on use of military personnel “as a posse comitatus or otherwise to execute the laws" prohibits the following forms of direct assistance: (i) Interdiction of a vehicle, vessel, aircraft or other similar activity. (ii) A search or seizure. (iii)An arrest, stop and frisk, or similar activity. (iv) Use of military personnel for surveillance or pursuit o f individuals, or as in­ formants, undercover agents, investigators, or interrogators. 32 C.F.R. § 213.10(a)(3) (1991). These regulations were promulgated after chapter 18 was enacted in 1981, but they have not been amended to achieve consistency with the statutory changes enacted in 1988 and 1989. For example, subsection (i) of the regulations includes language that no longer appears in 10 U.S.C. § 375. ‘ Smith Memorandum at 3, 32-38; accord Parrish Memorandum at 1; contra Hoffman M emorandum at 2, supra. 39 property, and perhaps only searches involving physical contact that are likely to result in a direct confrontation between military personnel and civilians. A. There is no reason to assume, as a threshold matter, that the meaning of the term “search” in section 375 is coextensive with that of the same word in the Fourth Amendment. “ [0 ]f course words may be used in a statute in a different sense from that in which they are used in the Constitution.” Lamar v. U nited States, 240 U.S. 60, 65 (1916); see also Verlinden B.V. v. Central Bank o f N igeria , 461 U.S. 480, 494-95 (1983) (meaning of “arising under” in Article III, Section 2 differs from that of the same phrase in 28 U.S.C. § 1331); Towne v. Eisner , 245 U.S. 418, 425 (1918) (“[I]t is not necessarily true that income means the same thing in the Constitution and the [Income Tax] Act.”). The term “search” has acquired a specialized meaning in Fourth Amendment jurisprudence, in light of the Amendment’s expansive purpose to protect all reasonable expectations of privacy. That specialized definition clearly encompasses activity in which there is no physical contact with or intrusion into private property, such as electronic wiretapping. Katz v. United States, 389 U.S. 347 (1967). In common parlance, however, the term usually connotes at least some amount of physical contact or interference. Indeed, Justice Brandeis con­ ceded in his dissenting opinion in Olm stead v. United States, 277 U.S. 438 (1928), which foreshadowed the Court’s decision in Katz overruling Olmstead, that the “ordinary meaning” of “search” would encompass only activity in­ volving a physical trespass. Id. at 476-78 (Brandeis, J., dissenting). Although Justice Brandeis was ultimately unsuccessful in persuading his colleagues of his substantive position, the most that he could say about their construction of the term “search” was that it was “unduly literal.”7 The “ordinary mean­ ing” o f “search” relied upon by the Court and recited by Justice Brandeis in Olm stead is frequently that intended by Congress. A number of statutes con­ cerning searches by law enforcement officials, for example, seem to assume that a “search” involves some physical contact between law enforcement personnel and civilians.8 It should not be presumed, therefore, that the term “search” in section 375 is coextensive with the same term in the Fourth Amendment. ’ It is evident from his opinion that Justice Brandeis did not use the phrase “ unduly literal" to suggest that the m ajority was mistaken as to the ordinary meaning of the term “ search.” His only point was that adoption o f the “ordinary meaning” o f the term was inappropriate given the broad privacy protection purpose o f the Fourth Amendment. ’ See, e.g., 7 U.S.C. § 164a (authorizing Department o f Agriculture employees “to stop and, without warrant, to inspect, search, and exam ine such person, vehicle, receptacle, boat, ship, or vessel” ); 18 U .S.C . § 913 (subjecting to prosecution “[wjhoever falsely represents himself to be an officer, agent, or em ployee o f the United States, and in such assumed character arrests or detains any person or in any m anner searches the person, buildings, or other property of any person” ); id. § 2231 (subjecting to prosecution “ (w ]hoever forcibly assaults, resists, opposes, prevents, impedes, intimidates, or interferes with any person authorized to serve o r execute search warrants or to make searches and seizures"); id. Continued 40 The context in which the word “search” appears in section 375 suggests that Congress indeed may have intended the term to refer only to searches involving physical contact. Section 375 employs the term “search” in asso­ ciation with “seizure” and “arrest,” terms which contemplate some physical contact with persons or property.9 If one invokes the common sense maxim noscitur a sociis, “[w]here any particular word is obscure or o f doubtful meaning, taken by itself its obscurity or doubt may be removed by reference to associate words,” Virginia v. Tennessee, 148 U.S. 503, 519 (1893), it would appear that Congress intended for the term “search” in title 10 to have the narrow, “ordinary meaning,” rather than the meaning ascribed to the term in the Fourth Amendment. This suggestion is reinforced by the fact that Con­ gress extended the prohibition in section 375 also to “other sim ilar activities],” that is, to other activities similar to searches, seizures, and ar­ rests. It is apparent from this phrase that Congress regarded searches, seizures, and arrests as similar activities.10 Apart from the obvious fact that these are all law enforcement activities, one of the fundamental similarities of these activities is that each entails some amount of physical contact. The intent of Congress in section 375 to prohibit only searches involving physical contact is particularly evident in the original version of section 375. As enacted in 1981, section 375 forbade direct participation by DoD person­ nel “in an interdiction of a vessel or aircraft, a search and seizure, arrest, or other similar activity.” Pub. L. No. 97-86, tit. IX, § 905(a)(1), 95 Stat. 1099 1116 (1981) (emphasis added). The coupling of “search” and “seizure” through use of the conjunctive “and,” and the reference to the two as a single event (i.e., “a search and seizure”), strongly suggests that Congress was referring to searches of persons or objects that had been seized and thus were in the custody of law enforcement officers. Searches of seized persons or objects almost always involve physical contact.11 '(....continued) § 2232 (distinguishing between “searches" and "electronic surveillance” and prohibiting “ Physical Inter­ ference With Search” ); 33 U.S.C § 383 (“The commander and crew of any merchant vessel o f the U nited States . . . may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel .”). ’ To “seize” is to “ take hold of suddenly or forcibly" or “to take possession of by force or at will." Random House Dictionary o f the English Language 1734 (1987). In the law, a “seizure” generally requires “an intentional acquisition of physical control." Brower v. County o f Inyo, 489 U S 593, 596 (1989). “ Arrest” is most commonly defined as “ the act of stopping or restraining (as from further m otion).” Webster's Third New International Dictionary 121 (1986) The traditional meaning of “ar­ rest" in the legal context is the seizure of a person which “eventuate[s] in a trip to the station house and prosecution for crim e.” Terry v. Ohio, 392 U.S. 1, 16 (1968). See also Douglas v. Buder, 412 U S. 430, 431-32 (1973); Cupp v. Murphy, 412 U S 291, 294 n 1 (1973). Both arrests and seizures thus virtually always entail physical contact. l0It is possible to read the catch-all phrase “other similar activ ities]” to include any activity similar to searches, similar to seizures, or similar to arrests, in which event no inference need be drawn as to whether Congress regarded searches, seizures, and arrests as themselves similar to each other. This would be a natural reading of the phrase, however, only if the enumerated activities had nothing in common. " The inference that Congress was concerned only with searches that entail some physical contact is strengthened by the inclusion of “ search and seizure" in a series of terms with “interdiction” and "ar­ rest,” both o f which also generally entail physical contact. See supra p. 41 41 Although Congress amended section 375 in 1989, so that it now prohibits participation in a “search, seizure, arrest, or similar activity,” there is no indication that by deleting the word “and,” Congress intended to signal a depar­ ture from the statute’s original purpose. See H.R. Conf. Rep. No. 331, 101st Cong., 1st Sess. 654 (1989). The 1989 amendment merely clarifies the section so as to prohibit military personnel from participating in searches entailing physical contact, even if they will not involve or lead ultimately to seizures. B. 1. The legislative history of chapter 18 confirms that Congress intended in section 375 to prohibit at most searches by the military that entail physical contact with civilians or their property, and perhaps only such searches that are likely to result in direct confrontation between military personnel and civilians. The history of section 375 actually begins with the Posse Comitatus Act, 18 U.S.C. § 1385, which governed military involvement in law enforcement activity prior to enactment o f chapter 18 in 1981.12 The Posse Comitatus Act was adopted in 1878 in response to objections from southern States to United States Army participation in civilian law enforcement dur­ ing Reconstruction. In the one hundred years immediately following its enactment, the Posse Comitatus Act was rarely the subject of litigation. To date, few courts have attempted to define the contours of the Act, and there apparently has never been a prosecution under the Act. See Posse Comitatus A ct, H earings on H.R. 3519 Before the Subcomm. on Crime o f the House Comm, on the Judiciary, 97th Cong., 1st Sess. 21 (1981) (statement of Ed­ ward S.G. Dennis, Jr., Department of Justice) ("Posse Comitatus Hearings"). By 1948, the Posse Comitatus Act was characterized by one court as an “obscure and all-but-forgotten statute.” Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert, denied , 336 U.S. 918 (1949). The courts that confronted issues under the Posse Comitatus Act before 1981 did not interpret the Act uniformly. Some understood the Act as a broad and absolute prohibition against virtually any military participation in civilian law enforcement activity. In two cases arising from the 1973 fed­ eral occupation of Wounded Knee, South Dakota, for example, the courts concluded that the mere provision of tactical advice by a military officer, if it were subsequently acted upon by civilians, would be unlawful. United States v. Jaramillo, 380 F. Supp. 1375, 1381 (D.S.D. 1974), appeal dism issed, 1: The Posse Com itatus Act states: W hoever, except in cases and under circumstances expressly authorized by the Constitu­ tion o r Act o f Congress, willfully uses any part o f the Army or the Air Force as a posse com itatus or otherw ise to execute the laws shall be fined not more than $10,000 or im pris­ oned not m ore than two years, or both. 18 U.S.C. § 1385. 42 510 F.2d 808 (8th Cir. 1975); United States v. Banks, 383 F. Supp. 368, 375 (D.S.D. 1974). Another court held under the Federal Tort Claims Act that the use of an Air Force helicopter and its personnel to aid in a search for a nonmilitary prison escapee was forbidden by the Posse Comitatus Act. The court emphasized that “[t]he innocence and harmlessness of the particular use of the Air Force in the present case [and] the dissimilarity of that use to the uses that occasioned the enactment . . . are irrelevant to the operation of a statute that is absolute in its command and explicit in its exceptions.” Wrynn v. United State, 200 F. Supp. 457, 465 (E.D.N.Y. 1961). Other courts, however, concluded that the Posse Comitatus Act permitted military personnel to offer certain forms of “passive” or “nonauthoritarian” assistance to civilians. In another Wounded Knee case, the court interpreted the Act to prohibit the military from “actively performing direct law en­ forcement duties,” but to allow a “passive role which might indirectly aid [law enforcement].” United States v. Red Feather, 392 F. Supp. 916, 924-25 (D.S.D. 1975). This court concluded that military involvement in the arrest of a person, seizure of evidence, search of a person, or search of a building constituted impermissible “direct” aid, but that tactical advice, training, and aerial photographic reconnaissance flights were “indirect” assistance permit­ ted by the Act. Id. A second court concluded after transfer of the Red Feather case that the Posse Comitatus Act prohibited only military activity “which is regulatory, prescriptive or compulsory in nature, and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions im­ posed by military authority.” United States v. McArthur, 419 F. Supp. 186, 194 (D.N.D. 1975), a ff’d sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert, denied, 430 U.S. 970 (1977). The court believed that the Act did not outlaw “the borrowing of highly skilled personnel, like pilots and highly technical equipment like aircraft and cameras, for a specific, limited, temporary purpose.” Id. This Office, in 1978, endorsed the com­ mon points of the analyses in Red Feather and McArthur, concluding that military assistance in civilian law enforcement does not violate the Posse Comitatus Act where “there is no contact with civilian targets of law en­ forcement, no actual or potential use of military force, and no military control over the actions of civilian officials.” Letter for Deanne Siemer, General Coun­ sel, Department of Defense, from Mary Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 13 (Mar. 24, 1978) (“Lawton Letter”). In the wake of this series of decisions, there understandably was substan­ tial confusion over the kinds of assistance that the military could provide to civilian law enforcement officials. 2 . Congress addressed the confusion that had arisen and clarified the bound­ aries o f perm issible DoD law enforcem ent activity in 1981 through 43 amendments to chapter 18. H.R. Rep. No. 71, 97th Cong., 1st Sess., pt. 2, at 3 (1981) (“ 1981 House Report”); S. Rep. No. 58, 97th Cong., 1st Sess. 148 (1981). It is evident from the legislative history of these amendments that Congress intended to codify the distinction — articulated by the district court in United States v. R ed Feather — between “indirect passive” assis­ tance and “direct active” involvement in law enforcement activity. Edward D ennis, testifying on b eh alf of the Departm ent of Justice, stated the D epartm ent’s view that “the principle which is put forth in the statutes is that the armed services would be called upon to lend indirect and passive forms o f assistance to civilian law enforcement.” Posse Comitatus Hear­ ings , at 21. An expert on military-civilian relations, Professor Christopher Pyle, objected strenuously to the Red Feather analysis, but acknowledged that “[i]t is not difficult to see how the proposals currently before the Sub­ committee build upon this opinion.” Id. at 42. And Rear Admiral Donald Thompson of the Coast Guard reported that the Navy relied on the Wounded Knee cases to “permit[] aerial surveillance or photo-reconnaissance mis­ sions in support o f law enforcement activities on a not-to-interfere basis.” Id. at 49. The committee reports from the House Judiciary Committee and the Con­ ference Committee are relatively clear that Congress intended to adopt the R ed Feather passive-active distinction. The committee report on the House bill, from which the authority granted in section 374 derives, rejected the absolutist view of the Posse Comitatus Act taken by the courts in United States v. Jaram illo and U nited States v. Banks, stating that those decisions “serve to illustrate the confusion regarding the Act and the problems that result when it is too mechanically applied.” 1981 House Report, at 6. The House committee referred more favorably to the conclusion of the Red Feather court that only “the direct active use o f Army or Air Force personnel” was prohibited, id., and the Conference Committee eventually provided in sec­ tion 375 for restrictions only “on the direct participation of military personnel in law enforcement activities.” 1981 Conference Report at 121. Significantly, Congress understood R ed Feather to prohibit only activity that entailed direct, physical confrontation between military personnel and civilians. During the hearings, Representative Hughes, Chairman o f the Sub­ committee on Crime, observed to William H. Taft IV, General Counsel of the Department of Defense: I can understand where you might have to have military per­ sonnel, actually operate [in a law enforcement capacity] under given circumstances. I understand that. But that is a long way from giving them the authority to make an arrest or to make a seizure. An assist, as opposed to a military person making an arrest or participating in a seizure is an important distinction. 44 Posse Comitatus Hearings, at 28. During the same exchange, Mr. Taft en­ dorsed that prohibition on direct participation by military personnel in arrests or seizures, and presented his view of the passive-active principle: “[I]t is the arrests and the seizures, and active — putting, really, into a confronta­ tion, an immediate confrontation, the military and a violator o f a civilian statute, that causes us the greatest concern.” Id. at 30 (emphasis added).13 Congress’ concern with confrontation between military personnel and ci­ vilians is also apparent from the discussions over the provisions of the original section 374(c). That section authorized the use of military personnel to operate equipment outside the land area of the United States only in certain emergencies where the Attorney General and the Secretary of Defense jointly determine that an emergency exists. These procedural safeguards were in­ corporated because “[t]he conferees were concerned that [the] use o f military personnel in such operations had the potential fo r placing such personnel in confrontational situations." 1981 Conference Report at 120 (emphasis added). In sum, in codifying the Red Feather passive-active participation distinc­ tion, Congress “maximize[d] the degree of cooperation between the military and civilian law enforcement,” 1981 House Report at 3, while carefully pre­ venting the direct, physical confrontation between military personnel and civilians which it believed would “fundamentally alter the nature of the relationship between the military and civilian society.” Id. at l l . 14 3. In 1988, Congress enacted amendments to chapter 18 which further un­ derscore that the purpose of section 375 was to codify the R ed Feather distinction between “passive” and “active” assistance and thus to prohibit direct interface between military forces and civilians. National Defense Authorization Act, Fiscal Year 1989, Pub. L. No. 100-456, § 1104, 102 Stat. 1918, 2045 (1988). Specifically, Congress deleted the ban in section 375 on participation in “an interdiction of a vessel or aircraft,” because that phrase had been understood to prohibit activities which did not involve physical confrontation between the military and civilians. The Conference Report explains: The conferees deleted the term “interdiction of a vessel or aircraft,” which is set forth in current law, because the term “interdiction ” has acquired a meaning that includes detection and monitoring as well as a physical interference with the 13This colloquy caused Representative Hughes to propose language, which was eventually incorpo­ rated into section 374(b), that allows DoD personnel to operate or assist in operating equipm ent for law enforcem ent purposes. Id. at 29. 14Some activities prohibited under the Red Feather analysis, such as searches o f buildings and seizures of evidence, do not necessarily entail confrontations with civilians. To the extent that such searches are prohibited under section 375, this reflects Congress’ concern that in carrying out such activities, military personnel likely would be placed in a confrontational posture with civilians. 45 The conferees emphasize, however, that they do not intend by this action to authorize military personnel to interrupt the passage of a vessel or air­ craft except as otherwise authorized by law. m ovem ent o f a vessel o r aircraft. 1988 Conference Report at 452 (1988) (emphasis added). As part of the 1988 revision, Congress also amended section 374 to au­ thorize DoD personnel to operate equipment outside the United States for the purpose of transporting civilian law enforcement officials. 10 U.S.C. § 372(b). This authority, however, was expressly made subject to joint ap­ proval by the Secretary of Defense, the Attorney General, and the Secretary of State “because of the potential fo r involving D O D personnel in a direct law enforcement confrontation, even though their role is designed for logis­ tical support.” 1988 Conference Report at 452 (emphasis added). Finally, a new subsection (c) of section 374 was added to permit the Secretary of Defense to make DoD personnel available to civilian law enforcement offi­ cials for other purposes, but “only to the extent that such support does not involve direct participation by such personnel in a civilian law enforcement operation.” Id. § 374(c). In a telling explanation of how Congress under­ stood the prohibition in subsection 374(c) on “direct participation . . . in a civilian law enforcement operation,” the Conference Report stated that “[t]o the extent that transportation of law enforcement officials or use of military officials does not reasonably raise the possibility o f a law enforcement con­ fro n ta tio n , such assistance may be provided in the United States under subsection (c).” 1988 Conference Report at 452 (emphasis added).15 Accordingly, we conclude that Congress intended section 375 to prohibit at most military participation in searches involving physical contact with civil­ ians or their property, and perhaps only such searches that are likely to result in direct, physical confrontation between military personnel and civilians.16 15 Tw o recent opinions o f this Office have concluded, based largely on this legislative history, that Congress intended in section 375 to bar only the exercise of military authority in contexts where there are likely to be direct confrontations with civilians. Use o f Navy Drug-Detecting Dogs by Civilian Postal Inspectors, 13 Op. O.L.C. 312 (1989); Use o f Department o f Defense Drug-Detecting Dogs to A id in Civilian Law Enforcement, 13 Op. O.L.C. 185 (1989). '‘ Because FLIR aerial reconnaissance is authorized by section 374 and not prohibited by section 375, it cannot be prohibited by the Posse Com itatus Act. That Act, by term s, does not apply to activities “ex­ pressly authorized by the Constitution or Act of Congress.” 18 U.S.C. § 1385. For the same reason, we need not consider whether FLIR surveillance would otherwise be permitted by the Posse Comitatus Act, and thus excepted from the prohibitions of section 375 by 10 U.S.C. § 378. As noted, however, this Office concluded in 1978 that the Posse Comitatus Act does not bar the use o f military personnel in situations where “ [t]here is no contact with civilian targets of law enforcement, no actual or potential use o f m ilitary force, and no military control over actions of civilian officials." Lawton Letter at 13. Thus, there is a substantial argument th at FLIR surveillance to assist civilian law enforcement officials would be perm itted by the Posse Com itatus Act even in the absence of section 374, and therefore could not be prohibited by section 375. 46 IV. DoD’s principal argument that section 375 prohibits FLIR surveillance is that the term “search” in section 375 is coextensive with the term “search” in the Fourth Amendment. This argument rests on the unsupported assertion that the “usual” meaning of “search” is that ascribed to the term in the Fourth Amendment, see Smith Memorandum at 34, an assertion that we re­ ject for the reasons set forth above. DoD also supports its argument with the general statements from the legislative history that Congress sought to ‘“ reaf­ firm the traditionally strong American antipathy towards the use of the military in the execution of civil law’” and to avoid ‘“ modification in this country’s long tradition of separating the military from day to day involvement in the execution and operation of the civilian laws.’” Smith Memorandum at 34 (quoting 1981 House Report at 10-11). Reliance upon Congress’ reaffirma­ tion of these traditions, however, begs the only relevant question, which is precisely what historical paradigm Congress sought to reaffirm. As we have shown, the text and history of the legislation amply dem onstrate that tradition was essentially that military personnel should be excluded from participation in activities that are likely to result in direct confrontation with civ ilians.17 DoD also argues that because Congress in recent years has declined to authorize active military personnel to conduct searches of cargo, vehicles, vessels, and aircraft at points of entry into the United States, section 375 cannot be interpreted to prohibit only activity that would result in confronta­ tion between military personnel and civilians. Smith Memorandum at 34. We would not draw any inference about the meaning of the statute from Congress’ inaction on these proposals. See Pension Benefit Guaranty Corp. v. The LTV Corp., 496 U.S. 633, 650 (1990); United States v. Wise, 370 U.S. 405, 411 (1962). In any event, an interpretation of section 375 that pre­ cluded border searches could well be consistent with our analysis, because such searches generally would require use of the military in circumstances likely to result in physical contact or in confrontations with civilians. Finally, if DoD’s interpretation of section 375 were correct, then section 375 would prohibit much of the assistance to civilian law enforcement that is authorized under section 374. Section 375 forbids direct participation not only in searches, seizures, and arrests, but also in “other similar activity.” If aerial reconnaissance flights over private lands using FLIR technology constitute 17 DoD acknowledges in a footnote that “[t]he Red Feather test was adopted . . . by the Congress in 10 U S C § 375,” but contends that FLIR surveillance by military personnel nonetheless would violate section 375 because military personnel would be "actively performing direct law enforcem ent duties.” Smith Memorandum at 35 n.106 (quoting United States v Red Feather, 392 F. Supp. 916, 925 (D S.D. 1975)). Once one concedes that Congress intended to codify in section 375 the Red Feather analysis, it is virtually impossible to conclude that FLIR surveillance is prohibited under the section Congress clearly understood Red Feather to prohibit at most only searches that involved physical contact with civilians or their property And the Red Feather court even stated that aerial photographic reconnais­ sance was not “direct” assistance of the kind prohibited by the Posse Comitatus Act. 392 F Supp. at 925. 47 “searches,” then analogous activities, such as aerial reconnaissance of open m arijuana fields using binoculars or night-vision equipment, naked eye ob­ s e rv a tio n s o f sm oke em issio n s from b u ild in g ro o fto p s, and o ther non-trespassory means of detecting and monitoring drug smuggling or pro­ duction would constitute “other similar activities],” and thus be prohibited. See supra at p. 41 & n.l l.18 Indeed, much of the law enforcement assistance authorized by section 374 would be prohibited if FLIR surveillance consti­ tutes a “ search” for purposes of the statute. DoD personnel would be forbidden, for example, from operating equipment for detection, monitoring, and communication of the movement of air and sea traffic and from con­ ducting aerial reconnaissance. 10 U.S.C. § 374(b)(2). Congress obviously did not intend to forbid in section 375 the activity that it authorized in section 374. It is evident therefore that the term “search” in section 375 cannot include FLIR surveillance. CONCLUSION We believe that the language, structure, and history of section 375 to­ gether convincingly demonstrate that Congress intended to prohibit at most searches by the military that entail physical contact with civilians or their property, and perhaps only searches entailing physical contact that are likely to result in a direct confrontation between military personnel and civilians. Because FLIR surveillance does not constitute even a search involving physi­ cal contact with civilians or their property, we conclude that DoD personnel are authorized by section 374(b)(2)(B) to conduct FLIR surveillance of build­ ings on private property, even assuming that the surveillance constitutes a search for purposes of the Fourth Amendment.19 J. MICHAEL LUTTIG Assistant Attorney General Office o f Legal Counsel 18 D oD apparently would confine the prohibition on “other similar activity” to Fourth Amendment searches, and it would not construe section 373 to ban other activities permitted by section 374. Even accepting D oD ’s assum ption that FLIR surveillance constitutes a Fourth Amendment search, however, this sim ply is not a permissible construction of the text, because it would render the general words “other sim ilar activity” meaningless 19D oD has not asked us to address, and we do not address, whether FLIR surveillance constitutes a F ourth Am endm ent search. See Smith Memorandum at 3. 48

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Applicability of Criminal Statutes and “Whistleblower” Legislation to Unauthorized Employee Disclosures S ev eral crim inal sta tu tes m ay be app licab le to im p ro p e r d isc lo su re by a Ju stice D e p a rt­ m ent em p lo y ee o f in fo rm atio n p ertain in g to F e d e ra l B ureau o f In v estig atio n (F B I) u n d e rc o v e r in v estigations. E m p lo y ees o f th e F B I are ex cep ted from th e g en eral " w h is tle b lo w e r” p ro v isio n s o f the C ivil S erv ice R efo rm A c t o f 1978; th o se p ro v isio n s d o n ot in any e v e n t a p p ly w h e re a d isclo su re is sp ecifically p ro h ib ite d by law , as is a p p a re n tly th e case here. F ebruary 7, 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 A t your request, w e have reviewed the criminal statutes to determ ine w hether any might be applicable to Justice D epartm ent employees who may be found to have im properly disclosed information pertaining to the ABSCAM investigation.* W e have also review ed the so-called “w histleblow er” statutes that w ere designed to provide a fram ework for, and protection of, proper disclosures by D epartm ental employees. O ur quick review o f these m atters suggests that there are several criminal statutes that might have application here and that nothing in the “w histleblow er” legislation will provide ground for justifying any leaks that may have occurred here. I. Criminal Statutes A. Privacy Act Under the Privacy A ct, 5 U.S.C. §552a, a willful disclosure of information contained in a system o f records by a federal officer or employee w ho has possession o f or access to such records by virtue o f his office or em ploym ent is punishable as a misdem eanor and subject to a fine o f $5,000. 5 U.S.C. § 552a(i). T he disclosure must be prohibited by either the Privacy A ct or a regulation prom ulgated thereunder in order for the statute to apply. Since the information that was disclosed was probably contained in Federal Bureau o f Investigation (FB I) inves­ tigative files, w hich we are inform ed are part o f the F B I’s system o f * N o t e : T he A B SC A M investigation was an undercover investigation by the Federal Bureau o f Investigation into allegations o f political corruption and bribery, w hich culm inated in the prosecution and conviction o f a num ber o f state and federal officials. See, e.g.. United States v. Myers, 692 F.2d 823, 829-30 (2d Cir. 1982). Ed. 383 records, and since the disclosure w ould not be authorized under any of the categories listed in 5 U.S.C. § 552a(b), the willful disclosure o f such inform ation would be prohibited by 5 U.S.C. §552a(b) and by depart­ mental regulation, 28 C .F.R . 16.56(8). B. Theft o f Government Property U nder 18 U.S.C. §641, a person w ho knowingly converts to his own use or the use o f another any record o r thing of value to the United States, may be imprisoned for 10 years a n d /o r be fined $10,000. R e­ cently, the G overnm ent has argued in several cases that §641 applies to unauthorized disclosure o f governm ent information because such infor­ mation is a “thing o f value” to the United States. T he Second Circuit in U nited States v. Girard, 601 F.2d 69 (2d Cir. 1979), accepted the G overnm ent’s theory and held §641 applicable to the sale by a D rug Enforcem ent Adm inistration (D E A ) employee o f information contained in a D E A com puter w hich concerned the identity o f possible informers and the status o f certain drug investigations. T he court rejected the defendants’ argum ent that construing §651 to apply to the theft of information would make the statute vague and overbroad and would thus infringe on First A m endm ent rights, stating that there was no danger o f vagueness o r overbreadth there because the defendants must have,know n that the disclosure o f such information was prohibited by D E A regulations. H ow ever, a district court in the D istrict o f Columbia has expressly rejected the G overnm ent’s interpretation o f §641 on the ground that it would infringe on the First Am endm ent. United States v. H ubbard, 474 F. Supp. 64, 79 (D .D .C . 1979). T he T hird Circuit in United States v. DiGilio, 538 F.2d 972, 978 (3d Cir. 1976), finding that photocopies o f governm ent docum ents w ere stolen, made it clear that its decision to affirm the conviction on this ground should not be read to imply a rejection o f the G overnm ent’s theory that §641 applies to theft o f governm ent information. C. R em oval o f Government Records If original governm ent records w ere rem oved, 18 U.S.C. §2071 w ould apply, w hich punishes such removal with 3 years in prison a n d / o r a $2,000 fine. If governm ent records w ere photocopied on govern­ ment equipment, and the photocopies w ere removed, 18 U.S.C. §641 may apply. United States v. DiGilio, 538 F.2d at 977. D. Disclosure o f Confidential Business Information U nder 18 U.S.C. § 1905, it is unlawful for a governm ent em ployee to disclose inform ation com ing to him in the course o f his em ploym ent w hich relates to the am ount or source o f any income, profits, losses, or expenditures o f any person o r firm. Violation o f this statute may be penalized by a year’s imprisonment, a $1,000 fine a n d /o r rem oval from 384 employment. Since the ABSCAM investigation may be viewed as gen­ erating information related to the source and am ount o f income o f Members o f Congress, § 1905 may apply to the disclosure o f such information. W e do not know w hether § 1905 would be construed that broadly because we have not found any published opinion in w hich a prosecution was brought under that statute. E. Civil Rights Statutes U nder 18 U.S.C. §242, it is a crim e for any person, “ under color of any law, statute, ordinance, regulation, or custom ,” willfully to deprive any inhabitant o f the United States “o f any rights, privileges, o r immu­ nities secured or protected by the Constitution or laws o f the United States.” If a person acquires information in his official capacity, and uses his official status to lend credibility to his statem ents when he discloses that information, his disclosure almost certainly would consti­ tute action “under color o f law ,” even if it is unauthorized.1 D epending on the particular facts, the disclosure o f ABSCAM information may have violated the constitutional rights o f targets of the investigation in several ways; if the disclosures w ere intended to violate these rights, they were willful and therefore a crime. First, by creating prejudicial publicity, the disclosures may have violated a potential defendant’s right to a fair trial. Relatedly, if the disclosures persuaded witnesses w ith exculpatory testimony not to come forward, they may have violated a potential defendant’s rights to compulsory process and due process o f law. Second, an argum ent can be made that the C onstitution prohibits a member of the Executive Branch, acting under color o f law, from tortiously undermining the effectiveness o f a M ember o f Congress. T he speech or debate clause, the congressional privilege against civil arrest, see Art. I, §6, cl. 1, and the Constitution’s strict limits on the circum ­ stances under which a M ember can be rem oved, see Powell v. McCormack, 395 U.S. 486, 522-48 (1969)—as well as general principles of separation o f pow ers—all suggest that M embers o f Congress have some constitutional protection against efforts by Executive Branch offi­ cials to undermine their effectiveness as representatives. If those efforts take the form o f a com m on law tort com m itted under color o f law — here, perhaps defamation or an invasion o f privacy by placing a person in a “ false light” —an argum ent can be made that the M em bers’ consti­ tutional protection has been violated. Cf. Wheeldin v. Wheeler, 373 U.S. 647, 653-67 (1963) (Brennan, J., dissenting) (malicious abuse o f process 1 D epending on the facts, the disclosures m ight possibly violate 18 U .S.C. §241, under w hich it is a crim e for “ tw o o r m ore persons [to] conspire to injure, oppress, threaten, o r intim idate any citizen in the free exercise o r enjoym ent o f any right o r privilege secured to him by the C onstitution o r law s o f the United States." Section 241 reaches actions that w ere not done “ under c olor o f law ." 385 by a federal official may be actionable as tort under federal common law). T hird, the disclosure here may have violated the Fifth A m endm ent’s guarantee that no person be deprived o f liberty or property w ithout due process o f law. T he Privacy A ct and its im plementing regulations probably give the persons they are designed to protect—here the tar­ gets about whom inform ation was disclosed—a statutory entitlem ent that am ounts to a “property” interest within the meaning of the D ue Process Clause. A ny other statute o r regulation that was designed to prevent the prejudicial disclosures o f information gained in a criminal investigation would create a similar property interest, w hether or not it provided criminal penalties. R eputation itself is probably not a “liberty” interest within the meaning o f the Fifth A m endm ent’s D ue Process Clause, see Paul v. Davis, 424 U.S; 693, 701-710 (1976),2 but an injury to reputation, com bined w ith some additional significant injury, can constitute a deprivation o f “ liberty” within the meaning o f the clause. See id. Here, the undermining o f the ability o f a target to perform his legislative function as a M em ber o f C ongress may constitute that addi­ tional injury. In these ways, the disclosures here may have deprived persons o f their liberty or property w ithout due process, thus—if will­ ful—violating 18 U.S.C. §242. We have also review ed the obstruction o f justice statutes but, given the facts as we presently understand them, w e do not find them appli­ cable. 18 U.S.C. § 1503 applies only w hen a judicial proceeding is pending, and 18 U.S.C. § 1505 applies only when an administrative proceeding is pending. T he only obstruction o f justice statute applicable to an investigation is 18 U.S.C. § 1510, w hich is m uch narrow er in scope than §§ 1503 and 1505, punishing an endeavor by bribery, misrep­ resentation o r intimidation to obstruct, delay or prevent the com m uni­ cation o f inform ation related to the violation o f a criminal statute o f the United States. H ow ever, if it can be shown that the purpose o f the disclosure was to term inate the investigation and that bribery, m isrepre­ sentation or intimidation was involved, it could be argued that § 1510 applies.3 2 Paul v. Davis held, in a case involving a claim under 42 U.S.C. § 1983, that reputation alone was not a “ liberty" interest protected by the D ue Process C lause o f the Fourteenth A m endm ent. Since the C ourt w as explicitly concerned about “ mak[ing] the F o u rteen th A m endm ent a font o f tort law to be superim posed upon w h atev er systems may already be adm inistered by the States," 424 U.S. at 701, an argum ent m ight be made that this holding does not apply to interests protected against invasion by federal officials. 3 If th e purpose o f the disclosure was to intim idate M em bers o f C ongress and im pair their effective­ ness, it could conceivably be argued that 18 U.S.C. § 372 applies. T h at statute punishes a conspiracy to prevent by force, intim idation, o r th reat a person holding any office, trust, o r place of confidence under the U nited States from discharging his duties. Such an argum ent, how ever, may be founded on an ov erb ro ad construction o f the term “ intim idation." 386 II. Whistleblower Protection T he Civil Service Reform Act o f 1978 protects from agency reprisals employees w ho disclose information that they “ reasonably believe evidences—(i) a violation of any law, rule, or regulation, or (ii) misman­ agement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law. . . . ” 5 U.S.C. § 2302(b)(8)(A). This section covers positions in the com petitive service, career appointee positions in the Senior Executive Service, and positions in the excepted services other than those at the policy level and those specifically excluded by the President. 5 U.S.C § 2302(a)(2)(B). It applies generally to all executive agencies, but enum erates exceptions, including the FBI. FBI employees enjoy the m ore limited protection o f 5 U.S.C. § 2303, which prohibits reprisals against FBI employees w ho disclose inform a­ tion to the A ttorney G eneral or his designee. If the D epartm ent decides to take a “personnel action” (defined broadly in 5 U.S.C. § 2302(a)(2)(A)) against an em ployee for “ leaking” information to the press, it must determ ine w hether the employee is covered by the “w histleblow er” protections. T he head of each agency is responsible for prevention o f reprisals prohibited by the A ct. 5 U.S.C. § 2302(c). An employee o f the FBI is not protected by the A ct from reprisals for disclosure o f information to the press. A n employee o f any other branch of the D epartm ent is protected only if: (1) He is not in a position exempted from com petitive service because o f its confidential, or policymaking character; (2) the disclosure was not specifically pro­ hibited by law; and (3) the employee reasonably believed that the information evidenced violations, abuses, o r dangers specified by the Act. Because it is likely that any disclosure would be violative at least of the Privacy A ct (if not other statutes), it appears to us that D epart­ mental employees would find no protection in these provisions. L arry A. H am m ond Acting Assistant Attorney General Office o f L egal Counsel 387

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Authority to Employ White House Officials Exempt from Annual and Sick Leave Act During Appropriations Lapse White House officials who are exempt from the Annual and Sick Leave Act pursuant to 5 U.S.C. § 6301(2)(x) and (xi) may continue to work during a lapse in the appropriations for their salaries. April 8, 2011 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether White House Office officials who are exempt from the provisions of the Annual and Sick Leave Act under 5 U.S.C. § 6301(2)(x) and (xi) may continue to work during a lapse in appropriations. For the reasons set forth below, we conclude that they may. I. In September 1995, this Office issued an opinion regarding “the authority available to the White House [O]ffice to employ the services of White House employees during a lapse in appropriations.” Authority to Employ the Services of White House Office Employees During an Appropriations Lapse, 19 Op. O.L.C. 235 (1995) (“White House Employees”). As we explained there, two provisions of the Antideficiency Act impose the principal statutory constraints on this authority. Section 1341 of title 31 provides that “[a]n officer or employee of the United States Government . . . may not . . . involve [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(a)(1)(B). And section 1342 of the same title provides that “[a]n officer or employee of the United States Government . . . may not accept voluntary services for [the] government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Applying these provisions to the White House Office, we identified three categories of employees who could continue to work during an appropriations lapse: “personnel who perform functions that are excepted from the Antideficiency Act’s general prohibition” set forth in 31 U.S.C. § 1341; personnel who hold nonsalaried positions and whose employment 40 Authority to Employ White House Officials During Appropriations Lapse therefore does not “incur an obligation on behalf of the federal government”; and personnel who hold positions in which compensation is not fixed by law and who have lawfully waived their salaries. White House Employees, 19 Op. O.L.C. at 235–37. We explained that the “excepted functions” in the first category included “functions relating to emergencies involving an imminent threat to the safety of human life or protection of property”—an exception set forth in the Antideficiency Act itself, see 31 U.S.C. § 1342—and functions “authoriz[ed] . . . by other law,” including “those functions as to which express statutory authority to incur obligations in advance of appropriations has been granted; those functions for which such authority arises by necessary implication; and certain functions necessary to the discharge of the President’s constitutional duties and powers.” White House Employees, 19 Op. O.L.C. at 235. 1 Later that same year, we issued an opinion concerning the participation of Department of Justice officials in congressional hearings held during an appropriations lapse. That opinion contained further analysis potentially relevant to White House Office operations during such a time. We noted that “those officers who are appointed by the President with the advice and consent of the Senate”—so-called “PAS officers”—are “entitled to their salaries by virtue of the office that they hold and without regard to whether they perform any services during the period of appropriations lapse.” Participation in Congressional Hearings During an Appropriations Lapse, 19 Op. O.L.C. 301, 301– 02 (1995) (“Congressional Hearings”) (citing United States v. Grant, 237 F.2d 511 (7th Cir. 1956)). We thus concluded that the Antideficiency Act was “not implicated at all” by such officers’ activities, because “no federal officer or employee incurs an obligation in advance of appropriations when these officers perform services; instead, this obligation arises by virtue of their status and cannot be obviated by placing them on furlough status.” Id. You have asked whether, in light of these opinions, White House officials who are exempt from the Annual and Sick Leave Act pursuant to 1 We also emphasized that even if salary funds could sometimes be obligated, “no salaries c[ould] be paid to any government employee, including those in the White House [O]ffice, without an appropriation,” and thus that “no White House employee could receive salary or other compensation payments during such a lapse.” White House Employees, 19 Op. O.L.C. at 235; see also U.S. Const. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”). 41 35 Op. O.L.C. 40 (2011) 5 U.S.C. § 6301(2)(x) and (xi) may continue to work during a lapse in the appropriations for their salaries. Although such officials are not specifically mentioned in the White House Employees opinion and are not appointed with the advice and consent of the Senate, you explain that, in your view, such persons are (like PAS officers) “entitled to compensation based on their status.” E-mail for Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Donald B. Verrilli, Deputy Counsel to the President (Mar. 12, 2011) (citing 5 U.S.C. § 5508 and Grant, 237 F.2d 511). As a result, you conclude, “the government is ‘authorized by law’ within the meaning of 31 U.S.C. 1341” to “continue to . . . emplo[y]” such persons “in the absence of appropriations.” Id. We agree: In our view, such officials are entitled to compensation based on their status rather than the hours they work, and the government is authorized by law to allow them to continue to work during a lapse in appropriations. II. The Annual and Sick Leave Act of 1951, codified as amended at 5 U.S.C. §§ 6301–6391 (2006 & Supp. III 2009) (the “Leave Act”), sets forth the terms under which federal government employees earn annual and sick leave. Section 6301 defines “employee” for purposes of the Leave Act, and specifically excludes from its coverage certain categories of persons. As relevant here, section 6301(2)(x) excludes from the Leave Act “officer[s] in the executive branch . . . who [are] appointed by the President and whose rate of basic pay exceeds the highest rate payable under [the GS schedule],” and section 6301(2)(xi) excludes from the Act “officer[s] in the executive branch . . . who [are] designated by the President, except a postmaster, United States attorney, or United States marshal.” 5 U.S.C. § 6301(2)(x), (xi). White House officials who fall within either of these paragraphs are not covered by the Leave Act. 2 Section 5508 of title 5, which works in harmony with section 6301, provides that “officer[s] in the executive branch . . . to whom [the Leave We assume for the purposes of this opinion that there are White House officials who are in fact covered by these paragraphs. We have not independently analyzed whether particular officials are so covered and express no view about the scope of 5 U.S.C. § 6301(2)(x) and (xi). 2 42 Authority to Employ White House Officials During Appropriations Lapse Act] applies are not entitled to the pay of their offices solely because of their status as officers.” This provision does not expressly address the entitlements of officials to whom the Leave Act does not apply. But by providing that officers who are covered by the Act do not earn pay by virtue of their status, it suggests by negative implication that officers who are exempt from the Act—including those exempt under 5 U.S.C. § 6301(2)(x) or (xi)—do earn their salaries by virtue of their status. See 61 Comp. Gen. 586, 587 (1982) (“The importance of that section for our purposes is that . . . the converse, that officers who are not so covered are entitled to compensation solely because of their status as officers, is also true.”); cf. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (supporting the conclusion that Title VII “was clearly intended to apply with respect to the employment of aliens inside any State” with “a negative inference from the exemption in § 702, which provides that Tit[le] VII ‘shall not apply to an employer with respect to the employment of aliens outside any State’” (quoting 42 U.S.C. § 2000e-1)). This implication gains force from the fact that, as far as we are aware, no other provision in the Leave Act or title 5 addresses in terms the categories of officials who are entitled to salaries based on their status. Instead, section 5508 appears to be the only provision that discusses this subject. Furthermore, the statutory text now found in section 5508 and section 6301(2)(x) and (xi) was enacted against a well-established “background of common-law principles,” Samantar v. Yousuf, 130 S. Ct. 2278, 2290 n.13 (2010) (internal quotation marks omitted), governing officer pay. Prior to 1953, when these provisions were first enacted, it had long been the rule that “the right to the compensation attached to a public office is an incident to the title to the office and not to the exercise of the functions of the office.” 24 Comp. Gen. 45, 46 (1944); see also Grant, 237 F.2d at 515 (“Congress in 1953 . . . recognized that prior thereto various officers, including United States marshals, were entitled to receive their salaries as incident to their respective offices.”); Pack v. United States, 41 Ct. Cl. 414, 429 (1906) (“[T]he compensation annexed to a public office is incident to the title to the office and not to the exercise of the functions of such office.”); Sleigh v. United States, 9 Ct. Cl. 369, 375 (1873) (“The incumbent of an office is prima facie entitled to the lawful compensation thereof so long as he holds the office, though he may be disabled by disease or bodily injury from performing its duties.”); 46 C.J., Officers 43 35 Op. O.L.C. 40 (2011) § 233, at 1015–16 & nn.29–31 (1928) (collecting cases). A federal officer received his salary for as long as he held title to his office, and “the failure of an officer to perform the duties of his office d[id] not per se deprive him of the right to compensation, provided his conduct d[id] not amount to an abandonment of the office.” 24 Comp. Gen. at 46; see also 23 Comp. Treas. 383, 385 (1917). This rule operated even where these officers were covered by a federal leave system, and even where the leave laws enabled them to receive a lump-sum payment covering accumulated leave. See 25 Comp. Gen. 212, 220 (1945) (advising that “Presidential Officers” whose “salaries can not [sic] be reduced if they are absent from duty” may receive “lump-sum payment for accumulated and accrued annual leave”) (citing 24 Comp. Gen. 804 (1945)); S. Rep. No. 83-294, at 2 (1953) (noting the “double advantage of these officers to statutory leave benefits and freedom to absent themselves from duty as they see fit”). In 1953, Congress amended the Leave Act in two significant respects. First, through the provisions subsequently codified at section 6301(2)(x) and (xi), it removed from the coverage of the Act certain “officers in the executive branch of the Government,” including presidential appointees paid above the highest GS level and “such other officers (except postmasters, United States attorneys, and United States marshals) as may be designated by the President.” Pub. L. No. 83-102, § 1, 67 Stat. 136 (1953). Second, in the provision codified at section 5508, it directed that “[n]o officer in the executive branch of the Government . . . to whom [the Leave Act] applies shall be deemed to be entitled to the compensation attached to his office solely by virtue of his status as an officer.” Id. Through these amendments, Congress “intended to and did effect a change in the law” governing officers’ entitlement to compensation, Grant, 237 F.2d at 515, but this deviation from the background commonlaw rule was limited to those officers still covered by the Leave Act. Because section 5508 does not purport to alter the law for officers exempt from the Leave Act, we “interpret the statute with the presumption that Congress intended to retain the substance of the common law,” which in this case provided that officers are entitled to compensation by virtue of holding office. Samantar, 130 S. Ct. at 2290 n.13; see also Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952) (“Statutes which invade the common law . . . are to be read with a presumption favoring the retention 44 Authority to Employ White House Officials During Appropriations Lapse of long-established and familiar principles, except when a statutory purpose to the contrary is evident.”). This interpretation of sections 5508 and 6301 is supported by their legislative history. The committee reports explain that the addition of section 6301(2)(x) and (xi) was intended to eliminate the covered officers’ “advantage . . . in being eligible to receive the benefits of a statutory leave system and, at the same time, being exempted, in effect, from the obligations of such leave system to the extent that by the nature of their offices and positions they have freedom to absent themselves from duty from time to time.” H.R. Rep. No. 83-629, at 7 (1953) (Conf. Rep.); S. Rep. No. 83-294, at 1–2. Significantly, Congress achieved this end not by abrogating the common-law rule entitling such officers to pay by virtue of their status, but rather by withdrawing those officers’ entitlement to benefits under the statutory leave system, leaving the background rule intact. And while the addition of section 5508 expressly addressed only those officers who do not earn salary based solely on their status (i.e., those still covered by the Leave Act under section 6301), the reports explain that this provision was also intended to “settl[e] the basic question of which officers shall be entitled in the future to the compensation attached to their office by virtue of their status as an officer.” S. Rep. No. 83-294, at 1–2. Thereafter, “[o]fficers removed from . . . Leave Act coverage would be regarded as being entitled to the compensation of their offices by virtue of their officer status.” Id. at 3; H.R. Rep. No. 83-629, at 7 (“[O]fficers exempted from the Annual and Sick Leave Act of 1951 will retain their freedom to absent themselves from duty on their own volition[.]”). We accordingly conclude that Executive Branch officials (including those in the White House) exempt from the Leave Act under section 6301(2)(x) and (xi) earn their salaries by virtue of holding office. III. We further conclude that officials who are exempt from the Leave Act and therefore earn salaries by virtue of holding office are “authorized by law” to continue to work during a lapse in the appropriations for their salaries. 31 U.S.C. § 1341(a)(1)(B). 3 As noted above, our 1995 White 3 We assume that such officials receive no other form of compensation whose continuation during an appropriations lapse would incur any additional government obligation. 45 35 Op. O.L.C. 40 (2011) House Employees opinion concluded that the functions “authorized by law” to proceed during an appropriations lapse include “those functions as to which express statutory authority to incur obligations in advance of appropriations has been granted,” and “those functions for which such authority arises by necessary implication.” 19 Op. O.L.C. at 235. In discussing the same categories of functions in an earlier opinion, Attorney General Civiletti explained that when “an agency’s regular one-year appropriations lapse, the ‘authorized by law’ exception to the Antideficiency Act would permit the agency to continue the obligation of funds to the extent that such obligations are,” among other things, “[1] authorized by statutes that expressly permit obligations in advance of appropriations; or [2] authorized by necessary implication from the specific terms of duties that have been imposed on, or of authorities that have been invested in, the agency.” Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981) (“Continuance of Government Functions”). We are not aware of any law that “expressly permit[s] obligations in advance of appropriations” for salaries paid to White House Office officials who are not subject to the Leave Act. Id. However, we believe the authority to continue the obligation for these officials’ salaries during a lapse in appropriations arises “by necessary implication from the specific terms of” the President’s authority to appoint or designate officials who earn pay by virtue of their status. Id. We understand that “most White House [O]ffice employees are appointed under [section 105 of title 3] or a similarly formulated authority.” White House Employees, 19 Op. O.L.C. at 236. That provision grants the President authority to “appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service,” subject to salary caps that are higher than the top of the GS scale. 3 U.S.C. § 105(a). 4 On its face, this provision 4 We do not believe this authorization is sufficiently clear to constitute the kind of “express[] permi[ssion]” to obligate in advance of appropriations we identified in our 1981 opinion. Continuance of Government Functions, 5 Op. O.L.C. at 3–4 & n.3. Unlike section 105, other statutes we have previously included in that category expressly reference the authority to incur obligations in advance of appropriations. See, e.g., 25 U.S.C. § 99 (authorizing the Commissioner of Indian Affairs to “enter into contracts . . . for goods and supplies . . . notwithstanding the fact that the appropriations for such fiscal 46 Authority to Employ White House Officials During Appropriations Lapse confers on the President authority to “appoint” persons to work in the White House Office and to fix their “rate of basic pay” at a rate that “exceeds the highest rate payable” under the GS scale. See Memorandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, Presidential Authority under 3 U.S.C. § 105(a) to Grant Retroactive Pay Increases to Staff Members of the White House Office at 2 (July 30, 1993) (“We believe that, in view of this sweeping language, section 105(a)(1) allows the President complete discretion to adjust the pay for White House Office employees’ work in any manner that he chooses, as long as he complies with the salary limits of section 105(a)(2).”). Officers so appointed fall within section 6301(2)(x) of the Leave Act and (as a result) earn salary by virtue of their status under section 5508. 5 Section 6301(2)(xi) likewise recognizes the President’s authority to “designate” other Executive Branch officers (except postmasters, U.S. attorneys, or U.S. marshals) as exempt from the Leave Act, again ensuring that they earn salary based on their status. We think the “specific terms” of these presidential authorities “necessar[ily] impl[y]” the further authority to continue to incur obligations for year have not been made”); see also 42 U.S.C. § 2210(j) (authorizing the Atomic Energy Commission to “make contracts in advance of appropriations and incur obligations without regard to sections 1341 [and] 1342 . . . of title 31”). Furthermore, we do not read the permission in section 105 to make appointments “without regard to any other provision of law regulating the employment or compensation of [federal employees]” to mean that such actions are outside the purview of the Antideficiency Act altogether. Cf. Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1054 (D.C. Cir. 1987) (“We believe the plain meaning of the exemption codified in 42 U.S.C. § 1320c-2(e) [authorizing the Secretary to contract ‘without regard to any provision of law relating to the making, performance, amendment, or modification of contracts’] is to exempt HHS from those laws ‘relating to the making, performance, amendment or modification of contracts’—that is, the vast corpus of laws establishing rules regarding the procurement of contracts from the government. To include among this rather self-contained corpus the general restraints of the Administrative Procedure Act is a step we decline to make without more specific evidence that Congress intended to exempt HHS from the requirements of the APA.” (citation omitted)). 5 You have not asked us to consider whether section 105 gives the President authority to exempt White House personnel from the Leave Act even if they do not fall within any of the exemptions listed in section 6301, and we express no view about that question, or about the question whether any such personnel would be “authorized by law” to perform service during a lapse in appropriations. 47 35 Op. O.L.C. 40 (2011) the salaries of such exempted officers in the absence of appropriations. Continuance of Government Functions, 5 Op. O.L.C. at 5. As discussed above, officials who fall within section 6301(2)(x) or (xi) are, by virtue of section 5508, “entitled to the pay of their offices solely because of their status as officers.” 5 U.S.C. § 5508. Such an entitlement to salary, and the corresponding government obligation to fulfill it, is unaffected by the official’s absence from the duties of his office. Grant, 237 F.2d at 515 (holding that the salary of an officer so entitled “belonged to him as an incident to his office and was in no way impaired by his alleged absence therefrom or neglect to perform his official duties”); see also 24 Comp. Gen. 45, 46 (1944). As we noted in our Congressional Hearings opinion, this means that the government cannot avoid this obligation during a lapse in appropriations simply by placing the official on furlough status. 19 Op. O.L.C. at 302. Given the President’s clear statutory authority to appoint and designate officials with these kinds of broad salary entitlements, see 3 U.S.C. § 105(a)(1); 5 U.S.C. §§ 5508, 6301, and given the Antideficiency Act’s express exceptions for obligations exceeding appropriations where “authorized by law,” see 31 U.S.C. §§ 1341, 1342, we think the best way to reconcile the two statutory schemes is to interpret sections 5508 and 6301 of the Leave Act and section 105 of title 3 as implicitly “authoriz[ing]” the President “by law” to incur such salary obligations in advance of appropriations. Cf. Continuance of Government Functions, 5 Op. O.L.C. at 4 (“[W]hen Congress specifically authorizes contracts to be entered into for the accomplishment of a particular purpose, the delegated officer may negotiate such contracts even before Congress appropriates all the funds necessary for their fulfillment.”). 6 If the President’s statutory authority to appoint and designate officials who earn salaries by virtue of their status did not implicitly include the authority to obligate funds for those salaries in advance of appropriations, compliance with the Antideficiency Act would arguably require him to appoint such officials to terms limited to the fiscal year (so as to avoid incurring an indefinite obligation As we understand it, your question concerns only officials who currently work in the White House Office. You have not asked us to consider, and we express no opinion about, whether the President could, during an appropriations lapse, appoint or designate new officials who are exempt from the Leave Act and therefore entitled to earn salary by virtue of their status. 6 48 Authority to Employ White House Officials During Appropriations Lapse that potentially exceeded the current year’s appropriations), to remove such officials during any lapse in appropriations or require them to resign, or otherwise to find a way to avoid involving the government in an obligation that exceeded available appropriations. See 31 U.S.C. §§ 1341, 1342. 7 But there is no indication in sections 5508 or 6301 of the Leave Act or section 105 of title 3 that, in authorizing the President to create broad salary obligations for officers who earn pay by virtue of their status, Congress simultaneously intended to limit the President’s appointment authority in any of the ways described above. Nor are we aware of any evidence that the Executive has imposed such restrictions as a matter of practice. This conclusion is consistent with that reached by the Comptroller General in an opinion concerning whether Commissioners of the Copyright Royalty Tribunal could be paid for work performed during a lapse in the Tribunal’s appropriations. 61 Comp. Gen. 586 (1982). In that opinion, the Comptroller General reasoned that the Commissioners were exempt from the Leave Act under section 6301(2)(xiii)—a provision similar to section 6301(2)(x) and (xi) but directed at presidentially appointed “officer[s] in the legislative or judicial branch”—and were therefore “entitled to compensation based on their status as officers rather than for the performance of a function based on the amount of hours they spend engaged at their jobs.” Id. at 587. The Comptroller General then concluded that, in light of this entitlement, “the incurring of obligations for the Commissioners’ pay in the absence of sufficient available appropriations to liquidate them is authorized by law within the meaning of the [Continuance of Government Functions opinion].” Id. Given that the President is “authorized by law” to continue the obligation for the salaries of officials exempt from the Leave Act under section 6301(2)(x) or (xi) during a lapse in appropriations, the final question whether such officials can continue to work during a lapse is straightforward. As we noted in our Congressional Hearings opinion with respect to PAS officers, because such officials “are entitled to their salaries by virtue Incurring an obligation to pay any particular official’s salary, of course, might be justified for particular periods based on other exceptions to the Antideficiency Act. See Memorandum for Alice Rivlin, Director, Office of Management and Budget, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Government Operations in the Event of a Lapse in Appropriations at 3–4 (Aug. 16, 1995). 7 49 35 Op. O.L.C. 40 (2011) of the office[s] that they hold and without regard to whether they perform any services,” no further obligation in advance or in excess of appropriations is incurred when they “perform services.” 19 Op. O.L.C. at 301–02; see 31 U.S.C. §§ 1341, 1342. The funds for these officials’ salaries having already been lawfully obligated, “the [Antideficiency] Act is not implicated at all” when they choose or are directed to continue to work during a lapse in appropriations. Congressional Hearings, 19 Op. O.L.C. at 301. IV. To summarize, we concluded in our White House Employees opinion that, during a lapse in appropriations, the Antideficiency Act permits the White House to employ personnel who “perform functions that are excepted from the Antideficiency Act’s general prohibition” because the obligation for their salaries during a lapse is “authorized by law.” 19 Op. O.L.C. at 235. For the reasons set forth above, we now conclude that such personnel include officials who are exempt from the provisions of the Annual and Sick Leave Act under 5 U.S.C. § 6301(2)(x) and (xi), because the President’s authority to appoint such officials necessarily implies the authority to continue the obligations for their salaries during a lapse in appropriations. Accordingly, such officials may work during a lapse in appropriations, so long as the employment of their services does not create any other obligation on behalf of the government. KARL R. THOMPSON Deputy Assistant Attorney General Office of Legal Counsel 50

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Permissibility of the Administration and Use of the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees Federal employees who would offer the use of, or administer, the federal salary-allocation system for allotments to political action committees, would not, without more, violate 18 U.S.C. §§602 and 607, or the civil provisions o f the Hatch Act Reform Amendments of 1993. The Hatch Act Reform Amendments of 1993 would prohibit certain high-level and Executive Office employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions con­ tinue outside normal duty hours and while away from the normal duty post, from using the salaryallocation system to make contributions to political action committees. The Hatch Act Reform Amendments of 1993 would not prohibit the remainder o f federal employees covered by those Amendments from making contributions to political action committees through the salary-allocation system; however, 5 U.S.C. § 7324(a) would expressly prohibit such employees from taking steps to use the salary-allocation system to make such contributions while they are on duty or in a federal building. While use o f the salary-allocation system for contributions to political action committees would be lawful under certain circumstances, the head o f each federal agency has the discretion to decide whether to make the system available for that purpose to employees of the agency. February 22, 1995 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r O f f ic e o f P e r s o n n e l M a n a g e m e n t Early last year, the Office of Personnel Management (“ OPM” ) advised execu­ tive branch officials that executive branch employees now are permitted to make voluntary salary allotments to political action committees (“ PACs” ), using the mechanisms otherwise available to federal employees for salary allotments to other organizations and institutions.1 Under the salary-allotment system, a federal employee can authorize federal payroll administrators to transmit portions of his or her salary, on a regular basis, to certain persons or institutions designated by the assigning employee. See 5 C.F.R. pt. 550, subpart C. The Criminal Division of the Department of Justice has questioned whether federal employees offering or administering the salary-allotment procedure for PAC contributions, or the employees who would make such contributions using that procedure, would thereby violate the Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001 (“ HARA” ), or two related criminal statutes, 1 See Memorandum for Heads o f Executive Departments and Agencies, from James B. King, Director, Office o f Personnel Management (Feb. 17, 1994); Memorandum for [all Executive Branch] Chiefs o f Staff from M ichael Cushing, C hief o f Staff, Office o f Personnel Management (Apr. 4, 1994). 47 Opinions o f the Office o f Legal Counsel in Volume 19 18 U.S.C. §§602 and 607.2 In response, OPM contends that such employees would not violate the HARA or those criminal statutes.3 We have reached the following conclusions with respect to the use of the salaryallocation system for contributions to PACs: 4 1. None of the federal employees who would engage in the practices in ques­ tion— offering the use of or administering the salary-allocation system, or making contributions to PACs through that system— would, without more, violate the relevant criminal provisions, 18 U.S.C. §§602 and 607. 2. Federal employees offering use of or administering the salary-allocation system for PAC contributions would not, without more, violate the civil provisions of the HARA. If, in practice, such employees were to request, urge or coerce other employees to make PAC contributions, they could thereby violate the HARA and the criminal statutes. But this potential for abuse does not render the proposed practice unlawful per se. 3. Certain high-level and Executive Office employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions continue outside normal duty hours and while away from the normal duty post, may not use the salary-allocation system to contribute money to PACs, because to do so would violate the HARA requirement that those employees not engage in political activity using “ money derived from the Treasury of the United States.” 5 U.S.C. § 7324(b)(1). 4. The remainder of federal employees covered by the HARA may not, while they are on duty or in a federal building, take steps to use the salary-allocation system to make contributions to PACs, because 5 U.S.C. § 7324(a) expressly pro­ hibits those federal employees from engaging in political activity while on duty or while in a federal building. Thus, for example, a covered employee may not, while on duty or in a federal building, fill out direct-deposit forms for salary allocations to PACs and deliver such forms to the employees who would process or administer those allocations. A more difficult question is whether these contrib­ uting employees would violate the HARA if they were off duty and off federal premises when they take the steps necessary to trigger the use of the salary-alloca2 See M em oranda for W alter Dellinger, A ssistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, A ssistant A ttorney General, Criminal Division (Sept. 9, 1994; Oct. 24, 1994). 3 See Letters for D awn E. Johnsen, D eputy Assistant Attorney General, O ffice of Legal Counsel, from Lorraine Lewis, General Counsel, O ffice o f Personnel Management (Oct. 27, 1994; Nov. 4, 1994; Nov. 10, 1994; Dec. 13, 1994). 4 PACs, or “ political action committees,” are not defined as such under federal law However, 26 U.S.C. §9002(9) defines “ political com m ittee” as: any com m ittee, association, or organization (whether o r not incorporated) which accepts contributions or m akes expenditures for the purpose o f influencing, or attempting to influence, the nomination or election o f one o r m ore individuals to Federal, State, or local elective public office. See also 2 U.S.C. §431(4) (similar definition with respect to committees making contributions and expenditures for federal elections). For purposes of this Opinion, “ PA C ” refers only to an organization that comes within this definition. In theory, there could exist other sorts o f PACs that do not make contributions or expenditures for the purpose o f influencing elections for panisan political office. In this Opinion, references to “ PACs” do not include such com m ittees, and insofar as federal employees might wish to use the salary-allocation system to make contribu­ tions to such com m ittees, such a practice w ould be beyond the scope o f the questions we address in this Opinion. 48 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees tion system— e.g., if an employee completes the direct-deposit form at home, and sends it from home to the appropriate administrative employees. Although the question is a close one, we conclude that such actions would not violate the HARA, because they are not proscribed by the literal terms of the prohibitions found in 5 U.S.C. § 7324(a). While we have concluded that use of the salary-allocation system for PAC con­ tributions would be lawful under certain circumstances, nevertheless the head of each federal agency has the discretion to decide whether to make the system avail­ able for that purpose to employees of the agency.5 I. STATUTORY BACKGROUND A. The Hatch A ct Before the 1993 Amendments In 1939, Congress passed the original Hatch Act, which declared unlawful cer­ tain political activity of federal employees. See Act of Aug. 2, 1939, ch. 410, 53 Stat. 1147. In section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress pro­ vided in pertinent part: No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects.6 The prohibition in section 9(a) eventually was codified at 5 U.S.C. § 7324(a)(2) (Supp. Ill 1965-1967), which provided that “ [a]n employee in an Executive agency . . . may n o t . . . take an active part in political management or in polit­ ical campaigns.” 7 5 See 5 U.S.C. §5525 (“ The head o f each agency may establish procedures under which each employee o f the agency is permitted to make allotments and assignments o f amounts out o f his pay for such purpose as the head o f the agency considers appropriate/’); 5 C.F.R. §550.311(b) (an agency may permit an employee to make an allotment “ for any legal purpose deemed appropriate by the head o f the agency’*). Accord Memorandum for Heads of Executive Departments and Agencies, from James B. King, Director, Office o f Personnel Management at 1 (Feb. 17, 1994) (noting that, under O PM ’s proposal, the head o f each executive agency would have the option o f allowing that agency’s employees to use salary allotments for distributing portions o f their salaries to PACs). 6 Section 9(a) further provided that heads and assistant heads o f executive departments, and certain officers appointed by the President by and with the advice and consent o f the Senate, were not “ officers” or “ em ployees” for purposes o f that section. 7 This prohibition did not apply to certain federal employees. See 5 U.S.C. § § 7324(d)(I)—(3) (Supp. IE 19651967). W hat is more, by a 1940 amendment to the Hatch Act, Congress exem pted from the scope o f section 9(a) any political activity in connection with nonpartisan campaigns, and activity in connection with any question not identified with a political party, such as constitutional amendments and referenda. Act of July 19, 1940, ch. 640, §4, 54 Stat. 767, 772 (subsequently codified at 5 U.S.C. §7326 (Supp. Ill 1965-1967)). Thus, under the old Hatch Act, “ only partisan political activity [was] interdicted.” United Pub. Workers v. M itchell, 330 U.S. 75, 100 (1947) (emphasis added). 49 Opinions o f the Office o f Legal Counsel in Volume 19 B. The Hatch A ct Reform Amendments o f 1993 In 1993, Congress eliminated many of the restrictions that previously had cabined the political activities of federal employees. See Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001. Most importantly, Congress did an about-face on the prohibition at the very heart of the Hatch Act: under a new 5 U.S.C. § 7323(a), effective February 3, 1994, covered federal employees “may take an active part in political management or in political cam­ paigns,’ ’ subject to specific exceptions.8 Thus, the very category of activities that was prohibited under the old Hatch Act is now expressly permitted. Congress did, however, specify several important exceptions to the general rule of § 7323(a). See 5 U.S.C. §§7323(a)(l)-(4), 7323(b), 7324. For present purposes, three of those exceptions are germane: 1. Under 5 U.S.C. § 7323(a)(2), a covered employee may not “ knowingly solicit, accept, or receive a political contribution from any person,” except under limited circumstances not material here (see infra note 11). 2. Under 5 U.S.C. §§7323(b)(2)-(4), employees of certain enumerated federal agencies, departments and entities— including, for example, the Criminal Division of the Department of Justice — will continue to be bound by the proscription of section 9(a) of the old Hatch Act (i.e., former 5 U.S.C. §7324(a)(2) (1988)): unlike most other federal employees, such “ HARA-exempt” employees cannot “ take an active part in political management or in political campaigns.” 9 3. Finally, almost all federal employees, including those who are “ HARAexempt,” may not engage in “ political activity” while: (i) on duty; (ii) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof; (iii) wearing a uniform or official insignia identifying the office or position of the employee; or (iv) using any vehicle owned or leased by the federal government or any agency or instrumentality thereof. 5 U.S.C. § 7324(a). An exception to this prohibition is made for certain high-level and executive office employees identified in 5 U.S.C. § 7324(b), the duties and respon­ 8 This provision in §7323(a) applies to any individual— other than the President, the Vice President, members o f the uniformed services, and employees in particular agencies and departments specified in § 7323(b)— who is employed o r holding office in (i) an Executive agency other than the General Accounting Office; (ii) a position w ithin the com petitive service which is not an Executive agency; o r (iii) the government o f the District of Columbia (other than the M ayor, members o f the City C ouncil, and the R ecorder o f D eeds). See 5 U.S.C. §§7322(1), 7323(b). However, on Septem ber 20, 1994, this Office opined that Congress should not be understood to have intended that the President be precluded from limiting the political activities o f employees who are political appointees; indeed, as we noted, if the HARA were instead interpreted to prevent a President from limiting the political activities of even his high-level political appointees, the statute would raise serious constitutional questions. Letter for Lorraine P. Lewis, G eneral Counsel, Office of Personnel Management, from W alter Dellinger, Assistant Attorney General, O ffice o f Legal Counsel (Sept. 20, 1994). See also 59 Fed. Reg. 48,765, 48,767, 48,771 (1994) (discussing proposed 5 C.F.R. §7 34.104, w hich reflects the Sept. 20, 1994 OLC letter). 9 This prohibition does not apply to employees appointed by the President by and with the advice and consent o f the Senate, even within the specified agencies, departments and entities. 5 U.S.C. §§ 7323(b)(2)(A), 7323(b)(3). See also supra note 8. 50 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees sibilities of whose positions continue “ outside normal duty hours and while away from the normal duty post.” Id. § 7324(b)(2)(A). These employees may engage in on-duty or on-premises political activity, but only “ if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.” Id. § 7324(b)(1). It is the responsibility of the Office of Special Counsel (“ OSC” ) to investigate allegations that federal employees have violated the prohibitions that remain in the HARA. If the OSC believes such a violation has occurred, it can present the case to the Merit Systems Protection Board (“ MSPB” ); the MSPB would then adjudicate the case. See American Fed’n o f Gov’t Employees v. O’Connor, 747 F.2d 748, 753 (D.C. Cir. 1984), cert, denied, 474 U.S. 909 (1985). If the MSPB finds that an employee has violated a prohibition in §7323 or §7324, the employee is subject to removal from his or her position. 5 U.S.C. §7326. If the MSPB finds by unanimous vote that the violation does not warrant removal, a penalty of not less than a 30-day suspension without pay shall be imposed by direction of the MSPB. Id.; see also Special Counsel v. Dukes, 8 M.S.P.R. 549 (MSPB, 1981) (MSPB lacks discretion to impose a penalty less severe than a 30-day suspension without pay). C. OPM’s Regulations under the Hatch Act and under the HARA In 1984, OPM issued regulations that specifically interpreted the old Hatch Act to forbid use of the federal salary-allocation system for PAC contributions by federal employees. See 49 Fed. Reg. 17,431-32 (1984).10 As we explain infra pp. 66-72, these regulations arguably were undermined by subsequent decisions of the federal courts and by other authorities. Nonetheless, between 1984 and the present date, the federal salary-allocation system has not been used to facilitate federal employees’ PAC contributions. On February 2, 1994, this Office concluded that, under the HARA, OPM con­ tinues to have certain responsibility for issuing regulations concerning permitted and prohibited activities under the Act. See Authority for Issuing Hatch Act Regu­ lations, 18 Op. O.L.C. 1 (1994). On February 4, 1994 (the day after the HARA took effect), OPM superseded its previous Hatch Act regulations, including the 1984 regulations that had pro­ scribed the use of the salary-allocation system for PAC contributions. See 59 Fed. Reg. 5313-15. Thereafter, OPM advised executive branch officials that, in OPM’s view, executive branch employees now are permitted to make voluntary salary allotments to PACs using the mechanisms otherwise available to federal l0 Under the original Hatch Act, the Civil Service Commission ( “ C S C ” ) was delegated limited authority to issue interpretive regulations defining the scope o f permitted and prohibited activities. See infra pp. 63-66. In the Civil Service Reform Act o f 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress eliminated the CSC, and OPM became “ responsible for promulgating Hatch Act regulations.” American Fecfn o f G ov't Employees, 747 F.2d at 753. See infra p. 67. 51 Opinions o f the Office o f Legal Counsel in Volume /9 employees for salary allotments to other organizations and institutions. See supra note 1. On September 23, 1994, OPM published interim regulations, which would inform federal employees of the political activities that are permitted and prohib­ ited under the HARA. 59 Fed. Reg. 48,765-77. Those interim regulations do not address directly the issue presented in this Opinion, though they do consider sev­ eral subsidiary issues that are germane here, and that we will consider herein. B. Related Criminal Statutes— 18 U.S.C. §§ 602, 607 The Criminal Division also has questioned whether participants in the proposed practice would violate either of two criminal statutes, 18 U.S.C. §§602 and 607. Those statutes prohibit federal employees from soliciting political contributions from other federal employees (§602), and prohibit persons from soliciting or receiving political contributions while in a federal building (§607). See infra pp. 53, 58. II. APPLICATION OF TH E HARA AND RELATED CRIMINAL STATUTES Federal employees could be involved in the salary-allocation process in three distinct ways. First, under the procedure envisioned by OPM, certain federal employees — in particular, the heads of federal agencies — would offer other fed­ eral employees the opportunity to use the federal salary-allocation system to make contributions to PACs. Second, certain employees— possibly both within and out­ side the contributing employees’ agency — would administer the salary allocations to PACs. Such employees would, for instance: collect the direct-deposit forms on which employees request an allocation to a PAC; perform the ministerial func­ tions associated with such an allocation (such as recording the allocation, and sending the forms on to other federal employees involved in the processing); and transmit a portion of the contributor’s salary to the PAC, or to a PAC bank account. Finally, certain federal employees would actually make contributions to PACs by way of the salary-allocation procedure. These employees would fill out direct-deposit forms indicating that they wish part of their salaries to be allocated and transmitted to various PACs, and would transmit those forms to the appro­ priate officials (such as the payroll officer in their agency or department) to begin processing. Subsequently, as a result of the contributing employees’ allocations, other federal employees would transfer money to the designated PACs from the contributing employees’ salaries. In section A, infra, we discuss whether the federal employees who would offer other employees the opportunity to use the federal salary-allocation system for 52 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees PAC contributions would thereby violate the prohibitions on solicitation found in 5 U.S.C. § 7323(a)(2) and 18 U.S.C. §§602 and 607. In section B, infra, we discuss whether the employees who would administer the transmission of PAC contributions would thereby violate the prohibition in 5 U.S.C. § 7323(a)(2) on accepting or receiving political contributions, or the prohibition in 18 U.S.C. §607 on receiving political contributions in a federal building. In section C, infra, we discuss whether administrative employees in “ HARAexempt” agencies and components who would handle and transmit other employees’ PAC contributions would thereby violate the prohibition in 5 U.S.C. § 7323(b) on “ tak[ing] an active part in political management or political cam­ paigns.” Finally, in section D, infra, we discuss whether any of the participants in the proposed procedure would violate the “ on-duty,” “ on-site,” and related prohibi­ tions found in 5 U.S.C. §7324. A. Solicitation — 5 U.S.C. § 7323(a)(2) an d 18 U.S.C. §§ 602 and 607 The Criminal Division has asked whether the act of offering employees use of the salary-allocation system to make PAC contributions would be “ solicita­ tion” of political contributions in violation of any or all of the following three statutes: * 5 U.S.C. § 7323(a)(2), which prohibits covered employees from soliciting “ political contributions,” except that one union member may solicit another union member to contribute to the union’s PAC under certain circumscribed circum stances;11 * 18 U.S.C. § 602(a), which makes it a felony for a federal officer or employee “ to knowingly solicit any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971,” from any other federal officer or employee; and * 18 U.S.C. § 607(a), which makes it a felony “ for any person to so licit. . . any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 in any room or building occupied in the discharge of official duties by [any officer or employee of the United States].” 11 Specifically, an employee can solicit o r receive political contributions if (i) the person being solicited or making the contribution is a m ember o f the same federal labor organization or federal employee organization as the covered employee; (ii) the person being solicited or making the contribution is not a subordinate employee of the covered employee; and (iii) the solicitation is for a contribution to a multicandidate PAC o f the labor organization or employee organization o f the employees, and that PAC was established prior to October 6, 1993 5 U.S.C. § 7323(a)(2)(A )(C). 53 Opinions o f the Office o f Legal Counsel in Volume 19 W e conclude that federal employees, including the heads of agencies, would not violate the prohibition on “ solicitation” in any of these three statutes merely by offering employees use of the salary-allocation system to make voluntary PAC contributions. All three statutes ultimately are derived from the prohibitions on solicitation in sections 11 and 12 of the Civil Service Act o f 1883, ch. 27, 22 Stat. 403 (“ the Pendleton A ct” ) ; 12 and we see no reason why “ solicit” should not have the same meaning in all three statutes.13 However, Congress has not provided a definition of the term “ solicit” in any o f the three provisions. Therefore, we must give that term its ordinary meaning. See, e.g., A sgrow Seed Co. v. W interboer, 513 U.S. 179,187 (1995). In two recent opinion letters, the Office of Special Counsel — which has the authority under 5 U.S.C. § 1212(f) to issue advisory opinions on the Hatch A c t14— offered this definition of “ solicit” : “ to try to obtain by entreaty, persua­ sion or formal application.” 15 Under this definition, asking, requesting, or urging another federal employee to make a political contribution would be prohibited (putting aside the exception described in 5 U.S.C. § 7323(a)(2), which is not rel­ evant here). See also People v. Murray, 307 111. 349, 365, 138 N.E. 649, 655 (111. 1923) (to solicit a contribution is “ to try to obtain by asking; to ask for the purpose o f receiving” ). We think the Special Counsel’s definition of “ solicit” is an appropriate o n e .16 Under the Special Counsel’s definition— indeed, under any ordinary under­ 12 Section 602(a), for exam ple, is derived from section 11 o f the Pendleton Act, which provided in pertinent part that no congressional, judicial or executive branch officer o r em ployee “ shall, directly or indirectly, solicit or receive, o r be in any m anner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, o r employee o f the United States, . . . or from any person receiving any salary o r compensation from moneys derived from the Treasury o f the United States." 22 Slat, at 406. In 1980, section 11 of the Pendleton Act was amended to elim inate the provision prohibiting receipt o f contributions by federal employees. Pub. L. No. 96-187, tit. IT, § 2 0 1(a)(3), 93 Stat. 1339, 1367. See H.R. Rep. No. 96-4 2 2 , at 25 (1979), reprinted in 1979 U.S.C.C.A.N. 2860, 2885. Sim ilarly, the prohibition currently found in §607 is a descendent o f section 12 of the Pendleton Act, which provided in pertinent part that “ no person shall, in any room o r building occupied in the discharge of official duties by any officer o r em ployee o f the United States . . ., solicit in any m anner whatever, or receive any contribution o f m oney or any other thing o f value for any political purpose whatever.” 22 Stat. at 407. ,3 In enacting the HARA, Congress added §602(b), which states that an activity cannot be a violation o f §602(a) “ unless that activity is prohibited by section 7323 or 7324” o f the HARA. See Pub. L. No. 103-94, §4(b), 107 Stat. at 1005. Thus, a person’s conduct cannot violate §602(a) unless it is also a civil violation of the HARA. Congress did not impose a sim ilar restriction on §607. Thus, in theory, “ solicit” could have a meaning in §607 distinct from its meaning in the other two statutes. But we see no reason not to treat the term identically in all three statutes. [*See American Fed.'n o f Gov’t Employees, 747 F.2d at 752-55 (explaining the nature and effect of “ the advice the Special Counsel is perm itted to give” ). 15 See Letter for C heryl D. Mills, Associate Counsel to the President, from William E. Reukauf, Associate Special Counsel for Prosecution, O ffice o f Special Counsel at 2 (Feb. 4, 1994); Letter for Dennis I. Foreman, Deputy General Counsel, Department o f the Treasury, from William E. Reukauf, Associate Special Counsel for Prosecution, Office o f Special Counsel at 2 (Feb. 4, 1994). 16This definition is, for example, consistent with pertinent dictionary definitions o f “ solicit.” As we have explained, the solicitation prohibitions derive from the Pendleton Act. Shortly after enactment of that Act, Black’s Law Dictionary defined “ solicitation” as “ Asking; enticing; urgent request.” Black’s Law Dictionary 1105 (1st ed. 1891); see also Black's Law Dictionary 1392 (6th ed. 1990) (“ Asking; enticing, urgent request. . . . Any action which the relation o f the parties justifies in construing into a serious request.” ); Webster’s Third New Int’l Dictionary 54 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees standing of the term — it is hard to see how the conduct in question here would rise to the level of “ solicitation.” Pursuant to OPM ’s proposal, the head of each agency would send a memorandum to all employees informing them that “ there is now no legal ban to voluntary allotments by Federal employees directed to political action committees.” See Memorandum for [all Executive Branch] Chiefs of Staff, from Michael Cushing, Chief of Staff, Office of Personnel Management (Apr. 4, 1994), Attachment 2. The proposed memorandum further would “ empha­ size” to employees that “ this program is entirely voluntary on your part, a service we have added for our employees.” Id. Such a memorandum would not urge employees to make contributions, and would not request or encourage such action. We conclude that such an offer of use of the salary-allocation system for voluntary PAC contributions would not thereby be a “ solicitation” of such contributions. Cf., e.g., In re D odds, 2 Political Action Reporter 253 (Civil Service Comm’n, 1945) (announcing to employees under one’s supervision that they had the legal right to make voluntary contributions to political campaign funds if they so desired is not, without more, “ solicitation” ). Moreover, the statutory context of the solicitation ban in §7323 supports this conclusion. In § 7323(a), Congress has prohibited only those solicitations that can be said to constitute “ tak[ing] an active part in political management or in political campaigns.” 17 The “ tak[ing] an active part” standard was derived from the prohibition in section 9(a) of the old Hatch Act. See supra p. 49. Under the old Act, two courts o f appeals held that a covered federal employee could violate the “ tak[ing] an active part in political management or in political campaigns” 2169 (1986) (defining “ solicit” as, inter alia, “ to make petition to: entreat, importune . . esp: to approach with a request or plea (as in selling or begging)"; “ to move to action: serve as an urge or incentive to. incite” ; “ to strongly urge (as one’s cause o r point): insist upon"; “ to endeavor to obtain by asking or pleading: plead for . . .; also : to seek eagerly or actively"; “ to demand as a requisite: call fo r require"). Also notable is 47 U.S.C. §227(a)(3), which defines “ telephone solicitation" as “ the initiation of a telephone call or message for the purpose o f encouraging the purchase or rental of, or investment in, property, goods, or services." This definition would require some encouragement or urging, at the very least. OPM, in its interim regulations, has proposed that “ solicit” should mean “ to request expressly o f another person that he or she contribute something to a candidate, a campaign, a political party, or partisan political group." 59 Fed. Reg. 48,771 (1994) (proposed 5 C .F R . §734.101) (emphasis added). We believe OPM is correct that a “ request" (or an “ u rg in g ") is required, but we have no occasion to decide whether such a request necessarily must be “ express!] ” A strong argument could be made that even an “ im plicit," or veiled, request is a solicitation. For example, the Special Counsel has concluded that it would be a solicitation for an official to “ suggest" that an individual work for a political campaign. See Letter for Dennis I. Foreman, Deputy General Counsel, Department o f the Treasury, from W illiam E. Reukauf, Associate Special Counsel for Prosecution, Office o f Special Counsel at 3 (Feb. 4, 1994); see also People v. Murray, 307 III. at 365, 138 N.E. at 655 (“ Solicitation [of political contribu­ tions] is not necessarily by word o f mouth or writing.” ); Civil-Service Law — Political Contributions— Solicitation o f by Federal Officer, 24 Op. A tt'y Gen. 133, 134-35 (1902) (dissemination to federal employees of a circular stating that financial assistance is “ needed" for Republican state committee, and that supervisory officials “ will be greatly obliged" if the recipients “ will aid to the extent of [their] ability and inclination,” even though not a “ dem and," was a “ req u est" constituting an impermissible solicitation under section 11 o f the Pendleton Act); Special Counsel v. Rivera , 61 M.S.P.R. 440, 443—44 (MSPB, 1994) (letter stating that “ [w]e hope you can . . . contribute to this worthy cause [viz., a partisan candidacy]" was a solicitation o f contributions). l7That section permits employees to “ take an active part in political management or in political cam paigns." The prohibition o f solicitation is enumerated as one o f the few exceptions to this rule; thus, it is fair to read the statute as prohibiting only those solicitations that in fact constitute “ tak[ing] an active part in political management or in political cam paigns.” 55 Opinions o f the Office o f Legal Counsel in Volume 19 prohibition only if that employee acted “ m concert with a partisan political cam­ paign or organization.” B iller v. MSPB, 863 F.2d 1079, 1090 (2d Cir. 1988) (emphasis added); accord Blaylock v. MSPB, 851 F.2d 1348, 1356 (11th Cir. 1988) (“ the Hatch Act is violated only by actions taken in concerted effort with partisan activity or formal, organized, political groups” ). Were an employee, such as the head of an agency, merely to inform other employees of their legal rights, and in a neutral manner make available to them a means of exercising those rights, that employee would not thereby be acting “ in concert with a partisan political campaign or organization.” Therefore, such an offering employee would not have taken an “ active part in political management or in political campaigns,” and, accordingly, would not have engaged in improper solicitation under § 7323(a).18 Notwithstanding the foregoing, the Criminal Division has suggested that the act o f offering access to the salary-allocation system for PAC contributions may vio­ late the law because, in practice, such an offer may be perceived as soliciting such contributions. The Criminal Division’s argument is that, as a result of the paperwork associated with the salary-allocation system, an employee’s “ giving history” can be “ accessed and examined by management.” Moreover, the Federal Election Campaign Act (“ FEC A ” ) requires that political committees, such as the PACs in question here, publicly identify all persons who have contributed more than $200 in a calendar year. 2 U.S.C. § 434(b)(3)(A); see also id. § 438(a)(4) (names of such contributors available for public inspection). The fact that manage­ ment can thereby discover an em ployee’s political contributions “ provides fertile ground for the proposed payroll withholding program to assume a most sinister cast.” Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 6 -7 (Oct. 24, 1994). According to the Criminal Division, once employees realize that their political giving patterns can be individually accessed and traced through payroll records or through FECA reports, offers o f payroll withholding made by management are susceptible of being understood by employees as suggestions that an affirmative response is expected. Once that occurs, it seems to us that the offer o f payroll withholding for PAC donations becomes a “ solicitation’ on the part o f those in management that circulate it. 18 The case w ould be very different, o f course, if the offer were not neutral, such as where contributions were perm itted only to certain PACs deemed acceptable to the agency head. In that case, the Biller/Blaylock standard m ight be m et, and the action m ight fairly be considered “ taking an active part in political management or in political cam paig n s"; such differential treatment in favor o f some PACs to the exclusion of others might, therefore, amount to an improper “ solicitation,” depending on the circumstances. But that is not the scenario OPM proposes. 56 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees Id. at 7. This argument is similar to that used by OPM itself in 1984 to justify its prohibition on salary allotments to P A C s.19 This argument has two principal problems. First, the hypothesized danger— that management may be able to discover employees’ contribution practices — is not unique to the making of PAC contributions through the salary-allotment procedure. The public has access, by virtue of the FECA, to significant informa­ tion about contributors to PACs, and this will be the case whether or not those contributions are made through the salary-allocation system. The risk of access to contribution information should not be significantly greater as a result of use of the salary-allocation system: federal officials should not have any additional access to contribution practices of their subordinates through payroll records. Records of employees’ financial contributions retained in personnel files within the employees’ agency are protected by the Privacy Act, see 5 U.S.C. § 552a(a)(4)-(5), and may not be revealed to the officers and employees of the agency, id. § 552a(b).20 Second, and more important, it is not legally dispositive that some subordinate employees might perceive that they are expected to contribute to PACs. The mere possibility that an offer of access to a salary-allocation system may be susceptible of being misunderstood by some employees as a solicitation does not automati­ cally transform all offers into solicitations. Section 7323(a) of the HARA and 18 U.S.C. §§602 and 607 do not prohibit a “ sinister cast” ; they prohibit conduct that is, in fact, solicitation. What is more, even if the proposed practice might be susceptible to a risk of actual (rather than merely perceived) solicitation, that risk does not render the practice unlawful per se. Whether any particular “ offer” of access to the salaryallocation system for PAC contributions would be an impermissible solicitation 19 OPM explained that such a prohibition was required for prophylactic reasons: Use o f the Federal payroll system as a vehicle for collecting political contributions, as well as the conven­ ience o f making these contributions through payroll deductions, would increase the opportunities for coer­ cion o f employees. Introducing the political contribution process into Government would make it possible for supervisors, administrative officers, and others in a position to affect careers or working conditions to discover the identity o f political contributors and other information concerning their contributions. Because allotments or payroll deduction authorizations pass through many hands during processing, there exists the risk o f either intentional or inadvertent disclosure o f sensitive data. Although such a disclosure could be cause for discipline, tracing the disclosure to its source in the processing chain would not be possible in every case. The authority to discipline thus would not be a complete deterrent and where exer­ cised would not forestall potential misuse o f the information already disclosed. Even if the integrity of payroll data is not compromised, individual employees could be directly approached by colleagues or superiors seeking to identify contributors. Even i f not so intended, this could create among employees a perception o f pressure to contribute to a particular political action fund. 49 Fed. Reg. at 17,432 (emphasis added). 20There is an exception to this prohibition where those officers or employees “ have a need for the record in the performance o f their duties.” Id. §552a(b)(l). It is difficult, however, to imagine a situation in which supervisors would have a legitimate “ need . . . in the regular performance o f their duties” for information concerning their subordinates’ political contributions. See Parks v. IRS, 618 F.2d 677, 680-81 (10th Cir. 1980). 57 Opinions o f the Office o f L egal Counsel in Volume 19 would depend on the particular facts of each case.21 In those cases where osten­ sible offers do cross the line to become actual solicitations, the makers of such solicitations will be subject to penalty under 5 U.S.C. §§ 7323(a)(2) and 7324(a), and may be subject to criminal sanctions under 18 U.S.C. §§602 and 607, as well. In addition, if a supervisor does tell (or suggest to) subordinate employees that their contribution practices will be “ accessed and examined by management,” or if a supervisor (or other employee) otherwise pressures an employee to con­ tribute to PACs, such action could constitute impermissible “ coercion” under 18 U.S.C. § 6 1 0 .22 But the fact that there m ay be such instances of abuse does not mean that every offer of access to the system automatically becomes a solicitation. B. R e c e ip t— 5 U.S.C. § 7323(a)(2) a n d 1 8 U.S.C. § 6 0 7 The Criminal Division has questioned whether the federal employees who would implement and administer other employees’ salary allocations to PACs would vio­ late 5 U.S.C. § 7323(a)(2) or 18 U.S.C. §607, which prohibit some forms of “ receiving” or “ accepting” political contributions: * Under § 7323(a)(2), a covered federal employee may not “ accept, or receive a political contribution from any person,” except that one union member may receive another union member’s contribution to the union’s PAC, as long as the contributing employee is not a subordinate o f the receiving employee. * Under §607, it is a felony “ for any person to . . . receive any contribution within the meaning o f section 301(8) of the Federal Election Campaign Act o f 1971 in any room or building occupied in the discharge of official duties by [any officer or employee of the United States].” Under the proposed practice, some administrative employees would process the direct-deposit forms, and would transmit to PACs a portion of contributing em ployees’ salaries. Even if it could be argued that these administering employees would (in some sense) handle the money from the contributing employees’ salaries prior to transmitting the contributions to the PACs, we conclude that this cannot 21 See The President— Interpretation o f 18 U.S.C. §603 Inow §607] as Applicable to Activities in the White House, 3 Op. O.L.C. 31, 32 n.3 (1979) (“ W e have not considered a . . . critical question, which turns primarily on matters o f fact, i.e., whether a solicitation w ithin the terms o f the statute has occurred.” ). 22 Section 610, which was enacted as part o f section 4 o f the HARA, 107 Stat. at 1005, provides: It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, com m and, o r coerce, any em ployee o f the Federal G overnment as defined in [HARA] section 7322(1) . . . to engage in, o r not to engage in, any political activity, including, but not limited to, voting or refusing to vote, for any candidate o r measure in any election, making or refusing to make any political contribution, o r working or refusing to work on behalf o f any candidate. Any person who violates this section shall be fm ed not more than $5,000 or imprisoned not more than three years, or both. 58 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees be considered “ receipt” or “ acceptance” of the contributions in the sense intended under the two pertinent statutes. The Attorney General addressed this issue in the early years of the Pendleton Act. Section 11 of the Pendleton Act, which was the direct predecessor of the statutes at issue here, provided in pertinent part that no congressional, judicial or executive branch officer or employee “ shall, directly or indirectly, . . . receive, or be in any manner concerned in . . . receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, or employee of the United States, . . . or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States.” 22 Stat. at 406. In 1896, Attorney General Harmon opined that section 11 should not be strictly construed to make criminal the “ purely mechanical” handling of a political con­ tribution by a federal employee. Contributions fo r Political Purposes, 21 Op. A tt’y Gen. 298 (1896). In the case the Attorney General considered, one Bellman, an agent of the Postmaster General, was detailed to be the conduit for payments by the government to secret agents. Under the “ established practice,” secret agents sent orders to Bellman to make payments out of their government remit­ tance directly to the agents’ families, creditors, etc. Id. at 299. One agent asked Bellman to pay $50 to another person, in aid of a political campaign. Bellman — who had nothing whatever to do with soliciting or inducing such a diversion of funds— did as the agent asked him. Despite the fact that Bellman knew the diver­ sion of funds was in aid of a political campaign, id., and the fact that Congress in section 11 “ absolutely prohibited the . . . receipt of political contributions by all persons in the Government service in any place or in any way,” id. at 300, the Attorney General concluded that “ I can not see how it can fairly be said that [Bellman’s action] was a violation of the provisions of [section 11].” Id. The Attorney General reasoned: It is admitted that [Bellman] did not solicit the contribution. Nor can it be said, in any proper sense o f the term, that he received it. He physically took the money from the package, but he did so merely as the agent of the owner, and so long as it remained in his possession he held it as the agent o f the owner, who had a right at any time to revoke his order and reclaim the money. This right continued until Bellman actually handed the money over to the third person, who alone can be said to have received it. When he received it it was from the secret agent in Chicago by the hand of Bellman and not from Bellman. He was accountable to the agent in Chicago and not to Bellman for its use or misuse. Bellman had no more to do with the transaction than a mere messenger would have had to whom the owner had handed it for delivery. The receipt 59 Opinions o f the Office o f Legal Counsel in Volume 19 of money, etc., intended by [section 11] is acceptance of possession which confers a right of disposal, not possession which simply con­ stitutes the taker a mere custodian without right on his own behalf or that of others. Id. at 300-01.23 W e agree with Attorney General H annon’s reasoning, and think it directly applicable h ere.24 “ The receipt of money . . . intended by [§ 7323(a)(2) and by §607] is acceptance of possession which confers a right of disposal, not possession which simply constitutes the taker a mere custodian without right on his own behalf or that of others.” Indeed, the ministerial employees under the proposed practice would not even have the option to decline to handle the contributions in question: as a part of their assigned duties, they would be required to treat allocations to PACs as they do all other allocations. We therefore conclude that, because the administering employees — like postal employees who pick up and deliver mail containing PAC contributions — would be “ mere custodians,” or conduits, of the contributions, they would not be recipients thereof. M oreover, the employees administering the allocated contributions to PACs would not be acting “ in concert with a partisan political campaign or organiza­ tion.” B iller, 863 F.2d at 1090 (emphasis added). Therefore, like the employees who “ offer” the use of the allocation system, see supra pp. 55-56, they would not be “ tak[ing] an active part in political management or in political campaigns,” and, accordingly, could not be in violation of § 7323(a)(2).25 23 See also In re Harper, reported in Thirty-fifth Annual Report o f the Civil Service Commission 178 (1919) (the Justice Departm ent, citing the “ pettiness o f the o ffe n s e /’ refused to prosecute a federal employee who had acted as a conduit, o r “ temporary custodian,” o f political contributions). 24The Civil Service Commission subsequently disagreed with the Attorney G eneral’s interpretation o f section 11; the CSC reasoned instead that “ even if [a federal employee] acts as the agent or messenger of another officer o r em ployee for the purpose o f delivering a contribution, voluntary or otherw ise, to a political committee, the receipt by the agent o f money from his principal, knowing it to be for the purpose mentioned, and both being officers o r employees o f the United States, is prohibited by the statute.” In re LeRoy, reported in Thirtieth Annual Report o f the C ivil Service C om m ission 149, 151 (1914). And, in the LeRoy case and in another case occurring at approxi­ m ately the same time, certain United States Attorneys and tw o district judges apparently agreed with the CSC’s interpretation, rather than with that of A ttorney General Harmon. See id. at 152 (reporting successful prosecution o f LeRoy); In re Dutro, reported in Thirtieth Annual Report o f the Civil Service Commission 158 (1914) (quoting ju d g e’s ruling rejecting 1896 Attorney G eneral Opinion, and reporting eventual conviction for violation o f section 11). The CSC subsequently cited the Dutro case as having “ definitively established) the principle that an employee o f the G overnm ent who receives a political contribution from another such employee as a mere agent or messenger for the purpose o f turning it over to a political organization commits a violation o f [section 11].” CSC Form 1236, “ Political A ctivity and Political Assessments o f Federal Officeholders and Em ployees,” §39, at 20 (1939). We are, however, m ore persuaded by the 1896 A ttorney General Opinion. ^ U n d e r the proposed definitions of “ accept” and “ receive” in the interim OPM regulations, the ministerial handling o f contributions could not constitute “ acceptance” o r “ receipt” o f those contributions, because the em ployees in question would not be acting “ officially on behalf o r ’ the PACs to w hich the contributions were made. See 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. §734.101). This interpretation is consistent with the holdings in Biller and Blaylock. See id. at 48,768-69 (discussing Biller and Blaylock). 60 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees C. Handling o f Contributions by Em ployees in “ H A R A -E xem pt” A gencies an d C om ponents— 5 U.S.C. § 7323(b) Under 5 U.S.C. §§7323(b)(2)-(4), employees of certain enumerated federal agencies, departments and components — including, for example, the Criminal Division of the Department of Justice— cannot “ take an active part in political management or political campaigns.” See supra p. 50. The statutory definition of this “ take an active part” standard is, moreover, the same under the HARA as it was under the pre-HARA Hatch A ct.26 Congress’s intent was that the employees in question would be “ exempt from coverage under the [HARA] and maintained under the current [i.e., pre-HARA] law.” 139 Cong. Rec. 15,789 (1993) (statement o f Sen. R oth).27 Under the old Hatch Act, OPM had interpreted the “ take an active part” standard to prohibit federal employees from handling or accounting for other fed­ eral employees’ PAC contributions,28 and OPM had, in fact, specifically deter­ mined that the persons administering the federal salary-allocation system would violate the law if the system were used for PAC contributions.29 See supra p. 51; infra pp. 68-70. The Criminal Division has argued that “ HARA-exempt” employees should still be subject to these regulatory prohibitions: [I]t appears to us that under 5 U.S.C. § 7323(b)(4), employees of . . . excluded components remain bound by the prohibitions con­ cerning political activity by federal employees that were in effect prior to 1940 which contain prohibitions on “ handling” or “ accounting for” political funds, as well as the “ solicitation,” “ acceptance,” or “ receipt” of political contributions. 5 C.F.R. § 7 3 3 .122(b)(3). The terms “ handling” and “ accounting for” seem to us broader than the terms “ solicit,” “ accept,” or “ receive” that apply to employees in the remainder of the government. If we are correct in that conclusion, and if we are correct in assuming that employees of the Criminal Division continue to be governed by the broader terms of 5 C.F.R. § 733.122(b)(3), one might reasonably argue the mere administrative processing of payroll withholding forms concerning PAC donations by the Division support staff places them at risk of inadvertently violating the Act. “ Compare 5 U.S.C. §7324<a)(2) (1988) with the current 5 U.S.C. §7323(b)(4). 527 See also, e.g., 139 Cong. Rec. at 15,743 (statement o f Sen. Roth) (exempt employees “ should continue to be Hatched” ), id. at 15,789 (statement o f Sen. Roth) (certain employees would be ‘‘exempted from the relaxation of the Hatch rule” ); id. at 16,043 (statement of Sen. Roth) (employees o f the DOJ Criminal Division would be “ exempt from the changes in the Hatch A ct” ); id. at 21,810 (statement o f Rep. Myere) (exempt employees “ will . . . continue to be covered under the (old) Hatch Act” ); id. at 21,811 (statement o f Rep. Byrne) (exempt employees are “ exclude[d]. . . from the reforms” ). 28 See 5 C.F.R. § 7 3 3 .122(b)(3) (1994), superseded, 59 Fed. Reg. 5313-15 (1994). 29 See 49 Fed. Reg. 17,431, 17,431-33 (1984) (establishing new regulations at 5 C.F.R. §§ 733.101(g)—(h). 733.122(b)(14H 16)). 61 Opinions o f the Office o f Legal Counsel in Volume 19 Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 8 (Oct. 24, 1994). We conclude, however, that the HARA-exempt employees do not necessarily “ remain bound by the prohibitions” contained in the pre-HARA OPM regulations. In the sections that follow, w e demonstrate: first, that OPM’s pre-HARA regula­ tions may not have interpreted the Hatch Act accurately; and second, that, in any event, OPM has the authority to amend those pre-HARA regulations in the manner reflected in its new regulations. In order to demonstrate why this is so, it is nec­ essary to describe in some detail the historical treatment of the “ take an active part” legal standard. 1. Before the Hatch Act: 1 8 8 3 -1 9 3 9 The Civil Service Act of 1883, ch. 27, 22 Stat. 403, better known as the Pen­ dleton Act, declared that “ no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service,” 22 Stat. at 404 and that “ no person in said service has any right to use his official authority or influence to coerce the political action of any person or body,” id. The Act authorized the President to promulgate rules to carry out the provisions of the Act, and created the Civil Service Commission (“ CSC” ) to administer the Act under the rules promulgated by the President. 22 Stat. at 403-05. In 1907, in accordance with an executive order issued by President Roosevelt, Civil Service Rule I was amended to read, in pertinent part: Persons who, by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management o r in political cam­ paigns. Twenty-fourth Annual Report of the Civil Service Commission 104 (1908) (emphasis added). The CSC thereafter exercised its authority to investigate and adjudicate alleged violations o f this Rule. The scope and meaning of the “ take no active part” clause were defined “ in the mode of the common law ” through these CSC adjudications. Civil Service C om m ’n v. N ational A ss’n o f Letter Carriers, 413 U.S. 548, 559 (1973). Between 1907 and 1939, the CSC applied Rule I in over 3000 adjudicated cases. The CSC from time to time summarized its adjudicatory rulings in the form o f guidelines. Most important for present purposes, section 17 of CSC Form 1236, published in 1939, stated: “ An employee may make political contributions to any committee, organization, or person not employed by the United States, but m ay not solicit, collect, receive, or otherwise handle or disburse the contribu­ 62 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees tions.” CSC Form 1236, “ Political Activity and Political Assessments of Federal Officeholders and Employees,” §17, at 7 (1939) [hereinafter “ 1939 CSC Form 1236” ], quoted in Appendix to Letter Carriers, 413 U.S. at 584 (emphasis added). 2. The Hatch A ct— 1939-1940 In section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress by statute extended to the entire federal service the prohibition reflected in Rule I. Section 9(a) pro­ vided in pertinent part: No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active p a rt in political management o r in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects. In its next session, Congress attempted to give some substantive content to sec­ tion 9(a)’s prohibition on taking an “ active part in political management or in political campaigns.” The Senate Committee, led by Senator Hatch, first proposed that a new section 15 of the Hatch Act authorize and direct the CSC to promulgate rules or regulations defining the term “ active part in political management or in political campaigns.” See L etter Carriers, 413 U.S. at 570 n.16 (quoting pro­ posed section 15 in S. Rep. No. 76-1236, at 4 (1940)). But this proposed conferral of “ broad rulemaking authority” to the CSC was greeted on the Senate floor with “ strong objections,” as being “ an unwise and invalid delegation of legisla­ tive power to the Commission.” Id. at 570. See, e.g., 86 Cong. Rec. 2352 (1940) (statement of Sen. McKellar); id. at 2426-27 (statement of Sen. Lucas); id. at 2875 (statement of Sen. Thomas); id. at 2924-27 (statement of Sen. Thomas); see also Henry Rose, A C ritical Look a t the Hatch A ct (“ Rose, Critical Look” ), 75 Harv. L. Rev. 510, 513 (1962) (opposition in Senate to such a broad delegation of rulemaking authority to CSC “ was strong and persistent” ). In response to this opposition to the delegation of broad rulemaking authority to the CSC, Senator Hatch offered a substitute section 15, which limited the reach of the prohibition in section 9(a) to “ the same activities . . . as the United States Civil Service Commission has heretofore determined are at the time of the passage of this act [viz., July 19, 1940] prohibited on the part of employees in the classified civil service of the United States by the provisions of [Civil Service Rule I].” See 86 Cong. Rec. 2928, 2937 (1940). Congress passed this substitute amendment. Id. at 2958-59. See Act of July 19, 1940, ch. 640, 54 Stat. 767, 111-. As later codified in 5 U.S.C. § 7324(a)(2) (Supp. Ill 1965-1967), the phrase “ an active part in political management or in political campaigns” was defined to mean: those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service 63 Opinions o f the Office o f Legal Counsel in Volume 19 before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President. Thus, under the Hatch Act, the pre-1940 “ determinations” of the CSC defined what behavior was unlawful. The decisions in these CSC cases, however, were not reported, nor were they (or are they) even available to the public; rather, the decisions were “ buried in the raw file in a dusty storage cabinet” at the CSC. Rose, C ritical Look, 75 Harv. L. Rev. at 516.30 Therefore, it was (and is) difficult to ascertain how, under Rule I, the CSC treated actions by federal employees involving the handling of political contributions.31 In addition, those adjudicatory rulings were widely perceived to be “ inconsistent, or incapable of yielding any meaningful rules to govern present or future conduct.” Letter Carriers, 413 U.S. at 571. Federal employee unions eventually challenged the definition in section 15 as being impermissibly vague. In rejecting that challenge, the Supreme Court held that Congress had not codified into law the inaccessible, “ impenetrable jungle of Commission proceedings, orders, and rulings,” id.; rather, the Court held, Con­ gress intended section 15 to transform into codified law the CSC’s “ administrative restatement of Civil Service Rule I law ” — namely, the 1939 version of CSC Form 1236 — modified as necessary to reflect provisions in the 1939 and 1940 Acts themselves. Id. at 572-74. The C ourt’s holding in Letter Carriers meant that the prohibitions summarized in the 1939 CSC Form 1236 — included as an appendix to the Court’s opinion in Letter Carriers, 413 U.S. at 581-95 — defined the scope of the prohibition con­ tained in section 9(a) of the Hatch Act. Id. at 5 72-75.32 As of 1939, the CSC rule as to political contributions was as follows: “ An employee may make polit­ ical contributions to any committee, organization, or person not employed by the United States, but may not solicit, collect, receive, or otherwise handle or disburse the contributions. (See provisions of the Criminal Code, discussed in secs. 36 to 30 See also id. at 522; M arick F. M asters & Leonard Bierman, The Hatch Act and the Political Activities o f Federal Employee Unions: A Need for Policy Reform, 45 Pub. Admin. Rev. 518, 520 (1985) (quoting C SC ’s acknowl­ edgem ent that the public cannot go to original sources to study C SC 's pre-Hatch-Act determinations, because those determinations are ‘“ embodied in diffused files and records o f the com m ission' **). 31 Some o f the C S C 's decisions were summarized in annual reports. One can glean from these reports, that the CSC, at least in certain instances, concluded that the ministerial handling o f political contributions by federal employees violated Rule 1, even where th o se employees had no political objectives o f their own and were acting solely as agents o f the contributors. For instance, in one case, the CSC requested the removal from federal service o f an em ployee who had acted as a mere conduit for another’s contributions. In re LeRoy, reported in Thirtieth Annual Report o f the C ivil Service Commission 149, 152 (1914) (reporting events that occurred in 1910-1913). O n the other hand, in a case occurring at virtually the sam e time as LeRoy, the CSC considered similar behavior merely a “ technical[] v io la tio n of] the la w ," and found it sufficient simply to issue a warning to the employee not to engage in similar conduct in the future. In re Wagner, reported in Twenty-ninth Annual Report of the Civil Service Com m ission 164, 164 (1913) (reporting events that occurred in 1910-1911). 32Accord Political Activity by Government Employees, 40 Op. A tt’y Gen. 14, 26 (1941). But see Rose, Critical Look, 75 Harv. L. Rev. at 513-14, 518 n.33 (arguing, contrary to the conclusion in Letter Carriers, that the congres­ sional purpose was in fact to codify the m ore than 3000 individual pre-1940 CSC determinations, rather than the Form 1236 pamphlet restatement). 64 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees 50.).” 1939 CSC Form 1236 at 7, quoted in Letter Carriers, 413 U.S. at 5 8 4 .33 In 1940, in light of the Hatch Act itself, the CSC changed the rule to the following: Employees may not solicit, collect, receive, disburse, or otherwise handle contributions made fo r political purposes. They may make voluntary contributions to a regularly constituted political organiza­ tion for its general expenditures. CSC Form 1236a, “ Political Activity and Political Assessments of Persons Employed by State and Local Agencies in Connection with Activities Financed in Whole or in Part by Loans or Grants Made by the United States or by any Federal Agency,” § 14, at 8 (1940) (emphasis added). However, this rule, like the others the CSC promulgated in 1939-1940, did not set in stone the scope of prohibited activities under the Hatch Act. In Letter Carriers, the Court recognized that the CSC’s definition of prohibited activities had changed over time in accordance with the CSC’s reformulation of Form 1236 and, after 1970, in accordance with the regulations that the CSC promulgated in lieu of Form 1236. 413 U.S. at 575 (citing 5 C.F.R. pt. 733). The post-1970 CSC regulations were, the Court held, the “ wholly legitimate descendants of the 1940 restatement adopted by Congress and were arrived at by a process that Congress necessarily anticipated would occur down through the years.” Id. Thus, the Court held that the contours of the “ take an active part” prohibition in section 9(a) of the Hatch Act properly had evolved in accordance with the CSC’s revised rules and regulations. Significantly, however, the Court held that Congress had established two substantial limitations on the CSC’s authority to promulgate regulations defining prohibited activities. First, those regulations were not to be promulgated pursuant to a “ broad rulemaking authority” on the part of the CSC; indeed, Congress expressly had rejected such a broad delegation of rulemaking power. Id. at 57071. Thus, the CSC’s regulations were merely interpretive, rather than legislative, or substantive.34 Second, Congress placed a specific limit on the CSC ’s power to alter Form 1236 (and subsequently, to alter its regulations): the C SC ’s further development of the law o f prohibited activities had to be “ within the bounds of, and necessarily no more severe than, the 1940 rules.” Letter Carriers, 413 U.S. at 575 (emphasis added). That is to say, the 1940 rules (i.e., the 1939 CSC Form 1236 as amended by the provisions of the 1939 and 1940 Acts themselves) provided the “ outer limits” of any subsequent redefinition of prohibited activities. 33 Sections 36 to 50 o f Form 1236, referenced in section 17, discussed several criminal statutes, including, most important, sections 11 and 12 o f the Pendleton Act, at that time codified at 18 U.S.C. §§208, 209. See 1939 CSC Form 1236 at 17-22. 34 See, e.g.. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) (discussing differences between interpretive and legislative regulations), Health Ins. Ass'n v. Shalala, 23 F.3d 412, 422-24 (D.C. Cir. 1994), cert, denied, 513 U S . 1147 (1995); Alcaraz v. Block, 746 F.2d 593, 61 3 -1 4 (9th Cir. 1984); American Postal Workers Union v. United States Postal Sen., 707 F.2d 548, 558-60 (D.C. Cir. 1983), cert, denied, 465 U.S. 1100 (1984). 65 Opinions o f the Office o f Legal Counsel in Volume 19 Id. at 576; see also id. at 571-72 (CSC could not fashion a more expansive defini­ tion of prohibited activities); id. at 574 (CSC was to proceed to perform its role under the Hatch Act “ within the limits” o f the 1940 rules). In sum, by interpreting the Hatch Act, the CSC could over time loosen, or eliminate, prohibitions found in its 1939-1940 rules, but it could not establish more restrictive prohibitions than those identified in the 1940 version of CSC Form 1236a. 3. C SC Interpretations — 1942—1978 Despite the broad ban expressed in the 1939-1940 CSC rule on the solicitation, collection, receipt, disbursement and handling of contributions made for political purposes, the CSC did not apply this rule in a literal fashion in adjudications after 1940. M ost important, the CSC held in various adjudications that “ handling” political contributions did not, without more, necessarily constitute taking “ an active part in political management or in political campaigns.” For instance, the Commission acknowledged that a postman (a federal employee) carrying mail “ handles” campaign contributions without violating the statute. In re Burns, et al., 1 Political Activities Reporter (“ P.A.R.” ) 538, 540 (1952). By the same token, an employee who did a “ trivial favor” for a friend by delivering membership cards to a political club did not thereby violate the statute. In re Hendershot, 1 P.A.R. 166, 173 (1946). In a series of cases, the Commission ruled that employees did not violate the Act by delivering fellow employees’ remittance for tickets for a political organiza­ tion’s dinner, or by delivering the organization’s dinner tickets to fellow employees, so long as the employees performing the ministerial task were not involved in promoting the dinner. In re B um s, et al. (McDonald, Green, Higgins, Chandler and K earns), 1 P.A.R. 538, 542-43 (1952); In re Hargadine, 1 P.A.R. 629, 633 (1952); In re Edwards, 1 P.A.R. 714 (1954); In re Villone, 1 P.A.R. 719 (1954). In such cases, the charged employees were “ merely endeavoring to accommodate friends,” by “ acceding” to their “ requests.” Hargadine, 1 P.A.R. at 633. The Commission accordingly refused to find a violation on the basis of such a “ minimal errand service.” Villone, 1 P.A.R. at 719. Finally, in a case of particular relevance here, the Commission found that a federal employee did not violate the Act when, “ [a]s a favor” to three supervisory employees, “ he mailed their contributions to the campaign committee of their choice.” In re Branlund, 1 P.A.R. 752, 753 (1955). Although undoubtedly this was a “ handling” of political contributions in a literal sense, id., the Commission nevertheless ruled that the employee “ took no active part in political management or in a political campaign,” id. Despite these adjudicatory decisions, the CSC continued to publish more strin­ gent rules. And in 1970, the CSC retained the strict prohibitions when it issued regulations on this subject. 35 Fed. Reg. 16,785 (1970). Thus, although under the regulations a federal employee had the right to “ [m]ake a financial contribu­ 66 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees tion to a political party or organization,” 5 C.F.R.§ 733.111(a)(8) (1971), an employee still was prohibited from “ [d]irectly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting fo r assessments, contributions, or other ■’funds for a partisan political purpose,” id. § 7 3 3 .122(b)(3). Because §733.122(b)(3) did not define a prohibition more stringent than those identified in the, 1939 and 1940 CSC rules, this regulation was within the C SC ’s delegated authority, according to the Court’s subsequent decision in Letter Carriers. By the same token, the CSC’s adjudicatory decisions limiting the severity of this prohibi­ tion, see supra p. 66, also were within the Commission’s power, because they reflected a diminution, rather than an enhancement, of the activities defined in 1939 and 1940 as constituting an “ active part in political management or in a political campaign.” 4. Dissolution o f the CSC and Creation o f O PM — 1978 Under the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress eliminated the CSC, and OPM took over CSC’s responsibility for promulgating Hatch Act regulations. See American F ed’n o f G o v’t Employees v. O ’Connor, 747 F.2d 748, 753 & n.13 (D.C. Cir. 1984), cert, denied, 474 U.S. 909 (1985).35 This authority, however, did not mean that Congress gave OPM either unlimited or dispositive power to interpret the Hatch Act. For one thing, OPM’s regulatory authority was to be no more extensive than that previously given to the CSC — that is, OPM did not inherit any “ broad rulemaking authority,” see Letter Carriers, 413 U.S. at 570-71; therefore, OPM ’s Hatch Act regulations are merely interpretive (rather than “ legislative” ) .36 Moreover, those regulations may not identify activities as prohibited unless such activities were within the group of prohibited activities defined in the CSC’s 1939 and 1940 rules. See supra pp. 6 4 -6 6 .37 35 See also Authority for Issuing Hatch Act Regulations, 18 Op. O.L.C. 1, 3 A n.6 (1994). 36 See supra p. 65 & note 34. By contrast, in another section o f the Hatch Act, Congress had granted the CSC express “ legislative” rulemaking authority with respect to another matter, namely, identifying geographical areas where federal employees could take a more active role in political campaigns and management. See Act o f July 19, 1940, ch. 640, §16, 54 Stat. 767, 771, Pub. L. No. 89-554, 80 Stat. 378, 526 (1966). Accordingly, the C SC ’s rules issued pursuant to this grant o f authority were legislative in nature, rather than interpretive. See Joseph v. CSC, 554 F.2d 1140, 1153 & nn.24-25 (D.C. Cir. 1977). This rulemaking authority was passed on to O PM in 1979, see 5 U.S.C. §7327 (Supp. UI 1979); and O PM retains this rulemaking authority with respect to the geographic exceptions under the HARA, see 5 U.S.C. §7325. Accordingly, regulations issued pursuant to that authority, see, e.g., 59 Fed. Reg. 5313, 5314 (1994) (proposed 5 C.F.R. §733.102), presumably are legislative, rather than interpre­ tive. 37 In some ways, O PM ’s regulatory authority is more limited than that previously enjoyed by the CSC. The MSPB has been assigned the task o f reviewing the “ rules and regulations o f the Office of Personnel M anagement,” 5 U.S.C. § 1204(a)(4); see also id. § 1204(f). Thus, the MSPB has oversight authority “ in the review of H atch Act regulations promulgated by the O PM .” American Fed’n o f Gov’t Employees, 747 F.2d at 755. Furthermore, the Supreme Court has explained that Hatch Act regulations themselves (now issued by OPM) should continue to be “ refined by further adjudications,” “ within the outer limits o f the 1940 rules.” Letter Carriers, 413 U.S. at 576. This refinement role once was committed to the same agency that issued the regulations — the CSC. However, the M SPB— not O PM — has “ inherited the C SC ’s ‘accustomed role’ o f refining the law of prohibited political activities through the continual decision o f cases.” American Fed’n o f Gov’t Employees, 747 F.2d at 755. 67 Opinions o f the Office o f Legal Counsel in Volume 19 5. O PM ’s A m ended Regulations on Salary Allocations to PA C s — 1982-1984 Before 1982, no agency or court had considered or addressed the applicability of the Hatch Act to PAC contributions. On December 28, 1982, OPM published proposed regulations “ to clarify the . . . existing regulatory prohibition [in 5 C.F.R. §733.122(3)] on the solicitation, payment, collection, and receipt of polit­ ical contributions.” 47 Fed. Reg. 57,724, 57,724. In order to make clear that the federal payrol 1-deduction system could not be used for political contributions, including contributions to PACs, OPM proposed to expand the Hatch Act defini­ tion of “ contribution,” 38 and to add three new subsections to the list of “ prohibi­ tions.” 39 OPM reasoned that automatic salary allocations to PACs should be impermissible because “ the use of a Federal payroll deduction scheme or the Government’s allotment system as a conduit for political contributions by Federal employees subject to the Hatch Act would involve the use of Federal workplaces and instrumentalities to pay, collect, and receive such contributions.” Id. OPM also alleged that such a practice would “ raise[] the unacceptable possibility of abuse,” and would “ enable o r encourage supervisors and co-workers to bring varieties of impermissible pressures upon the employee to [contribute].” Id.\ see also supra note 19. Public-employee unions raised numerous objections to the proposed regulations. Moreover, the Office of Special Counsel informed OPM that, in the opinion of the Special Counsel, the Hatch Act would not be violated by employees who perform the administrative and clerical “ handling” o f other employees’ PAC con­ tributions: The employees who perform the administrative and clerical chores which effect another employee’s contribution to AFGE-PAC arguably violate the Hatch Act since their duties cause them to “ indirectly . . . handle . . . contributions . . . for a partisan polit­ ical purpose.” ( See section 733.122(b)(3), Part 733.5 C.F.R.). How­ ever, this indirect, per[ip]heral “ handling” of political contributions 38 The proposed definition o f contribution was “ any gift, subscription, loan, advance, deposit of money, allotment o f money, o r anything o f value given o r transferred by one person to another, including in cash, by check, by draft, through a payroll deduction or allotment plan, by pledge or promise, w hether or not enforceable, or otherw ise." 47 Fed. Reg. at 57,725 (proposed 5 C.F.R. § 7 3 3 .101(h)) (emphasis added). 39 U nder O PM ’s proposed regulation, the following three prohibitions would have been added to the list in 5 C.F.R. §733.122: (14) Soliciting, collecting, o r receiving a contribution from any employee for any political party, political fund , o r other partisan recipient; (15) Paying a contribution to any em ployee who is the employer or employing authority o f the person making the contribution for any political party, political fund, or other partisan recipient; and (16) Soliciting, paying, collecting, or receiving a contribution, at or in any Federal workplace, for any political party, political fund , or other partisan recipient. 47 Fed. Reg. at 57,725. “ Political fund,” in turn, was defined to include any PAC that, inter alia, expends or transfers money o r anything o f value to any candidate or organization, “ for purposes o f influencing in any way the outcom e o f any partisan election.” Id. (proposed 5 C.F.R. § 7 3 3 .101(g)). 68 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees can be distinguished from that which is performed by someone as an incident to holding office in a political party or PAC. The employees who process the paperwork which accomplish the con­ tribution to AFGE-PAC are performing their official duties. The individual who “ handles contributions” for the Democratic or Republican party has identified himself with the success of a par­ tisan political party. The Hatch Act was intended to restrict federal employees with respect to the latter not the former. Memorandum for William E. Reukauf, Deputy Associate Special Counsel for Prosecution, Office of the Special Counsel, from John R. Erck, Attorney, Re: C lo­ sure Recommendation AFGE — PAC-DC, OSC M atter No. 1 0 -3 -0 0 4 6 9 (Dec. 2, 1983) (concurred in by Deputy Associate Special Counsel Reukauf on Dec. 6, 1983; transmitted to OPM on Apr. 6, 1984). Despite the unions’ objections and the Special Counsel’s opinion, OPM issued its amended regulations in final form on April 24, 1984. 49 Fed. Reg. at 17,43132. In the comment stage, the American Federation of Government Employees (“ AFGE” ) had contended that OPM lacked the authority to issue the new regula­ tions; AFGE argued that OPM would be acting outside its statutory authority by creating a new prohibition, beyond those enumerated in the 1940 CSC R ules.40 In the final regulations, OPM responded to this argument by stating that “ these regulations do not exceed the boundaries set forth in the Hatch Act. They merely clarify an existing OPM regulation (5 CFR 733.122(b)(3)).” 47 Fed. Reg. at 17,431. OPM’s defense of its authority was well-founded. OPM ’s new 1984 regulations technically did not create any prohibition broader than that already contained in the sweeping proscription found in the 1939 and 1940 CSC rules regarding the handling of contributions, see supra pp. 64-66; rather, OPM simply issued clari­ fying regulations to explain how that already-existing prohibition (5 C.F.R. §733.122(b)(3)) applied to a new fact situation — namely, salary allocations to PACs. It is important to note, however, that whereas OPM was empowered to issue the 1984 regulations, it was not required to do so; indeed, OPM could instead have modified its previous rules to permit the practice in question, which would have been in accord with the opinion of the Special Counsel (see supra pp. 6869) and with the adjudicatory decisions of the CSC (see supra pp. 6 6 -6 7 ).41 What 40 See Comments o f American Federation o f Government Employees on Proposed Rule o f Office [of] Personnel Management Amending 5 CFR Part 733, Political Activity o f Federal Employees at 20 n.13 (submitted to OPM March 4, 1983). 41 In publishing its regulations, OPM stated that “ [tjhe overwhelming majority of the former C ivil Service C om m is­ sion’s decisions . . . have held that these activities are violations o f the Hatch A ct." 49 Fed. Reg. at 17,431. OPM did not, however, cite any CSC “ decisions" in support o f this proposition, and, as explained supra p. 66, this claim is belied by the historical evidence: in contrast to the strict CSC rules, the CSC adjudications almost uniformly Continued 69 Opinions o f the Office o f Legal Counsel in Volume 19 is more, exercising its power to reinterpret the Hatch Act to loosen its prohibitions, see supra pp. 65-67, OPM could have eliminated altogether the broad prohibition found in § 7 3 3 .122(b)(3) of the regulations against “ handling, disbursing, or accounting for’ ’ political contributions. 6. The B iller and Blaylock C a ses— 1988 As we previously have noted, supra pp. 55-56, in two cases in 1988, federal courts of appeals ruled that the test of whether a federal employee had taken “ an active part in political management or in political campaigns” was whether that employee had acted “ in concert with a partisan political campaign or organization.” Biller, 863 F.2d at 1090 (emphasis added); accord Blaylock, 851 F.2d at 1356 (“ the Hatch Act is violated only by actions taken in concerted effort with partisan activity or formal, organized, political groups” ). The legal status of federal-employee salary allocation to PACs thus was in a state o f flux following Biller and Blaylock. On the one hand, the OPM regulations plainly prohibited any federal employee from “ directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, con­ tributions, or other funds for a partisan political purpose,” 5 C.F.R. § 733.122(b)(3) (1994); and the 1984 amendments to the regulations made clear that this prohibition extended to salary-allotment systems, id. §733.101(h), and included contributions to a PAC so long as that PAC “ expends” or “ transfers” money to, inter alia, any political party, candidate, or organization, id. § 7 3 3 .101(g). On the other hand, B iller and Blaylock could fairly be read to indicate that federal employees who performed the ministerial acts of handling, processing, and transferring fellow employees’ PAC contributions would not vio­ late the Hatch Act, because those ministerial actions would not be undertaken “ in concert w ith” any partisan political campaign or organization, including the PAC itself. 7. The H atch A ct Amendments — 1993—94 In the HARA, Congress retained the old Hatch Act definition of “ tak[ing] an active part in political management or in a political campaign” : i.e., “ those acts o f political management or political campaigning which were prohibited for employees o f the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.” 5 U.S.C. § 7323(b)(4). There is, moreover, no reason to believe that Congress intended the content or scope o f this definition to be anything other than what the Supreme Court described in L etter Carriers. See supra pp. 63-66. OPM continues to have the same regulatory authority that it enjoyed under the pre-1993 Hatch Act to define the contours o f “ tak[ing] an active part in political m anagem ent or in a political campaign.” See supra pp. 66-67. Pursuant to that had held that m ere ministerial handling o f political contributions by federal employees did not constitute taking an “ active part in political management or in a political cam paign." 70 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees authority, OPM superseded its old Hatch Act regulations on February 4, 1994. 59 Fed. Reg. 5313-15. Thereafter, on September 23, 1994, OPM published interim regulations. In those regulations, OPM has eliminated from the list of prohibited activities — including from the list of activities prohibited for “ HARA-exempt” employees — the four subsections (formerly 5 C.F.R. §§733.122(b)(3), (14)—(16)) that were the basis for OPM ’s conclusion in 1984 that salary allocations to PACs were prohibited, see supra pp. 68-70. Thus, there currently is nothing in OPM ’s regulations prohibiting “ handling,” or “ accounting for,” political contributions. 8. Summary This historical survey demonstrates why, for two reasons, HARA-exempt employees are not bound by law to the terms of OPM ’s pre-HARA regulations. First, it is far from clear that it would have been impermissible to “ handle” or “ account for” other employees’ PAC contributions prior to the HARA. While it is true that, by their plain terms, the OPM regulations previously found at 5 C.F.R. §§733.122(b)(3), (14)—(16) prohibited the actions at issue, it also is true that those regulations were contradicted by: (i) the adjudicatory decisions of the CSC in the years immediately following passage o f the Hatch Act, see supra pp. 66-67; (ii) the opinion of the Special Counsel in 1983, see supra pp. 6 8 69; and, most importantly, (iii) the decisions of the Second and Eleventh Circuits in Biller and Blaylock, respectively, see supra p. 70. These other authorities held that the ministerial “ handling” of political contributions was not proscribed by the Hatch Act if the employee doing the handling was not acting on behalf of the political group or candidate to which the contribution was made. Second, even if the pre-1994 OPM regulations had constituted binding and applicable law prior to the HARA, the HARA did not codify into law the terms of those prior regulations with respect to HARA-exempt employees. Rather, the HARA simply left intact the Hatch Act definition of “ active part in. political management or in political campaigns.” As we have explained, supra pp. 6 5 70, this definition was not static: OPM (previously the CSC) was empowered to alter the definition in the direction of more permissive regulation. OPM con­ tinues to have that authority under the HARA. In the proposed regulations, OPM has exercised its delegated authority to redefine what constitutes an “ active part in political management or in political campaigns.” Whereas “ handling” and “ accounting for” such contributions once were proscribed by the OPM regulations, they no longer are. OPM ’s redefinition, moreover, comports with the great weight of authority over the years respecting the ministerial handling of political contributions, including the adjudicatory decisions of the CSC after the Hatch Act and the decisions of the courts of appeals in Biller and in Blaylock. Therefore, the OPM regulations now are in accord with the other authorities on the matter, and there no longer is any bar on the ministerial handling of, or “ accounting for,” political contributions, including contributions to PACs. 71 Opinions o f the Office o f Legal Counsel in Volume 19 O. P olitica l A ctivity On D uty and in a F ederal B u ildin g— 5 U.S.C. § 7324 The Criminal Division has asked whether any of the participants in the proposed practice would violate the prohibitions stated in 5 U.S.C. §7324. Almost all cov­ ered employees, whether or not they are HARA-exempt, may not engage in “ political activity” : (i) while on duty; (ii) while in “ any room or building occu­ pied in the discharge of official duties by an individual employed or holding office in the Government o f the United States or any agency or instrumentality thereof” ; (iii) while wearing a uniform or official insignia identifying the employee’s office or position; or (iv) while using any vehicle owned or leased by the federal govern­ ment. 5 U.S.C. §7324(a)(l)-(4). An exception to these prohibitions is made for certain employees whose duties and responsibilities continue “ outside normal duty hours and while away from the normal duty post.” Id. § 7324(b)(2)(A). These employees may engage in on-duty or on-premises political activity, but only “ if the costs associated with that political activity are not paid for by money derived from the Treasury o f the United States.” Id. § 7324(b)(1). Congress did not define “ political activity” in the HARA. OPM has proposed that “ political activity” be defined as “ an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. §734.101). We think that this definition, as far as it goes, comports with Congress’s intent. But it is important to note one other salient fact: It is evident from the statements o f the H A R A ’s leading sponsors that Congress intended to create a bright-line rule, with no exceptions: section 7324(a) prohibits covered employees from engaging in all on-duty and on-site political activity.42 As the principal Senate 42See, e.g., 139 Cong. Rec. 15,365-68 (1993) (statement o f Sen. Glenn) ( “ no political activity of any kind on the jo b ” ; “ nothing political on the job, not even a lapel button o f any size” ; political activity on the job “ would be absolutely and unequivocally prohibited . . . ; no political activity on the job, zero, including even what is per­ mitted under to d ay ’s Hatch A ct” ; "N othing on the job. Cannot even wear a campaign button on the jo b ."; “ all political activity on the job would be b an n ed "; "A bsolutely no political activity will be acceptable on the jo b "); id. at 15,376 (statem ent o f Sen. Glenn) ( “ unequivocally, . . . — no political activity on the jo b ” ); id. at 15,53132 (statement o f Sen. G lenn) ( “ Simply p u t . . . what S. 185 does is say that you do not even permit anything on the jo b that has been permitted ail these years under the Hatch Act. You cut it out. There will be no politics on the jo b , none.” ; “ O n the job, you can do nothing, period.” , “ no button [of] any kind, on the job, no kind o f political activity on the jo b period” ; “ N o political activity on the jo b — zero— including even what is permitted today.” ); id. at 15,739-41 (statement o f Sen. Glenn) ( “ [Tlhere will be no political activity on the job. There are no exceptions to that. There will be no political activity o f any kind on the job.” ; “ This bill would say on the job, you can d o absolutely nothing political. You cannot have a campaign button on. You cannot do anything.” ); id. at 16,038 (statem ent o f Sen. Glenn) (“ W e prohibit all political activity on the job with S. 185. I keep hammering . . . and ham m ering that thought home, because there has been so much misunderstanding. We tighten up the Hatch Act and make it tougher than it now is. N o political contributions, no political activity, no wearing of a button on the jo b .” ; “ [o]n the job, zero” ); id. at 16,054 (statement o f Sen. DeConcini) (“ The prohibition on workplace activity is an absolute prohibition."). In an earlier session o f Congress, Senator G lenn— the chief sponsor o f Hatch Act reform legislation— expressed the same understanding w ith respect to an identical provision, noting that the on-the-job prohibition “ has to be Sim on p u re — you cannot do anything." 136 Cong. Rec. 9156 (1990); see also id. at 9358-59 (statement of Sen. G lenn) (“ None. A one-w ord answer, no political activity on the jo b ." , “ nothing o f a political nature is permitted on the job; I mean nothing” ; “ This would clarify it. This would say anything on the job is verboten, it is out, it is not permitted. . . . If you are on duty an d you are on the job, that is it, no politics."); id. at 10,034 (statement o f Sen. G lenn) ( “ there can be no political indication, there can be no political activity on the job; none, period; 72 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees sponsor of the bill stated, on-the-job political activity “ would be absolutely and unequivocally prohibited.” 139 Cong. Rec. 15,366 (statement of Sen. Glerrn).43 Thus, for example, Congress intended to prohibit the wearing of political buttons on duty.44 Nor can covered employees stuff envelopes with political materials or send out campaign materials while they are on the job or in a federal building— such activities are permitted only off-site and “ off the job.” 45 Most important for present purposes, political contributions, including PAC contribu­ tions, cannot be “ request[ed]” nor “ given” while on the job: “ [i]t would be no solicitation, no public statement, no nothing on the job o f a political nature” ); id. ai 15,098 (statement o f Sen. Glenn) (“ Nothing can be done o f a political nature while you are on the jo b during the day. Nothing. Zero. That is it.” ; “ All political activity on the job is banned. Everything.” ). Earlier in that same session, several sponsors o f equivalent legislation in the House also spoke o f the on-duty ban in absolutist terms. See, e.g., 135 Cong. Rec. 6767 (1989) (statement o f Rep. Horton) ( ‘‘No on-the-job political activity will be allowed. Just that simple, none whatsoever.” ); id. at 6773 (statement of Rep. Martin) ( “ prohibits any political activity whatsoever on the jo b ” ); id. (statement of Rep. Morelia) ( “ It will ban absolutely all politicking in the Federal workplace . . . . By taking this black and white approach, no partisan political activities on the job, any otherwise legal activities o ff the job, the Hatch Act reform bill would clear up the ambiguity and vagueness . . . .” ); id. at 6777 (statement o f Rep. Parris) ( “ 'bright line* rule” — “ prohibiting all on-the-job political activity while permitting participation in any otherwise legal political activity during the Federal em ployees’ ow n tim e” — “ would provide clear guidance on permissible activity” ). 43O PM ’s proposed regulations reflect this absolute, bright-line rule, creating distinctions that might otherwise seem hypertechnical. See 59 Fed. Reg. at 48,774 (proposed 5 C.F.R. §734.306, Example 10) (“ An employee may stuff envelopes for a mailing on behalf o f a candidate for partisan political office while the employee is sitting in the park during his lunch period if he is not considered to be on duty during his lunch period.” ); id. (proposed 5 C.F.R. §734.306, Example 11) ( “ An employee may engage in political activity in the courtyard outside o f a Federal building where no official duties are discharged as long as the employee is not on duty.” ). 44 See, e.g., S. Rep. No. 103-57, at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1815; 139 Cong Rec. 15,36667 (1993) (statement o f Sen. Glenn); id. at 15,532 (statement o f Sen. Glenn); id. at 15,741 (statement o f Sen. Glenn); id. at 15,785 (statement o f Sen. Sarbanes); id. at 16,039 (statement o f Sen. Glenn); id. at 16,054 (statement of Sen. DeConcini); id. at 3275 (statement o f Rep. Upton); see also, e.g., 135 Cong. Rec. 6773 (1989) (statement of Rep. Morelia). Insofar as the broad ban on “ political activity” in §7324 establishes an across-the-board prohibition on certain forms of on-duty expressive activity— such as, e.g., wearing buttons or putting up bumper stickers — it may raise difficult constitutional questions. Compare, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973) (insofar as state law restricts public employees from wearing political buttons or displaying political bumper stickers, such restrictions “ may be . . . unconstitutional” ); Hobbs v. Thompson, 448 F.2d 456, 475 (5th Cir. 1971) (banning firefighters from displaymg political bum per stickers is unconstitutional); American Fed'n o f Gov’t Employees v. Pierce, 586 F. Supp. 1559, 1561-63 (D.D.C. 1984) (Veterans Administration policy absolutely prohibiting employees from wearing polit­ ical buttons on duty is unconstitutional); McNea v. Garey, 434 F. Supp. 95, 108-11 (N.D. Ohio 1976) (municipal regulation prohibiting police officers from all discussions or expressions o f politics is unconstitutional); Weaver v. Shaffer, 170 W. Va. 107, 108-09, 114, 290 S.E.2d 244, 245-46, 251 (W. Va. 1980) (state law prohibiting deputy sheriffs from engaging in “ any political activity o f any kind” would be unconstitutionally overbroad were it not for court’s interpretation o f that ban to proscribe only those political activities that the Supreme Court in Letter Carriers decided may constitutionally be proscribed), with, e.g.. Wicker v. Goodwin, 813 F. Supp. 676, 678, 681 (E.D. Ark. 1992) (state law prohibiting state troopers from publicly and openly espousing candidacies is not unconsti­ tutional); Connealy v. Walsh, 412 F. Supp. 146, 158 (W.D. Mo. 1976) (juvenile court regulation prohibiting employees from displaying political bumper stickers on vehicles used for court business or parked in court parking lot is not unconstitutional); State ex rel. Troutman v. City o f Farmington, 799 S.W.2d 638, 642-43 (Mo. App. 1990) (municipal laws and regulations prohibiting police officers from expressing opinions on political subjects and can­ didates on duty, and from displaying on duty any political pictures, stickers, badges or buttons, are not unconstitu­ tional); Ferguson Police Officers Ass’n v. City o f Ferguson, 670 S.W.2d 921, 928-29 (Mo. App. 1984) (city provision prohibiting police officers from speaking, literally o r through bumper stickers, signs and buttons, in favor or against candidates for city council, is not unconstitutional); State v. Staler, 122 So. 2d 1 (Fla. 1960) (state statute prohibiting state employees from “ advising” other employees to make political contributions is not unconstitutional, even as to “ advice” that is not coercive in nature). We have no occasion in this Opinion to address these constitutional questions. 4 iSee, e.g., 139 Cong. Rec. at 1233 (statement o f Sen. Glenn); id. at 15,368 (statement of Sen. Glenn); id. at 15,785 (statement o f Sen. Sarbanes); see also , e.g., 136 Cong. Rec 10,035 (1990) (statement o f Sen. Glenn). 73 Opinions o f the Office o f Legal Counsel in Volume 19 illegal to give as well as to ask for” such contributions while on duty. 139 Cong. Rec. 16,039 (statement of Sen. Glenn ) . 46 With this understanding o f the meaning of “ political activity” in §7324, we can now examine whether and under what circumstances any of the participants in the proposed salary-allocation practice would violate the restrictions in that statute. 1. Offerors The Criminal Division has argued that “ the circulation of the proposed payroll withholding offer . . . may constitute [on-duty and on-site] ‘political activity.’ ” M emorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 7 (Oct. 24, 1994) (citing 5 U.S.C. §7324). But, just as making available the salary-allocation system for PAC contributions cannot fairly be considered “ solicitation,” see supra pp. 53-58, neither can it fairly be considered “ political activity.” As long as the heads of agencies making such offers do not request employees to make use of the allocation system, and do not favor one PAC over another (or favor allocation to PACs over nonalloca­ tion), then it is hard to see how they would be engaged in “ political activity,” any more than they would be when they authorize their employees to take an excused absence, with pay, in order to vote in an election. See, e.g., Department o f Justice Order No. 1630.1B, ch. 14, §91(b) (July 22, 1991) (heads of compo­ nents may, under certain circumstances, authorize excused absence for employees who wish to vote or register to vote in any election). Under OPM ’s proposed regulation — which we think is an accurate interpretation of § 7 3 2 4 — activity becomes “ political,” and thus proscribed on duty and in federal buildings, only when it is “ directed toward the success or failure of a political party, candidate for partisan political office, o r partisan political group.” See supra p. 72. The neutral offer of access to the salary-allocation system proposed by OPM would not be proscribed under this standard; while such action may facilitate political activity, it is not political activity itself. 2. Adm inistering Employees The Criminal Division further has suggested that federal employees imple­ menting other employees’ salary allocations to PACs may violate the HARA prohibition against “ political activity” on duty or in federal facilities. Memo­ randum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 7 (Oct. 24, 1994). 46 Accord 136 Cong. Rec. 9777 (1990) (statem ent o f Sen. Glenn with respect to materially identical legislation) ( “ N o political activity, no political contributions, no nothing by Federal employees while they are on the job.” ) (em phasis added). 74 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees We conclude, however, that the employees who would perform the acts of m in­ isterial facilitation of PAC contributions would not thereby engage in “ political activity.” The actions of those employees would not be undertaken with any intent to benefit the PACs; the employees in question would merely be providing a service that they are required by duty to provide, in response to requests by other employees over which the facilitating employees have no control. (Indeed, insofar as the authorization forms merely request salary assignments to particular bank accounts, the employees administering those assignments may well be unaware that they are dealing with PAC contributions— that is to say, the administering employees’ involvement in political activity could be entirely unwitting.) Again, under OPM ’s proposed regulation, an activity is “ political activity” — and therefore cannot be performed on duty — if that activity is “ directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” We think the “ political activity” ban in the statute, and the “ directed toward the success or failure” language of the proposed regula­ tion, fairly read, contain an implicit intent requirement: an employee’s activity is not “ political activity” unless that employee intends that the activity be directed toward the success or failure of a political party, candidate, or group. If an employee merely acts at the behest, or “ direction,” of another employee, and has no independent intent to assist in the “ success or failure” of the political party, candidate, or group, then that employee would not herself be engaged in “ political activity.” 47 The employees in question here would facilitate the PAC contributions not because they intended to assist the PAC, but because their duty required them to do so: they would have no discretion in the matter. Were it the case that employees could violate § 7324(a) by virtue of any ministerial and/ or unwitting assistance in political activity, regardless of an intent to advance any political end, then any postal employee delivering a mailed political contribution would violate § 7324(a). That could not have been Congress’s intent. 3. Contributors The most troublesome aspect of the proposed use of the salary-allocation system for PAC contributions arises with respect to the federal employees who would actually be making the contributions through the use of that system .48 We first must address a threshold question: whether an employee engages in “ political activity” under §7324 when the employee takes steps to have a portion of his or her salary transmitted to a PAC. Federal employees are, as a general matter, permitted under the HARA to make contributions to partisan political can­ didates and to partisan political organizations such as PACs. See, e.g., 59 Fed. 47 This assumes, o f course, that the facilitating employee, as pan o f her job duties, simply administers all salary allocations equally and without favor, and does not have an independent intent to “ direct,” or effect, the political contribution. 48 There is nothing in O PM ’s regulations that speaks directly to the questions raised in this section. Nonetheless, we note that none o f our conclusions in this section is in any way inconsistent with those proposed regulations. 75 Opinions o f the Office o f Legal Counsel in Volume 19 Reg. at 48,772 (proposed 5 C.F.R. § 734.208(a)). However, it also is clear under the HARA that making such a political contribution is “ political activity,” see 18 U.S.C. §610, and therefore is subject to the restrictions of §7324. Furthermore, in light of Congress’s obvious intent that “ political activity” be read as broadly as possible, see supra pp. 1 2 -1 A, it is plain that a federal employee also engages in “ political activity” by taking action sufficient to effect the making of a political contribution, such as by taking steps to ensure that a portion of his or her salary is contributed to a political campaign or to a PAC. OPM does not dispute that making contributions to partisan political campaigns or candidates is “ political activity.” 49 OPM contends, however, that under the Second Circuit’s holding in B iller, making contributions to PACs is not a “ polit­ ical activity,” because such contributions are not necessarily partisan in nature. See Letter for Dawn E. Johnsen, Deputy Assistant Attorney General, Office of Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel M anagement at 9 (Nov. 4, 1994); Letter for Dawn E. Johnsen, Deputy Assistant [Attorney General], Office o f Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel Management at 3 -4 (Dec. 13, 1994). In B iller, two union presidents had urged their members— fellow federal employees — to contribute funds to the unions’ PACs. The Second Circuit ruled that the fundraising pleas of the union presidents were not solicitations in concert with a partisan political campaign or organization. 863 F.2d at 1090. The court reasoned as follows: [A]s the ALJ found, the funds [contributed to union PACs] were “ not designated for any political campaign, party, committee or candidate a t the time th ey were m ade.” . . . [T]here is no proof in the record that suggests either that petitioners were acting in con­ cert with a partisan political campaign o r that the funds were actu­ a lly distribu ted or spent fo r that purpose. On that subject, the record is silent. Id. (emphasis added). The court did not address whether its decision would have been different if the record had indicated that the union PACs “ actually distrib­ uted or spent’ ’ their collected funds for a partisan political campaign. Even if we assume that PAC contributions could not be considered “ partisan” activities under B iller’s interpretation of the old Hatch A ct,50 OPM ’s reliance on this aspect of B iller is unpersuasive under the HARA, for the following reasons. 49This is confirm ed in O P M ’s proposed regulations. Making political contributions to a political candidate would be “ political activity” because it is “ an activity directed toward the success or failure of a political party, candidate for partisan political office, o r partisan political group.” 59 Fed. Reg. at 45,770-71 (proposed 5 C.F.R. §734.101). 50T he Second Circuit suggested that this might not be the case if and when the contributed PAC funds “ were actually distributed o r sp en t” by the PACs on partisan political campaigns. 863 F.2d at 1090. The subsequent confu­ sion engendered on this question is exemplified by the positions articulated by the Special Counsel. In 1992, the Special Counsel com m ented that, under her reading o f Biller, encouraging contributions to PACs did not implicate 76 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees Although there are indications in the congressional floor debates that some members of Congress may have intended the HARA to prohibit only partisan political activity on duty and in a federal building,51 the language of §7324 does not refer to “partisan political activity” — an omission that seems fairly con­ spicuous in light of the Hatch Act’s prior focus on partisan activity. For purposes of this Opinion, we need not decide whether §7324 of the HARA does (or con­ stitutionally may) prohibit any or all political activity relating to nonpartisan issues and elections. It is sufficient for present purposes simply to note that, regardless of how that question would be answered, and whether or not PACs can in some sense be considered “ nonpartisan,” one thing is clear: Congress intended that making contributions to PACs is to be considered “ political activity” under the terms of the HARA. This conclusion is compelled by the language of the statute itself. Congress indicated in section 4 of the HARA, 107 Stat. at 1005 (creating 18 U.S.C. §610) that “ making . . . any political contribution” is “ political activity.” “ Political contribution,” in turn, is defined to include “ any gift . . . or deposit of money or anything of value, made for any political purpose.” 5 U.S.C. §7322(3)(A). Indeed, Congress specifically identified contributions to multicandidate political committees as “ political contributions” in § 7323(a)(2) of the statute.52 Because a multicandidate political committee is a type of PA C ,53 it follows that making a contribution to a PAC is “ political activity,” at least as that term is understood in the HARA.54 This conclusion is bolstered by the fact that the leading Senate the Hatch Act if those contributions “ were not earmarked for distribution to partisan groups or candidates when the request was m ade.” Transcript o f Tenth Annual Judicial Conference o f the United States Court o f Appeals for the Federal Circuit, 146 F.R.D. 205, 276 (1992) (comments o f Special Counsel Kathleen Koch). However, that same year, the Special Counsel informed covered employees that “ active participation” or “ active involvement” in a PAC was prohibited with respect to those PACs that “ function to ensure the success or failure of certain partisan political candidates.” Office o f Special Counsel, Hatch Act Facts . . . About PACs 2-3, 4 (1992). 51 See, e.g., 139 Cong. Rec. at 3278 (statement o f Rep Ford) ( “ employees would continue to be prohibited from engaging in partisan political activity while on duty” ); id. at 3281 (statement of Rep. Gephardt) (taxpayer money may not be used for “ partisan political purposes” ); id. at 15,370 (statement o f Sen. Roth) (bill would prohibit “ partisan political activity” on duty), id. at 16,038-39 (statement o f Sen. Glenn) (the prohibition “ means that no partisan political activity can occur during working hours” ); id at 21,818 (statement of Rep. Ford) (“ employees would continue to be prohibited from engaging in partisan political activity while on duty” ). 52 In § 7323(a), Congress banned solicitation o f all “ political contributions” except those made under certain cir­ cumstances to particular multicandidate political committees. Congress must have considered contributions to such committees to be “ political contributions,” because otherwise there would have been no need to carve out the exception. 53Section 7323(a)(2)(C) refers to “ multicandidate political com m ittees,” as that term is defined under section 315(a)(4) o f the Federal Election Campaign Act o f 1971, 2 U.S.C. §441a(a)(4). Such a committee, by definition, “ has made contributions to 5 or more candidates for Federal office.” 2 U.S.C. §441a(a)(4). This is a PAC under the definition we are using in this Opinion, see supra note 4. 54 Under the definition o f PAC that we are using in this opinion, see supra note 4, PACs that are not multicandidate political committees also make contributions or expenditures to influence campaigns for partisan political office; therefore, there is nothing about such PACs to distinguish them from multicandidate political committees for purposes o f the present discussion. A federal employee contributing to any PAC would know that her contribution would be used— at least in p a rt— to support one or more partisan candidates for political office. See FEC v. California Med. Ass‘nf 502 F. Supp. 196, 201-03 (N.D. Cal. 1980) (holding that it is necessary to presume, as a m atter of law, that at least a portion o f every contribution to a PAC that makes contributions in federal elections w ill be used by the PAC for contributions to such elections, even if the PAC uses a majority o f its funds for other purposes); Continued 77 Opinions o f the Office o f Legal Counsel in Volume 19 sponsor of the HARA, Senator Glenn, referred specifically to PAC contributions in explaining what activity would be prohibited on duty. See 139 Cong. Rec. 16,038 (1993). Thus, a federal employee does engage in political activity by taking steps — such as transmitting direct-deposit forms to the appropriate payroll officials — sufficient to ensure that a portion of his or her salary is transferred to a PAC. In the following sections, we discuss whether and when such activity would vio­ late §7324. a. Em ployees C overed Under § 7324(b) In § 7324(b), Congress addressed the political activity of certain employees who are not covered under §7324(a), to whom we will refer as “ 7324(b) employees.” The employees in question are those “ the duties and responsibilities of whose positions continue outside normal duty hours and while away from the normal duty post,” and who are either (i) “ employee[s] paid from an appropriation for the Executive Office o f the President” ; o r (ii) “ employee[s] appointed by the President, by and with the advice and consent of the Senate, whose position[s] [are] located within the United States, who determine!] policies to be pursued by the United States in relations with foreign powers or in the nationwide adminis­ tration of Federal law s.” 5 U.S.C. § 7324(b)(2).55 Such employees “ may engage in political activity otherwise prohibited by subsection (a),” 5 U.S.C. § 7324(b)(1), such as political activity on duty. This special treatment was necessary because these employees are, for purposes of the HARA, “ considered to be continuously on duty,” and “ [w]ithout this exception, the language of [§ 7324(a)] could be read to preclude political activity at any time by these individuals.” H.R. Rep. No. 103-16, at 22 (1993). Because the “ on-duty” prohibitions were therefore unworkable for the § 7324(b) employees, Congress allowed those employees to engage in political activity, but only “ if the costs associated with that political activity are not p a id fo r by m oney derived from the Treasury o f the United States." 5 U.S.C. §7324(b)(l). Therefore, the §7324(b) employees cannot use the federal salary-allotment system to make political contributions, such as con­ tributions to PACs, because the costs incurred in making such contributions— see also California Med. Ass’n v. FEC, 453 U .S. J82, 199 n.19 (1981) (plurality opinion) (even if person contributing to PAC attempts to “ e arm a rk []” such contribution for nonpolitical purposes (e.g., “ administrative support’*), it must be assumed as a m atter o f law that the funds will be used for the PA C ’s contributions to political campaigns). Insofar as federal em ployees might wish to m ake contributions to political committees that have not made, and do not make, contributions or expenditures to influence cam paigns for partisan political office— that is, to committees other than those we have defined as “ PA C s” — such employee contributions would be beyond the scope of this O pinion. See supra note 4. 55 It m ay be unclear whether certain em ployees are covered under the two-part test o f § 7324(b). And, as OPM itself has noted, “ in view o f the different circumstances o f each employee who might claim coverage,” it would be “ impractical to seek to identify all positions which qualify” for §7324(b) status. 59 Fed. Reg. at 48,769. If it is unclear whether a particular employee falls within the aegis o f § 7324(b), a request can be made to the Office of Special Counsel for an advisory opinion on th at question. See 5 C.F.R. § 1800 3. 78 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees specifically, the costs of processing and transmitting the money to the PACs — would be “ paid for by money derived from the Treasury of the United States.” 56 b. All Other Federal Employees Covered by the HARA All other federal employees covered by the H A R A 57 may not engage in “ polit­ ical activity” : (i) while on duty; (ii) while in “ any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof” ; (iii) while wearing a uniform or official insignia identifying the employee’s office or position; or (iv) while using any vehicle owned or leased by the federal govern­ ment. 5 U.S.C. §7324(a)(l)-(4). It follows that such an employee may not make contributions to PACs while in a federal building or while on duty. Furthermore, if such an employee wishes to take steps to effect a transfer of a portion of her salary to a PAC — such as transmitting to the appropriate authorities the forms authorizing such salary trans­ fers— she must do so only when off-duty and outside a federal facility. Under the proposed practice, then, covered employees would violate § 7324(a) if they were to fill out and transmit the necessary direct-deposit forms while on duty or in a federal building. OPM contends that “ [t]o allow employees to mail allotment authorizations but not hand them directly to payroll personnel would result in an illogical and unenforceable arrangement.” Letter for Dawn E. Johnsen, Deputy Assistant [Attorney General], Office of Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel Management at 4 (Dec. 13, 1994). Indeed, requiring employees to be off duty when they transmit authorization forms to payroll per­ sonnel may seem like a legalistic technicality. Nonetheless, this result comports with Congress’s objective to create a bright-line rule — that the § 7324(a) prohibi­ tions be “ absolute[] and unequivocal]” — so that there could be no ambiguity or vagueness about what is and is not permitted on duty. See supra pp. 72-74 & nn. 42-46. Accordingly, the prohibition we have identified here is similar to some of the examples OPM has identified in its proposed regulations — for 56Under the Federal Leave Act, see 5 U.S.C. §§6301(2)(x) and (xi), certain employees are not subject to the annual-leave and sick-leave provisions o f chapter 63 o f title 5, in part because such employees are, for leave purposes, considered to have duties that continue beyond normal duty hours. See also 5 C.F.R. §§630.21 l(b)( 1)—(3). As the House Report on HARA noted, such employees may, fo r Leave Act purposes, be “ presumed to be on duty at all times “ See H.R. Rep. No. 103-16, at 23 (1993). However, some o f these employees will not satisfy one of the other requirements to fall within HARA § 7324(b)— for example, their appointment may not be subject to the advice and consent o f the Senate. It is important to note that these leave-exempted employees who are not covered by §7324(b) should not be considered “ continuously on duty” for purposes of HARA §7324, even where their exclusion from the Leave Act is “ based on the presumption that the position requires the employee to be on duty at all tim es." Id. If such employees were considered “ continuously on duty” for purposes of §7324, they would never be permitted to engage in any political activity— including voting, making contributions, etc. But Congress intended that §7324 would not “ preclude political activity” for employees “ at any tim e.” Id. at 22. Therefore, for purposes o f HARA §7324 (albeit not necessarily for purposes o f the Leave Act), such employees should be considered to be on duty only during their “ regular,” o r “ ordinary,” duty hours, and remain “ free to engage in political activity . . . [o]n their own tim e.” Id. at 23. 37 See supra note 8. 79 Opinions o f the Office o f Legal Counsel in Volume 19 example, that an employee m ay not stuff envelopes with political literature while in a federal building, but may do so while sitting in a park during his lunch period if he is not considered to be on duty during that lunch period. See 59 Fed. Reg. at 48,774 (proposed 5 C.F.R. §734.306, Example 10); see also supra note 43. Given that Congress has precluded all political activity from occurring (for example) in federal buildings, it is not illogical to require employees who engage in such activity to do so outside of those buildings. The question then becomes whether contributing employees would violate § 7324(a) even if they are off duty and outside a federal building when they fill out the relevant forms and transmit those forms to the appropriate administrative officials. Such a practice might at first glance appear objectionable, because an employee acting in such a manner would cause other federal employees— i.e., the “ administering employees” — to do, on her behalf, precisely what the contrib­ uting employee may not herself do: send a contribution to a PAC while on duty and from a federal building.58 Although, for reasons explained below, this is a close question, we conclude that an employee acting in this manner would not violate §7324(a), because none of that employee’s “ political activities,” or activi­ ties “ directed toward the success” of the PAC, would violate the plain terms o f the four prohibitions in that subsection. In particular, such an employee would not be on duty or in a federal building when she engaged in political activity. O f course, the federal government subsidizes the transmission costs associated with transferring funds from em ployees’ salaries to PACs. And there is some evi­ dence that one of Congress’s goals in enacting §7324 was to prevent federal employees from using taxpayers’ funds to engage in political activity.59 For example, the House Majority Leader stated: “ Any on-the-job political activities are prohibited. It prohibits any use of taxpayer money for partisan political pur­ poses.” 139 Cong. Rec. 3281 (1993) (statement of Rep. Gephardt).60 Moreover, 58 W e explained above that, in such a case, the administering employees would not themselves violate the onduty prohibition, because they are not the persons “ directing” the activity toward the success o r failure o f the PA C to which the contribution is made, and may even be entirely unaware that their activity in any way involves political allocations. See supra p. 75. By contrast, however, the contributing employee would be engaged in “ directing” the on-duty, on-premises activity toward the success o f the PAC. 59 In 1984, O PM itself apparently was o f th e view that, under the pre-HARA Act, similar considerations wan-anted a restriction prohibiting the practice at issue here: “ [T]he use o f a Federal payroll deduction scheme or the Govern­ m ent's allotm ent system as a conduit for political contributions by Federal employees subject to the Hatch Act w ould involve the use o f Federal workplaces and instrumentalities to pay, collect, and receive such contributions.” 47 Fed. Reg. at 57,724. 60 Several H ouse m embers in an earlier Congress expressed the same understanding with respect to a materially identical “ o n -d u ty ” prohibition in H.R. 3400, 100th Cong. (1987) (proposing new 5 U.S.C. §7324{a)(l)-(4)(B )). See, e.g., 133 Cong. Rec. 32,087 (1987) (statem ent o f Rep. Horton) (“ It . . . prohibits use of taxpayer money for political purposes” ); id. at 32,088 (statement o f Rep. Ridge) ( “ [Pjolitical work . . . cannot be allowed on the taxpayer’s time. It cannot be done on Federal Government time, with Federal information or equipment.” ); id. at 32,104 (statem ent o f Rep. Rahall) (bill prohibits “ use o f taxpayer money for political activities” ); id. at 32,105 (statem ent o f Rep. Biaggi) (same); see also 135 Cong. Rec. 6776 (1989) (statement o f Rep. Gephardt) (bill would “ prohibit governm ent facilities from being used for partisan political purposes” ). This is not to say that legislators provided no other reasons for the “ on-duty” prohibition. For example, there are snippets o f the legislative history of the HARA in 1993 suggesting that Congress also expected the “ on-duty” prohibition to: (i) foreclose the possibility o f coercion o f subordinate employees by supervisory employees, see, e.g., 139 Cong. Rec. 15,367-68 (statement o f Sen. Glenn); id. at 15,531-32 (statement o f Sen. Glenn); id. at 15,741 80 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees as we have explained, § 7324(b) expressly forbids the employees identified in that section from using federal funds for political activity. It might seem anomalous to forbid the § 7324(b) employees from using the salary-allocation system, but to permit all other federal employees to use that system — and the federal funds associated with i t — for political activity, just because the latter are not, under the HARA, considered to be continuously on duty. In that case, the “ continuously on duty” employees, see supra pp. 78-79, would in a significant respect be more restricted in the exercise of their political activity than all other federal employees. Nevertheless, in stark contrast to § 7324(b), § 7324(a) does not include an express prohibition on the use of federal funds for political activity. In the four subsections of § 7324(a), Congress saw fit to ban political activity by a federal employee while (i) on duty; (ii) in a federal building; (iii) in uniform; or (iv) using a federal vehicle. Conspicuously absent from this list is any prohibition on political activity “ using instrumentalities owned by the United States,” “ using any federal facilities,” or “ using money derived from the Treasury o f the United States.” 61 Indeed, the fact that Congress did include such a prohibition in § 7324(b) only strengthens the argument against reading such a prohibition into the previous, companion subsection. A fundamental canon o f statutory construction, frequently invoked by the Supreme Court in recent years, is that “ ‘where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and pur­ posely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted).62 The language of §7324(b) “ shows that Congress knew how to draft” a prohibition on the use of federal funds for political activity “ when it wanted to.” City o f Chicago v. Environmental Defense Fund, (statement o f Sen. Glenn); id. at 16,051-52 (statement o f Sen. Glenn); and (ii) to prevent the “ specter,” or appearance to the public, that the federal government is supporting particular candidates, see, e.g., H.R. Rep. No. 103-16, at 19(1993). 61 By contrast, several state “ Little Hatch Acts” do include such specific prohibitions. See, e.g., A la Code § 1 7 l-7 (c) (1987) (no state employee “ shall use any state funds, property o r time, for any political activities” ); Alaska Stat. § 24.60.030(a)(5) (1992) (legislative employee may not, with certain exceptions, “ use or authorize the use o f state funds, facilities, equipment, services, or another government asset or resource” for certain political purposes); Conn. Gen. Stat. Ann. §5-266a(b) (1988) (slate employee shall not “ utilize state funds, supplies, vehicles, o r facili­ ties” for certain political purposes); N.C. Gen. Stat. § 126—13(a)(2) (1993) (state employee may not “ utilize State funds, supplies or vehicles” for certain political purposes); Tenn. Code Ann. §2-19-206(a) (1985) (state employee may not “ use any o f the facilities o f the state, including equipment and vehicles,” for certain political activity). 62 See also Brown v. Gardner, 513 U.S. 115, 120 (1994); FEC v. NRA Political Victory Fund, 513 U.S. 88, 95 (1994); BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994); Custis v. United States, 511 U.S. 485, 492 (1994); City o f Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994); Keene Corp. v. United States, 508 U.S. 200, 208 (1993); International Org. o f Masters, Mates & Pilots v. Brown, 498 U.S. 466, 476 n,10 (1991); Gozlon-Peretz v. United States, 498 U.S. 395, 404-05 (1991); General Motors Corp. v. United States, 496 U.S. 530, 537 (1990); United States v. Monsanto, 491 U S . 600, 610-11 (1989); INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987); Lawrence County v. Lead-Deadwood School Dist. No. 40-1 , 469 U.S. 256, 267 (1985); United Stales v. Erika, Inc., 456 U.S. 201, 2 07-08 (1982); Lehman v. Nakshian, 453 U.S. 156, 162-63 (1981); Fedorenko v. United States, 449 U.S. 490, 512-13 (1981). 81 Opinions o f the Office o f Legal Counsel in Volume 19 511 U.S. 328, 338 (1994); a cco rd Custis v. United States, 511 U.S. 485, 49293 (1994). The discrepancy between §§ 7324(a) and 7324(b) might be explained by the fact that Congress may have considered such an explicit “ no federal funds” prohibition to be superfluous in the former subsection. Congress might not have contemplated any situation in which otherwise lawful political activity could be accomplished using federal funds without violating one of the four subsections of § 7324(a); thus, Congress could well have believed that the prohibitions in that subsection precluded the need for a separate “ no federal funds” provision. But “ [t]hat expectation, even if universally shared [by members of Congress], is not an adequate substitute for a legislative decision,” Yellow Freight Sys., Inc. v. Don­ nelly, 494 U.S. 820, 824-25 (1990), to prohibit the use of federal funds for polit­ ical activity. See also Fort Stew art Schools v. FLRA, 495 U.S. 641, 650 (1990) (“ There is no conceivable persuasive effect in legislative history that may reflect nothing more than the speakers’ incomplete understanding of the world upon which the statute will operate.” ). Even,if Congress intended a complete ban on federal funds for political activity, “ [t]he short answer is that Congress did not write the statute that way.” Russello, 464 U.S. at 23 (citation omitted). Therefore, the “ no federal funds” prohibition of § 7324(b) does not apply to employees who are not identified in that section, and those employees may make contributions to PACs through the use of the salary-allocation system so long as they are off duty and off federal premises when they take the steps sufficient to trigger the use of the system. CONCLUSION None of the federal employees who would engage in the practices in question would, without more, violate the relevant criminal provisions, 18 U.S.C. §§602 and 607. W hat is more, federal employees offering use of or administering the salary-allocation system for PAC contributions would not, without more, violate the civil provisions of the HARA. However, the federal employees identified in 5 U.S.C. § 7324(b) may not use the salary-allocation system to contribute money to PACs. The heads o f agencies may, in their discretion, permit all other federal employees covered by the HARA to make political contributions to PACs through use of the salary-allocation system, but only if such employees are off duty and off federal premises when they take the steps necessary to use that system. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 82

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Permissibility of the Administration and Use of the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees Federal employees who would offer the use of, or administer, the federal salary-allocation system for allotments to political action committees, would not, without more, violate 18 U.S.C. §§602 and 607, or the civil provisions o f the Hatch Act Reform Amendments of 1993. The Hatch Act Reform Amendments of 1993 would prohibit certain high-level and Executive Office employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions con­ tinue outside normal duty hours and while away from the normal duty post, from using the salaryallocation system to make contributions to political action committees. The Hatch Act Reform Amendments of 1993 would not prohibit the remainder o f federal employees covered by those Amendments from making contributions to political action committees through the salary-allocation system; however, 5 U.S.C. § 7324(a) would expressly prohibit such employees from taking steps to use the salary-allocation system to make such contributions while they are on duty or in a federal building. While use o f the salary-allocation system for contributions to political action committees would be lawful under certain circumstances, the head o f each federal agency has the discretion to decide whether to make the system available for that purpose to employees of the agency. February 22, 1995 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r O f f ic e o f P e r s o n n e l M a n a g e m e n t Early last year, the Office of Personnel Management (“ OPM” ) advised execu­ tive branch officials that executive branch employees now are permitted to make voluntary salary allotments to political action committees (“ PACs” ), using the mechanisms otherwise available to federal employees for salary allotments to other organizations and institutions.1 Under the salary-allotment system, a federal employee can authorize federal payroll administrators to transmit portions of his or her salary, on a regular basis, to certain persons or institutions designated by the assigning employee. See 5 C.F.R. pt. 550, subpart C. The Criminal Division of the Department of Justice has questioned whether federal employees offering or administering the salary-allotment procedure for PAC contributions, or the employees who would make such contributions using that procedure, would thereby violate the Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001 (“ HARA” ), or two related criminal statutes, 1 See Memorandum for Heads o f Executive Departments and Agencies, from James B. King, Director, Office o f Personnel Management (Feb. 17, 1994); Memorandum for [all Executive Branch] Chiefs o f Staff from M ichael Cushing, C hief o f Staff, Office o f Personnel Management (Apr. 4, 1994). 47 Opinions o f the Office o f Legal Counsel in Volume 19 18 U.S.C. §§602 and 607.2 In response, OPM contends that such employees would not violate the HARA or those criminal statutes.3 We have reached the following conclusions with respect to the use of the salaryallocation system for contributions to PACs: 4 1. None of the federal employees who would engage in the practices in ques­ tion— offering the use of or administering the salary-allocation system, or making contributions to PACs through that system— would, without more, violate the relevant criminal provisions, 18 U.S.C. §§602 and 607. 2. Federal employees offering use of or administering the salary-allocation system for PAC contributions would not, without more, violate the civil provisions of the HARA. If, in practice, such employees were to request, urge or coerce other employees to make PAC contributions, they could thereby violate the HARA and the criminal statutes. But this potential for abuse does not render the proposed practice unlawful per se. 3. Certain high-level and Executive Office employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions continue outside normal duty hours and while away from the normal duty post, may not use the salary-allocation system to contribute money to PACs, because to do so would violate the HARA requirement that those employees not engage in political activity using “ money derived from the Treasury of the United States.” 5 U.S.C. § 7324(b)(1). 4. The remainder of federal employees covered by the HARA may not, while they are on duty or in a federal building, take steps to use the salary-allocation system to make contributions to PACs, because 5 U.S.C. § 7324(a) expressly pro­ hibits those federal employees from engaging in political activity while on duty or while in a federal building. Thus, for example, a covered employee may not, while on duty or in a federal building, fill out direct-deposit forms for salary allocations to PACs and deliver such forms to the employees who would process or administer those allocations. A more difficult question is whether these contrib­ uting employees would violate the HARA if they were off duty and off federal premises when they take the steps necessary to trigger the use of the salary-alloca2 See M em oranda for W alter Dellinger, A ssistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, A ssistant A ttorney General, Criminal Division (Sept. 9, 1994; Oct. 24, 1994). 3 See Letters for D awn E. Johnsen, D eputy Assistant Attorney General, O ffice of Legal Counsel, from Lorraine Lewis, General Counsel, O ffice o f Personnel Management (Oct. 27, 1994; Nov. 4, 1994; Nov. 10, 1994; Dec. 13, 1994). 4 PACs, or “ political action committees,” are not defined as such under federal law However, 26 U.S.C. §9002(9) defines “ political com m ittee” as: any com m ittee, association, or organization (whether o r not incorporated) which accepts contributions or m akes expenditures for the purpose o f influencing, or attempting to influence, the nomination or election o f one o r m ore individuals to Federal, State, or local elective public office. See also 2 U.S.C. §431(4) (similar definition with respect to committees making contributions and expenditures for federal elections). For purposes of this Opinion, “ PA C ” refers only to an organization that comes within this definition. In theory, there could exist other sorts o f PACs that do not make contributions or expenditures for the purpose o f influencing elections for panisan political office. In this Opinion, references to “ PACs” do not include such com m ittees, and insofar as federal employees might wish to use the salary-allocation system to make contribu­ tions to such com m ittees, such a practice w ould be beyond the scope o f the questions we address in this Opinion. 48 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees tion system— e.g., if an employee completes the direct-deposit form at home, and sends it from home to the appropriate administrative employees. Although the question is a close one, we conclude that such actions would not violate the HARA, because they are not proscribed by the literal terms of the prohibitions found in 5 U.S.C. § 7324(a). While we have concluded that use of the salary-allocation system for PAC con­ tributions would be lawful under certain circumstances, nevertheless the head of each federal agency has the discretion to decide whether to make the system avail­ able for that purpose to employees of the agency.5 I. STATUTORY BACKGROUND A. The Hatch A ct Before the 1993 Amendments In 1939, Congress passed the original Hatch Act, which declared unlawful cer­ tain political activity of federal employees. See Act of Aug. 2, 1939, ch. 410, 53 Stat. 1147. In section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress pro­ vided in pertinent part: No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects.6 The prohibition in section 9(a) eventually was codified at 5 U.S.C. § 7324(a)(2) (Supp. Ill 1965-1967), which provided that “ [a]n employee in an Executive agency . . . may n o t . . . take an active part in political management or in polit­ ical campaigns.” 7 5 See 5 U.S.C. §5525 (“ The head o f each agency may establish procedures under which each employee o f the agency is permitted to make allotments and assignments o f amounts out o f his pay for such purpose as the head o f the agency considers appropriate/’); 5 C.F.R. §550.311(b) (an agency may permit an employee to make an allotment “ for any legal purpose deemed appropriate by the head o f the agency’*). Accord Memorandum for Heads of Executive Departments and Agencies, from James B. King, Director, Office o f Personnel Management at 1 (Feb. 17, 1994) (noting that, under O PM ’s proposal, the head o f each executive agency would have the option o f allowing that agency’s employees to use salary allotments for distributing portions o f their salaries to PACs). 6 Section 9(a) further provided that heads and assistant heads o f executive departments, and certain officers appointed by the President by and with the advice and consent o f the Senate, were not “ officers” or “ em ployees” for purposes o f that section. 7 This prohibition did not apply to certain federal employees. See 5 U.S.C. § § 7324(d)(I)—(3) (Supp. IE 19651967). W hat is more, by a 1940 amendment to the Hatch Act, Congress exem pted from the scope o f section 9(a) any political activity in connection with nonpartisan campaigns, and activity in connection with any question not identified with a political party, such as constitutional amendments and referenda. Act of July 19, 1940, ch. 640, §4, 54 Stat. 767, 772 (subsequently codified at 5 U.S.C. §7326 (Supp. Ill 1965-1967)). Thus, under the old Hatch Act, “ only partisan political activity [was] interdicted.” United Pub. Workers v. M itchell, 330 U.S. 75, 100 (1947) (emphasis added). 49 Opinions o f the Office o f Legal Counsel in Volume 19 B. The Hatch A ct Reform Amendments o f 1993 In 1993, Congress eliminated many of the restrictions that previously had cabined the political activities of federal employees. See Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001. Most importantly, Congress did an about-face on the prohibition at the very heart of the Hatch Act: under a new 5 U.S.C. § 7323(a), effective February 3, 1994, covered federal employees “may take an active part in political management or in political cam­ paigns,’ ’ subject to specific exceptions.8 Thus, the very category of activities that was prohibited under the old Hatch Act is now expressly permitted. Congress did, however, specify several important exceptions to the general rule of § 7323(a). See 5 U.S.C. §§7323(a)(l)-(4), 7323(b), 7324. For present purposes, three of those exceptions are germane: 1. Under 5 U.S.C. § 7323(a)(2), a covered employee may not “ knowingly solicit, accept, or receive a political contribution from any person,” except under limited circumstances not material here (see infra note 11). 2. Under 5 U.S.C. §§7323(b)(2)-(4), employees of certain enumerated federal agencies, departments and entities— including, for example, the Criminal Division of the Department of Justice — will continue to be bound by the proscription of section 9(a) of the old Hatch Act (i.e., former 5 U.S.C. §7324(a)(2) (1988)): unlike most other federal employees, such “ HARA-exempt” employees cannot “ take an active part in political management or in political campaigns.” 9 3. Finally, almost all federal employees, including those who are “ HARAexempt,” may not engage in “ political activity” while: (i) on duty; (ii) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof; (iii) wearing a uniform or official insignia identifying the office or position of the employee; or (iv) using any vehicle owned or leased by the federal government or any agency or instrumentality thereof. 5 U.S.C. § 7324(a). An exception to this prohibition is made for certain high-level and executive office employees identified in 5 U.S.C. § 7324(b), the duties and respon­ 8 This provision in §7323(a) applies to any individual— other than the President, the Vice President, members o f the uniformed services, and employees in particular agencies and departments specified in § 7323(b)— who is employed o r holding office in (i) an Executive agency other than the General Accounting Office; (ii) a position w ithin the com petitive service which is not an Executive agency; o r (iii) the government o f the District of Columbia (other than the M ayor, members o f the City C ouncil, and the R ecorder o f D eeds). See 5 U.S.C. §§7322(1), 7323(b). However, on Septem ber 20, 1994, this Office opined that Congress should not be understood to have intended that the President be precluded from limiting the political activities o f employees who are political appointees; indeed, as we noted, if the HARA were instead interpreted to prevent a President from limiting the political activities of even his high-level political appointees, the statute would raise serious constitutional questions. Letter for Lorraine P. Lewis, G eneral Counsel, Office of Personnel Management, from W alter Dellinger, Assistant Attorney General, O ffice o f Legal Counsel (Sept. 20, 1994). See also 59 Fed. Reg. 48,765, 48,767, 48,771 (1994) (discussing proposed 5 C.F.R. §7 34.104, w hich reflects the Sept. 20, 1994 OLC letter). 9 This prohibition does not apply to employees appointed by the President by and with the advice and consent o f the Senate, even within the specified agencies, departments and entities. 5 U.S.C. §§ 7323(b)(2)(A), 7323(b)(3). See also supra note 8. 50 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees sibilities of whose positions continue “ outside normal duty hours and while away from the normal duty post.” Id. § 7324(b)(2)(A). These employees may engage in on-duty or on-premises political activity, but only “ if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.” Id. § 7324(b)(1). It is the responsibility of the Office of Special Counsel (“ OSC” ) to investigate allegations that federal employees have violated the prohibitions that remain in the HARA. If the OSC believes such a violation has occurred, it can present the case to the Merit Systems Protection Board (“ MSPB” ); the MSPB would then adjudicate the case. See American Fed’n o f Gov’t Employees v. O’Connor, 747 F.2d 748, 753 (D.C. Cir. 1984), cert, denied, 474 U.S. 909 (1985). If the MSPB finds that an employee has violated a prohibition in §7323 or §7324, the employee is subject to removal from his or her position. 5 U.S.C. §7326. If the MSPB finds by unanimous vote that the violation does not warrant removal, a penalty of not less than a 30-day suspension without pay shall be imposed by direction of the MSPB. Id.; see also Special Counsel v. Dukes, 8 M.S.P.R. 549 (MSPB, 1981) (MSPB lacks discretion to impose a penalty less severe than a 30-day suspension without pay). C. OPM’s Regulations under the Hatch Act and under the HARA In 1984, OPM issued regulations that specifically interpreted the old Hatch Act to forbid use of the federal salary-allocation system for PAC contributions by federal employees. See 49 Fed. Reg. 17,431-32 (1984).10 As we explain infra pp. 66-72, these regulations arguably were undermined by subsequent decisions of the federal courts and by other authorities. Nonetheless, between 1984 and the present date, the federal salary-allocation system has not been used to facilitate federal employees’ PAC contributions. On February 2, 1994, this Office concluded that, under the HARA, OPM con­ tinues to have certain responsibility for issuing regulations concerning permitted and prohibited activities under the Act. See Authority for Issuing Hatch Act Regu­ lations, 18 Op. O.L.C. 1 (1994). On February 4, 1994 (the day after the HARA took effect), OPM superseded its previous Hatch Act regulations, including the 1984 regulations that had pro­ scribed the use of the salary-allocation system for PAC contributions. See 59 Fed. Reg. 5313-15. Thereafter, OPM advised executive branch officials that, in OPM’s view, executive branch employees now are permitted to make voluntary salary allotments to PACs using the mechanisms otherwise available to federal l0 Under the original Hatch Act, the Civil Service Commission ( “ C S C ” ) was delegated limited authority to issue interpretive regulations defining the scope o f permitted and prohibited activities. See infra pp. 63-66. In the Civil Service Reform Act o f 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress eliminated the CSC, and OPM became “ responsible for promulgating Hatch Act regulations.” American Fecfn o f G ov't Employees, 747 F.2d at 753. See infra p. 67. 51 Opinions o f the Office o f Legal Counsel in Volume /9 employees for salary allotments to other organizations and institutions. See supra note 1. On September 23, 1994, OPM published interim regulations, which would inform federal employees of the political activities that are permitted and prohib­ ited under the HARA. 59 Fed. Reg. 48,765-77. Those interim regulations do not address directly the issue presented in this Opinion, though they do consider sev­ eral subsidiary issues that are germane here, and that we will consider herein. B. Related Criminal Statutes— 18 U.S.C. §§ 602, 607 The Criminal Division also has questioned whether participants in the proposed practice would violate either of two criminal statutes, 18 U.S.C. §§602 and 607. Those statutes prohibit federal employees from soliciting political contributions from other federal employees (§602), and prohibit persons from soliciting or receiving political contributions while in a federal building (§607). See infra pp. 53, 58. II. APPLICATION OF TH E HARA AND RELATED CRIMINAL STATUTES Federal employees could be involved in the salary-allocation process in three distinct ways. First, under the procedure envisioned by OPM, certain federal employees — in particular, the heads of federal agencies — would offer other fed­ eral employees the opportunity to use the federal salary-allocation system to make contributions to PACs. Second, certain employees— possibly both within and out­ side the contributing employees’ agency — would administer the salary allocations to PACs. Such employees would, for instance: collect the direct-deposit forms on which employees request an allocation to a PAC; perform the ministerial func­ tions associated with such an allocation (such as recording the allocation, and sending the forms on to other federal employees involved in the processing); and transmit a portion of the contributor’s salary to the PAC, or to a PAC bank account. Finally, certain federal employees would actually make contributions to PACs by way of the salary-allocation procedure. These employees would fill out direct-deposit forms indicating that they wish part of their salaries to be allocated and transmitted to various PACs, and would transmit those forms to the appro­ priate officials (such as the payroll officer in their agency or department) to begin processing. Subsequently, as a result of the contributing employees’ allocations, other federal employees would transfer money to the designated PACs from the contributing employees’ salaries. In section A, infra, we discuss whether the federal employees who would offer other employees the opportunity to use the federal salary-allocation system for 52 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees PAC contributions would thereby violate the prohibitions on solicitation found in 5 U.S.C. § 7323(a)(2) and 18 U.S.C. §§602 and 607. In section B, infra, we discuss whether the employees who would administer the transmission of PAC contributions would thereby violate the prohibition in 5 U.S.C. § 7323(a)(2) on accepting or receiving political contributions, or the prohibition in 18 U.S.C. §607 on receiving political contributions in a federal building. In section C, infra, we discuss whether administrative employees in “ HARAexempt” agencies and components who would handle and transmit other employees’ PAC contributions would thereby violate the prohibition in 5 U.S.C. § 7323(b) on “ tak[ing] an active part in political management or political cam­ paigns.” Finally, in section D, infra, we discuss whether any of the participants in the proposed procedure would violate the “ on-duty,” “ on-site,” and related prohibi­ tions found in 5 U.S.C. §7324. A. Solicitation — 5 U.S.C. § 7323(a)(2) an d 18 U.S.C. §§ 602 and 607 The Criminal Division has asked whether the act of offering employees use of the salary-allocation system to make PAC contributions would be “ solicita­ tion” of political contributions in violation of any or all of the following three statutes: * 5 U.S.C. § 7323(a)(2), which prohibits covered employees from soliciting “ political contributions,” except that one union member may solicit another union member to contribute to the union’s PAC under certain circumscribed circum stances;11 * 18 U.S.C. § 602(a), which makes it a felony for a federal officer or employee “ to knowingly solicit any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971,” from any other federal officer or employee; and * 18 U.S.C. § 607(a), which makes it a felony “ for any person to so licit. . . any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 in any room or building occupied in the discharge of official duties by [any officer or employee of the United States].” 11 Specifically, an employee can solicit o r receive political contributions if (i) the person being solicited or making the contribution is a m ember o f the same federal labor organization or federal employee organization as the covered employee; (ii) the person being solicited or making the contribution is not a subordinate employee of the covered employee; and (iii) the solicitation is for a contribution to a multicandidate PAC o f the labor organization or employee organization o f the employees, and that PAC was established prior to October 6, 1993 5 U.S.C. § 7323(a)(2)(A )(C). 53 Opinions o f the Office o f Legal Counsel in Volume 19 W e conclude that federal employees, including the heads of agencies, would not violate the prohibition on “ solicitation” in any of these three statutes merely by offering employees use of the salary-allocation system to make voluntary PAC contributions. All three statutes ultimately are derived from the prohibitions on solicitation in sections 11 and 12 of the Civil Service Act o f 1883, ch. 27, 22 Stat. 403 (“ the Pendleton A ct” ) ; 12 and we see no reason why “ solicit” should not have the same meaning in all three statutes.13 However, Congress has not provided a definition of the term “ solicit” in any o f the three provisions. Therefore, we must give that term its ordinary meaning. See, e.g., A sgrow Seed Co. v. W interboer, 513 U.S. 179,187 (1995). In two recent opinion letters, the Office of Special Counsel — which has the authority under 5 U.S.C. § 1212(f) to issue advisory opinions on the Hatch A c t14— offered this definition of “ solicit” : “ to try to obtain by entreaty, persua­ sion or formal application.” 15 Under this definition, asking, requesting, or urging another federal employee to make a political contribution would be prohibited (putting aside the exception described in 5 U.S.C. § 7323(a)(2), which is not rel­ evant here). See also People v. Murray, 307 111. 349, 365, 138 N.E. 649, 655 (111. 1923) (to solicit a contribution is “ to try to obtain by asking; to ask for the purpose o f receiving” ). We think the Special Counsel’s definition of “ solicit” is an appropriate o n e .16 Under the Special Counsel’s definition— indeed, under any ordinary under­ 12 Section 602(a), for exam ple, is derived from section 11 o f the Pendleton Act, which provided in pertinent part that no congressional, judicial or executive branch officer o r em ployee “ shall, directly or indirectly, solicit or receive, o r be in any m anner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, o r employee o f the United States, . . . or from any person receiving any salary o r compensation from moneys derived from the Treasury o f the United States." 22 Slat, at 406. In 1980, section 11 of the Pendleton Act was amended to elim inate the provision prohibiting receipt o f contributions by federal employees. Pub. L. No. 96-187, tit. IT, § 2 0 1(a)(3), 93 Stat. 1339, 1367. See H.R. Rep. No. 96-4 2 2 , at 25 (1979), reprinted in 1979 U.S.C.C.A.N. 2860, 2885. Sim ilarly, the prohibition currently found in §607 is a descendent o f section 12 of the Pendleton Act, which provided in pertinent part that “ no person shall, in any room o r building occupied in the discharge of official duties by any officer o r em ployee o f the United States . . ., solicit in any m anner whatever, or receive any contribution o f m oney or any other thing o f value for any political purpose whatever.” 22 Stat. at 407. ,3 In enacting the HARA, Congress added §602(b), which states that an activity cannot be a violation o f §602(a) “ unless that activity is prohibited by section 7323 or 7324” o f the HARA. See Pub. L. No. 103-94, §4(b), 107 Stat. at 1005. Thus, a person’s conduct cannot violate §602(a) unless it is also a civil violation of the HARA. Congress did not impose a sim ilar restriction on §607. Thus, in theory, “ solicit” could have a meaning in §607 distinct from its meaning in the other two statutes. But we see no reason not to treat the term identically in all three statutes. [*See American Fed.'n o f Gov’t Employees, 747 F.2d at 752-55 (explaining the nature and effect of “ the advice the Special Counsel is perm itted to give” ). 15 See Letter for C heryl D. Mills, Associate Counsel to the President, from William E. Reukauf, Associate Special Counsel for Prosecution, O ffice o f Special Counsel at 2 (Feb. 4, 1994); Letter for Dennis I. Foreman, Deputy General Counsel, Department o f the Treasury, from William E. Reukauf, Associate Special Counsel for Prosecution, Office o f Special Counsel at 2 (Feb. 4, 1994). 16This definition is, for example, consistent with pertinent dictionary definitions o f “ solicit.” As we have explained, the solicitation prohibitions derive from the Pendleton Act. Shortly after enactment of that Act, Black’s Law Dictionary defined “ solicitation” as “ Asking; enticing; urgent request.” Black’s Law Dictionary 1105 (1st ed. 1891); see also Black's Law Dictionary 1392 (6th ed. 1990) (“ Asking; enticing, urgent request. . . . Any action which the relation o f the parties justifies in construing into a serious request.” ); Webster’s Third New Int’l Dictionary 54 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees standing of the term — it is hard to see how the conduct in question here would rise to the level of “ solicitation.” Pursuant to OPM ’s proposal, the head of each agency would send a memorandum to all employees informing them that “ there is now no legal ban to voluntary allotments by Federal employees directed to political action committees.” See Memorandum for [all Executive Branch] Chiefs of Staff, from Michael Cushing, Chief of Staff, Office of Personnel Management (Apr. 4, 1994), Attachment 2. The proposed memorandum further would “ empha­ size” to employees that “ this program is entirely voluntary on your part, a service we have added for our employees.” Id. Such a memorandum would not urge employees to make contributions, and would not request or encourage such action. We conclude that such an offer of use of the salary-allocation system for voluntary PAC contributions would not thereby be a “ solicitation” of such contributions. Cf., e.g., In re D odds, 2 Political Action Reporter 253 (Civil Service Comm’n, 1945) (announcing to employees under one’s supervision that they had the legal right to make voluntary contributions to political campaign funds if they so desired is not, without more, “ solicitation” ). Moreover, the statutory context of the solicitation ban in §7323 supports this conclusion. In § 7323(a), Congress has prohibited only those solicitations that can be said to constitute “ tak[ing] an active part in political management or in political campaigns.” 17 The “ tak[ing] an active part” standard was derived from the prohibition in section 9(a) of the old Hatch Act. See supra p. 49. Under the old Act, two courts o f appeals held that a covered federal employee could violate the “ tak[ing] an active part in political management or in political campaigns” 2169 (1986) (defining “ solicit” as, inter alia, “ to make petition to: entreat, importune . . esp: to approach with a request or plea (as in selling or begging)"; “ to move to action: serve as an urge or incentive to. incite” ; “ to strongly urge (as one’s cause o r point): insist upon"; “ to endeavor to obtain by asking or pleading: plead for . . .; also : to seek eagerly or actively"; “ to demand as a requisite: call fo r require"). Also notable is 47 U.S.C. §227(a)(3), which defines “ telephone solicitation" as “ the initiation of a telephone call or message for the purpose o f encouraging the purchase or rental of, or investment in, property, goods, or services." This definition would require some encouragement or urging, at the very least. OPM, in its interim regulations, has proposed that “ solicit” should mean “ to request expressly o f another person that he or she contribute something to a candidate, a campaign, a political party, or partisan political group." 59 Fed. Reg. 48,771 (1994) (proposed 5 C .F R . §734.101) (emphasis added). We believe OPM is correct that a “ request" (or an “ u rg in g ") is required, but we have no occasion to decide whether such a request necessarily must be “ express!] ” A strong argument could be made that even an “ im plicit," or veiled, request is a solicitation. For example, the Special Counsel has concluded that it would be a solicitation for an official to “ suggest" that an individual work for a political campaign. See Letter for Dennis I. Foreman, Deputy General Counsel, Department o f the Treasury, from W illiam E. Reukauf, Associate Special Counsel for Prosecution, Office o f Special Counsel at 3 (Feb. 4, 1994); see also People v. Murray, 307 III. at 365, 138 N.E. at 655 (“ Solicitation [of political contribu­ tions] is not necessarily by word o f mouth or writing.” ); Civil-Service Law — Political Contributions— Solicitation o f by Federal Officer, 24 Op. A tt'y Gen. 133, 134-35 (1902) (dissemination to federal employees of a circular stating that financial assistance is “ needed" for Republican state committee, and that supervisory officials “ will be greatly obliged" if the recipients “ will aid to the extent of [their] ability and inclination,” even though not a “ dem and," was a “ req u est" constituting an impermissible solicitation under section 11 o f the Pendleton Act); Special Counsel v. Rivera , 61 M.S.P.R. 440, 443—44 (MSPB, 1994) (letter stating that “ [w]e hope you can . . . contribute to this worthy cause [viz., a partisan candidacy]" was a solicitation o f contributions). l7That section permits employees to “ take an active part in political management or in political cam paigns." The prohibition o f solicitation is enumerated as one o f the few exceptions to this rule; thus, it is fair to read the statute as prohibiting only those solicitations that in fact constitute “ tak[ing] an active part in political management or in political cam paigns.” 55 Opinions o f the Office o f Legal Counsel in Volume 19 prohibition only if that employee acted “ m concert with a partisan political cam­ paign or organization.” B iller v. MSPB, 863 F.2d 1079, 1090 (2d Cir. 1988) (emphasis added); accord Blaylock v. MSPB, 851 F.2d 1348, 1356 (11th Cir. 1988) (“ the Hatch Act is violated only by actions taken in concerted effort with partisan activity or formal, organized, political groups” ). Were an employee, such as the head of an agency, merely to inform other employees of their legal rights, and in a neutral manner make available to them a means of exercising those rights, that employee would not thereby be acting “ in concert with a partisan political campaign or organization.” Therefore, such an offering employee would not have taken an “ active part in political management or in political campaigns,” and, accordingly, would not have engaged in improper solicitation under § 7323(a).18 Notwithstanding the foregoing, the Criminal Division has suggested that the act o f offering access to the salary-allocation system for PAC contributions may vio­ late the law because, in practice, such an offer may be perceived as soliciting such contributions. The Criminal Division’s argument is that, as a result of the paperwork associated with the salary-allocation system, an employee’s “ giving history” can be “ accessed and examined by management.” Moreover, the Federal Election Campaign Act (“ FEC A ” ) requires that political committees, such as the PACs in question here, publicly identify all persons who have contributed more than $200 in a calendar year. 2 U.S.C. § 434(b)(3)(A); see also id. § 438(a)(4) (names of such contributors available for public inspection). The fact that manage­ ment can thereby discover an em ployee’s political contributions “ provides fertile ground for the proposed payroll withholding program to assume a most sinister cast.” Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 6 -7 (Oct. 24, 1994). According to the Criminal Division, once employees realize that their political giving patterns can be individually accessed and traced through payroll records or through FECA reports, offers o f payroll withholding made by management are susceptible of being understood by employees as suggestions that an affirmative response is expected. Once that occurs, it seems to us that the offer o f payroll withholding for PAC donations becomes a “ solicitation’ on the part o f those in management that circulate it. 18 The case w ould be very different, o f course, if the offer were not neutral, such as where contributions were perm itted only to certain PACs deemed acceptable to the agency head. In that case, the Biller/Blaylock standard m ight be m et, and the action m ight fairly be considered “ taking an active part in political management or in political cam paig n s"; such differential treatment in favor o f some PACs to the exclusion of others might, therefore, amount to an improper “ solicitation,” depending on the circumstances. But that is not the scenario OPM proposes. 56 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees Id. at 7. This argument is similar to that used by OPM itself in 1984 to justify its prohibition on salary allotments to P A C s.19 This argument has two principal problems. First, the hypothesized danger— that management may be able to discover employees’ contribution practices — is not unique to the making of PAC contributions through the salary-allotment procedure. The public has access, by virtue of the FECA, to significant informa­ tion about contributors to PACs, and this will be the case whether or not those contributions are made through the salary-allocation system. The risk of access to contribution information should not be significantly greater as a result of use of the salary-allocation system: federal officials should not have any additional access to contribution practices of their subordinates through payroll records. Records of employees’ financial contributions retained in personnel files within the employees’ agency are protected by the Privacy Act, see 5 U.S.C. § 552a(a)(4)-(5), and may not be revealed to the officers and employees of the agency, id. § 552a(b).20 Second, and more important, it is not legally dispositive that some subordinate employees might perceive that they are expected to contribute to PACs. The mere possibility that an offer of access to a salary-allocation system may be susceptible of being misunderstood by some employees as a solicitation does not automati­ cally transform all offers into solicitations. Section 7323(a) of the HARA and 18 U.S.C. §§602 and 607 do not prohibit a “ sinister cast” ; they prohibit conduct that is, in fact, solicitation. What is more, even if the proposed practice might be susceptible to a risk of actual (rather than merely perceived) solicitation, that risk does not render the practice unlawful per se. Whether any particular “ offer” of access to the salaryallocation system for PAC contributions would be an impermissible solicitation 19 OPM explained that such a prohibition was required for prophylactic reasons: Use o f the Federal payroll system as a vehicle for collecting political contributions, as well as the conven­ ience o f making these contributions through payroll deductions, would increase the opportunities for coer­ cion o f employees. Introducing the political contribution process into Government would make it possible for supervisors, administrative officers, and others in a position to affect careers or working conditions to discover the identity o f political contributors and other information concerning their contributions. Because allotments or payroll deduction authorizations pass through many hands during processing, there exists the risk o f either intentional or inadvertent disclosure o f sensitive data. Although such a disclosure could be cause for discipline, tracing the disclosure to its source in the processing chain would not be possible in every case. The authority to discipline thus would not be a complete deterrent and where exer­ cised would not forestall potential misuse o f the information already disclosed. Even if the integrity of payroll data is not compromised, individual employees could be directly approached by colleagues or superiors seeking to identify contributors. Even i f not so intended, this could create among employees a perception o f pressure to contribute to a particular political action fund. 49 Fed. Reg. at 17,432 (emphasis added). 20There is an exception to this prohibition where those officers or employees “ have a need for the record in the performance o f their duties.” Id. §552a(b)(l). It is difficult, however, to imagine a situation in which supervisors would have a legitimate “ need . . . in the regular performance o f their duties” for information concerning their subordinates’ political contributions. See Parks v. IRS, 618 F.2d 677, 680-81 (10th Cir. 1980). 57 Opinions o f the Office o f L egal Counsel in Volume 19 would depend on the particular facts of each case.21 In those cases where osten­ sible offers do cross the line to become actual solicitations, the makers of such solicitations will be subject to penalty under 5 U.S.C. §§ 7323(a)(2) and 7324(a), and may be subject to criminal sanctions under 18 U.S.C. §§602 and 607, as well. In addition, if a supervisor does tell (or suggest to) subordinate employees that their contribution practices will be “ accessed and examined by management,” or if a supervisor (or other employee) otherwise pressures an employee to con­ tribute to PACs, such action could constitute impermissible “ coercion” under 18 U.S.C. § 6 1 0 .22 But the fact that there m ay be such instances of abuse does not mean that every offer of access to the system automatically becomes a solicitation. B. R e c e ip t— 5 U.S.C. § 7323(a)(2) a n d 1 8 U.S.C. § 6 0 7 The Criminal Division has questioned whether the federal employees who would implement and administer other employees’ salary allocations to PACs would vio­ late 5 U.S.C. § 7323(a)(2) or 18 U.S.C. §607, which prohibit some forms of “ receiving” or “ accepting” political contributions: * Under § 7323(a)(2), a covered federal employee may not “ accept, or receive a political contribution from any person,” except that one union member may receive another union member’s contribution to the union’s PAC, as long as the contributing employee is not a subordinate o f the receiving employee. * Under §607, it is a felony “ for any person to . . . receive any contribution within the meaning o f section 301(8) of the Federal Election Campaign Act o f 1971 in any room or building occupied in the discharge of official duties by [any officer or employee of the United States].” Under the proposed practice, some administrative employees would process the direct-deposit forms, and would transmit to PACs a portion of contributing em ployees’ salaries. Even if it could be argued that these administering employees would (in some sense) handle the money from the contributing employees’ salaries prior to transmitting the contributions to the PACs, we conclude that this cannot 21 See The President— Interpretation o f 18 U.S.C. §603 Inow §607] as Applicable to Activities in the White House, 3 Op. O.L.C. 31, 32 n.3 (1979) (“ W e have not considered a . . . critical question, which turns primarily on matters o f fact, i.e., whether a solicitation w ithin the terms o f the statute has occurred.” ). 22 Section 610, which was enacted as part o f section 4 o f the HARA, 107 Stat. at 1005, provides: It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, com m and, o r coerce, any em ployee o f the Federal G overnment as defined in [HARA] section 7322(1) . . . to engage in, o r not to engage in, any political activity, including, but not limited to, voting or refusing to vote, for any candidate o r measure in any election, making or refusing to make any political contribution, o r working or refusing to work on behalf o f any candidate. Any person who violates this section shall be fm ed not more than $5,000 or imprisoned not more than three years, or both. 58 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees be considered “ receipt” or “ acceptance” of the contributions in the sense intended under the two pertinent statutes. The Attorney General addressed this issue in the early years of the Pendleton Act. Section 11 of the Pendleton Act, which was the direct predecessor of the statutes at issue here, provided in pertinent part that no congressional, judicial or executive branch officer or employee “ shall, directly or indirectly, . . . receive, or be in any manner concerned in . . . receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, or employee of the United States, . . . or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States.” 22 Stat. at 406. In 1896, Attorney General Harmon opined that section 11 should not be strictly construed to make criminal the “ purely mechanical” handling of a political con­ tribution by a federal employee. Contributions fo r Political Purposes, 21 Op. A tt’y Gen. 298 (1896). In the case the Attorney General considered, one Bellman, an agent of the Postmaster General, was detailed to be the conduit for payments by the government to secret agents. Under the “ established practice,” secret agents sent orders to Bellman to make payments out of their government remit­ tance directly to the agents’ families, creditors, etc. Id. at 299. One agent asked Bellman to pay $50 to another person, in aid of a political campaign. Bellman — who had nothing whatever to do with soliciting or inducing such a diversion of funds— did as the agent asked him. Despite the fact that Bellman knew the diver­ sion of funds was in aid of a political campaign, id., and the fact that Congress in section 11 “ absolutely prohibited the . . . receipt of political contributions by all persons in the Government service in any place or in any way,” id. at 300, the Attorney General concluded that “ I can not see how it can fairly be said that [Bellman’s action] was a violation of the provisions of [section 11].” Id. The Attorney General reasoned: It is admitted that [Bellman] did not solicit the contribution. Nor can it be said, in any proper sense o f the term, that he received it. He physically took the money from the package, but he did so merely as the agent of the owner, and so long as it remained in his possession he held it as the agent o f the owner, who had a right at any time to revoke his order and reclaim the money. This right continued until Bellman actually handed the money over to the third person, who alone can be said to have received it. When he received it it was from the secret agent in Chicago by the hand of Bellman and not from Bellman. He was accountable to the agent in Chicago and not to Bellman for its use or misuse. Bellman had no more to do with the transaction than a mere messenger would have had to whom the owner had handed it for delivery. The receipt 59 Opinions o f the Office o f Legal Counsel in Volume 19 of money, etc., intended by [section 11] is acceptance of possession which confers a right of disposal, not possession which simply con­ stitutes the taker a mere custodian without right on his own behalf or that of others. Id. at 300-01.23 W e agree with Attorney General H annon’s reasoning, and think it directly applicable h ere.24 “ The receipt of money . . . intended by [§ 7323(a)(2) and by §607] is acceptance of possession which confers a right of disposal, not possession which simply constitutes the taker a mere custodian without right on his own behalf or that of others.” Indeed, the ministerial employees under the proposed practice would not even have the option to decline to handle the contributions in question: as a part of their assigned duties, they would be required to treat allocations to PACs as they do all other allocations. We therefore conclude that, because the administering employees — like postal employees who pick up and deliver mail containing PAC contributions — would be “ mere custodians,” or conduits, of the contributions, they would not be recipients thereof. M oreover, the employees administering the allocated contributions to PACs would not be acting “ in concert with a partisan political campaign or organiza­ tion.” B iller, 863 F.2d at 1090 (emphasis added). Therefore, like the employees who “ offer” the use of the allocation system, see supra pp. 55-56, they would not be “ tak[ing] an active part in political management or in political campaigns,” and, accordingly, could not be in violation of § 7323(a)(2).25 23 See also In re Harper, reported in Thirty-fifth Annual Report o f the Civil Service Commission 178 (1919) (the Justice Departm ent, citing the “ pettiness o f the o ffe n s e /’ refused to prosecute a federal employee who had acted as a conduit, o r “ temporary custodian,” o f political contributions). 24The Civil Service Commission subsequently disagreed with the Attorney G eneral’s interpretation o f section 11; the CSC reasoned instead that “ even if [a federal employee] acts as the agent or messenger of another officer o r em ployee for the purpose o f delivering a contribution, voluntary or otherw ise, to a political committee, the receipt by the agent o f money from his principal, knowing it to be for the purpose mentioned, and both being officers o r employees o f the United States, is prohibited by the statute.” In re LeRoy, reported in Thirtieth Annual Report o f the C ivil Service C om m ission 149, 151 (1914). And, in the LeRoy case and in another case occurring at approxi­ m ately the same time, certain United States Attorneys and tw o district judges apparently agreed with the CSC’s interpretation, rather than with that of A ttorney General Harmon. See id. at 152 (reporting successful prosecution o f LeRoy); In re Dutro, reported in Thirtieth Annual Report o f the Civil Service Commission 158 (1914) (quoting ju d g e’s ruling rejecting 1896 Attorney G eneral Opinion, and reporting eventual conviction for violation o f section 11). The CSC subsequently cited the Dutro case as having “ definitively established) the principle that an employee o f the G overnm ent who receives a political contribution from another such employee as a mere agent or messenger for the purpose o f turning it over to a political organization commits a violation o f [section 11].” CSC Form 1236, “ Political A ctivity and Political Assessments o f Federal Officeholders and Em ployees,” §39, at 20 (1939). We are, however, m ore persuaded by the 1896 A ttorney General Opinion. ^ U n d e r the proposed definitions of “ accept” and “ receive” in the interim OPM regulations, the ministerial handling o f contributions could not constitute “ acceptance” o r “ receipt” o f those contributions, because the em ployees in question would not be acting “ officially on behalf o r ’ the PACs to w hich the contributions were made. See 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. §734.101). This interpretation is consistent with the holdings in Biller and Blaylock. See id. at 48,768-69 (discussing Biller and Blaylock). 60 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees C. Handling o f Contributions by Em ployees in “ H A R A -E xem pt” A gencies an d C om ponents— 5 U.S.C. § 7323(b) Under 5 U.S.C. §§7323(b)(2)-(4), employees of certain enumerated federal agencies, departments and components — including, for example, the Criminal Division of the Department of Justice— cannot “ take an active part in political management or political campaigns.” See supra p. 50. The statutory definition of this “ take an active part” standard is, moreover, the same under the HARA as it was under the pre-HARA Hatch A ct.26 Congress’s intent was that the employees in question would be “ exempt from coverage under the [HARA] and maintained under the current [i.e., pre-HARA] law.” 139 Cong. Rec. 15,789 (1993) (statement o f Sen. R oth).27 Under the old Hatch Act, OPM had interpreted the “ take an active part” standard to prohibit federal employees from handling or accounting for other fed­ eral employees’ PAC contributions,28 and OPM had, in fact, specifically deter­ mined that the persons administering the federal salary-allocation system would violate the law if the system were used for PAC contributions.29 See supra p. 51; infra pp. 68-70. The Criminal Division has argued that “ HARA-exempt” employees should still be subject to these regulatory prohibitions: [I]t appears to us that under 5 U.S.C. § 7323(b)(4), employees of . . . excluded components remain bound by the prohibitions con­ cerning political activity by federal employees that were in effect prior to 1940 which contain prohibitions on “ handling” or “ accounting for” political funds, as well as the “ solicitation,” “ acceptance,” or “ receipt” of political contributions. 5 C.F.R. § 7 3 3 .122(b)(3). The terms “ handling” and “ accounting for” seem to us broader than the terms “ solicit,” “ accept,” or “ receive” that apply to employees in the remainder of the government. If we are correct in that conclusion, and if we are correct in assuming that employees of the Criminal Division continue to be governed by the broader terms of 5 C.F.R. § 733.122(b)(3), one might reasonably argue the mere administrative processing of payroll withholding forms concerning PAC donations by the Division support staff places them at risk of inadvertently violating the Act. “ Compare 5 U.S.C. §7324<a)(2) (1988) with the current 5 U.S.C. §7323(b)(4). 527 See also, e.g., 139 Cong. Rec. at 15,743 (statement o f Sen. Roth) (exempt employees “ should continue to be Hatched” ), id. at 15,789 (statement o f Sen. Roth) (certain employees would be ‘‘exempted from the relaxation of the Hatch rule” ); id. at 16,043 (statement of Sen. Roth) (employees o f the DOJ Criminal Division would be “ exempt from the changes in the Hatch A ct” ); id. at 21,810 (statement o f Rep. Myere) (exempt employees “ will . . . continue to be covered under the (old) Hatch Act” ); id. at 21,811 (statement o f Rep. Byrne) (exempt employees are “ exclude[d]. . . from the reforms” ). 28 See 5 C.F.R. § 7 3 3 .122(b)(3) (1994), superseded, 59 Fed. Reg. 5313-15 (1994). 29 See 49 Fed. Reg. 17,431, 17,431-33 (1984) (establishing new regulations at 5 C.F.R. §§ 733.101(g)—(h). 733.122(b)(14H 16)). 61 Opinions o f the Office o f Legal Counsel in Volume 19 Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 8 (Oct. 24, 1994). We conclude, however, that the HARA-exempt employees do not necessarily “ remain bound by the prohibitions” contained in the pre-HARA OPM regulations. In the sections that follow, w e demonstrate: first, that OPM’s pre-HARA regula­ tions may not have interpreted the Hatch Act accurately; and second, that, in any event, OPM has the authority to amend those pre-HARA regulations in the manner reflected in its new regulations. In order to demonstrate why this is so, it is nec­ essary to describe in some detail the historical treatment of the “ take an active part” legal standard. 1. Before the Hatch Act: 1 8 8 3 -1 9 3 9 The Civil Service Act of 1883, ch. 27, 22 Stat. 403, better known as the Pen­ dleton Act, declared that “ no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service,” 22 Stat. at 404 and that “ no person in said service has any right to use his official authority or influence to coerce the political action of any person or body,” id. The Act authorized the President to promulgate rules to carry out the provisions of the Act, and created the Civil Service Commission (“ CSC” ) to administer the Act under the rules promulgated by the President. 22 Stat. at 403-05. In 1907, in accordance with an executive order issued by President Roosevelt, Civil Service Rule I was amended to read, in pertinent part: Persons who, by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management o r in political cam­ paigns. Twenty-fourth Annual Report of the Civil Service Commission 104 (1908) (emphasis added). The CSC thereafter exercised its authority to investigate and adjudicate alleged violations o f this Rule. The scope and meaning of the “ take no active part” clause were defined “ in the mode of the common law ” through these CSC adjudications. Civil Service C om m ’n v. N ational A ss’n o f Letter Carriers, 413 U.S. 548, 559 (1973). Between 1907 and 1939, the CSC applied Rule I in over 3000 adjudicated cases. The CSC from time to time summarized its adjudicatory rulings in the form o f guidelines. Most important for present purposes, section 17 of CSC Form 1236, published in 1939, stated: “ An employee may make political contributions to any committee, organization, or person not employed by the United States, but m ay not solicit, collect, receive, or otherwise handle or disburse the contribu­ 62 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees tions.” CSC Form 1236, “ Political Activity and Political Assessments of Federal Officeholders and Employees,” §17, at 7 (1939) [hereinafter “ 1939 CSC Form 1236” ], quoted in Appendix to Letter Carriers, 413 U.S. at 584 (emphasis added). 2. The Hatch A ct— 1939-1940 In section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress by statute extended to the entire federal service the prohibition reflected in Rule I. Section 9(a) pro­ vided in pertinent part: No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active p a rt in political management o r in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects. In its next session, Congress attempted to give some substantive content to sec­ tion 9(a)’s prohibition on taking an “ active part in political management or in political campaigns.” The Senate Committee, led by Senator Hatch, first proposed that a new section 15 of the Hatch Act authorize and direct the CSC to promulgate rules or regulations defining the term “ active part in political management or in political campaigns.” See L etter Carriers, 413 U.S. at 570 n.16 (quoting pro­ posed section 15 in S. Rep. No. 76-1236, at 4 (1940)). But this proposed conferral of “ broad rulemaking authority” to the CSC was greeted on the Senate floor with “ strong objections,” as being “ an unwise and invalid delegation of legisla­ tive power to the Commission.” Id. at 570. See, e.g., 86 Cong. Rec. 2352 (1940) (statement of Sen. McKellar); id. at 2426-27 (statement of Sen. Lucas); id. at 2875 (statement of Sen. Thomas); id. at 2924-27 (statement of Sen. Thomas); see also Henry Rose, A C ritical Look a t the Hatch A ct (“ Rose, Critical Look” ), 75 Harv. L. Rev. 510, 513 (1962) (opposition in Senate to such a broad delegation of rulemaking authority to CSC “ was strong and persistent” ). In response to this opposition to the delegation of broad rulemaking authority to the CSC, Senator Hatch offered a substitute section 15, which limited the reach of the prohibition in section 9(a) to “ the same activities . . . as the United States Civil Service Commission has heretofore determined are at the time of the passage of this act [viz., July 19, 1940] prohibited on the part of employees in the classified civil service of the United States by the provisions of [Civil Service Rule I].” See 86 Cong. Rec. 2928, 2937 (1940). Congress passed this substitute amendment. Id. at 2958-59. See Act of July 19, 1940, ch. 640, 54 Stat. 767, 111-. As later codified in 5 U.S.C. § 7324(a)(2) (Supp. Ill 1965-1967), the phrase “ an active part in political management or in political campaigns” was defined to mean: those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service 63 Opinions o f the Office o f Legal Counsel in Volume 19 before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President. Thus, under the Hatch Act, the pre-1940 “ determinations” of the CSC defined what behavior was unlawful. The decisions in these CSC cases, however, were not reported, nor were they (or are they) even available to the public; rather, the decisions were “ buried in the raw file in a dusty storage cabinet” at the CSC. Rose, C ritical Look, 75 Harv. L. Rev. at 516.30 Therefore, it was (and is) difficult to ascertain how, under Rule I, the CSC treated actions by federal employees involving the handling of political contributions.31 In addition, those adjudicatory rulings were widely perceived to be “ inconsistent, or incapable of yielding any meaningful rules to govern present or future conduct.” Letter Carriers, 413 U.S. at 571. Federal employee unions eventually challenged the definition in section 15 as being impermissibly vague. In rejecting that challenge, the Supreme Court held that Congress had not codified into law the inaccessible, “ impenetrable jungle of Commission proceedings, orders, and rulings,” id.; rather, the Court held, Con­ gress intended section 15 to transform into codified law the CSC’s “ administrative restatement of Civil Service Rule I law ” — namely, the 1939 version of CSC Form 1236 — modified as necessary to reflect provisions in the 1939 and 1940 Acts themselves. Id. at 572-74. The C ourt’s holding in Letter Carriers meant that the prohibitions summarized in the 1939 CSC Form 1236 — included as an appendix to the Court’s opinion in Letter Carriers, 413 U.S. at 581-95 — defined the scope of the prohibition con­ tained in section 9(a) of the Hatch Act. Id. at 5 72-75.32 As of 1939, the CSC rule as to political contributions was as follows: “ An employee may make polit­ ical contributions to any committee, organization, or person not employed by the United States, but may not solicit, collect, receive, or otherwise handle or disburse the contributions. (See provisions of the Criminal Code, discussed in secs. 36 to 30 See also id. at 522; M arick F. M asters & Leonard Bierman, The Hatch Act and the Political Activities o f Federal Employee Unions: A Need for Policy Reform, 45 Pub. Admin. Rev. 518, 520 (1985) (quoting C SC ’s acknowl­ edgem ent that the public cannot go to original sources to study C SC 's pre-Hatch-Act determinations, because those determinations are ‘“ embodied in diffused files and records o f the com m ission' **). 31 Some o f the C S C 's decisions were summarized in annual reports. One can glean from these reports, that the CSC, at least in certain instances, concluded that the ministerial handling o f political contributions by federal employees violated Rule 1, even where th o se employees had no political objectives o f their own and were acting solely as agents o f the contributors. For instance, in one case, the CSC requested the removal from federal service o f an em ployee who had acted as a mere conduit for another’s contributions. In re LeRoy, reported in Thirtieth Annual Report o f the C ivil Service Commission 149, 152 (1914) (reporting events that occurred in 1910-1913). O n the other hand, in a case occurring at virtually the sam e time as LeRoy, the CSC considered similar behavior merely a “ technical[] v io la tio n of] the la w ," and found it sufficient simply to issue a warning to the employee not to engage in similar conduct in the future. In re Wagner, reported in Twenty-ninth Annual Report of the Civil Service Com m ission 164, 164 (1913) (reporting events that occurred in 1910-1911). 32Accord Political Activity by Government Employees, 40 Op. A tt’y Gen. 14, 26 (1941). But see Rose, Critical Look, 75 Harv. L. Rev. at 513-14, 518 n.33 (arguing, contrary to the conclusion in Letter Carriers, that the congres­ sional purpose was in fact to codify the m ore than 3000 individual pre-1940 CSC determinations, rather than the Form 1236 pamphlet restatement). 64 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees 50.).” 1939 CSC Form 1236 at 7, quoted in Letter Carriers, 413 U.S. at 5 8 4 .33 In 1940, in light of the Hatch Act itself, the CSC changed the rule to the following: Employees may not solicit, collect, receive, disburse, or otherwise handle contributions made fo r political purposes. They may make voluntary contributions to a regularly constituted political organiza­ tion for its general expenditures. CSC Form 1236a, “ Political Activity and Political Assessments of Persons Employed by State and Local Agencies in Connection with Activities Financed in Whole or in Part by Loans or Grants Made by the United States or by any Federal Agency,” § 14, at 8 (1940) (emphasis added). However, this rule, like the others the CSC promulgated in 1939-1940, did not set in stone the scope of prohibited activities under the Hatch Act. In Letter Carriers, the Court recognized that the CSC’s definition of prohibited activities had changed over time in accordance with the CSC’s reformulation of Form 1236 and, after 1970, in accordance with the regulations that the CSC promulgated in lieu of Form 1236. 413 U.S. at 575 (citing 5 C.F.R. pt. 733). The post-1970 CSC regulations were, the Court held, the “ wholly legitimate descendants of the 1940 restatement adopted by Congress and were arrived at by a process that Congress necessarily anticipated would occur down through the years.” Id. Thus, the Court held that the contours of the “ take an active part” prohibition in section 9(a) of the Hatch Act properly had evolved in accordance with the CSC’s revised rules and regulations. Significantly, however, the Court held that Congress had established two substantial limitations on the CSC’s authority to promulgate regulations defining prohibited activities. First, those regulations were not to be promulgated pursuant to a “ broad rulemaking authority” on the part of the CSC; indeed, Congress expressly had rejected such a broad delegation of rulemaking power. Id. at 57071. Thus, the CSC’s regulations were merely interpretive, rather than legislative, or substantive.34 Second, Congress placed a specific limit on the CSC ’s power to alter Form 1236 (and subsequently, to alter its regulations): the C SC ’s further development of the law o f prohibited activities had to be “ within the bounds of, and necessarily no more severe than, the 1940 rules.” Letter Carriers, 413 U.S. at 575 (emphasis added). That is to say, the 1940 rules (i.e., the 1939 CSC Form 1236 as amended by the provisions of the 1939 and 1940 Acts themselves) provided the “ outer limits” of any subsequent redefinition of prohibited activities. 33 Sections 36 to 50 o f Form 1236, referenced in section 17, discussed several criminal statutes, including, most important, sections 11 and 12 o f the Pendleton Act, at that time codified at 18 U.S.C. §§208, 209. See 1939 CSC Form 1236 at 17-22. 34 See, e.g.. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) (discussing differences between interpretive and legislative regulations), Health Ins. Ass'n v. Shalala, 23 F.3d 412, 422-24 (D.C. Cir. 1994), cert, denied, 513 U S . 1147 (1995); Alcaraz v. Block, 746 F.2d 593, 61 3 -1 4 (9th Cir. 1984); American Postal Workers Union v. United States Postal Sen., 707 F.2d 548, 558-60 (D.C. Cir. 1983), cert, denied, 465 U.S. 1100 (1984). 65 Opinions o f the Office o f Legal Counsel in Volume 19 Id. at 576; see also id. at 571-72 (CSC could not fashion a more expansive defini­ tion of prohibited activities); id. at 574 (CSC was to proceed to perform its role under the Hatch Act “ within the limits” o f the 1940 rules). In sum, by interpreting the Hatch Act, the CSC could over time loosen, or eliminate, prohibitions found in its 1939-1940 rules, but it could not establish more restrictive prohibitions than those identified in the 1940 version of CSC Form 1236a. 3. C SC Interpretations — 1942—1978 Despite the broad ban expressed in the 1939-1940 CSC rule on the solicitation, collection, receipt, disbursement and handling of contributions made for political purposes, the CSC did not apply this rule in a literal fashion in adjudications after 1940. M ost important, the CSC held in various adjudications that “ handling” political contributions did not, without more, necessarily constitute taking “ an active part in political management or in political campaigns.” For instance, the Commission acknowledged that a postman (a federal employee) carrying mail “ handles” campaign contributions without violating the statute. In re Burns, et al., 1 Political Activities Reporter (“ P.A.R.” ) 538, 540 (1952). By the same token, an employee who did a “ trivial favor” for a friend by delivering membership cards to a political club did not thereby violate the statute. In re Hendershot, 1 P.A.R. 166, 173 (1946). In a series of cases, the Commission ruled that employees did not violate the Act by delivering fellow employees’ remittance for tickets for a political organiza­ tion’s dinner, or by delivering the organization’s dinner tickets to fellow employees, so long as the employees performing the ministerial task were not involved in promoting the dinner. In re B um s, et al. (McDonald, Green, Higgins, Chandler and K earns), 1 P.A.R. 538, 542-43 (1952); In re Hargadine, 1 P.A.R. 629, 633 (1952); In re Edwards, 1 P.A.R. 714 (1954); In re Villone, 1 P.A.R. 719 (1954). In such cases, the charged employees were “ merely endeavoring to accommodate friends,” by “ acceding” to their “ requests.” Hargadine, 1 P.A.R. at 633. The Commission accordingly refused to find a violation on the basis of such a “ minimal errand service.” Villone, 1 P.A.R. at 719. Finally, in a case of particular relevance here, the Commission found that a federal employee did not violate the Act when, “ [a]s a favor” to three supervisory employees, “ he mailed their contributions to the campaign committee of their choice.” In re Branlund, 1 P.A.R. 752, 753 (1955). Although undoubtedly this was a “ handling” of political contributions in a literal sense, id., the Commission nevertheless ruled that the employee “ took no active part in political management or in a political campaign,” id. Despite these adjudicatory decisions, the CSC continued to publish more strin­ gent rules. And in 1970, the CSC retained the strict prohibitions when it issued regulations on this subject. 35 Fed. Reg. 16,785 (1970). Thus, although under the regulations a federal employee had the right to “ [m]ake a financial contribu­ 66 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees tion to a political party or organization,” 5 C.F.R.§ 733.111(a)(8) (1971), an employee still was prohibited from “ [d]irectly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting fo r assessments, contributions, or other ■’funds for a partisan political purpose,” id. § 7 3 3 .122(b)(3). Because §733.122(b)(3) did not define a prohibition more stringent than those identified in the, 1939 and 1940 CSC rules, this regulation was within the C SC ’s delegated authority, according to the Court’s subsequent decision in Letter Carriers. By the same token, the CSC’s adjudicatory decisions limiting the severity of this prohibi­ tion, see supra p. 66, also were within the Commission’s power, because they reflected a diminution, rather than an enhancement, of the activities defined in 1939 and 1940 as constituting an “ active part in political management or in a political campaign.” 4. Dissolution o f the CSC and Creation o f O PM — 1978 Under the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress eliminated the CSC, and OPM took over CSC’s responsibility for promulgating Hatch Act regulations. See American F ed’n o f G o v’t Employees v. O ’Connor, 747 F.2d 748, 753 & n.13 (D.C. Cir. 1984), cert, denied, 474 U.S. 909 (1985).35 This authority, however, did not mean that Congress gave OPM either unlimited or dispositive power to interpret the Hatch Act. For one thing, OPM’s regulatory authority was to be no more extensive than that previously given to the CSC — that is, OPM did not inherit any “ broad rulemaking authority,” see Letter Carriers, 413 U.S. at 570-71; therefore, OPM ’s Hatch Act regulations are merely interpretive (rather than “ legislative” ) .36 Moreover, those regulations may not identify activities as prohibited unless such activities were within the group of prohibited activities defined in the CSC’s 1939 and 1940 rules. See supra pp. 6 4 -6 6 .37 35 See also Authority for Issuing Hatch Act Regulations, 18 Op. O.L.C. 1, 3 A n.6 (1994). 36 See supra p. 65 & note 34. By contrast, in another section o f the Hatch Act, Congress had granted the CSC express “ legislative” rulemaking authority with respect to another matter, namely, identifying geographical areas where federal employees could take a more active role in political campaigns and management. See Act o f July 19, 1940, ch. 640, §16, 54 Stat. 767, 771, Pub. L. No. 89-554, 80 Stat. 378, 526 (1966). Accordingly, the C SC ’s rules issued pursuant to this grant o f authority were legislative in nature, rather than interpretive. See Joseph v. CSC, 554 F.2d 1140, 1153 & nn.24-25 (D.C. Cir. 1977). This rulemaking authority was passed on to O PM in 1979, see 5 U.S.C. §7327 (Supp. UI 1979); and O PM retains this rulemaking authority with respect to the geographic exceptions under the HARA, see 5 U.S.C. §7325. Accordingly, regulations issued pursuant to that authority, see, e.g., 59 Fed. Reg. 5313, 5314 (1994) (proposed 5 C.F.R. §733.102), presumably are legislative, rather than interpre­ tive. 37 In some ways, O PM ’s regulatory authority is more limited than that previously enjoyed by the CSC. The MSPB has been assigned the task o f reviewing the “ rules and regulations o f the Office of Personnel M anagement,” 5 U.S.C. § 1204(a)(4); see also id. § 1204(f). Thus, the MSPB has oversight authority “ in the review of H atch Act regulations promulgated by the O PM .” American Fed’n o f Gov’t Employees, 747 F.2d at 755. Furthermore, the Supreme Court has explained that Hatch Act regulations themselves (now issued by OPM) should continue to be “ refined by further adjudications,” “ within the outer limits o f the 1940 rules.” Letter Carriers, 413 U.S. at 576. This refinement role once was committed to the same agency that issued the regulations — the CSC. However, the M SPB— not O PM — has “ inherited the C SC ’s ‘accustomed role’ o f refining the law of prohibited political activities through the continual decision o f cases.” American Fed’n o f Gov’t Employees, 747 F.2d at 755. 67 Opinions o f the Office o f Legal Counsel in Volume 19 5. O PM ’s A m ended Regulations on Salary Allocations to PA C s — 1982-1984 Before 1982, no agency or court had considered or addressed the applicability of the Hatch Act to PAC contributions. On December 28, 1982, OPM published proposed regulations “ to clarify the . . . existing regulatory prohibition [in 5 C.F.R. §733.122(3)] on the solicitation, payment, collection, and receipt of polit­ ical contributions.” 47 Fed. Reg. 57,724, 57,724. In order to make clear that the federal payrol 1-deduction system could not be used for political contributions, including contributions to PACs, OPM proposed to expand the Hatch Act defini­ tion of “ contribution,” 38 and to add three new subsections to the list of “ prohibi­ tions.” 39 OPM reasoned that automatic salary allocations to PACs should be impermissible because “ the use of a Federal payroll deduction scheme or the Government’s allotment system as a conduit for political contributions by Federal employees subject to the Hatch Act would involve the use of Federal workplaces and instrumentalities to pay, collect, and receive such contributions.” Id. OPM also alleged that such a practice would “ raise[] the unacceptable possibility of abuse,” and would “ enable o r encourage supervisors and co-workers to bring varieties of impermissible pressures upon the employee to [contribute].” Id.\ see also supra note 19. Public-employee unions raised numerous objections to the proposed regulations. Moreover, the Office of Special Counsel informed OPM that, in the opinion of the Special Counsel, the Hatch Act would not be violated by employees who perform the administrative and clerical “ handling” o f other employees’ PAC con­ tributions: The employees who perform the administrative and clerical chores which effect another employee’s contribution to AFGE-PAC arguably violate the Hatch Act since their duties cause them to “ indirectly . . . handle . . . contributions . . . for a partisan polit­ ical purpose.” ( See section 733.122(b)(3), Part 733.5 C.F.R.). How­ ever, this indirect, per[ip]heral “ handling” of political contributions 38 The proposed definition o f contribution was “ any gift, subscription, loan, advance, deposit of money, allotment o f money, o r anything o f value given o r transferred by one person to another, including in cash, by check, by draft, through a payroll deduction or allotment plan, by pledge or promise, w hether or not enforceable, or otherw ise." 47 Fed. Reg. at 57,725 (proposed 5 C.F.R. § 7 3 3 .101(h)) (emphasis added). 39 U nder O PM ’s proposed regulation, the following three prohibitions would have been added to the list in 5 C.F.R. §733.122: (14) Soliciting, collecting, o r receiving a contribution from any employee for any political party, political fund , o r other partisan recipient; (15) Paying a contribution to any em ployee who is the employer or employing authority o f the person making the contribution for any political party, political fund, or other partisan recipient; and (16) Soliciting, paying, collecting, or receiving a contribution, at or in any Federal workplace, for any political party, political fund , or other partisan recipient. 47 Fed. Reg. at 57,725. “ Political fund,” in turn, was defined to include any PAC that, inter alia, expends or transfers money o r anything o f value to any candidate or organization, “ for purposes o f influencing in any way the outcom e o f any partisan election.” Id. (proposed 5 C.F.R. § 7 3 3 .101(g)). 68 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees can be distinguished from that which is performed by someone as an incident to holding office in a political party or PAC. The employees who process the paperwork which accomplish the con­ tribution to AFGE-PAC are performing their official duties. The individual who “ handles contributions” for the Democratic or Republican party has identified himself with the success of a par­ tisan political party. The Hatch Act was intended to restrict federal employees with respect to the latter not the former. Memorandum for William E. Reukauf, Deputy Associate Special Counsel for Prosecution, Office of the Special Counsel, from John R. Erck, Attorney, Re: C lo­ sure Recommendation AFGE — PAC-DC, OSC M atter No. 1 0 -3 -0 0 4 6 9 (Dec. 2, 1983) (concurred in by Deputy Associate Special Counsel Reukauf on Dec. 6, 1983; transmitted to OPM on Apr. 6, 1984). Despite the unions’ objections and the Special Counsel’s opinion, OPM issued its amended regulations in final form on April 24, 1984. 49 Fed. Reg. at 17,43132. In the comment stage, the American Federation of Government Employees (“ AFGE” ) had contended that OPM lacked the authority to issue the new regula­ tions; AFGE argued that OPM would be acting outside its statutory authority by creating a new prohibition, beyond those enumerated in the 1940 CSC R ules.40 In the final regulations, OPM responded to this argument by stating that “ these regulations do not exceed the boundaries set forth in the Hatch Act. They merely clarify an existing OPM regulation (5 CFR 733.122(b)(3)).” 47 Fed. Reg. at 17,431. OPM’s defense of its authority was well-founded. OPM ’s new 1984 regulations technically did not create any prohibition broader than that already contained in the sweeping proscription found in the 1939 and 1940 CSC rules regarding the handling of contributions, see supra pp. 64-66; rather, OPM simply issued clari­ fying regulations to explain how that already-existing prohibition (5 C.F.R. §733.122(b)(3)) applied to a new fact situation — namely, salary allocations to PACs. It is important to note, however, that whereas OPM was empowered to issue the 1984 regulations, it was not required to do so; indeed, OPM could instead have modified its previous rules to permit the practice in question, which would have been in accord with the opinion of the Special Counsel (see supra pp. 6869) and with the adjudicatory decisions of the CSC (see supra pp. 6 6 -6 7 ).41 What 40 See Comments o f American Federation o f Government Employees on Proposed Rule o f Office [of] Personnel Management Amending 5 CFR Part 733, Political Activity o f Federal Employees at 20 n.13 (submitted to OPM March 4, 1983). 41 In publishing its regulations, OPM stated that “ [tjhe overwhelming majority of the former C ivil Service C om m is­ sion’s decisions . . . have held that these activities are violations o f the Hatch A ct." 49 Fed. Reg. at 17,431. OPM did not, however, cite any CSC “ decisions" in support o f this proposition, and, as explained supra p. 66, this claim is belied by the historical evidence: in contrast to the strict CSC rules, the CSC adjudications almost uniformly Continued 69 Opinions o f the Office o f Legal Counsel in Volume 19 is more, exercising its power to reinterpret the Hatch Act to loosen its prohibitions, see supra pp. 65-67, OPM could have eliminated altogether the broad prohibition found in § 7 3 3 .122(b)(3) of the regulations against “ handling, disbursing, or accounting for’ ’ political contributions. 6. The B iller and Blaylock C a ses— 1988 As we previously have noted, supra pp. 55-56, in two cases in 1988, federal courts of appeals ruled that the test of whether a federal employee had taken “ an active part in political management or in political campaigns” was whether that employee had acted “ in concert with a partisan political campaign or organization.” Biller, 863 F.2d at 1090 (emphasis added); accord Blaylock, 851 F.2d at 1356 (“ the Hatch Act is violated only by actions taken in concerted effort with partisan activity or formal, organized, political groups” ). The legal status of federal-employee salary allocation to PACs thus was in a state o f flux following Biller and Blaylock. On the one hand, the OPM regulations plainly prohibited any federal employee from “ directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, con­ tributions, or other funds for a partisan political purpose,” 5 C.F.R. § 733.122(b)(3) (1994); and the 1984 amendments to the regulations made clear that this prohibition extended to salary-allotment systems, id. §733.101(h), and included contributions to a PAC so long as that PAC “ expends” or “ transfers” money to, inter alia, any political party, candidate, or organization, id. § 7 3 3 .101(g). On the other hand, B iller and Blaylock could fairly be read to indicate that federal employees who performed the ministerial acts of handling, processing, and transferring fellow employees’ PAC contributions would not vio­ late the Hatch Act, because those ministerial actions would not be undertaken “ in concert w ith” any partisan political campaign or organization, including the PAC itself. 7. The H atch A ct Amendments — 1993—94 In the HARA, Congress retained the old Hatch Act definition of “ tak[ing] an active part in political management or in a political campaign” : i.e., “ those acts o f political management or political campaigning which were prohibited for employees o f the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.” 5 U.S.C. § 7323(b)(4). There is, moreover, no reason to believe that Congress intended the content or scope o f this definition to be anything other than what the Supreme Court described in L etter Carriers. See supra pp. 63-66. OPM continues to have the same regulatory authority that it enjoyed under the pre-1993 Hatch Act to define the contours o f “ tak[ing] an active part in political m anagem ent or in a political campaign.” See supra pp. 66-67. Pursuant to that had held that m ere ministerial handling o f political contributions by federal employees did not constitute taking an “ active part in political management or in a political cam paign." 70 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees authority, OPM superseded its old Hatch Act regulations on February 4, 1994. 59 Fed. Reg. 5313-15. Thereafter, on September 23, 1994, OPM published interim regulations. In those regulations, OPM has eliminated from the list of prohibited activities — including from the list of activities prohibited for “ HARA-exempt” employees — the four subsections (formerly 5 C.F.R. §§733.122(b)(3), (14)—(16)) that were the basis for OPM ’s conclusion in 1984 that salary allocations to PACs were prohibited, see supra pp. 68-70. Thus, there currently is nothing in OPM ’s regulations prohibiting “ handling,” or “ accounting for,” political contributions. 8. Summary This historical survey demonstrates why, for two reasons, HARA-exempt employees are not bound by law to the terms of OPM ’s pre-HARA regulations. First, it is far from clear that it would have been impermissible to “ handle” or “ account for” other employees’ PAC contributions prior to the HARA. While it is true that, by their plain terms, the OPM regulations previously found at 5 C.F.R. §§733.122(b)(3), (14)—(16) prohibited the actions at issue, it also is true that those regulations were contradicted by: (i) the adjudicatory decisions of the CSC in the years immediately following passage o f the Hatch Act, see supra pp. 66-67; (ii) the opinion of the Special Counsel in 1983, see supra pp. 6 8 69; and, most importantly, (iii) the decisions of the Second and Eleventh Circuits in Biller and Blaylock, respectively, see supra p. 70. These other authorities held that the ministerial “ handling” of political contributions was not proscribed by the Hatch Act if the employee doing the handling was not acting on behalf of the political group or candidate to which the contribution was made. Second, even if the pre-1994 OPM regulations had constituted binding and applicable law prior to the HARA, the HARA did not codify into law the terms of those prior regulations with respect to HARA-exempt employees. Rather, the HARA simply left intact the Hatch Act definition of “ active part in. political management or in political campaigns.” As we have explained, supra pp. 6 5 70, this definition was not static: OPM (previously the CSC) was empowered to alter the definition in the direction of more permissive regulation. OPM con­ tinues to have that authority under the HARA. In the proposed regulations, OPM has exercised its delegated authority to redefine what constitutes an “ active part in political management or in political campaigns.” Whereas “ handling” and “ accounting for” such contributions once were proscribed by the OPM regulations, they no longer are. OPM ’s redefinition, moreover, comports with the great weight of authority over the years respecting the ministerial handling of political contributions, including the adjudicatory decisions of the CSC after the Hatch Act and the decisions of the courts of appeals in Biller and in Blaylock. Therefore, the OPM regulations now are in accord with the other authorities on the matter, and there no longer is any bar on the ministerial handling of, or “ accounting for,” political contributions, including contributions to PACs. 71 Opinions o f the Office o f Legal Counsel in Volume 19 O. P olitica l A ctivity On D uty and in a F ederal B u ildin g— 5 U.S.C. § 7324 The Criminal Division has asked whether any of the participants in the proposed practice would violate the prohibitions stated in 5 U.S.C. §7324. Almost all cov­ ered employees, whether or not they are HARA-exempt, may not engage in “ political activity” : (i) while on duty; (ii) while in “ any room or building occu­ pied in the discharge of official duties by an individual employed or holding office in the Government o f the United States or any agency or instrumentality thereof” ; (iii) while wearing a uniform or official insignia identifying the employee’s office or position; or (iv) while using any vehicle owned or leased by the federal govern­ ment. 5 U.S.C. §7324(a)(l)-(4). An exception to these prohibitions is made for certain employees whose duties and responsibilities continue “ outside normal duty hours and while away from the normal duty post.” Id. § 7324(b)(2)(A). These employees may engage in on-duty or on-premises political activity, but only “ if the costs associated with that political activity are not paid for by money derived from the Treasury o f the United States.” Id. § 7324(b)(1). Congress did not define “ political activity” in the HARA. OPM has proposed that “ political activity” be defined as “ an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. §734.101). We think that this definition, as far as it goes, comports with Congress’s intent. But it is important to note one other salient fact: It is evident from the statements o f the H A R A ’s leading sponsors that Congress intended to create a bright-line rule, with no exceptions: section 7324(a) prohibits covered employees from engaging in all on-duty and on-site political activity.42 As the principal Senate 42See, e.g., 139 Cong. Rec. 15,365-68 (1993) (statement o f Sen. Glenn) ( “ no political activity of any kind on the jo b ” ; “ nothing political on the job, not even a lapel button o f any size” ; political activity on the job “ would be absolutely and unequivocally prohibited . . . ; no political activity on the job, zero, including even what is per­ mitted under to d ay ’s Hatch A ct” ; "N othing on the job. Cannot even wear a campaign button on the jo b ."; “ all political activity on the job would be b an n ed "; "A bsolutely no political activity will be acceptable on the jo b "); id. at 15,376 (statem ent o f Sen. Glenn) ( “ unequivocally, . . . — no political activity on the jo b ” ); id. at 15,53132 (statement o f Sen. G lenn) ( “ Simply p u t . . . what S. 185 does is say that you do not even permit anything on the jo b that has been permitted ail these years under the Hatch Act. You cut it out. There will be no politics on the jo b , none.” ; “ O n the job, you can do nothing, period.” , “ no button [of] any kind, on the job, no kind o f political activity on the jo b period” ; “ N o political activity on the jo b — zero— including even what is permitted today.” ); id. at 15,739-41 (statement o f Sen. Glenn) ( “ [Tlhere will be no political activity on the job. There are no exceptions to that. There will be no political activity o f any kind on the job.” ; “ This bill would say on the job, you can d o absolutely nothing political. You cannot have a campaign button on. You cannot do anything.” ); id. at 16,038 (statem ent o f Sen. Glenn) (“ W e prohibit all political activity on the job with S. 185. I keep hammering . . . and ham m ering that thought home, because there has been so much misunderstanding. We tighten up the Hatch Act and make it tougher than it now is. N o political contributions, no political activity, no wearing of a button on the jo b .” ; “ [o]n the job, zero” ); id. at 16,054 (statement o f Sen. DeConcini) (“ The prohibition on workplace activity is an absolute prohibition."). In an earlier session o f Congress, Senator G lenn— the chief sponsor o f Hatch Act reform legislation— expressed the same understanding w ith respect to an identical provision, noting that the on-the-job prohibition “ has to be Sim on p u re — you cannot do anything." 136 Cong. Rec. 9156 (1990); see also id. at 9358-59 (statement of Sen. G lenn) (“ None. A one-w ord answer, no political activity on the jo b ." , “ nothing o f a political nature is permitted on the job; I mean nothing” ; “ This would clarify it. This would say anything on the job is verboten, it is out, it is not permitted. . . . If you are on duty an d you are on the job, that is it, no politics."); id. at 10,034 (statement o f Sen. G lenn) ( “ there can be no political indication, there can be no political activity on the job; none, period; 72 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees sponsor of the bill stated, on-the-job political activity “ would be absolutely and unequivocally prohibited.” 139 Cong. Rec. 15,366 (statement of Sen. Glerrn).43 Thus, for example, Congress intended to prohibit the wearing of political buttons on duty.44 Nor can covered employees stuff envelopes with political materials or send out campaign materials while they are on the job or in a federal building— such activities are permitted only off-site and “ off the job.” 45 Most important for present purposes, political contributions, including PAC contribu­ tions, cannot be “ request[ed]” nor “ given” while on the job: “ [i]t would be no solicitation, no public statement, no nothing on the job o f a political nature” ); id. ai 15,098 (statement o f Sen. Glenn) (“ Nothing can be done o f a political nature while you are on the jo b during the day. Nothing. Zero. That is it.” ; “ All political activity on the job is banned. Everything.” ). Earlier in that same session, several sponsors o f equivalent legislation in the House also spoke o f the on-duty ban in absolutist terms. See, e.g., 135 Cong. Rec. 6767 (1989) (statement o f Rep. Horton) ( ‘‘No on-the-job political activity will be allowed. Just that simple, none whatsoever.” ); id. at 6773 (statement of Rep. Martin) ( “ prohibits any political activity whatsoever on the jo b ” ); id. (statement of Rep. Morelia) ( “ It will ban absolutely all politicking in the Federal workplace . . . . By taking this black and white approach, no partisan political activities on the job, any otherwise legal activities o ff the job, the Hatch Act reform bill would clear up the ambiguity and vagueness . . . .” ); id. at 6777 (statement o f Rep. Parris) ( “ 'bright line* rule” — “ prohibiting all on-the-job political activity while permitting participation in any otherwise legal political activity during the Federal em ployees’ ow n tim e” — “ would provide clear guidance on permissible activity” ). 43O PM ’s proposed regulations reflect this absolute, bright-line rule, creating distinctions that might otherwise seem hypertechnical. See 59 Fed. Reg. at 48,774 (proposed 5 C.F.R. §734.306, Example 10) (“ An employee may stuff envelopes for a mailing on behalf o f a candidate for partisan political office while the employee is sitting in the park during his lunch period if he is not considered to be on duty during his lunch period.” ); id. (proposed 5 C.F.R. §734.306, Example 11) ( “ An employee may engage in political activity in the courtyard outside o f a Federal building where no official duties are discharged as long as the employee is not on duty.” ). 44 See, e.g., S. Rep. No. 103-57, at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1815; 139 Cong Rec. 15,36667 (1993) (statement o f Sen. Glenn); id. at 15,532 (statement o f Sen. Glenn); id. at 15,741 (statement o f Sen. Glenn); id. at 15,785 (statement o f Sen. Sarbanes); id. at 16,039 (statement o f Sen. Glenn); id. at 16,054 (statement of Sen. DeConcini); id. at 3275 (statement o f Rep. Upton); see also, e.g., 135 Cong. Rec. 6773 (1989) (statement of Rep. Morelia). Insofar as the broad ban on “ political activity” in §7324 establishes an across-the-board prohibition on certain forms of on-duty expressive activity— such as, e.g., wearing buttons or putting up bumper stickers — it may raise difficult constitutional questions. Compare, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973) (insofar as state law restricts public employees from wearing political buttons or displaying political bumper stickers, such restrictions “ may be . . . unconstitutional” ); Hobbs v. Thompson, 448 F.2d 456, 475 (5th Cir. 1971) (banning firefighters from displaymg political bum per stickers is unconstitutional); American Fed'n o f Gov’t Employees v. Pierce, 586 F. Supp. 1559, 1561-63 (D.D.C. 1984) (Veterans Administration policy absolutely prohibiting employees from wearing polit­ ical buttons on duty is unconstitutional); McNea v. Garey, 434 F. Supp. 95, 108-11 (N.D. Ohio 1976) (municipal regulation prohibiting police officers from all discussions or expressions o f politics is unconstitutional); Weaver v. Shaffer, 170 W. Va. 107, 108-09, 114, 290 S.E.2d 244, 245-46, 251 (W. Va. 1980) (state law prohibiting deputy sheriffs from engaging in “ any political activity o f any kind” would be unconstitutionally overbroad were it not for court’s interpretation o f that ban to proscribe only those political activities that the Supreme Court in Letter Carriers decided may constitutionally be proscribed), with, e.g.. Wicker v. Goodwin, 813 F. Supp. 676, 678, 681 (E.D. Ark. 1992) (state law prohibiting state troopers from publicly and openly espousing candidacies is not unconsti­ tutional); Connealy v. Walsh, 412 F. Supp. 146, 158 (W.D. Mo. 1976) (juvenile court regulation prohibiting employees from displaying political bumper stickers on vehicles used for court business or parked in court parking lot is not unconstitutional); State ex rel. Troutman v. City o f Farmington, 799 S.W.2d 638, 642-43 (Mo. App. 1990) (municipal laws and regulations prohibiting police officers from expressing opinions on political subjects and can­ didates on duty, and from displaying on duty any political pictures, stickers, badges or buttons, are not unconstitu­ tional); Ferguson Police Officers Ass’n v. City o f Ferguson, 670 S.W.2d 921, 928-29 (Mo. App. 1984) (city provision prohibiting police officers from speaking, literally o r through bumper stickers, signs and buttons, in favor or against candidates for city council, is not unconstitutional); State v. Staler, 122 So. 2d 1 (Fla. 1960) (state statute prohibiting state employees from “ advising” other employees to make political contributions is not unconstitutional, even as to “ advice” that is not coercive in nature). We have no occasion in this Opinion to address these constitutional questions. 4 iSee, e.g., 139 Cong. Rec. at 1233 (statement o f Sen. Glenn); id. at 15,368 (statement of Sen. Glenn); id. at 15,785 (statement o f Sen. Sarbanes); see also , e.g., 136 Cong. Rec 10,035 (1990) (statement o f Sen. Glenn). 73 Opinions o f the Office o f Legal Counsel in Volume 19 illegal to give as well as to ask for” such contributions while on duty. 139 Cong. Rec. 16,039 (statement of Sen. Glenn ) . 46 With this understanding o f the meaning of “ political activity” in §7324, we can now examine whether and under what circumstances any of the participants in the proposed salary-allocation practice would violate the restrictions in that statute. 1. Offerors The Criminal Division has argued that “ the circulation of the proposed payroll withholding offer . . . may constitute [on-duty and on-site] ‘political activity.’ ” M emorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 7 (Oct. 24, 1994) (citing 5 U.S.C. §7324). But, just as making available the salary-allocation system for PAC contributions cannot fairly be considered “ solicitation,” see supra pp. 53-58, neither can it fairly be considered “ political activity.” As long as the heads of agencies making such offers do not request employees to make use of the allocation system, and do not favor one PAC over another (or favor allocation to PACs over nonalloca­ tion), then it is hard to see how they would be engaged in “ political activity,” any more than they would be when they authorize their employees to take an excused absence, with pay, in order to vote in an election. See, e.g., Department o f Justice Order No. 1630.1B, ch. 14, §91(b) (July 22, 1991) (heads of compo­ nents may, under certain circumstances, authorize excused absence for employees who wish to vote or register to vote in any election). Under OPM ’s proposed regulation — which we think is an accurate interpretation of § 7 3 2 4 — activity becomes “ political,” and thus proscribed on duty and in federal buildings, only when it is “ directed toward the success or failure of a political party, candidate for partisan political office, o r partisan political group.” See supra p. 72. The neutral offer of access to the salary-allocation system proposed by OPM would not be proscribed under this standard; while such action may facilitate political activity, it is not political activity itself. 2. Adm inistering Employees The Criminal Division further has suggested that federal employees imple­ menting other employees’ salary allocations to PACs may violate the HARA prohibition against “ political activity” on duty or in federal facilities. Memo­ randum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at 7 (Oct. 24, 1994). 46 Accord 136 Cong. Rec. 9777 (1990) (statem ent o f Sen. Glenn with respect to materially identical legislation) ( “ N o political activity, no political contributions, no nothing by Federal employees while they are on the job.” ) (em phasis added). 74 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees We conclude, however, that the employees who would perform the acts of m in­ isterial facilitation of PAC contributions would not thereby engage in “ political activity.” The actions of those employees would not be undertaken with any intent to benefit the PACs; the employees in question would merely be providing a service that they are required by duty to provide, in response to requests by other employees over which the facilitating employees have no control. (Indeed, insofar as the authorization forms merely request salary assignments to particular bank accounts, the employees administering those assignments may well be unaware that they are dealing with PAC contributions— that is to say, the administering employees’ involvement in political activity could be entirely unwitting.) Again, under OPM ’s proposed regulation, an activity is “ political activity” — and therefore cannot be performed on duty — if that activity is “ directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” We think the “ political activity” ban in the statute, and the “ directed toward the success or failure” language of the proposed regula­ tion, fairly read, contain an implicit intent requirement: an employee’s activity is not “ political activity” unless that employee intends that the activity be directed toward the success or failure of a political party, candidate, or group. If an employee merely acts at the behest, or “ direction,” of another employee, and has no independent intent to assist in the “ success or failure” of the political party, candidate, or group, then that employee would not herself be engaged in “ political activity.” 47 The employees in question here would facilitate the PAC contributions not because they intended to assist the PAC, but because their duty required them to do so: they would have no discretion in the matter. Were it the case that employees could violate § 7324(a) by virtue of any ministerial and/ or unwitting assistance in political activity, regardless of an intent to advance any political end, then any postal employee delivering a mailed political contribution would violate § 7324(a). That could not have been Congress’s intent. 3. Contributors The most troublesome aspect of the proposed use of the salary-allocation system for PAC contributions arises with respect to the federal employees who would actually be making the contributions through the use of that system .48 We first must address a threshold question: whether an employee engages in “ political activity” under §7324 when the employee takes steps to have a portion of his or her salary transmitted to a PAC. Federal employees are, as a general matter, permitted under the HARA to make contributions to partisan political can­ didates and to partisan political organizations such as PACs. See, e.g., 59 Fed. 47 This assumes, o f course, that the facilitating employee, as pan o f her job duties, simply administers all salary allocations equally and without favor, and does not have an independent intent to “ direct,” or effect, the political contribution. 48 There is nothing in O PM ’s regulations that speaks directly to the questions raised in this section. Nonetheless, we note that none o f our conclusions in this section is in any way inconsistent with those proposed regulations. 75 Opinions o f the Office o f Legal Counsel in Volume 19 Reg. at 48,772 (proposed 5 C.F.R. § 734.208(a)). However, it also is clear under the HARA that making such a political contribution is “ political activity,” see 18 U.S.C. §610, and therefore is subject to the restrictions of §7324. Furthermore, in light of Congress’s obvious intent that “ political activity” be read as broadly as possible, see supra pp. 1 2 -1 A, it is plain that a federal employee also engages in “ political activity” by taking action sufficient to effect the making of a political contribution, such as by taking steps to ensure that a portion of his or her salary is contributed to a political campaign or to a PAC. OPM does not dispute that making contributions to partisan political campaigns or candidates is “ political activity.” 49 OPM contends, however, that under the Second Circuit’s holding in B iller, making contributions to PACs is not a “ polit­ ical activity,” because such contributions are not necessarily partisan in nature. See Letter for Dawn E. Johnsen, Deputy Assistant Attorney General, Office of Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel M anagement at 9 (Nov. 4, 1994); Letter for Dawn E. Johnsen, Deputy Assistant [Attorney General], Office o f Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel Management at 3 -4 (Dec. 13, 1994). In B iller, two union presidents had urged their members— fellow federal employees — to contribute funds to the unions’ PACs. The Second Circuit ruled that the fundraising pleas of the union presidents were not solicitations in concert with a partisan political campaign or organization. 863 F.2d at 1090. The court reasoned as follows: [A]s the ALJ found, the funds [contributed to union PACs] were “ not designated for any political campaign, party, committee or candidate a t the time th ey were m ade.” . . . [T]here is no proof in the record that suggests either that petitioners were acting in con­ cert with a partisan political campaign o r that the funds were actu­ a lly distribu ted or spent fo r that purpose. On that subject, the record is silent. Id. (emphasis added). The court did not address whether its decision would have been different if the record had indicated that the union PACs “ actually distrib­ uted or spent’ ’ their collected funds for a partisan political campaign. Even if we assume that PAC contributions could not be considered “ partisan” activities under B iller’s interpretation of the old Hatch A ct,50 OPM ’s reliance on this aspect of B iller is unpersuasive under the HARA, for the following reasons. 49This is confirm ed in O P M ’s proposed regulations. Making political contributions to a political candidate would be “ political activity” because it is “ an activity directed toward the success or failure of a political party, candidate for partisan political office, o r partisan political group.” 59 Fed. Reg. at 45,770-71 (proposed 5 C.F.R. §734.101). 50T he Second Circuit suggested that this might not be the case if and when the contributed PAC funds “ were actually distributed o r sp en t” by the PACs on partisan political campaigns. 863 F.2d at 1090. The subsequent confu­ sion engendered on this question is exemplified by the positions articulated by the Special Counsel. In 1992, the Special Counsel com m ented that, under her reading o f Biller, encouraging contributions to PACs did not implicate 76 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees Although there are indications in the congressional floor debates that some members of Congress may have intended the HARA to prohibit only partisan political activity on duty and in a federal building,51 the language of §7324 does not refer to “partisan political activity” — an omission that seems fairly con­ spicuous in light of the Hatch Act’s prior focus on partisan activity. For purposes of this Opinion, we need not decide whether §7324 of the HARA does (or con­ stitutionally may) prohibit any or all political activity relating to nonpartisan issues and elections. It is sufficient for present purposes simply to note that, regardless of how that question would be answered, and whether or not PACs can in some sense be considered “ nonpartisan,” one thing is clear: Congress intended that making contributions to PACs is to be considered “ political activity” under the terms of the HARA. This conclusion is compelled by the language of the statute itself. Congress indicated in section 4 of the HARA, 107 Stat. at 1005 (creating 18 U.S.C. §610) that “ making . . . any political contribution” is “ political activity.” “ Political contribution,” in turn, is defined to include “ any gift . . . or deposit of money or anything of value, made for any political purpose.” 5 U.S.C. §7322(3)(A). Indeed, Congress specifically identified contributions to multicandidate political committees as “ political contributions” in § 7323(a)(2) of the statute.52 Because a multicandidate political committee is a type of PA C ,53 it follows that making a contribution to a PAC is “ political activity,” at least as that term is understood in the HARA.54 This conclusion is bolstered by the fact that the leading Senate the Hatch Act if those contributions “ were not earmarked for distribution to partisan groups or candidates when the request was m ade.” Transcript o f Tenth Annual Judicial Conference o f the United States Court o f Appeals for the Federal Circuit, 146 F.R.D. 205, 276 (1992) (comments o f Special Counsel Kathleen Koch). However, that same year, the Special Counsel informed covered employees that “ active participation” or “ active involvement” in a PAC was prohibited with respect to those PACs that “ function to ensure the success or failure of certain partisan political candidates.” Office o f Special Counsel, Hatch Act Facts . . . About PACs 2-3, 4 (1992). 51 See, e.g., 139 Cong. Rec. at 3278 (statement o f Rep Ford) ( “ employees would continue to be prohibited from engaging in partisan political activity while on duty” ); id. at 3281 (statement of Rep. Gephardt) (taxpayer money may not be used for “ partisan political purposes” ); id. at 15,370 (statement o f Sen. Roth) (bill would prohibit “ partisan political activity” on duty), id. at 16,038-39 (statement o f Sen. Glenn) (the prohibition “ means that no partisan political activity can occur during working hours” ); id at 21,818 (statement of Rep. Ford) (“ employees would continue to be prohibited from engaging in partisan political activity while on duty” ). 52 In § 7323(a), Congress banned solicitation o f all “ political contributions” except those made under certain cir­ cumstances to particular multicandidate political committees. Congress must have considered contributions to such committees to be “ political contributions,” because otherwise there would have been no need to carve out the exception. 53Section 7323(a)(2)(C) refers to “ multicandidate political com m ittees,” as that term is defined under section 315(a)(4) o f the Federal Election Campaign Act o f 1971, 2 U.S.C. §441a(a)(4). Such a committee, by definition, “ has made contributions to 5 or more candidates for Federal office.” 2 U.S.C. §441a(a)(4). This is a PAC under the definition we are using in this Opinion, see supra note 4. 54 Under the definition o f PAC that we are using in this opinion, see supra note 4, PACs that are not multicandidate political committees also make contributions or expenditures to influence campaigns for partisan political office; therefore, there is nothing about such PACs to distinguish them from multicandidate political committees for purposes o f the present discussion. A federal employee contributing to any PAC would know that her contribution would be used— at least in p a rt— to support one or more partisan candidates for political office. See FEC v. California Med. Ass‘nf 502 F. Supp. 196, 201-03 (N.D. Cal. 1980) (holding that it is necessary to presume, as a m atter of law, that at least a portion o f every contribution to a PAC that makes contributions in federal elections w ill be used by the PAC for contributions to such elections, even if the PAC uses a majority o f its funds for other purposes); Continued 77 Opinions o f the Office o f Legal Counsel in Volume 19 sponsor of the HARA, Senator Glenn, referred specifically to PAC contributions in explaining what activity would be prohibited on duty. See 139 Cong. Rec. 16,038 (1993). Thus, a federal employee does engage in political activity by taking steps — such as transmitting direct-deposit forms to the appropriate payroll officials — sufficient to ensure that a portion of his or her salary is transferred to a PAC. In the following sections, we discuss whether and when such activity would vio­ late §7324. a. Em ployees C overed Under § 7324(b) In § 7324(b), Congress addressed the political activity of certain employees who are not covered under §7324(a), to whom we will refer as “ 7324(b) employees.” The employees in question are those “ the duties and responsibilities of whose positions continue outside normal duty hours and while away from the normal duty post,” and who are either (i) “ employee[s] paid from an appropriation for the Executive Office o f the President” ; o r (ii) “ employee[s] appointed by the President, by and with the advice and consent of the Senate, whose position[s] [are] located within the United States, who determine!] policies to be pursued by the United States in relations with foreign powers or in the nationwide adminis­ tration of Federal law s.” 5 U.S.C. § 7324(b)(2).55 Such employees “ may engage in political activity otherwise prohibited by subsection (a),” 5 U.S.C. § 7324(b)(1), such as political activity on duty. This special treatment was necessary because these employees are, for purposes of the HARA, “ considered to be continuously on duty,” and “ [w]ithout this exception, the language of [§ 7324(a)] could be read to preclude political activity at any time by these individuals.” H.R. Rep. No. 103-16, at 22 (1993). Because the “ on-duty” prohibitions were therefore unworkable for the § 7324(b) employees, Congress allowed those employees to engage in political activity, but only “ if the costs associated with that political activity are not p a id fo r by m oney derived from the Treasury o f the United States." 5 U.S.C. §7324(b)(l). Therefore, the §7324(b) employees cannot use the federal salary-allotment system to make political contributions, such as con­ tributions to PACs, because the costs incurred in making such contributions— see also California Med. Ass’n v. FEC, 453 U .S. J82, 199 n.19 (1981) (plurality opinion) (even if person contributing to PAC attempts to “ e arm a rk []” such contribution for nonpolitical purposes (e.g., “ administrative support’*), it must be assumed as a m atter o f law that the funds will be used for the PA C ’s contributions to political campaigns). Insofar as federal em ployees might wish to m ake contributions to political committees that have not made, and do not make, contributions or expenditures to influence cam paigns for partisan political office— that is, to committees other than those we have defined as “ PA C s” — such employee contributions would be beyond the scope of this O pinion. See supra note 4. 55 It m ay be unclear whether certain em ployees are covered under the two-part test o f § 7324(b). And, as OPM itself has noted, “ in view o f the different circumstances o f each employee who might claim coverage,” it would be “ impractical to seek to identify all positions which qualify” for §7324(b) status. 59 Fed. Reg. at 48,769. If it is unclear whether a particular employee falls within the aegis o f § 7324(b), a request can be made to the Office of Special Counsel for an advisory opinion on th at question. See 5 C.F.R. § 1800 3. 78 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees specifically, the costs of processing and transmitting the money to the PACs — would be “ paid for by money derived from the Treasury of the United States.” 56 b. All Other Federal Employees Covered by the HARA All other federal employees covered by the H A R A 57 may not engage in “ polit­ ical activity” : (i) while on duty; (ii) while in “ any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof” ; (iii) while wearing a uniform or official insignia identifying the employee’s office or position; or (iv) while using any vehicle owned or leased by the federal govern­ ment. 5 U.S.C. §7324(a)(l)-(4). It follows that such an employee may not make contributions to PACs while in a federal building or while on duty. Furthermore, if such an employee wishes to take steps to effect a transfer of a portion of her salary to a PAC — such as transmitting to the appropriate authorities the forms authorizing such salary trans­ fers— she must do so only when off-duty and outside a federal facility. Under the proposed practice, then, covered employees would violate § 7324(a) if they were to fill out and transmit the necessary direct-deposit forms while on duty or in a federal building. OPM contends that “ [t]o allow employees to mail allotment authorizations but not hand them directly to payroll personnel would result in an illogical and unenforceable arrangement.” Letter for Dawn E. Johnsen, Deputy Assistant [Attorney General], Office of Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel Management at 4 (Dec. 13, 1994). Indeed, requiring employees to be off duty when they transmit authorization forms to payroll per­ sonnel may seem like a legalistic technicality. Nonetheless, this result comports with Congress’s objective to create a bright-line rule — that the § 7324(a) prohibi­ tions be “ absolute[] and unequivocal]” — so that there could be no ambiguity or vagueness about what is and is not permitted on duty. See supra pp. 72-74 & nn. 42-46. Accordingly, the prohibition we have identified here is similar to some of the examples OPM has identified in its proposed regulations — for 56Under the Federal Leave Act, see 5 U.S.C. §§6301(2)(x) and (xi), certain employees are not subject to the annual-leave and sick-leave provisions o f chapter 63 o f title 5, in part because such employees are, for leave purposes, considered to have duties that continue beyond normal duty hours. See also 5 C.F.R. §§630.21 l(b)( 1)—(3). As the House Report on HARA noted, such employees may, fo r Leave Act purposes, be “ presumed to be on duty at all times “ See H.R. Rep. No. 103-16, at 23 (1993). However, some o f these employees will not satisfy one of the other requirements to fall within HARA § 7324(b)— for example, their appointment may not be subject to the advice and consent o f the Senate. It is important to note that these leave-exempted employees who are not covered by §7324(b) should not be considered “ continuously on duty” for purposes of HARA §7324, even where their exclusion from the Leave Act is “ based on the presumption that the position requires the employee to be on duty at all tim es." Id. If such employees were considered “ continuously on duty” for purposes of §7324, they would never be permitted to engage in any political activity— including voting, making contributions, etc. But Congress intended that §7324 would not “ preclude political activity” for employees “ at any tim e.” Id. at 22. Therefore, for purposes o f HARA §7324 (albeit not necessarily for purposes o f the Leave Act), such employees should be considered to be on duty only during their “ regular,” o r “ ordinary,” duty hours, and remain “ free to engage in political activity . . . [o]n their own tim e.” Id. at 23. 37 See supra note 8. 79 Opinions o f the Office o f Legal Counsel in Volume 19 example, that an employee m ay not stuff envelopes with political literature while in a federal building, but may do so while sitting in a park during his lunch period if he is not considered to be on duty during that lunch period. See 59 Fed. Reg. at 48,774 (proposed 5 C.F.R. §734.306, Example 10); see also supra note 43. Given that Congress has precluded all political activity from occurring (for example) in federal buildings, it is not illogical to require employees who engage in such activity to do so outside of those buildings. The question then becomes whether contributing employees would violate § 7324(a) even if they are off duty and outside a federal building when they fill out the relevant forms and transmit those forms to the appropriate administrative officials. Such a practice might at first glance appear objectionable, because an employee acting in such a manner would cause other federal employees— i.e., the “ administering employees” — to do, on her behalf, precisely what the contrib­ uting employee may not herself do: send a contribution to a PAC while on duty and from a federal building.58 Although, for reasons explained below, this is a close question, we conclude that an employee acting in this manner would not violate §7324(a), because none of that employee’s “ political activities,” or activi­ ties “ directed toward the success” of the PAC, would violate the plain terms o f the four prohibitions in that subsection. In particular, such an employee would not be on duty or in a federal building when she engaged in political activity. O f course, the federal government subsidizes the transmission costs associated with transferring funds from em ployees’ salaries to PACs. And there is some evi­ dence that one of Congress’s goals in enacting §7324 was to prevent federal employees from using taxpayers’ funds to engage in political activity.59 For example, the House Majority Leader stated: “ Any on-the-job political activities are prohibited. It prohibits any use of taxpayer money for partisan political pur­ poses.” 139 Cong. Rec. 3281 (1993) (statement of Rep. Gephardt).60 Moreover, 58 W e explained above that, in such a case, the administering employees would not themselves violate the onduty prohibition, because they are not the persons “ directing” the activity toward the success o r failure o f the PA C to which the contribution is made, and may even be entirely unaware that their activity in any way involves political allocations. See supra p. 75. By contrast, however, the contributing employee would be engaged in “ directing” the on-duty, on-premises activity toward the success o f the PAC. 59 In 1984, O PM itself apparently was o f th e view that, under the pre-HARA Act, similar considerations wan-anted a restriction prohibiting the practice at issue here: “ [T]he use o f a Federal payroll deduction scheme or the Govern­ m ent's allotm ent system as a conduit for political contributions by Federal employees subject to the Hatch Act w ould involve the use o f Federal workplaces and instrumentalities to pay, collect, and receive such contributions.” 47 Fed. Reg. at 57,724. 60 Several H ouse m embers in an earlier Congress expressed the same understanding with respect to a materially identical “ o n -d u ty ” prohibition in H.R. 3400, 100th Cong. (1987) (proposing new 5 U.S.C. §7324{a)(l)-(4)(B )). See, e.g., 133 Cong. Rec. 32,087 (1987) (statem ent o f Rep. Horton) (“ It . . . prohibits use of taxpayer money for political purposes” ); id. at 32,088 (statement o f Rep. Ridge) ( “ [Pjolitical work . . . cannot be allowed on the taxpayer’s time. It cannot be done on Federal Government time, with Federal information or equipment.” ); id. at 32,104 (statem ent o f Rep. Rahall) (bill prohibits “ use o f taxpayer money for political activities” ); id. at 32,105 (statem ent o f Rep. Biaggi) (same); see also 135 Cong. Rec. 6776 (1989) (statement o f Rep. Gephardt) (bill would “ prohibit governm ent facilities from being used for partisan political purposes” ). This is not to say that legislators provided no other reasons for the “ on-duty” prohibition. For example, there are snippets o f the legislative history of the HARA in 1993 suggesting that Congress also expected the “ on-duty” prohibition to: (i) foreclose the possibility o f coercion o f subordinate employees by supervisory employees, see, e.g., 139 Cong. Rec. 15,367-68 (statement o f Sen. Glenn); id. at 15,531-32 (statement o f Sen. Glenn); id. at 15,741 80 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive Branch Employees fo r Contributions to Political Action Committees as we have explained, § 7324(b) expressly forbids the employees identified in that section from using federal funds for political activity. It might seem anomalous to forbid the § 7324(b) employees from using the salary-allocation system, but to permit all other federal employees to use that system — and the federal funds associated with i t — for political activity, just because the latter are not, under the HARA, considered to be continuously on duty. In that case, the “ continuously on duty” employees, see supra pp. 78-79, would in a significant respect be more restricted in the exercise of their political activity than all other federal employees. Nevertheless, in stark contrast to § 7324(b), § 7324(a) does not include an express prohibition on the use of federal funds for political activity. In the four subsections of § 7324(a), Congress saw fit to ban political activity by a federal employee while (i) on duty; (ii) in a federal building; (iii) in uniform; or (iv) using a federal vehicle. Conspicuously absent from this list is any prohibition on political activity “ using instrumentalities owned by the United States,” “ using any federal facilities,” or “ using money derived from the Treasury o f the United States.” 61 Indeed, the fact that Congress did include such a prohibition in § 7324(b) only strengthens the argument against reading such a prohibition into the previous, companion subsection. A fundamental canon o f statutory construction, frequently invoked by the Supreme Court in recent years, is that “ ‘where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and pur­ posely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted).62 The language of §7324(b) “ shows that Congress knew how to draft” a prohibition on the use of federal funds for political activity “ when it wanted to.” City o f Chicago v. Environmental Defense Fund, (statement o f Sen. Glenn); id. at 16,051-52 (statement o f Sen. Glenn); and (ii) to prevent the “ specter,” or appearance to the public, that the federal government is supporting particular candidates, see, e.g., H.R. Rep. No. 103-16, at 19(1993). 61 By contrast, several state “ Little Hatch Acts” do include such specific prohibitions. See, e.g., A la Code § 1 7 l-7 (c) (1987) (no state employee “ shall use any state funds, property o r time, for any political activities” ); Alaska Stat. § 24.60.030(a)(5) (1992) (legislative employee may not, with certain exceptions, “ use or authorize the use o f state funds, facilities, equipment, services, or another government asset or resource” for certain political purposes); Conn. Gen. Stat. Ann. §5-266a(b) (1988) (slate employee shall not “ utilize state funds, supplies, vehicles, o r facili­ ties” for certain political purposes); N.C. Gen. Stat. § 126—13(a)(2) (1993) (state employee may not “ utilize State funds, supplies or vehicles” for certain political purposes); Tenn. Code Ann. §2-19-206(a) (1985) (state employee may not “ use any o f the facilities o f the state, including equipment and vehicles,” for certain political activity). 62 See also Brown v. Gardner, 513 U.S. 115, 120 (1994); FEC v. NRA Political Victory Fund, 513 U.S. 88, 95 (1994); BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994); Custis v. United States, 511 U.S. 485, 492 (1994); City o f Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994); Keene Corp. v. United States, 508 U.S. 200, 208 (1993); International Org. o f Masters, Mates & Pilots v. Brown, 498 U.S. 466, 476 n,10 (1991); Gozlon-Peretz v. United States, 498 U.S. 395, 404-05 (1991); General Motors Corp. v. United States, 496 U.S. 530, 537 (1990); United States v. Monsanto, 491 U S . 600, 610-11 (1989); INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987); Lawrence County v. Lead-Deadwood School Dist. No. 40-1 , 469 U.S. 256, 267 (1985); United Stales v. Erika, Inc., 456 U.S. 201, 2 07-08 (1982); Lehman v. Nakshian, 453 U.S. 156, 162-63 (1981); Fedorenko v. United States, 449 U.S. 490, 512-13 (1981). 81 Opinions o f the Office o f Legal Counsel in Volume 19 511 U.S. 328, 338 (1994); a cco rd Custis v. United States, 511 U.S. 485, 49293 (1994). The discrepancy between §§ 7324(a) and 7324(b) might be explained by the fact that Congress may have considered such an explicit “ no federal funds” prohibition to be superfluous in the former subsection. Congress might not have contemplated any situation in which otherwise lawful political activity could be accomplished using federal funds without violating one of the four subsections of § 7324(a); thus, Congress could well have believed that the prohibitions in that subsection precluded the need for a separate “ no federal funds” provision. But “ [t]hat expectation, even if universally shared [by members of Congress], is not an adequate substitute for a legislative decision,” Yellow Freight Sys., Inc. v. Don­ nelly, 494 U.S. 820, 824-25 (1990), to prohibit the use of federal funds for polit­ ical activity. See also Fort Stew art Schools v. FLRA, 495 U.S. 641, 650 (1990) (“ There is no conceivable persuasive effect in legislative history that may reflect nothing more than the speakers’ incomplete understanding of the world upon which the statute will operate.” ). Even,if Congress intended a complete ban on federal funds for political activity, “ [t]he short answer is that Congress did not write the statute that way.” Russello, 464 U.S. at 23 (citation omitted). Therefore, the “ no federal funds” prohibition of § 7324(b) does not apply to employees who are not identified in that section, and those employees may make contributions to PACs through the use of the salary-allocation system so long as they are off duty and off federal premises when they take the steps sufficient to trigger the use of the system. CONCLUSION None of the federal employees who would engage in the practices in question would, without more, violate the relevant criminal provisions, 18 U.S.C. §§602 and 607. W hat is more, federal employees offering use of or administering the salary-allocation system for PAC contributions would not, without more, violate the civil provisions of the HARA. However, the federal employees identified in 5 U.S.C. § 7324(b) may not use the salary-allocation system to contribute money to PACs. The heads o f agencies may, in their discretion, permit all other federal employees covered by the HARA to make political contributions to PACs through use of the salary-allocation system, but only if such employees are off duty and off federal premises when they take the steps necessary to use that system. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 82

Write a legal research memo on the following topic.

Department of Justice Authority Regarding Relocations, Reorganizations, and Consolidations The provisions o f 1989 supplemental appropriations legislation for the Department o f Justice did not prohibit the Department from considering o r planning fo r relocations, reorganizations, and consolidations that had n ot been previously reported to Congress. Under the sam e legislation, the Department was a lso permitted to com plete relocations, reorganizations, and consolidations that were begun prior to June 30, 1989. August 28, 1989 M e m o r a n d u m O pin io n for fo r th e A s s is t a n t A t t o r n e y G e n e r a l A d m in is t r a t io n , J u s t ic e M a n a g m e n t D iv is io n This responds to your request o f July 11, 1989, for our opinion on the effect o f section 105 of the new law providing supplemental appropria­ tions for the Department of Justice.1Specifically, you have asked whether the Department may engage in the consideration o f and planning for relo­ cations, reorganizations and consolidations that have not previously been reported to Congress. You have also asked whether the Department may obligate and expend funds to implement reorganizations which were reported to Congress prior to June 30, 1988, the effective date of section 105. This latter question is asked in the context o f the reorganization of the Office o f Policy Development (“OPD”) which was reported to Congress on June 5, 1989. For the reasons set forth below, we believe that the Department may plan relocations, reorganizations and consolidations. We also believe that the Department may complete the effectuation o f relocations, reorganiza­ tions and consolidations that were begun prior to June 30, 1989. Because the reorganization of OPD was begun before June 30 and indeed largely completed by that date, section 105 does not affect that reorganization. I. Background Prior to the enactment o f section 105, the Department’s reorganiza­ tions were governed by two provisions. The first, enacted as section 8 of the Department’s 1980 Authorization Act, requires the Department to 1 Dire Emergency Supplemental Appropriations and TVansfers, Urgent Supplementals, and Correcting Enrollment Errors Act o f 1989, Pub L No 101-45,103 Stat. 97 ( “Supplemental Appropriations Act” or “Act”). 280 notify the House and Senate Judiciary Committees “a minimum o f 15 days before” undertaking significant reprogramming, reorganizations and relocations.2 The second, contained in the Department’s most recent appropriations bill, requires fifteen days notice for the Appropriations Committee as well.3 The Department has consistently complied with the fifteen-day notice requirement. Recently, however, certain congressmen indicated that the notice provisions were part of an “unwritten agreement” that reorganiza­ tions would not be implemented unless the Appropriations Committees had actually approved the proposal. H.R. Rep. No. 89, 101st Cong., 1st Sess. 44 (1989). Because of the Department’s failure to comply “with the under­ standing that any proposals are subject to the approval o f the Appropriations Committees,” id. at 45, a new provision was added to the Department’s 1989 Supplemental Appropriation Act, see supra note 1, to bar all reorganizations within the Department until the end of the fiscal year: None o f the funds provided in this or any prior Act shall be available for obligation or expenditure to relocate, reorga­ nize or consolidate any office, agency, function, facility, sta­ tion, activity, or other entity falling under the jurisdiction of the Department o f Justice. Supplemental Appropriations Act, § 105, 103 Stat. at 122. 2 Pub. L. No. 96-132, § 8, 93 Stat 1040, 1046 (1979). The section directs “each organization o f the Department o f Justice” to provide notice in writing before (1) reprogramming o f funds in excess o f $250,000 or 10 percent, whichever is less, between the programs within the offices, divisions, and boards as defined in the Department o f Justice’s program structure submitted to the Committees on the Judiciary o f the Senate and House o f Representatives, (2) reprogramming o f funds in excess o f $500,000 or 10 percent, whichever is less, between the programs within the Bureaus as defined in the Department o f Justice’s program structure submitted to the Committees on the Judiciary o f the Senate and House of Representatives, (3) any reprogramming action which involves less than the amounts specified m paragraphs (1) and (2) if such action would have the effect o f significant program changes and com­ mitting substantive program funding requirements in future years; (4) increasing personnel or funds by any means for any project or program for which funds or other resources have been restricted; (5) creation o f new programs or significant augmentation o f existing programs, (6) reorganization o f offices or programs, and (7) significant relocation o f offices or employees. Id at 1046-47 The provision has been incorporated into subsequent appropriation bills. See, e g , Pub L No. 100-459, § 204(a), 102 Stat. 2186, 2199 (1988) (FY 1989) 3 Section 606(a) o f Pub L No 100^459 states* None o f the funds provided under this Act shall be available for obligation or expenditure through a reprogramming o f funds which: (1) creates new programs, (2) eliminates a program, project or activity, (3) increases funds or personnel by any means for any project or activity for which funds have been denied or restricted; (4) relocates an office or employees; (5) reorga­ nizes offices, programs, or activities; or (6) contracts out or privatizes any functions or activi­ ties presently performed by Federal employees; unless the Appropriations Committees o f both Houses o f Congress are notified fifteen days in advance o f such reprogramming o f funds. 102 Stat. at 2227 281 II. Analysis A. Planning Your first question is whether section 105 prevents the Department from “engaging in consideration of and planning for relocations, reorga­ nizations and consolidations that have not yet been reported to Congress.”4 We do not believe that it does. The statute forbids the Department to “relocate, reorganize or consolidate” — all verbs that con­ note action and implementation. Section 105 does not mention planning or preparation for proposals. Nor does the sparse legislative history, see H.R. Rep. No. 89, 101st Cong., 1st Sess. (1989), suggest that Congress intended to prevent the Department from even thinking about future options. The prohibition was aimed at the Department’s refusal to abide by the unwritten agreement that they will not go forward with reor­ ganizations if the Appropriations Committees disapprove their proposals. In the past several months, the Justice Department and the SBA have proposed reorganizations which have not been approved by the Committees. The con­ ferees have learned that both the Justice Department and the SBA plan to go ahead with their proposals contrary to the wishes o f the Committees. The conferees agree that the only alternative left in this situation is to prohibit all reorganiza­ tions for the remainder o f fiscal year 1989. Id. at 44 (emphasis added). Read in context, this language confirms our conclusion that the statute was aimed at actual reorganizations, not the proposal o f a reorganization.5 We therefore believe that the Department may continue to take all the steps that precede a reorganization, reloca­ tion or consolidation, up to and including notice to Congress that it has a proposal under consideration. B. Reorganization o f the Office of Legal Policy As noted above, prior to the passage o f section 105, the Department was authorized to implement its proposed reorganizations fifteen days after notifying Congress. The Department notified Congress about the proposed reorganization of the Office o f Legal Policy (“OLP”) as OPD on 4Memorandum for William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from Harry H. Flickinger, Assistant Attorney General for Administration (July 11, 1989). 5 Indeed, unless the Department continues to plan and propose reorganizations, relocations, and con­ solidations, it is difficult to see how it will be able to demonstrate to Congress that it is willing to consult over these matters 282 June 5, 1989. The Department was therefore authorized to implement the reorganization fifteen days later, June 20. Section 105 was signed into law on June 30. Because OPD had largely completed its reorganization by June 30, we do not believe that section 105 affects its reorganization. By its terms section 105 applies only to reorganizations undertaken after June 30, 1989, not to reorganizations that were completed by June 30, 1989. Moreover, the legislative history confirms that Congress’ pur­ pose in enacting section 105 was to protect what it perceived to be its oversight prerogatives by precluding future reorganizations without full congressional approval. Accordingly, section 105 was not intended to undo past Department actions. We conclude therefore that section 105 affects only reorganizations which the Department had not substantially completed by June 30. Thus, whether section 105 applies to OLP depends on whether the Department had substantially completed the reorganization o f OLP into OPD by June 30. We have been advised that the Department had taken all the significant steps necessary to reorganize OLP by that date. The Attorney General had signed a new organization chart reflecting the existence of OPD within the Department. Mr. Boyd had moved from his previous job in the Department to become the Director of OPD. A for­ mer Deputy Assistant Attorney General in OLP had been named Deputy Director o f OPD. New stationery using the OPD letterhead had been ordered and put into use, and the new title “OPD” rather than “OLP” had been used in official documents. We believe that these steps, which were completed by June 30, constituted the reorganization o f OLP into OPD.GTherefore, we believe that OLP’s reorganization into OPD was complete when section 105 became law. Because section 105 is pro­ spective in application, wc do not believe that section 105 applies to the OLP reorganization. We recognize that Representative Smith sent a letter, dated June 27, 1989, stating that the Appropriations Committee o f the House of Representatives did not approve o f the reorganization. This letter, how­ ever, had no legal effect on the Department’s authority to effectuate the reorganization. Even if it had been sent within fifteen days o f the notice given by the Department on June 5, the letter could not affect the Department’s authority to execute the law. That can only be affected by passage of a new law, not by the disapproval of a congressional commit­ tee. INS v. Chadha, 462 U.S. 919 (1983). III. Conclusion For the reasons stated above, we believe that Department officials may continue to study and plan for any future reorganizations, including all 0Indeed, we are not aware o f any other steps that are necessary in order to create OPD. 283 preparations that would previously have preceded congressional notifi­ cation. We also believe that section 105 was not intended to undo essen­ tially completed reorganizations. Because OLP’s reorganization into OPD was complete by June 30, 1989, the reorganization is unaffected by the passage o f section 105. WITJ JAM P. BARR Assistant Attorney General Office of Legal Counsel 284

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Overview of the Neutrality Act Overview o f the Neutrality Act, focusing on explanations of certain key provisions, and summa­ rizing various judicial and Attorney General opinions interpreting those provisions. September 20, 1984 M em orandum O p in io n for the A ttorney G eneral This memorandum is intended to provide you with a broad overview of the Neutrality Act, 18 U.S.C. §§ 956 et seq., its scope and applicability, and previous constructions of the various provisions of the Act by the courts, Attorneys General, and this Office. Earlier this year, we provided you with our views regarding the applicability of the Act to official Government activities. “Application of the Neutrality Act to Official Government Activities,” 8 Op. O.L.C. 58 (1984). That memoran­ dum contains an extensive analysis of the legislative history of the various provisions of the Act, from 1794 when it was first enacted, through the several amendments to the Act, particularly those enacted in the nineteenth century. It also examines in significant detail several major judicial decisions construing the Act, as well as the opinions of various Attorneys General regarding the Act. In our earlier memorandum, we 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.” 8 Op. O.L.C. at 58.1 1 However, as you are aware, the United States District C ourt for the N orthern D istrict o f C alifornia recently held that the C IA 's alleged covert “aid[ingj, fu n d in g ] and p a rtic ip a tio n ] in a m ilitary expedition and enterprises utilizing N icaraguan exiles for the purpose o f attacking and overthrow ing the government o f N icaragua" could constitute a violation o f 18 U.S C. §§ 956 and 960, for purposes o f triggering the investigation provisions o f the Ethics in G overnm ent Act, 28 U.S.C. §§ 591, et seq. See Dellums v. Smith, 573 F. Supp. 1489, 1492 (N.D. Cal. 1983); see also 577 F. Supp. 1449 (N.D. Cal. 1984); 577 F. Supp. 1456 (N D. Cal. 1984). The D epartm ent appealed the district c o u rt's decision earlier this year, and is presently aw aiting a decision by the U nited States Court o f A ppeals for the Ninth Circuit. The only other current litigation o f which we are aware in which the issue o f the applicability o f the Neutrality Act to G overnm ent officials is raised is m Sanchez Espinoza v Reagan, 568 F Supp. 596 (D.D C. 1983), appeal pending, N o 83-1997 (D.C. Cir argued May 24,1 9 8 4 ). However, the District C ourt dism issed the plaintiffs' claims that the President, through his officers and appointees, had violated, inter aha, the Neutrality Act, the W ar Powers Resolution, 50 U.S.C. §§ 1541-1548, and the Boland Amendm ent to the Department o f D efense A ppropriations Act, 1983, Pub L. No. 9 7 -3 7 7 , § 793, 96 Stat. 1830, 1865 (1982), by waging an undeclared w ar against the Nicaraguan Government, on the ground that plaintiffs’ claims pre­ sented nonjusticiable political questions. * NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the U nited States C ourt of Appeals for the Ninth C ircuit reversed the district court’s decision in Dellums v. Smith on the ground that the plaintiffs lacked standing to bring the action. See Dellums v. Smith, 797 F.2d 817 (9th C ir 1986). 209 I. The N eutrality Act The provisions of the Neutrality Act, presently codified at 18 U.S.C. §§ 956 et seq., remain substantially similar to the provisions originally enacted in 1794. See 1 Stat. 381.2 Section 958 makes it unlawful for any United States citizen to accept, within the jurisdiction of the United States, a commission to serve a foreign nation in a war against a country with which the United States is at peace.3 Section 959 prohibits anyone within the United States from enlisting or paying someone else to enlist him in the military service of a foreign state.4 Section 960 prohibits the knowing participation in, preparation for, or fi­ nancing of a hostile expedition from within the United States against a nation with which the United States is at peace.5 Section 961 prohibits the outfitting of military vessels within the United States which are in the naval service of a foreign country engaged in war with a country with which the United States is at peace.6 Finally, § 962 prohibits the 2 T here are several additional provisions o f the neutrality laws w hich were not enacted until 1917. One provision, presently codified at 18 U .S.C . § 956, prohibits conspiring to injure the property o f a foreign governm ent w ith w hich the United S ta te s is at peace S ection 956 provides in pertinent part: If tw o o r m ore persons within th e jurisdiction o f the United States conspire to injure or destroy specific property situated w ithin a foreign country and belonging to a foreign governm ent or to any political subdivision thereof w ith which the U nited States is at peace, or any railroad, canal, bridge, o r o ther public utility so situated, and if one o r more such persons com m its an act within the ju risd ic tio n o f the United S ta te s to effect the o bject o f the conspiracy, each o f the parties to the conspiracy shall be fined not m ore than $5,000 o r imprisoned not more than three years, or both. The other provisions, enacted in 1917, codified at 18 U .S.C . §§ 9 6 3 -9 6 7 , deal with the detention in United S tates ports o f arm ed vessels or vessels bound for belligerent nations until the ow ners certify to U nited States custom s o fficials that the vessels will n o t be used in the m ilitary service o f belligerent nations after departure from the U nited States. 3 Section 958 provides: A ny citizen o f the United States who, within the jurisdiction thereof, accepts and exercises a com m ission to serve a foreign p rin ce, state, colony, district, or people, in war, against any prince, state, colony, district, or people, w ith whom the U nited States is at peace, shall be fined not more than $2,000 o r imprisoned not m o re than three years, o r both. 4 S ection 959 provides in pertinent part: W hoever, w ithin the United S tates, enlists o r enters himself, or hires or retains another to enlist o r en ter him self, o r to go beyond th e jurisdiction o f the United S tates with intent to be enlisted o r entered in the service o f any fo reig n prince, state, colony, district, or people as a soldier o r as a m arine o r seam an on board any vessel o f war, letter o f marque, o r privateer, shall be fined not m ore th an $1,000 o r imprisoned n o t more than three years, or both. 5 Section 960 provides: W hoever, w ithin the United S tates, know ingly begins or sets on foot or provides or prepares a m eans fo r o r furnishes the m oney for, o r takes part in, any m ilitary or naval expedition or e n terp rise to b e c arried on from th en ce against the territory or dom inion of any foreign prince or state, o r o f any colony, district, o r people with w hom the United States is at peace, shall be fined not m ore than $3,000 or im prisoned not more than three years, o r both. 6 Section 961 provides in pertinent part: W hoever, w ithin the United S tates, increases o r augm ents the force o f any ship o f war . . . w hich, a t the tim e o f her arrival w ith in the U nited States, was a ship o f war . . . in the service o f any foreign prince o r state, or o f any colony, d is tn c t, o r people, o r belonging to the subjects or c itizen s o f any such prince or sta te , colony, district, o r people, the same being at war w ith any foreign prince o r state, or of any colony, district, o r people, with whom the United States is at peace, by adding to the number of the guns o f such vessel . . . o r by adding thereto any equipment solely applicable to war, shall be fined not more than $1,000 o r imprisoned not more than one year, o r both. 210 outfitting or furnishing of any vessel within the United States with the intent that such vessel be used in the service of a foreign nation against a country with which the United States is at peace.7 II. Judicial Decisions The earliest judicial decisions construing the Neutrality Act involved the predecessors to §§ 961 and 962, which generally prohibit the arming of vessels in United States ports to be used in the service of foreign nations against nations with which the United States is at peace. The earliest cases generally were brought against private individuals who “outfitted” French ships engaged in hostilities with the British Navy. See, e.g., United States v. Peters, 3 U.S. (3 Dali.) 121 (1795); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795). See also United States v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309); 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). These early cases focused on what constituted the “arming” of a vessel, the distinction between “commercial” and “hostile” intent, and upheld the authority of the United States Government to define, as a matter of national policy, the political bodies in whose service, and against which, the prohibited acts had been committed. See generally United States v. The Three Friends, 166 U.S. 1 (1897). Moreover, these cases established that §§ 961 and 962 of the Act do not prohibit armed vessels belonging to citizens of the United States from sailing out of United States ports; rather the provi­ sions require only that the owners of such vessels certify that the vessels will not be used to commit hostilities against foreign nations at peace with the United States. See United States v. Quincy, 31 U.S. (6 Pet.) 445 (1832). Finally, these cases recognized, with regard to §§ 961 and 962, the principle generally applicable to all of the neutrality provisions, that the preparations prohibited by the Act must have been made within the United States, and that the intention with respect to the hostile deployment of the vessel must have been formed before leaving the United States. Id. The early decisions construing the Act, as well as subsequent judicial deci­ sions, make clear that, in view of its purpose to prevent private citizens from interfering with the conduct of foreign policy by duly authorized Government officials, the Neutrality Act, particularly § 960, prohibits only “the use of the soil or waters of the United States as a base from which unauthorized military expeditions or military enterprises shall be carried on against foreign powers 7 Section 962 provides in pertinent part: W hoever, w ithin the U nited States, furnishes, fits out, arm s, or attem pts to furnish, fit out or arm, any vessel, w ith intent that such vessel shall be employed in the service o f any foreign prince, o r state, o r o f any colony, district, o r people, to cruise, or com m it hostilities against the subjects, citizens, o r property o f any foreign prince or state, o r o f any colony, district, or people w ith whom the U nited States is at peace; or W hoever issues o r delivers a com m ission within the U nited States for any vessel, to the intent that she m ay be so em ployed shall be fined not more than $10,000 or im prisoned not more than three years, o r both. 211 with which the United States is at peace.” United States v. Murphy, 84 F. 609, 612 (D. Del. 1898). See also Wiborg v. United States, 163 U.S. 632 (1896); United States v. O ’Sullivan, 27 F. Cas. 367 (S.D.N.Y. 1851) (No. 15974); United States v. Smith, 27F. Cas. 1192 (C.C.S.D.N.Y. 1806) (No. 16342). The jury instructions in the Murphy case, which provide an extensive discussion of the elements of the “military expedition” offense under § 960, are illustrative of this point: Providing the means of transportation for a military enterprise to be carried on from the United States against Spanish rule in Cuba is, within the meaning of [§ 9 6 0 ],. . . preparing the means for such military enterprise to be so carried on, and, if done with knowledge, on the part of the person so providing the means of transportation, of the character and purpose of such enterprise, is denounced by the statute.. . . The broad purpose of [§ 960] is to prevent complications between this government and foreign powers. . . . What it prohibits is a military expedition or a military enterprise from this country against any foreign power at peace with the United States. * * * Where a number of men, whether few or many, combine and band themselves together, and thereby organize themselves into a body, within the limits of the United States, with a common intent or purpose on their part at the time to proceed in a body to foreign territory, there to engage in carrying on armed hostili­ ties, either by themselves or in co operation with other forces, against the territory or dominions of any foreign power with which the United States is at peace, and with such intent or purpose proceed from the limits of the United States on their way to such territory, either provided with arms or implements of war, or intending and expecting . . . to secure them during transit, . . . in such case all the essential elements of a military enterprise exist. . . . It is sufficient that the military enterprise shall be begun or set on foot within the United States; and it is not necessary that the organization of the body as a military enterprise shall be completed or perfected within the United States. Nor is it necessary that all the persons composing the military enterprise should be brought in personal contact with each other within the limits of the United States; nor that they should all leave those limits at the same point. It is sufficient that by previous arrangement or agreement, whether by conversa­ tion, correspondence or otherwise, they become combined and organized for the purposes mentioned, and that by concerted action, though proceeding from different portions of this coun­ try, they meet at a designated point either on the high seas or 212 within the limits of the United States. Under such circumstances a military enterprise to be carried on from the United States exists within the meaning of the law. 84 F. Cas. at 612-14. III. Attorney General Opinions As is the case with judicial decisions on the subject, the earliest opinions of Attorneys General construing the Neutrality Act distinguished between “com­ mercial” and “hostile” intent for purposes of the prohibition, by the predeces­ sors to §§ 961 and 962, on “outfitting vessels of war.” See, e.g., 2 Op. Att’y Gen. 86 (1828); 1 Op. Att’y Gen. 231 (1818); 1 Op. Att’y Gen. 190 (1816). Attorneys General have opined that the Act forbids furnishing ships of war in American ports with guns and other military equipment to be used by nations against nations with which the United States is at peace. See, e.g., 5 Op. Att’y Gen. 92 (1849); 4 Op. Att’y Gen. 336 (1844); 3 Op. Att’y Gen. 739 (1841). The predecessor to § 959 was construed by early Attorneys General to prohibit the recruitment or enlistment of persons for service on foreign vessels of war in American ports. See 4 Op. Att’y Gen. 336 (1844). This latter prohibition on enlistment was construed by Attorney General Cushing to prohibit the undertaking by belligerent nations to enlist troops in the United States, on the ground that such action constitutes a “gross national aggression on the United States and insults our national sovereignty,” for which all, except those protected by diplomatic immunity, are punishable. 7 Op. Att’y Gen. 367, 382 (1855). Attorney General Cushing’s lengthy opinion on foreign enlistment premises the statutory prohibition in § 959 on the notion that while a neutral state may permit a belligerent nation to raise troops on its soil, it should not grant such a concession to one belligerent and not to all. Id. As early as 1795, Attorney General Bradford opined that the Neutrality Act did not preclude the commission of hostile acts by American citizens against Nations with which the United States is at peace as long as the potential defendants did not set foot from American soil. Regarding American citizens who, while trading on the coast of Africa, “voluntarily joined, conducted, aided, and abetted a French fleet in attacking” a British settlement on that coast, the Attorney General stated: [AJcts of hostility committed by American citizens against such as are in amity with us, being in violation of a treaty, and against the public peace, are offences against the United States, so far as they were committed within the territory or jurisdiction thereof; and, as such, are punishable by indictment in the district or circuit courts. * * * So f ar . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of 213 our courts; nor can the actors be legally prosecuted or punished for them by the United States. 1 Op. Att’y Gen. 57,58 (1794). Pointing out that the Government’s inability to prosecute under the Act resulted solely from § 960’s requirement that the defendant have “set foot” from “within the United States,” Attorney General Bradford noted that those “who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States.” Id. at 59. In 1856, Attorney General Cushing distinguished between the mere “organi­ zation, in one country or state, of combinations to aid or abet rebellion in another, or in any other way to act on its political institutions,” which is not prohibited by the Act, from overt “attempts to interfere in the affairs of foreign countries by force,” which is unlawful. 8 Op. Att’y Gen. 216 (1856). See also 8 Op. Att’y Gen. 472 (1855). The activities of the former, which the Attorney General referred to as “Revolutionary Aid Societies,” while “a violation of national amity and comity,” are limited to “inflammatory agitation” and dis­ cussion, falling short of the unlawful enlistment and military expeditions prohibited by the Act. Id. In 1869, Attorney General Hoar opined that the Neutrality Act was properly applicable only with respect to political entities recognized by the United States as an “independent government, entitled to admission into the family of nations”; The statute of 1818 is sometimes spoken of as the Neutrality Acf, and undoubtedly its principal object is to secure the perfor­ mance of the duty of the United States, under the law of nations, as a neutral nation in respect to foreign powers . . . . The United States have not recognized the independent national existence of the island of Cuba, or any part thereof, and no sufficient reason has yet been shown to justify such a recognition. In the view of the Government of the United States, as a matter of fact, which must govern our conduct as a nation, the island of Cuba is territory under the government of Spain, and belonging to that nation. If ever the time shall come when it shall seem fitting to the political department of the Government of the United States to recognize Cuba as an independent government, entitled to ad­ mission into the family of nations, or, without recognizing its independence, to find that an organized government capable of carrying on war, and to be held responsible to other nations for the manner in which it carries it on, exists in that island, it will be the duty of that department to declare and act upon those facts. * * * But, on the other hand, when a nation with which we are at peace, or the recognized government thereof, undertakes to 214 procure armed vessels for the purpose of enforcing its own recognized authority within its own dominions, although there may be evidence satisfactory to show that they will aid the government in the suppression of insurrection or rebellion, in a legal view this does not involve a design to commit hostilities against anybody. * * * The concession of belligerent rights to a “colony, district, or people” in a state of insurrection or revolution, necessarily involves serious restrictions upon the ordinary rights of the people of this country to carry on branches of manufacture and trade which are unrestricted in time of peace. To prevent our mechanics and merchants from building ships of war and selling them in the markets of the world, is an interference with their private rights which can only be justified on the ground of a paramount duty in our international relations; and however much we may sympathize with the efforts of any portion of the people of another country to resist what they consider oppression or to achieve independence, our duties are necessarily dependent upon the actual progress which they have made in reaching these objects. 13 Op. Att’y Gen. 177, 178, 180 (1869). Thus, he concluded, the Act did not prohibit the building of gunboats in New York to be sold to the Spanish government for possible use by that Government against the Cuban insurrec­ tionists. Nor would § 962 of the Act prohibit the supplying of Cuban insurgents with men, arms and munitions of war. 13 Op. Att’y Gen. 541 (1841).8 In 1895, Attorney General Harmon, having declared that “neither Spain nor any other country had recognized the Cuban insurgents as belligerents,” 21 Op. Att’y Gen. 267, 269, opined: The mere sale or shipment of arms and munitions of war by persons in the United States to persons in Cuba is not a violation of international law [nor of the neutrality laws], however strong a suspicion there may be that they are to be used in an insurrec­ tion against the Spanish government. The right of individuals in the United States to sell such articles and ship them to whoever may choose to buy has always been maintained. 8 In a very succinct opinion. A ttorney General Akerman em phasized that his opinion addressed only the predecessor to § 962, adding that the allegations “might be material in connection with other p ro o f/' 13 Op. A tt'y Gen. 541. D epending upon the allegations, and w hether the United States Governm ent recognized the Cuban insurrectionists as a sufficiently distinct political body to constitute more than a dom estic irritant to Spain's internal affairs, a colorable claim under § 960 could be made. See, e g., 21 Op. A tt’y G en. 267, 269 (1896) (“ International law takes no account o f a m ere insurrection, confined w ithin the lim its o f a country, which has not been protracted o r successful enough to secure for those engaged in it recognition as belligerents by their ow n governm ent or by foreign governm ents.”). 215 * If, however, the persons supplying or carrying arms and mu­ nitions from a place in the United States are in any wise parties to a design that force shall be employed against the Spanish authorities, or that, either in the United Sates or elsewhere, before final delivery of such arms and munitions, men with hostile purposes toward the Spanish Government shall also be taken on board and transported in furtherance of such purposes, the enterprise is not commercial, but military, and is in violation of international law and of our own statutes. Id. at 270, 271 (emphasis added). Further attempts to distinguish between “commercial” and “hostile” intent in trading with belligerents were made by Attorney General Knox in 1902. Responding to the Secretary of State’s inquiry regarding the legality of ship­ ping horses from New Orleans to South Africa, a belligerent, Attorney General Knox opined that although a neutral nation is prohibited by the general prin­ ciples of international law from giving aid to one of the belligerents during a war, “carrying on commerce with the belligerent nation in the manner usual before the war is . . . agreed not to be in itself giving such aid.” 24 Op. Att’y Gen. 15, 18 (1902). He added, however, that “the fact that neutral individuals instead of their government give aid to the belligerent does not relieve the neutral government from guilt,” unless the acts are, by their nature, “impracti­ cable or excessively burdensome for the government to watch or prevent.” Id. Several days later, Attorney General Knox referred to this opinion and that of his predecessor, Attorney General Harmon, 21 Op. Att’y Gen. 267 (1895), in advising the Secretary of State that the shipping of arms to China, notwith­ standing the presence of insurrectionary movements, would constitute a com­ mercial venture and therefore not a violation of the Neutrality Act. 24 Op. Att’y Gen. 25 (1902). Prior to the United State’s engagement in World War II, Attorney General Murphy construed the Act to prohibit the transporting of any articles or materials from a United States port to a port of a belligerent nation, until all goods of United States citizens on board had been transferred to foreign ownership. See 39 Op. Att’y Gen. 391 (1939). Later that year, Attorney General Murphy opined that American trawlers and tugs which had been sold to French concerns could lawfully depart United States ports after assurances by the French government that the vessels were not intended to be employed to commit hostilities against another belligerent. 39 Op. Att’y Gen. 403 (1939). Finally, Attorney General Jackson opined in 1940 that, while the United States Government could sell certain outdated American destroyers to the British Government during World War II, it was precluded by the predecessor to § 964 from selling to the British Government “mosquito boats” which were under construction by the United States Navy, “since . . . [the latter] would have been built, armed or equipped with the intent, or with reasonable cause to 216 believe, that they would enter the service of a belligerent after being sent out of the jurisdiction of the United States.” 39 Op. Att’y Gen. 484, 496 (1940).9 In distinguishing between the over age destroyers and the “mosquito boats” which were, at that time, under construction, Attorney General Jackson referred to the “traditional” rules of international law,” which distinguish between the selling of previously armed and outfitted vessels to a belligerent, and the building of armed vessels ‘“to the order o f a belligerent.”' Id. at 495 (quoting 2 Oppenheim, International Law 574-76). This distinction, regarding which Jackson cites Oppenheim’s characterization as ‘“hair splitting,”’ although “‘logically correct,’” is premised upon the view that by “carrying out the order of a belligerent, [a neutral nation permits its] territory [to be] made the base of naval operations,” in violation of a neutral ’s “duty of impartiality.” Id. Because of the potential importance of this distinction and its subtleties, we set out below the text of Attorney General Jackson’s lengthy quote from Oppenheim’s treatise which explains the rationale of this view in greater detail.10 9 W e noted in our earlier m emorandum that §§ 963 and 964, first enacted as part o f the Espionage A ct of 1917, 40 Stat. 221 22, codified the substantive rules o f international law forbidding the delivery o f armed vessels to belligerent pow ers by neutral nations. Regarding these provisions and Attorney General Jackson’s opinion, we concluded that: Although some com m entators have suggested that A ttorney General Jackson’s opinion supports the view that all o f the Neutrality A ct provisions were intended to apply to Government activities, we believe that § 964 by its term s is limited to circum stances involving a declared war, unlike the other neutrality laws, and was proposed to Congress by Attorney General G regory in 1917 for the purpose o f providing “for the observance o f obligations imperatively imposed by international law upon the U nited States.” H R Rep. No. 3 0 ,65th Cong., 1st Sess. 9 (1917). 8 Op. O.L.C. at 77 n.21. In 1941, how ever, C ongress enacted the Lend Lease Act, 55 Stat. 31, which authorized the President to supply, with certain lim itations, military equipm ent to the governm ent o f any nation the defense o f which he deem s vita) to the defense o f the United States. This Act, which granted tem porary em ergency pow ers to the President, effectively suspended the operation o f the predecessor to § 964 until June 30, 1943 See S. Rep. No. 45, 77th Cong., 1st Sess. (1941); H.R. Rep. No 18, 77th Cong., 1st Sess. (1941). See generally 40 Op. A tt’y Gen. 58 (1941). 10 Attorney G eneral Jackson quoted the follow ing from 2 Oppenheim , International Law 574-76: W hereas a neutral is in no wise obliged by his duty o f im partiality to prevent his subjects from selling arm ed vessels to the belligerents, such arm ed vessels being merely contraband o f w ar, a neutral is bound to em ploy the m eans at his disposal to prevent his subjects from building, fitting out, or arm ing, to the order o f either belligerent, vessels intended to be used as men o f war, and to prevent the departure from his jurisdiction o f any vessel which, by order o f either belligerent, has been adopted to w arlike use. The difference betw een selling arm ed vessels to belligerents and building them to order is usually defined in the follow ing way. An armed ship, being contraband o f war, is in no w ise different from other kinds o f contraband, provided that she is not manned in a neutral port, so that she can com m it hostilities at once after having reached the open sea. A subject o f a neutral who builds an armed ship, or arm s a merchantm en, not to the order o f a belligerent, but intending to sell her to a belligerent, does not differ from a m anufacturer o f arms who intends to sell them to a belligerent. There is nothing to prevent a neutral from allow ing his subjects to sell armed vessels, and to deliver them to belligerents, either in a neutral port o r in a belligerent port. * * * On the other hand, if a subject o f a neutral builds arm ed ships to the order o f a belligerent, he prepares the m eans o f naval operations, since the ships, on sailing outside the neutral territorial waters and taking in a crew and am m unition, can at once com m it hostilities. Thus, through the carrying out o f the order o f the belligerent, the neutral territory has been made the base o f naval operations; and as the duty o f im partiality includes an obligation to prevent either belligerent Continued 217 A more recent statement by an Attorney General construing the Neutrality Act is found in a press conference held on April 20,1961, by Attorney General Kennedy, following the Bay of Pigs invasion. Although Attorney General Kennedy did not formally opine on this matter, the views presented in this press conference have been widely quoted as the views of the Kennedy Administra­ tion on the Act: F irst. . . the neutrality laws are among the oldest laws in our statute books. Most of the provisions date from the first years of our independence and, with only minor revisions, have contin­ ued in force since the 18th Century. Clearly they were not designed for the kind of situation which exists in the world today. Second, the neutrality laws were never designed to prevent individuals from leaving the United States to fight for a cause in which they believed. There is nothing in the neutrality laws which prevents refugees from Cuba from returning to that coun­ try to engage in the fight for freedom. Nor is an individual prohibited from departing from the United States, with others of like belief, to join still others in a second country for an expedi­ tion against a third country. There is nothing criminal in an individual leaving the United States with the intent of joining an insurgent group. There is nothing criminal in his urging others to do so. There is nothing criminal in several persons departing at the same time. What the law does prohibit is a group organized as a military expedition from departing from the United States to take action as a mili­ tary force against a nation with whom the United States is at peace. There are also provisions of early origin forbidding foreign states to recruit mercenaries in this country. It is doubtful whether any of the activities presently engaged in by Cuban patriots would fall within the provisions of this law. 11 M. Whiteman, Digest o f International Law 231 (1968). See also Lobel, The Rise and Decline o f the Neutrality Act: Sovereignty and Congressional War Powers in United States Foreign Policy, 24 Harv. Int. L.J. 1,4 & n.16 (1983); N.Y. Times, Apr. 21,1961, § 1 at 6. 10 ( . . . continued) from m aking neutral territory th e base o f m ilitary o r naval operations, a neutral violates his neutrality by not preventing h is subjects from carrying out an order of a belligerent for the building and fitting out of m en o f war. This distinction, although o f course logically correct, is hair splitting. B ut as, according to the present law, neutral States need not prevent their subjects 218 Conclusion We have attempted to provide a broad overview of the Neutrality Act, its various provisions, their scope, and their application, by courts and Attorneys General throughout their history since their original enactment in 1794. To­ gether with our recent memorandum to you, this memorandum should provide you with a survey of the most prominent authorities relative to these provisions of criminal law. However, herein we have not attempted to provide a definitive analysis of the applicability of these provisions to any specific set of facts, and this memorandum should not be construed as such. Theodore B. O lso n Assistant Attorney General Office o f Legal Counsel 219

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Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux Congress intended the term “interest” in title VI of the Water Resources Development Act of 1999 to have its usual and customary meaning: the coupon rate of the debt obligation. The universe of “available obligations” under title VI of the Water Resources Development Act of 1999 includes obligations of government corporations and government-sponsored entities whose charter statutes provide that their obligations are lawful investments for federal trust funds. The fiduciary duty owed pursuant to a federal trust fund is defined and limited by the terms of the statute creating the trust. January 19, 2001 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE TREASURY You have asked for our opinion concerning the Secretary of the Treasury’s investment responsibilities for the Cheyenne River Sioux Tribe and Lower Brule Sioux Tribe Terrestrial Wildlife Habitat Restoration Trust Funds (“the Sioux Trusts” or “the Trusts”) under section 604(c) of the Water Resources Development Act of 1999 (“the Act”), in light of the federal government’s trust responsibilities for Indian tribes. Specifically, you have inquired whether section 604(c)(2) of the Act requires Treasury to invest the Trusts’ monies in obligations bearing the highest rate of interest, even when those obligations do not have the highest yields for the Trusts. You have also asked whether the universe of “available obligations” under section 604(c)(2) includes obligations of government corporations and government-sponsored entities (“GSEs”) with provisions in their charter statutes making their securities lawful investments for all federal trust funds, notwithstanding the provision in section 604(c)(1) limiting the Secretary’s investment of Trust monies to interest-bearing obligations of the United States or obligations guaranteed by the United States as to both principal and interest. We conclude that, even if the Act requires the Secretary to assume the strictest of fiduciary duties when making investment decisions for the Sioux Trusts—a question we do not decide—this duty is defined and limited by the terms of the Sioux Trusts established in the Act itself. Under the Act, the Secretary must invest the Trust monies in the obligations with the highest rate of interest, not the highest yield, among available obligations. Furthermore, the universe of available obligations under the Act includes obligations of government corporations and GSEs whose charter statutes provide that their obligations are lawful investments for federal trust funds. 66 227-329 VOL_25_PROOF.pdf 76 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux I. Title VI of the Water Resources Development Act of 1999, Pub. L. No. 106-53, 113 Stat. 269, 385-97, designates the Department of the Treasury as the program agency for managing trust funds for two South Dakota Sioux Indian tribes. The funds are to be used to finance the restoration of terrestrial wildlife habitat loss resulting from flooding related to certain federal water projects. Under the Act, the Secretary is required to transfer $5,000,000 from the general fund of the Treasury to the Sioux Trusts “for the fiscal year during which this Act is enacted and each fiscal year thereafter” until the aggregate amount in the Trusts is equal to at least $57,400,000. Id. § 604(b)(1). Of the total amount deposited, 74 percent must be deposited in the Cheyenne River Trust Fund, and 26 percent must be deposited in the Lower Brule Fund. Id. § 604(b)(2). Section 604(c) of the Act governs the investment of the two Sioux Trusts. It provides: (c) INVESTMENTS.— (1) IN GENERAL.—The Secretary of the Treasury shall invest the amounts deposited under subsection (b) only in interestbearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. (2) INTEREST RATE.—The Secretary of the Treasury shall invest amounts in the Funds in obligations that carry the highest rate of interest among available obligations of the required maturity. Paragraph (1) is a relatively common description of permitted investments for federal trust funds. 1 By contrast, paragraph (2)’s direction that the Secretary invest the Trust monies in the obligations with “the highest rate of interest among available obligations” is apparently unique among federal trust funds. We have been unable to identify a similar provision enacted by Congress, and your Office has informed us that it has never encountered such a provision. 1 See, e.g., 16 U.S.C. § 1606a(c)(2)(A) (Reforestation Trust Fund); 42 U.S.C. § 401(d) (Federal Old-Age and Survivors Insurance Trust Fund); 42 U.S.C. § 1104(b) (Unemployment Trust Fund); 42 U.S.C. § 1395i(c) (Federal Hospital Insurance Trust Fund); 42 U.S.C. § 1395t(c) (Federal Supplementary Medical Insurance Trust Fund). 67 227-329 VOL_25_PROOF.pdf 77 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 II. Our interpretation of the investment provision of the Trusts must be considered in the context of the federal government’s unique relationship with the Indian tribes. The federal government’s trust responsibility to the Indians is a concept that has evolved over time. Although its origins can be found in an early Supreme Court opinion describing a tribe’s relationship to the federal government as that “of a ward to his guardian,” 2 it has subsequently been applied by courts to establish and protect rights of Indian tribes and individuals in their dealings with the government. See Felix S. Cohen, Handbook of Federal Indian Law 220-28 (1982). The Supreme Court has on several occasions recognized what it has termed a “general trust relationship” between the United States and Indian tribes and people. See, e.g., United States v. Mitchell, 463 U.S. 206, 225 (1983) (noting “the undisputed existence of a general trust relationship between the United States and the Indian people” independent of statutes and regulations); Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) (“[T]his Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people. . . . Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, [the federal government] has charged itself with moral obligations of the highest responsibility and trust.”). 3 As part of this responsibility to the Indians, Congress has established statutory trusts serving a wide variety of purposes. While acknowledging the existence of a general trust obligation between the government and the Indians, the Supreme Court has held that only certain statutory trusts impose affirmative fiduciary obligations on the United States. In United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”), the Supreme Court concluded that the language of the General Allotment Act, which required the United States to hold land “in trust for the sole use and benefit of the [allottee],” did not impose any fiduciary management duties on the United States or render it answerable for a breach of any such duties: “The [General Allotment] Act does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands.” Id. at 541, 542 (quotation marks and internal citations omitted). The Court 2 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). This case involved a suit filed by the tribe in the Supreme Court to enjoin enforcement of state laws on lands guaranteed to the tribe by various treaties. In concluding that the Court lacked original jurisdiction over tribal matters, Justice Marshall characterized the tribes as “domestic dependent nations” which “look to our government for protection; rely upon its kindness and its power; and appeal to it for relief to their wants; and address the President as their great father.” Id. 3 This unique relationship is further demonstrated by a line of cases that hold that any ambiguities in statutes or treaties dealing with Indian tribes are to be interpreted in favor of the tribes. See DeCoteau v. Dist. County Ct., 420 U.S. 425, 444 (1975); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174 (1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970). 68 227-329 VOL_25_PROOF.pdf 78 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux further noted that Congress included the trust language “not because it wished the Government to control use of the land and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from state taxation.” Id. at 544. In a second case, United States v. Mitchell, 463 U.S. 206 (1983) (“Mitchell II”), the Court reconsidered and elaborated on whether the United States had assumed fiduciary obligations as trustee with regard to the management of timber on tribal allotted lands. The Court concluded that the series of statutes and regulations governing the management of Indian lands was sufficient to create a fiduciary relationship where the Allotment Act by itself did not: “In contrast to the bare trust created by the General Allotment Act, the statutes and regulations [managing timber resources] clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” Id. at 224. Lower courts have applied and elaborated upon the distinction between “bare” trusts and trusts giving rise to full fiduciary responsibilities. For example, in Brown v. United States, 86 F.3d 1554 (Fed. Cir. 1996), the Federal Circuit held that a statutory scheme asserting control by the Secretary of the Interior over commercial leasing of allotted lands constituted more than a limited trust and thereby gave rise to enforceable fiduciary obligations under Mitchell II. The court reiterated the Mitchell II criteria for imposition of fiduciary duties and observed that an express reference to a fiduciary duty was not necessary: “‘[W]here the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.’” Id. at 1560 (quoting Mitchell II, 463 U.S. at 225). In an application of Mitchell I, the District of Columbia Circuit held that the establishment of an explicit trust as a mere funding mechanism and without significant governmental management duties would not impose any fiduciary responsibilities to those who may benefit from the trust. Nat’l Ass’n of Counties v. Baker, 842 F.2d 369 (D.C. Cir. 1988). There, the court considered the State and Local Government Fiscal Assistance Trust Fund, created under the Revenue Sharing Act to provide “noncategorical financial assistance to local governmental units in the form of annual entitlements.” Id. at 372. Associations of local governments brought suit asserting that the Act created a federal fiduciary responsibility under Mitchell II to the local governments that were beneficiaries of the trust. The court held, however, that the trust was only a funding mechanism and did not include the type of control or management scheme that gives rise to fiduciary obligations: 69 227-329 VOL_25_PROOF.pdf 79 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 While it is true that the Revenue Sharing Act establishes a Trust Fund and names the Secretary as the trustee, we believe the Act creates only a limited trust relationship similar to the trust discussed in [Mitchell I]. . . . We do not think that when Congress created this Trust Fund and made the Secretary trustee Congress did so with the intent that the trustee would be subject to money damages for breaches of fiduciary duties. Rather, Congress created the Trust Fund in order to ensure constant funding for the Revenue Sharing Programs. . . . By creating the Trust Fund Congress was able to appropriate funds in advance, for the life of the program, thus enabling the local governments to budget their programs in advance. Id. at 375, 376. The Sioux Trusts at issue here have qualities of both the Mitchell I and the Mitchell II trusts. On the one hand, the Trusts can be viewed as a funding mechanism for money appropriated by Congress—money that will ultimately be disbursed after capitalization to the tribes for their use in wildlife habitat restoration. Thus, one might conclude that the Trusts do not constitute federal “control or supervision over tribal monies or properties” in the sense contemplated by Mitchell II, but rather are bare trusts or appropriation tools akin to those discussed in Mitchell I or Baker. On the other hand, the statutory scheme is intended to compensate the tribes for losses incurred to their lands as a result of flooding related to a federal water project, and the Act contains very specific federal controls and limitations on the tribes’ spending of the monies transferred for their use. See Pub. L. No. 106-53, § 604(d)(3), 113 Stat. at 390. Even assuming, however, that the Act requires the federal government to assume the strictest of fiduciary obligations to the tribes, that responsibility is still defined by the terms of the statute itself. Indeed, in Mitchell II, the Court concluded that the statutes and regulations giving the federal government responsibility to manage Indian resources and land for the benefit of the Indians both “establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” 463 U.S. at 224 (emphasis added). Courts that have found a fiduciary obligation akin to that in Mitchell II have similarly held that the statutory scheme creating a government trust both defines and limits the nature of the government’s duties. See Brown, 86 F.3d at 1563 (quoting Mitchell II and holding that the validity of a tribe’s breach of trust claim must be measured against the terms of the statute creating the trust and its accompanying regulations); Short v. United States, 50 F.3d 994, 998-99 (Fed. Cir. 1995) (statute dictating interest rate for Indian Money, Proceeds for Labor trust accounts controls payment of interest on trust funds held by the United States for the benefit of Indians); CheyenneArapaho Tribes of Indians of Oklahoma v. United States, 512 F.2d 1390, 1393 (Ct. Cl. 1975) (holding that tribes’ suit for breach of fiduciary duty based on the United 70 227-329 VOL_25_PROOF.pdf 80 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux States’ breach of its duties as trustee to tribes would be determined by reference to the statutory scheme governing Indian trust funds deposited in the Treasury). Thus, even assuming that the United States owes the Sioux tribes the strictest of fiduciary obligations in administering the Trusts (in addition to its general obligations of good faith and fair dealing with the Indian tribes), the specifics of that obligation are found in the statute creating the trust: “Whatever the scope of the government’s legal duties under the [Indian] trust, the source is statutory law. The extent of a trustee’s duties and powers is determined by the trust instrument and the rules of the law which are applicable. Accordingly, even though the trust is a trust as that term is used in Mitchell II, plaintiffs must point to rights granted by statute if they are to be enforced against the government.” Cobell v. Babbit, 91 F. Supp. 2d 1, 30 (D.D.C. 1999) (citations and internal quotation marks omitted). III. With this principle in mind, we turn to the specific questions of statutory interpretation. First, we consider whether section 604(c)(2), which directs the Secretary to invest the Sioux Trusts in obligations “that carry the highest rate of interest among available obligations of the required maturity,” requires the Secretary to invest the trust funds in obligations with the highest coupon rate, or those obligations with the highest yield. We understand that this distinction has significant investment consequences. The coupon rate of a security is the stated annual rate of interest on the face value of a debt security. Barron’s Financial Guides, Dictionary of Financial and Investment Terms 116 (4th ed. 1995). For instance, one might purchase a $1000 bond with a 10 percent coupon rate, earning $100 per year. In contrast, the “yield” of a security is a way of describing an investor’s percentage return on his investment. Id. at 663-64. A $1000 bond with a 10 percent coupon rate that is purchased for $1000 offers a 10 percent current yield or “effective rate.” Id.at 159. Yet that same $1000 bond with a 10 percent coupon rate, but purchased for $500, would offer an investor a 20 percent yield. When the price of a bond falls, its yield rises, and vice versa. In Old Colony Railroad Co. v. Comm’r, 284 U.S. 552 (1932), the Supreme Court considered a tax statute that permitted companies to deduct from their income “all interest paid or accrued within the taxable year” to holders of its bonds. Id. at 554. Old Colony sold its bonds at a premium and sought to deduct the amount of the interest payments (the coupon rate) on those bonds from its gross income. The government argued that Old Colony could not do so because the statute that authorized the deduction of “all interest paid or accrued” actually referred to the effective rate (or the yield) of the bond, not the coupon rate. Because Old Colony sold its bonds at a premium, the government argued that it could only deduct the lower effective rate, not the rate on the face of the coupon. The Supreme Court disagreed and held that when Congress uses the word 71 227-329 VOL_25_PROOF.pdf 81 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 “interest” without further explanation, it intends the usual meaning of the word, which is the coupon rate: [A]s respects “interest,” the usual import of the term is the amount which one has contracted to pay for the use of borrowed money. He who pays and he who receives payment of stipulated amount conceives that the whole is interest. In the ordinary affairs of life no one stops for refined analysis of the nature of a premium, or considers that the periodic payment universally called “interest” is in part something wholly distinct—that is, a return of borrowed capital. . . . We cannot believe that Congress used the word having in mind any concept other than the usual, ordinary and everyday meaning of the term, or that it was acquainted with the accountants’ phrase “effective rate” of interest and intended that as the measure of the permitted deduction. Id. at 560-61. 4 In an opinion interpreting the Second Liberty Bond Act, the Attorney General likewise concluded that the term “interest” was unambiguous. See Second Liberty Bond Act, As Amended—Bonds Issued at Discount—Effective Rate of Interest or Cost to Treasury, 42 Op. Att’y Gen. 27 (1961). There, the Attorney General considered whether the Secretary of the Treasury could sell discounted bonds at a coupon rate of 4¼ percent, thereby resulting in a greater yield or effective rate, where the Bond Act limited the “rate or rates of interest” on United States bonds to 4¼ percent. Id. at 29. Citing Old Colony, the Attorney General concluded that the limitation on interest rate referred to the coupon rate, and could not be read as a limit on the effective rate or yield of the bond: “[W]hen Congress uses the term ‘interest’ in connection with bonds without further explanation, it refers to the coupon or stated rate, the usual meaning of that term, and not to the accountants’ concept of effective rate.” Id. We recognize, of course, that any ambiguities in statutes dealing with Indian tribes are to be construed in favor of the tribes. See supra note 3 (citing cases). But, like the Supreme Court in Old Colony and the Attorney General in his 1961 opinion construing the terms of the Second Liberty Bond Act, we conclude that the term “interest” is unambiguous. As the Court and the Attorney General explained, the term “interest” in the Water Resources Development Act has its usual and customary meaning—i.e., the coupon rate of the obligation. The 4 The Court noted that, “[i]f there were doubt as to the connotation of the term, and another meaning might be adopted, the fact of its use in a tax statute would incline the scale to the construction most favorable to the taxpayer.” Id. at 561 (emphases added). The opinion makes clear, however, that the Court did not believe the term “interest” was ambiguous. 72 227-329 VOL_25_PROOF.pdf 82 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux conclusion that Congress intended this ordinary meaning when it used the term in connection with the Sioux Trusts is buttressed by the rule that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute,” and to adopt that interpretation when it “adopts a new law incorporating sections of a prior law.” Lorillard v. Pons, 434 U.S. 575, 580, 581 (1978). Here, Congress has employed a term with a long-established judicial and administrative interpretation, and there is nothing in the legislative history of the Act indicating that Congress intended the term to have a different meaning in section 604(c)(2). Accordingly, under the Act, the Secretary is required to invest the Sioux Trust fund monies in the obligations carrying the highest coupon rate, regardless of whether such investments offer the highest yield. To the extent that the Secretary has a fiduciary obligation to the Sioux tribes by virtue of the trust fund mechanism, this duty is defined by, and thus requires compliance with, the investment criteria set forth explicitly in the Act. Although investing in securities offering the highest yield might maximize the amount of income to the Funds, it is not what Congress instructed the Secretary to do. Cf. Pawnee v. United States, 830 F.2d 187, 191 (Ct. Cl. 1987) (no valid claim for breach of a fiduciary duty is stated where “the claim is simply that the Interior Department is compelled to go contrary to and beyond the [controlling] regulations and the leases in order to fulfill its alleged fiduciary obligation”). IV. Your second question is whether the universe of “available obligations” that must be considered in determining the obligations “carry[ing] the highest rate of interest” under section 604(c)(2) includes securities of government corporations and government-sponsored entities (“GSEs”) that have provisions in their charter statutes making their securities lawful investments for all federal trust funds, notwithstanding the provision in section 604(c)(1) of the Act limiting Sioux Trust investments to interest-bearing obligations of the United States or obligations guaranteed as to both principal and interest by the United States. The charter statutes of various government corporations and GSEs whose obligations are explicitly not guaranteed by the United States as to principal and interest include a provision similar or identical to the following: Obligations issued . . . shall be lawful investments and may be accepted as security for all fiduciary, trust, and public funds, the 73 227-329 VOL_25_PROOF.pdf 83 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 investment or deposit of which shall be under the authority or control of any officer or agency of the Government of the United States. 5 In accordance with several opinions of the Department of Justice, federal case law, and a Comptroller General opinion, we conclude that securities issued by entities whose charters include such “trust fund eligibility” language are appropriate investments for federal trust funds, even where those trust fund statutes specifically limit the investment of funds to federal government obligations or obligations guaranteed by the United States. In 1996, our Office considered whether the Secretary of the Treasury could invest Civil Service Retirement and Disability Fund (“CSRDF”) monies in debt obligations issued by the United States Postal Service (“USPS”) and the Tennessee Valley Authority (“TVA”). Transactions Between the Federal Financing Bank and the Department of the Treasury, 20 Op. O.L.C. 64 (1996) (“1996 Opinion”). The relevant statutes of the CSRDF trust fund and the GSEs were virtually identical to those at issue here. In what the 1996 Opinion termed “boilerplate” language governing the investment of government-managed trust funds, id. at 68, the CSRDF statute authorized the Secretary to invest in “interest-bearing obligations of the United States, or obligations guaranteed as to both principal and interest by the United States.” 5 U.S.C. § 8348(e). 6 The USPS and TVA statutes indicated, as they do now, that their debt obligations were not guaranteed by the United States as to principal and interest, see 39 U.S.C. § 2005(d)(5); 16 U.S.C. § 831n-4(b), yet they were lawful for trust fund investments under the authority or control of any United States officer or agency, see 39 U.S.C. § 2005(d)(3); 16 U.S.C. § 831n-4(d). Ultimately, we relied upon federal case law, “the longstanding practice and understanding of the Treasury and Justice Departments,” and a 1985 Comptroller General opinion in determining the relationship between the boilerplate trust investment instructions and the trust fund eligibility language of the government corporations and GSEs. 1996 Opinion, 20 Op. O.L.C. at 69. We concluded that the CSRDF monies could be invested in the USPS and TVA obligations. Id. at 68. 5 39 U.S.C. § 2005(d)(3) (investment eligibility provision for United States Postal Service obligations). See also 16 U.S.C. § 831n-4(d) (investment eligibility provision for Tennessee Valley Authority bonds); 12 U.S.C. § 1452(g) (investment eligibility provision for Federal Home Loan Mortgage Corporation). 6 The relevant portion of the CSRDF statute states that the Secretary shall “invest in interest bearing securities of the United States such currently available portions of the Fund as are not immediately required for payments from the Fund.” 5 U.S.C. § 8348(c). It further directs that the Secretary purchase “public-debt obligations” with certain maturities, id. § 8348(d), and specifies that the Secretary “may purchase other interest-bearing obligations of the United States, or obligations guaranteed as to both principal and interest by the United States . . . if he determines that the purchases are in the public interest,” id. § 8348(e). 74 227-329 VOL_25_PROOF.pdf 84 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux In the 1996 Opinion, we relied upon Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238, 1244-45 (N.D. Cal. 1973), a federal district court opinion concluding that the TVA trust fund eligibility language, as well as the language in several other GSE charter statutes, rendered TVA obligations eligible for Indian trust fund investments, notwithstanding language in the particular Indian trust fund statute, 25 U.S.C. § 162(a), limiting investments to United States public debt obligations and other obligations guaranteed as to principal and interest by the United States. The court specifically noted that its conclusion regarding the effect of the broad trust fund eligibility language was “in accord with the intent of Congress.” 363 F. Supp. at 1245. The 1996 Opinion also cited two prior instances where the Department opined that trust fund eligibility language authorized investment in obligations of government corporations or GSEs where the specific trust fund statute at issue did not expressly authorize it. First, in a 1966 opinion concerning the obligations of federal land banks and banks for cooperatives which considered trust fund eligibility language different from that discussed here, our Office noted in passing that language identical to the TVA trust fund eligibility provision 7 “presents no problems of construction and plainly permits investments of the various Government trust funds in the affected securities whether or not the statutes creating the trust themselves do so.” Letter for Fred B. Smith, General Counsel, Department of the Treasury, from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel at 2 (Oct. 7, 1966). Second, in a 1934 opinion by Attorney General Homer Cummings, the Department advised that government-managed postal savings funds could be invested in bonds issued under the Federal Farm Mortgage Corporation Act because of the Act’s trust fund eligibility language, even though the Postal Savings Act creating the trust fund only specified authority to invest in “bonds or other securities of the United States.” Investment of Postal Savings Funds in Bonds of Federal Farm Mortgage Corporation, 37 Op. Att’y Gen. 479, 480 (1934). In addition to these prior statements by the Department of Justice, the 1996 Opinion cited “Treasury’s longstanding practice to invest monies contained in governmentmanaged trust funds . . . in public debt obligations or other obligations that have been authorized by Congress as legal investments for all government-managed trust funds,” 20 Op. O.L.C. at 70, as well as a 1985 Comptroller General opinion supporting the investment of CSRDF trust funds in Federal Financing Bank obligations which were not public debt obligations, but were eligible for federal trust fund investment pursuant to the Federal Financing Bank statute. 8 7 According to the 1996 Opinion, the language of the statute at issue provided: “‘[Obligations issued] shall be lawful investments and may be accepted as security, for all fiduciary, trust, and public funds the investment or deposit of which shall be under the authority or control of the United States or any officer or officers thereof.’” 20 Op. O.L.C. at 69 n.9 (quoting statute). 8 Memorandum for the Honorable John J. LaFalce, Chairman, Subcommittee on Economic Stabilization, House Committee on Banking, Finance, and Urban Affairs, from the Comptroller General of the 75 227-329 VOL_25_PROOF.pdf 85 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Finally, in addition to relying upon the foregoing authority, the 1996 Opinion applied the principle of statutory construction dictating that statutes on the same subject should be read in harmony with one another, 2B Norman J. Singer, Sutherland on Statutes and Statutory Construction § 51.02, at 121-22 (5th ed. 1992). Thus, the opinion concluded that [b]ecause the CSRDF statute’s investment provisions do not purport to supersede other statutes establishing that obligations issued thereunder are eligible investments for government-managed trust funds and the relevant USPS and TVA statutes demonstrate Congress’s intention that obligations issued thereunder be eligible investments for all government-managed trust funds, the better interpretation is that the relevant USPS and TVA statutes have the effect of expanding the universe of authorized CSRDF investments. 20 Op. O.L.C. at 69 n.7. 9 The weight of this authority leads us to conclude that the obligations available for investment under the Water Resources Development Act must include obligations of those government corporations and GSEs whose charter statutes include the federal trust fund eligibility language. Federal case law, OLC opinions, and a Comptroller General opinion, as well as past practice, all indicate that the trust fund eligibility language found in GSE charter statutes is best read as expanding the universe of available obligations set forth in the “boilerplate” provisions of the statutes governing the investments of government-managed trust funds. Congress enacted the Sioux Trust provisions against this backdrop of federal law and governmental practice and, accordingly, we conclude that Congress intended to make government corporation and GSE obligations available for investment by the Secretary for these trusts. See Lorillard, 434 U.S. at 581 (noting that it may be appropriate to presume Congress to be “aware of an administrative or judicial interpretation of a statute” when it “adopts a new law incorporating sections of a prior law”). United States (Oct. 30, 1985), reprinted in The Federal Financing Bank and the Debt Ceiling, Hearing Before the Subcomm. on Economic Stabilization of the House Comm. on Banking, Finance and Urban Affairs, 99th Cong. 31, 32 (1985). The opinions and legal interpretations of the General Accounting Office and the Comptroller General often provide helpful guidance on appropriations matters and related issues. However, they are not binding upon departments, agencies, or officers of the Executive Branch. See Bowsher v. Synar, 478 U.S. 714, 727-32 (1986). 9 While our 1996 Opinion mentions that the TVA and USPS statutes with the trust fund eligibility language were enacted several years after the CSRDF trust fund statute, 20 Op. O.L.C. at 67, that fact is neither mentioned nor relied upon by Manchester Band or the Department of Justice or Comptroller General authority discussed herein. Accordingly, we do not believe the temporal relationship between the two statutory schemes to be essential to our prior conclusion, and we interpret the reference in the 1996 Opinion to be an additional point reinforcing the outcome. 76 227-329 VOL_25_PROOF.pdf 86 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux For the reasons set forth above, we conclude that the Secretary, in fulfilling the government’s responsibilities to the Sioux tribes under the Act, must consider obligations of government corporations and GSEs whose charter statutes include trust fund eligibility language when determining which obligations carry the highest coupon rate of interest. JOSEPH R. GUERRA Deputy Assistant Attorney General Office of Legal Counsel 77 227-329 VOL_25_PROOF.pdf 87 10/22/12 11:10 AM

Write a legal research memo on the following topic.

Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux Congress intended the term “interest” in title VI of the Water Resources Development Act of 1999 to have its usual and customary meaning: the coupon rate of the debt obligation. The universe of “available obligations” under title VI of the Water Resources Development Act of 1999 includes obligations of government corporations and government-sponsored entities whose charter statutes provide that their obligations are lawful investments for federal trust funds. The fiduciary duty owed pursuant to a federal trust fund is defined and limited by the terms of the statute creating the trust. January 19, 2001 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE TREASURY You have asked for our opinion concerning the Secretary of the Treasury’s investment responsibilities for the Cheyenne River Sioux Tribe and Lower Brule Sioux Tribe Terrestrial Wildlife Habitat Restoration Trust Funds (“the Sioux Trusts” or “the Trusts”) under section 604(c) of the Water Resources Development Act of 1999 (“the Act”), in light of the federal government’s trust responsibilities for Indian tribes. Specifically, you have inquired whether section 604(c)(2) of the Act requires Treasury to invest the Trusts’ monies in obligations bearing the highest rate of interest, even when those obligations do not have the highest yields for the Trusts. You have also asked whether the universe of “available obligations” under section 604(c)(2) includes obligations of government corporations and government-sponsored entities (“GSEs”) with provisions in their charter statutes making their securities lawful investments for all federal trust funds, notwithstanding the provision in section 604(c)(1) limiting the Secretary’s investment of Trust monies to interest-bearing obligations of the United States or obligations guaranteed by the United States as to both principal and interest. We conclude that, even if the Act requires the Secretary to assume the strictest of fiduciary duties when making investment decisions for the Sioux Trusts—a question we do not decide—this duty is defined and limited by the terms of the Sioux Trusts established in the Act itself. Under the Act, the Secretary must invest the Trust monies in the obligations with the highest rate of interest, not the highest yield, among available obligations. Furthermore, the universe of available obligations under the Act includes obligations of government corporations and GSEs whose charter statutes provide that their obligations are lawful investments for federal trust funds. 66 227-329 VOL_25_PROOF.pdf 76 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux I. Title VI of the Water Resources Development Act of 1999, Pub. L. No. 106-53, 113 Stat. 269, 385-97, designates the Department of the Treasury as the program agency for managing trust funds for two South Dakota Sioux Indian tribes. The funds are to be used to finance the restoration of terrestrial wildlife habitat loss resulting from flooding related to certain federal water projects. Under the Act, the Secretary is required to transfer $5,000,000 from the general fund of the Treasury to the Sioux Trusts “for the fiscal year during which this Act is enacted and each fiscal year thereafter” until the aggregate amount in the Trusts is equal to at least $57,400,000. Id. § 604(b)(1). Of the total amount deposited, 74 percent must be deposited in the Cheyenne River Trust Fund, and 26 percent must be deposited in the Lower Brule Fund. Id. § 604(b)(2). Section 604(c) of the Act governs the investment of the two Sioux Trusts. It provides: (c) INVESTMENTS.— (1) IN GENERAL.—The Secretary of the Treasury shall invest the amounts deposited under subsection (b) only in interestbearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. (2) INTEREST RATE.—The Secretary of the Treasury shall invest amounts in the Funds in obligations that carry the highest rate of interest among available obligations of the required maturity. Paragraph (1) is a relatively common description of permitted investments for federal trust funds. 1 By contrast, paragraph (2)’s direction that the Secretary invest the Trust monies in the obligations with “the highest rate of interest among available obligations” is apparently unique among federal trust funds. We have been unable to identify a similar provision enacted by Congress, and your Office has informed us that it has never encountered such a provision. 1 See, e.g., 16 U.S.C. § 1606a(c)(2)(A) (Reforestation Trust Fund); 42 U.S.C. § 401(d) (Federal Old-Age and Survivors Insurance Trust Fund); 42 U.S.C. § 1104(b) (Unemployment Trust Fund); 42 U.S.C. § 1395i(c) (Federal Hospital Insurance Trust Fund); 42 U.S.C. § 1395t(c) (Federal Supplementary Medical Insurance Trust Fund). 67 227-329 VOL_25_PROOF.pdf 77 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 II. Our interpretation of the investment provision of the Trusts must be considered in the context of the federal government’s unique relationship with the Indian tribes. The federal government’s trust responsibility to the Indians is a concept that has evolved over time. Although its origins can be found in an early Supreme Court opinion describing a tribe’s relationship to the federal government as that “of a ward to his guardian,” 2 it has subsequently been applied by courts to establish and protect rights of Indian tribes and individuals in their dealings with the government. See Felix S. Cohen, Handbook of Federal Indian Law 220-28 (1982). The Supreme Court has on several occasions recognized what it has termed a “general trust relationship” between the United States and Indian tribes and people. See, e.g., United States v. Mitchell, 463 U.S. 206, 225 (1983) (noting “the undisputed existence of a general trust relationship between the United States and the Indian people” independent of statutes and regulations); Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) (“[T]his Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people. . . . Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, [the federal government] has charged itself with moral obligations of the highest responsibility and trust.”). 3 As part of this responsibility to the Indians, Congress has established statutory trusts serving a wide variety of purposes. While acknowledging the existence of a general trust obligation between the government and the Indians, the Supreme Court has held that only certain statutory trusts impose affirmative fiduciary obligations on the United States. In United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”), the Supreme Court concluded that the language of the General Allotment Act, which required the United States to hold land “in trust for the sole use and benefit of the [allottee],” did not impose any fiduciary management duties on the United States or render it answerable for a breach of any such duties: “The [General Allotment] Act does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands.” Id. at 541, 542 (quotation marks and internal citations omitted). The Court 2 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). This case involved a suit filed by the tribe in the Supreme Court to enjoin enforcement of state laws on lands guaranteed to the tribe by various treaties. In concluding that the Court lacked original jurisdiction over tribal matters, Justice Marshall characterized the tribes as “domestic dependent nations” which “look to our government for protection; rely upon its kindness and its power; and appeal to it for relief to their wants; and address the President as their great father.” Id. 3 This unique relationship is further demonstrated by a line of cases that hold that any ambiguities in statutes or treaties dealing with Indian tribes are to be interpreted in favor of the tribes. See DeCoteau v. Dist. County Ct., 420 U.S. 425, 444 (1975); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174 (1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970). 68 227-329 VOL_25_PROOF.pdf 78 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux further noted that Congress included the trust language “not because it wished the Government to control use of the land and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from state taxation.” Id. at 544. In a second case, United States v. Mitchell, 463 U.S. 206 (1983) (“Mitchell II”), the Court reconsidered and elaborated on whether the United States had assumed fiduciary obligations as trustee with regard to the management of timber on tribal allotted lands. The Court concluded that the series of statutes and regulations governing the management of Indian lands was sufficient to create a fiduciary relationship where the Allotment Act by itself did not: “In contrast to the bare trust created by the General Allotment Act, the statutes and regulations [managing timber resources] clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” Id. at 224. Lower courts have applied and elaborated upon the distinction between “bare” trusts and trusts giving rise to full fiduciary responsibilities. For example, in Brown v. United States, 86 F.3d 1554 (Fed. Cir. 1996), the Federal Circuit held that a statutory scheme asserting control by the Secretary of the Interior over commercial leasing of allotted lands constituted more than a limited trust and thereby gave rise to enforceable fiduciary obligations under Mitchell II. The court reiterated the Mitchell II criteria for imposition of fiduciary duties and observed that an express reference to a fiduciary duty was not necessary: “‘[W]here the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.’” Id. at 1560 (quoting Mitchell II, 463 U.S. at 225). In an application of Mitchell I, the District of Columbia Circuit held that the establishment of an explicit trust as a mere funding mechanism and without significant governmental management duties would not impose any fiduciary responsibilities to those who may benefit from the trust. Nat’l Ass’n of Counties v. Baker, 842 F.2d 369 (D.C. Cir. 1988). There, the court considered the State and Local Government Fiscal Assistance Trust Fund, created under the Revenue Sharing Act to provide “noncategorical financial assistance to local governmental units in the form of annual entitlements.” Id. at 372. Associations of local governments brought suit asserting that the Act created a federal fiduciary responsibility under Mitchell II to the local governments that were beneficiaries of the trust. The court held, however, that the trust was only a funding mechanism and did not include the type of control or management scheme that gives rise to fiduciary obligations: 69 227-329 VOL_25_PROOF.pdf 79 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 While it is true that the Revenue Sharing Act establishes a Trust Fund and names the Secretary as the trustee, we believe the Act creates only a limited trust relationship similar to the trust discussed in [Mitchell I]. . . . We do not think that when Congress created this Trust Fund and made the Secretary trustee Congress did so with the intent that the trustee would be subject to money damages for breaches of fiduciary duties. Rather, Congress created the Trust Fund in order to ensure constant funding for the Revenue Sharing Programs. . . . By creating the Trust Fund Congress was able to appropriate funds in advance, for the life of the program, thus enabling the local governments to budget their programs in advance. Id. at 375, 376. The Sioux Trusts at issue here have qualities of both the Mitchell I and the Mitchell II trusts. On the one hand, the Trusts can be viewed as a funding mechanism for money appropriated by Congress—money that will ultimately be disbursed after capitalization to the tribes for their use in wildlife habitat restoration. Thus, one might conclude that the Trusts do not constitute federal “control or supervision over tribal monies or properties” in the sense contemplated by Mitchell II, but rather are bare trusts or appropriation tools akin to those discussed in Mitchell I or Baker. On the other hand, the statutory scheme is intended to compensate the tribes for losses incurred to their lands as a result of flooding related to a federal water project, and the Act contains very specific federal controls and limitations on the tribes’ spending of the monies transferred for their use. See Pub. L. No. 106-53, § 604(d)(3), 113 Stat. at 390. Even assuming, however, that the Act requires the federal government to assume the strictest of fiduciary obligations to the tribes, that responsibility is still defined by the terms of the statute itself. Indeed, in Mitchell II, the Court concluded that the statutes and regulations giving the federal government responsibility to manage Indian resources and land for the benefit of the Indians both “establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” 463 U.S. at 224 (emphasis added). Courts that have found a fiduciary obligation akin to that in Mitchell II have similarly held that the statutory scheme creating a government trust both defines and limits the nature of the government’s duties. See Brown, 86 F.3d at 1563 (quoting Mitchell II and holding that the validity of a tribe’s breach of trust claim must be measured against the terms of the statute creating the trust and its accompanying regulations); Short v. United States, 50 F.3d 994, 998-99 (Fed. Cir. 1995) (statute dictating interest rate for Indian Money, Proceeds for Labor trust accounts controls payment of interest on trust funds held by the United States for the benefit of Indians); CheyenneArapaho Tribes of Indians of Oklahoma v. United States, 512 F.2d 1390, 1393 (Ct. Cl. 1975) (holding that tribes’ suit for breach of fiduciary duty based on the United 70 227-329 VOL_25_PROOF.pdf 80 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux States’ breach of its duties as trustee to tribes would be determined by reference to the statutory scheme governing Indian trust funds deposited in the Treasury). Thus, even assuming that the United States owes the Sioux tribes the strictest of fiduciary obligations in administering the Trusts (in addition to its general obligations of good faith and fair dealing with the Indian tribes), the specifics of that obligation are found in the statute creating the trust: “Whatever the scope of the government’s legal duties under the [Indian] trust, the source is statutory law. The extent of a trustee’s duties and powers is determined by the trust instrument and the rules of the law which are applicable. Accordingly, even though the trust is a trust as that term is used in Mitchell II, plaintiffs must point to rights granted by statute if they are to be enforced against the government.” Cobell v. Babbit, 91 F. Supp. 2d 1, 30 (D.D.C. 1999) (citations and internal quotation marks omitted). III. With this principle in mind, we turn to the specific questions of statutory interpretation. First, we consider whether section 604(c)(2), which directs the Secretary to invest the Sioux Trusts in obligations “that carry the highest rate of interest among available obligations of the required maturity,” requires the Secretary to invest the trust funds in obligations with the highest coupon rate, or those obligations with the highest yield. We understand that this distinction has significant investment consequences. The coupon rate of a security is the stated annual rate of interest on the face value of a debt security. Barron’s Financial Guides, Dictionary of Financial and Investment Terms 116 (4th ed. 1995). For instance, one might purchase a $1000 bond with a 10 percent coupon rate, earning $100 per year. In contrast, the “yield” of a security is a way of describing an investor’s percentage return on his investment. Id. at 663-64. A $1000 bond with a 10 percent coupon rate that is purchased for $1000 offers a 10 percent current yield or “effective rate.” Id.at 159. Yet that same $1000 bond with a 10 percent coupon rate, but purchased for $500, would offer an investor a 20 percent yield. When the price of a bond falls, its yield rises, and vice versa. In Old Colony Railroad Co. v. Comm’r, 284 U.S. 552 (1932), the Supreme Court considered a tax statute that permitted companies to deduct from their income “all interest paid or accrued within the taxable year” to holders of its bonds. Id. at 554. Old Colony sold its bonds at a premium and sought to deduct the amount of the interest payments (the coupon rate) on those bonds from its gross income. The government argued that Old Colony could not do so because the statute that authorized the deduction of “all interest paid or accrued” actually referred to the effective rate (or the yield) of the bond, not the coupon rate. Because Old Colony sold its bonds at a premium, the government argued that it could only deduct the lower effective rate, not the rate on the face of the coupon. The Supreme Court disagreed and held that when Congress uses the word 71 227-329 VOL_25_PROOF.pdf 81 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 “interest” without further explanation, it intends the usual meaning of the word, which is the coupon rate: [A]s respects “interest,” the usual import of the term is the amount which one has contracted to pay for the use of borrowed money. He who pays and he who receives payment of stipulated amount conceives that the whole is interest. In the ordinary affairs of life no one stops for refined analysis of the nature of a premium, or considers that the periodic payment universally called “interest” is in part something wholly distinct—that is, a return of borrowed capital. . . . We cannot believe that Congress used the word having in mind any concept other than the usual, ordinary and everyday meaning of the term, or that it was acquainted with the accountants’ phrase “effective rate” of interest and intended that as the measure of the permitted deduction. Id. at 560-61. 4 In an opinion interpreting the Second Liberty Bond Act, the Attorney General likewise concluded that the term “interest” was unambiguous. See Second Liberty Bond Act, As Amended—Bonds Issued at Discount—Effective Rate of Interest or Cost to Treasury, 42 Op. Att’y Gen. 27 (1961). There, the Attorney General considered whether the Secretary of the Treasury could sell discounted bonds at a coupon rate of 4¼ percent, thereby resulting in a greater yield or effective rate, where the Bond Act limited the “rate or rates of interest” on United States bonds to 4¼ percent. Id. at 29. Citing Old Colony, the Attorney General concluded that the limitation on interest rate referred to the coupon rate, and could not be read as a limit on the effective rate or yield of the bond: “[W]hen Congress uses the term ‘interest’ in connection with bonds without further explanation, it refers to the coupon or stated rate, the usual meaning of that term, and not to the accountants’ concept of effective rate.” Id. We recognize, of course, that any ambiguities in statutes dealing with Indian tribes are to be construed in favor of the tribes. See supra note 3 (citing cases). But, like the Supreme Court in Old Colony and the Attorney General in his 1961 opinion construing the terms of the Second Liberty Bond Act, we conclude that the term “interest” is unambiguous. As the Court and the Attorney General explained, the term “interest” in the Water Resources Development Act has its usual and customary meaning—i.e., the coupon rate of the obligation. The 4 The Court noted that, “[i]f there were doubt as to the connotation of the term, and another meaning might be adopted, the fact of its use in a tax statute would incline the scale to the construction most favorable to the taxpayer.” Id. at 561 (emphases added). The opinion makes clear, however, that the Court did not believe the term “interest” was ambiguous. 72 227-329 VOL_25_PROOF.pdf 82 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux conclusion that Congress intended this ordinary meaning when it used the term in connection with the Sioux Trusts is buttressed by the rule that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute,” and to adopt that interpretation when it “adopts a new law incorporating sections of a prior law.” Lorillard v. Pons, 434 U.S. 575, 580, 581 (1978). Here, Congress has employed a term with a long-established judicial and administrative interpretation, and there is nothing in the legislative history of the Act indicating that Congress intended the term to have a different meaning in section 604(c)(2). Accordingly, under the Act, the Secretary is required to invest the Sioux Trust fund monies in the obligations carrying the highest coupon rate, regardless of whether such investments offer the highest yield. To the extent that the Secretary has a fiduciary obligation to the Sioux tribes by virtue of the trust fund mechanism, this duty is defined by, and thus requires compliance with, the investment criteria set forth explicitly in the Act. Although investing in securities offering the highest yield might maximize the amount of income to the Funds, it is not what Congress instructed the Secretary to do. Cf. Pawnee v. United States, 830 F.2d 187, 191 (Ct. Cl. 1987) (no valid claim for breach of a fiduciary duty is stated where “the claim is simply that the Interior Department is compelled to go contrary to and beyond the [controlling] regulations and the leases in order to fulfill its alleged fiduciary obligation”). IV. Your second question is whether the universe of “available obligations” that must be considered in determining the obligations “carry[ing] the highest rate of interest” under section 604(c)(2) includes securities of government corporations and government-sponsored entities (“GSEs”) that have provisions in their charter statutes making their securities lawful investments for all federal trust funds, notwithstanding the provision in section 604(c)(1) of the Act limiting Sioux Trust investments to interest-bearing obligations of the United States or obligations guaranteed as to both principal and interest by the United States. The charter statutes of various government corporations and GSEs whose obligations are explicitly not guaranteed by the United States as to principal and interest include a provision similar or identical to the following: Obligations issued . . . shall be lawful investments and may be accepted as security for all fiduciary, trust, and public funds, the 73 227-329 VOL_25_PROOF.pdf 83 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 investment or deposit of which shall be under the authority or control of any officer or agency of the Government of the United States. 5 In accordance with several opinions of the Department of Justice, federal case law, and a Comptroller General opinion, we conclude that securities issued by entities whose charters include such “trust fund eligibility” language are appropriate investments for federal trust funds, even where those trust fund statutes specifically limit the investment of funds to federal government obligations or obligations guaranteed by the United States. In 1996, our Office considered whether the Secretary of the Treasury could invest Civil Service Retirement and Disability Fund (“CSRDF”) monies in debt obligations issued by the United States Postal Service (“USPS”) and the Tennessee Valley Authority (“TVA”). Transactions Between the Federal Financing Bank and the Department of the Treasury, 20 Op. O.L.C. 64 (1996) (“1996 Opinion”). The relevant statutes of the CSRDF trust fund and the GSEs were virtually identical to those at issue here. In what the 1996 Opinion termed “boilerplate” language governing the investment of government-managed trust funds, id. at 68, the CSRDF statute authorized the Secretary to invest in “interest-bearing obligations of the United States, or obligations guaranteed as to both principal and interest by the United States.” 5 U.S.C. § 8348(e). 6 The USPS and TVA statutes indicated, as they do now, that their debt obligations were not guaranteed by the United States as to principal and interest, see 39 U.S.C. § 2005(d)(5); 16 U.S.C. § 831n-4(b), yet they were lawful for trust fund investments under the authority or control of any United States officer or agency, see 39 U.S.C. § 2005(d)(3); 16 U.S.C. § 831n-4(d). Ultimately, we relied upon federal case law, “the longstanding practice and understanding of the Treasury and Justice Departments,” and a 1985 Comptroller General opinion in determining the relationship between the boilerplate trust investment instructions and the trust fund eligibility language of the government corporations and GSEs. 1996 Opinion, 20 Op. O.L.C. at 69. We concluded that the CSRDF monies could be invested in the USPS and TVA obligations. Id. at 68. 5 39 U.S.C. § 2005(d)(3) (investment eligibility provision for United States Postal Service obligations). See also 16 U.S.C. § 831n-4(d) (investment eligibility provision for Tennessee Valley Authority bonds); 12 U.S.C. § 1452(g) (investment eligibility provision for Federal Home Loan Mortgage Corporation). 6 The relevant portion of the CSRDF statute states that the Secretary shall “invest in interest bearing securities of the United States such currently available portions of the Fund as are not immediately required for payments from the Fund.” 5 U.S.C. § 8348(c). It further directs that the Secretary purchase “public-debt obligations” with certain maturities, id. § 8348(d), and specifies that the Secretary “may purchase other interest-bearing obligations of the United States, or obligations guaranteed as to both principal and interest by the United States . . . if he determines that the purchases are in the public interest,” id. § 8348(e). 74 227-329 VOL_25_PROOF.pdf 84 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux In the 1996 Opinion, we relied upon Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238, 1244-45 (N.D. Cal. 1973), a federal district court opinion concluding that the TVA trust fund eligibility language, as well as the language in several other GSE charter statutes, rendered TVA obligations eligible for Indian trust fund investments, notwithstanding language in the particular Indian trust fund statute, 25 U.S.C. § 162(a), limiting investments to United States public debt obligations and other obligations guaranteed as to principal and interest by the United States. The court specifically noted that its conclusion regarding the effect of the broad trust fund eligibility language was “in accord with the intent of Congress.” 363 F. Supp. at 1245. The 1996 Opinion also cited two prior instances where the Department opined that trust fund eligibility language authorized investment in obligations of government corporations or GSEs where the specific trust fund statute at issue did not expressly authorize it. First, in a 1966 opinion concerning the obligations of federal land banks and banks for cooperatives which considered trust fund eligibility language different from that discussed here, our Office noted in passing that language identical to the TVA trust fund eligibility provision 7 “presents no problems of construction and plainly permits investments of the various Government trust funds in the affected securities whether or not the statutes creating the trust themselves do so.” Letter for Fred B. Smith, General Counsel, Department of the Treasury, from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel at 2 (Oct. 7, 1966). Second, in a 1934 opinion by Attorney General Homer Cummings, the Department advised that government-managed postal savings funds could be invested in bonds issued under the Federal Farm Mortgage Corporation Act because of the Act’s trust fund eligibility language, even though the Postal Savings Act creating the trust fund only specified authority to invest in “bonds or other securities of the United States.” Investment of Postal Savings Funds in Bonds of Federal Farm Mortgage Corporation, 37 Op. Att’y Gen. 479, 480 (1934). In addition to these prior statements by the Department of Justice, the 1996 Opinion cited “Treasury’s longstanding practice to invest monies contained in governmentmanaged trust funds . . . in public debt obligations or other obligations that have been authorized by Congress as legal investments for all government-managed trust funds,” 20 Op. O.L.C. at 70, as well as a 1985 Comptroller General opinion supporting the investment of CSRDF trust funds in Federal Financing Bank obligations which were not public debt obligations, but were eligible for federal trust fund investment pursuant to the Federal Financing Bank statute. 8 7 According to the 1996 Opinion, the language of the statute at issue provided: “‘[Obligations issued] shall be lawful investments and may be accepted as security, for all fiduciary, trust, and public funds the investment or deposit of which shall be under the authority or control of the United States or any officer or officers thereof.’” 20 Op. O.L.C. at 69 n.9 (quoting statute). 8 Memorandum for the Honorable John J. LaFalce, Chairman, Subcommittee on Economic Stabilization, House Committee on Banking, Finance, and Urban Affairs, from the Comptroller General of the 75 227-329 VOL_25_PROOF.pdf 85 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 Finally, in addition to relying upon the foregoing authority, the 1996 Opinion applied the principle of statutory construction dictating that statutes on the same subject should be read in harmony with one another, 2B Norman J. Singer, Sutherland on Statutes and Statutory Construction § 51.02, at 121-22 (5th ed. 1992). Thus, the opinion concluded that [b]ecause the CSRDF statute’s investment provisions do not purport to supersede other statutes establishing that obligations issued thereunder are eligible investments for government-managed trust funds and the relevant USPS and TVA statutes demonstrate Congress’s intention that obligations issued thereunder be eligible investments for all government-managed trust funds, the better interpretation is that the relevant USPS and TVA statutes have the effect of expanding the universe of authorized CSRDF investments. 20 Op. O.L.C. at 69 n.7. 9 The weight of this authority leads us to conclude that the obligations available for investment under the Water Resources Development Act must include obligations of those government corporations and GSEs whose charter statutes include the federal trust fund eligibility language. Federal case law, OLC opinions, and a Comptroller General opinion, as well as past practice, all indicate that the trust fund eligibility language found in GSE charter statutes is best read as expanding the universe of available obligations set forth in the “boilerplate” provisions of the statutes governing the investments of government-managed trust funds. Congress enacted the Sioux Trust provisions against this backdrop of federal law and governmental practice and, accordingly, we conclude that Congress intended to make government corporation and GSE obligations available for investment by the Secretary for these trusts. See Lorillard, 434 U.S. at 581 (noting that it may be appropriate to presume Congress to be “aware of an administrative or judicial interpretation of a statute” when it “adopts a new law incorporating sections of a prior law”). United States (Oct. 30, 1985), reprinted in The Federal Financing Bank and the Debt Ceiling, Hearing Before the Subcomm. on Economic Stabilization of the House Comm. on Banking, Finance and Urban Affairs, 99th Cong. 31, 32 (1985). The opinions and legal interpretations of the General Accounting Office and the Comptroller General often provide helpful guidance on appropriations matters and related issues. However, they are not binding upon departments, agencies, or officers of the Executive Branch. See Bowsher v. Synar, 478 U.S. 714, 727-32 (1986). 9 While our 1996 Opinion mentions that the TVA and USPS statutes with the trust fund eligibility language were enacted several years after the CSRDF trust fund statute, 20 Op. O.L.C. at 67, that fact is neither mentioned nor relied upon by Manchester Band or the Department of Justice or Comptroller General authority discussed herein. Accordingly, we do not believe the temporal relationship between the two statutory schemes to be essential to our prior conclusion, and we interpret the reference in the 1996 Opinion to be an additional point reinforcing the outcome. 76 227-329 VOL_25_PROOF.pdf 86 10/22/12 11:10 AM Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux For the reasons set forth above, we conclude that the Secretary, in fulfilling the government’s responsibilities to the Sioux tribes under the Act, must consider obligations of government corporations and GSEs whose charter statutes include trust fund eligibility language when determining which obligations carry the highest coupon rate of interest. JOSEPH R. GUERRA Deputy Assistant Attorney General Office of Legal Counsel 77 227-329 VOL_25_PROOF.pdf 87 10/22/12 11:10 AM

Write a legal research memo on the following topic.

May 10, 1978 78-24 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS Bureau of Prisons— Inmates— Administrative Segregation— Due Process We understand that the Department is formulating standards to guide the operation of Federal penal institutions. In connection with this effort, you have requested our opinion on what procedural protections, if any, are constitution­ ally required in transferring inmates from the general prison population to “ administrative” segregation.1 You also asked whether procedural require­ ments of such transfers are dependent upon the existence o f a statutory or any other legally recognized right to remain in the general population. Finally, you asked whether such requirements would differ if the transfer were made in the context of a “ classification” procedure,2 rather than a disciplinary procedure. We conclude that the Constitution requires, except in exigent circumstances, certain due process procedures prior to transferring a Federal inmate, against his or her will, from the general prison population to administrative segrega­ tion. In emergency cases, where time does not permit prior review, these procedures must be followed within a reasonable time after transfer. Further, we believe the same procedure applies whether the transfer is based upon administrative or disciplinary reasons. The Bureau o f Prisons has adopted Policy Statement No. 7400.5D, July 7, 1975, on inmate discipline that defines the term “ administrative detention” as . . . the status of confinement which results in a loss of some privileges which the inmate would have if assigned to the general population. Administrative detention is to be used only where the 'W e u n d e rstan d th at y o u use the term " a d m in is tra tiv e s e g re g a tio n ” in te rc h a n g ea b ly w ith the term "a d m in is tra tiv e d e te n tio n ,” a s th a t la tte r te rm is u sed b y the B u re au o f P riso n s. See. infra. pp. 2-3. T h e B ureau o f P riso n s a d v ise d th is O ffice that ad m in istra tiv e d e te n tio n is c o m p a ra b le , in term s o f ph y sical re stric tio n s, to d isc ip lin a ry seg reg a tio n . 2By “ c la ss ific a tio n ” p ro c e d u re , w e u n d e rstan d you to m ean a p ro c e d u re , re su ltin g in seg reg a tio n , w h ich is not in stitu te d fo r d iscip lin ary reaso n s. 99 continued presence of the inmate in the general population poses a serious threat to life, property, him self, other inmates, staff members or the security of the institution. An inmate may be placed in administrative detention only if he • poses the kind o f threat described above, and when he: a. Is pending a hearing for a violation of institution rules or regulations; b. Is pending an investigation o f a violation of institution rules or regulations; c. Is pending investigation or trial for a criminal act; d. Requests admission to adm inistrative detention for his own protection or the staff determines that admission to or continuation in administrative detention is necessary for the inm ate’s own protection; e. Is pending transfer or is in holdover status during transfer; or f. Is pending classification. [Id., p. 16] Further, when an inmate is placed in administrative detention the policy statement requires that . . . [a] m emorandum detailing the reason for placing an inmate in administrative detention will be prepared and given to members of the inm ate’s unit or team , with a copy to the Operations Supervisor of the administrative detention unit. A copy o f this memorandum will also be given to the inmate provided institutional security is not thereby com prom ised. [Id.] Finally, involuntary adm inistrative detention is to be used only for short periods of time. Id., at 17. In determining whether one is entitled to procedural protections against arbitrary governmental action, the threshold question is whether a property or liberty interest protected by the Constitution is at stake. Wright v. Enomoto, 462 F. Supp. 397 (N .D . Cal. 1976) (three-judge court), a ffd , 434 U.S. 1052, 1978; Board o f Regents v. Roth, 408 U .S. 564 (1962); M orrissey v. Brewer, 408 U .S. 471, 481, 482 (1972). The inquiry is whether a prison inmate has a constitutionally cognizable liberty interest in remaining in the general prison population. If the answer is in the affirmative, the inmate may be stripped of that interest only if there is com pliance with due process requirements commensurate with the nature of the interest involved. C f., Cafeteria and Restaurant Union Workers v. M cElroy, 367 U.S. 886, 894-95 (1961). The three-judge district court in Enom oto held (p. 402): When a prisoner is transferred from the general prison population to the grossly more onerous conditions o f maximum security, be it for disciplinary or for adm inistrative reasons, there is severe impairment of the residuum of liberty which he retains as a prisoner— an impairment which triggers the requirement for due process safe­ guards. Cluchette v. Procunier, [497 F .'(2 d ) 809 (9th Cir. 1974), 100 modified, 510 F. (2d) 613 (1975), rev’d in part on other grounds, 425 U .S. 308]; United States ex rel. M iller v. Twooney, 479 F. (2d) 701 (7th Cir. 1973), cert, denied, 414 U.S. 1146 (1974); Allen v. Nelson, 354 F. Supp. 505 (N .D . Cal. 1973), a ffd , 484 F. (2d) 960 (9th Cir. 1973). [Id., p. 13] In Enomoto, California claimed that the foregoing proposition was no longer viable after the Supreme C ourt’s recent decisions in Meachum v. Fano, 427 U.S. 215 (1976), and M ontanye v. Haymes, 427 U.S. 236(1976). These cases hold that a prisoner has no constitutionally protected interest against being transferred from one institution to another even if the receiving institution has more onerous living conditions than the sending institution, unless State law or practice conditions the transfer upon serious misconduct or the occurrence of some other specified event.3 In rejecting the contention that these cases have undermined the notion that due process requirements apply where a prisoner is transferred to “ grossly more onerous conditions,” the court stated (p. 402): Meachum and M ontanye hold only that some discretionary decisions of prison officials, such as the decision to transfer a prisoner to another institution, do not result in such a substantial invasion of a prisoner’s liberty interest as to trigger the need for due process protections. The Supreme Court explicitly stated that the transfer decisions did not result in confinement in maximum security segrega­ tion. M eachum v. Fano, supra, 427 U.S. 219; M ontanye v. Haymes, id., 427 U .S. 236. Contrary to defendants’ contention, these opinions do not hold that a prisoner may be confined in maximum security segregation “ for whatever reason or for no reason at a ll,” regardless of the extent of the deprivation caused by such segregation. . . . [Imposition of “ solitary” confinement] represents a major change in the conditions o f confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct. Here . . . there should be minimum procedural safeguards as a hedge against arbitrary determination o f the factual predicate for imposition of the sanction. [W olff v. M cDonnell, supra, 418 U .S. at 571-72, n. 19.] The Court went on to state that Meachum and M ontanye hold that if the State “ imposes limits on its discretion by conditioning decisions such as prison transfers on a specific standard being met, the state creates a liberty interest which is protected by due process.” Ibid. The court further found that 3O n A pril 2 4 , 1978, th e S u p rem e C o u rt h eard o ral a rg u m e n t in Vitek v. Miller, 4 37 F. S upp. 5 6 9 , a c ase ra isin g th e q u e stio n w h e th e r d u e p ro c e ss re q u ire m e n ts ap p ly w here p riso n e rs are tra n sfe rre d fro m a S tate c o rre c tio n a l in stitu tio n to a S tate m en tal h o sp ita l. T h e C o u rt v a ca te d the ju d g m e n t an d re m a n d e d the c ase fo r c o n sid e ra tio n o f th e q u e stio n o f m o o tn e ss. Vitek v. Jones, 4 3 6 U .S . 407 (1 9 7 8 ). 101 California had created such a liberty interest by virtue of the following • regulation: § 3330. General Policy, (a) Inmates must be segregated from others when it is reasonably believed that they are a menace to themselves and others or a threat to the security o f the institution. Inmates may be segregated for medical, psychiatric, disciplinary, or administrative reasons. The reason for ordering segregated housing must be clearly documented by the official ordering the action at the time the action is taken.4 It therefore held that the State had, with this regulation, created a liberty interest which could only be withdrawn consistent with due process guarantees. The Supreme Court affirm ed, without opinion, the three-judge court ruling in February 1978 (over the dissents o f the C hief Justice and Justice Rehnquist). Policy Statement No. 7400.5D closely parallels this regulation in that it provides for administrative segregation o f prisoners where they pose a threat to themselves, others, or the security of the institution. The policy statement also requires documented reasons for placing an inmate in administrative detention. Therefore, following the analysis o f Enomoto, the Federal Government has created a liberty interest not subject to withdrawal without due process protections.5 Federal prisoners are entitled to due process safeguards before they are transferred to administrative detention unless exigent circumstances require immediate transfer. In these latter situations the hearing should be held at the earliest possible time thereafter. The procedures should be followed whether the transfer is for disciplinary or administrative reasons. Enomoto, supra, at 13. Having concluded that the transfers in question implicate a liberty interest to which due process guarantees attach, we now turn to the question o f what process is due. W olff v. M cD onnell, 418 U .S. 539 (1974), held that in a prison proceeding the following procedures must be observed: (1) The inmate must be given written notice o f the charges against him and a reasonable time after receiving notice, no less than 24 hours, to respond. (2) There must be a written statement by the prison authorities as to the evidence relied on and the reasons for the action taken. (3) W hen it would not be unduly hazardous to institutional safety or correctional goals, the inmate should be allowed to call witnesses and present documentary evidence in his defense. (4) Finally, where an illiterate inmate is involved or the issue is so com plex, making it unlikely that the inmate will be able to marshal and present the necessary evidence for his case, he should be allowed to solicit the aid of a fellow inmate or have the prison designate someone to assist him. 4C h a p te r 4 , A rtic le 6 , o f th e R u le s an d R eg u latio n s o f th e C alifo rn ia D ire c to r o f C o rre c tio n s. 5See also 18 U .S .C . § 4 0 8 1 , p ro v id in g , inter alia, th at p en al an d c o rre c tio n a l institu tio n s sh ould a ssu re p ro p e r c la ssific a tio n an d seg re g a tio n o f p riso n e rs a cc o rd in g to the n atu re o f the o ffe n s e , the p ris o n e r's c h a ra c te r a n d m e n ta l c o n d itio n , an d su ch o th e r fa c to rs as sh o u ld be c o n sid e re d in p ro v id in g an in d iv id u a liz e d sy ste m o f d is c ip lin e , c a re , an d tre a tm e n t o f p e rso n s c o m m itte d to such in stitu tio n s. 102 The court in Enomoto fashioned its judgm ent using the W olff decision as a pattern and established procedures to govern cases in which inmates were “ involuntarily confined for administrative reasons.” W hile neither W olff nor Enomoto should be read as imposing inflexible requirements under all circumstances, those cases should be regarded as the necessary starting point in drafting appropriate departmental standards. Larry A. H am m ond Deputy Assistant Attorney General Office o f Legal Counsel 103

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Statutory Authority for Commodity Credit Corporation Export Credit Guarantee Programs Certain program s o f the C om m odity Credit C orporation, guaranteeing export credit sales of Amer­ ican agricultural exports, are authorized by the C orporation’s charter act March 26, 1982 MEMORANDUM FOR THE GENERAL COUNSEL, DEPARTMENT OF AGRICULTURE This memorandum responds to your request for our opinion regarding the statutory authority for the Commodity Credit Corporation’s (CCC) Noncommer­ cial Risk Assurance Program (GSM-101) and Export Credit Guarantee Program (GSM -102).1 The question of statutory authority has arisen in the course of a determination by your Office whether guarantees issued pursuant to these pro­ grams are supported by the full faith and credit of the United States.2 We find ample, clear statutory authority for these export guarantee programs. Your determination regarding full faith and credit may properly rely on this finding. ‘ T h e D e p a r tm e n t o f A g r ic u ltu r e ’s re g u la tio n s g o v e rn in g th e s e tw o p ro g ra m s a p p e a r at 7 C . F R §§ 1487-1487 15 and 7 C .F R §§ 1 4 9 3 -I4 9 3 .1 5 -(1 9 8 1 ), respectively. 2 Since 1973, it has been the policy o f the D epartm ent o f Justice to decline to issue formal op in io n s as to “ full faith and c re d it” m atters unless there is draw n into question a serious issue o f law See EUiot L R ichardson, A ttorney G eneral, M em orandum for H eads o f the Executive D epartm ents and C ounsel to the P resident (O ct 10, 1973) It has long been the position o f the A ttorney G eneral, however, that: [T]here is no o rd er o f solem nity o f valid general obligations o f the U nited States and . n o legal priority is afforded general obligations contracted pursuant to an express pledge of faith o r cred it over those not so accom panied. It is enough to create an obligation of the U nited States if an ag en cy or officer is validly authorized to incur such an obligation on its b eh a lf and validly exercises that pow er 41 O p A tt'y G en. 40 3 , 405 (1959). S e e a tso A l O p A tt’y G e n 417 (1969); 42 O p A tt’y G en. 3 41, 344 (1967); 42 Op. A tt’y G en. 323 (1966); 42 Op. A tt’y G en. 305, 308 (1965), 42 O p. A tt’y G en. 2 1 , 23—4 (1961). See generally Perry v. Uniled Stales, 294 U S 330, 3*53-54 (1935); Lynch v United Slates, 292 U .S . 571, 5 8 0 (1934) In an opinion h olding that the Sm all B usiness A dm inistration had authority to guarantee the sale o f certain debentures ow ned by it, the A ttorney G eneral stated. [T]he threshold question concerning the effect o f the proposed SB A g uaranties is not w h eth er the statutory language expressly alludes to the “ faith” o r “ cred it” of the U nited S tates, but w h eth er the statutory schem e authorizes the guaranties here proposed I f there is statutory authority fo r the guaranties, ab sen t specific language to the contrary such guaranties w ould constitute o bligations of the U nited S tates as fully backed by its faith and cred it as w ould be the case were those term s actually used Letter from John N M itchell. A ttorney G eneral, to T hom as S. K leppe, A dm inistrator, Sm all B usiness A dm inistra­ tio n , at 3 - 4 (A pr 1 4 ,1 9 7 1 ) Sim ilarly, in this case, a guarantee by the C C C w ill be backed by the full faith and cred it o f the U nited States if, and only if, the guarantee was issued pursuant to statutory authority. 233 I. The GSM—1011 and GSM-102 Programs3 The purpose of the GSM-101 and GSM -102 programs is to promote United States exports of agricultural commodities and products by shifting some of the risks usually associated with export transactions from the American exporter to the CCC. These risks, which include embargoes on imports, freezing of foreign exchange, and similar acts o f state, as well as revolutions, wars, economic collapse, and other noncommercial incidents, all operate as a barrier to United States agricultural exports. The GSM -101 and GSM-102 programs are similar in structure and operation. Both programs seek to encourage U.S. agricultural exports at levels above those which would exist without the guarantees.4 Under the programs, CCC promises to reimburse the exporter, or the financing institution that is the exporter’s assignee, for a portion of the exporter’s accounts receivable in the event of nonpayment by the importer’s bank that issued the irrevocable letter of credit pertaining to the export sale. In return, the exporter or assignee must assign to CCC all rights in the defaulted payment.5 The total amount that CCC will guarantee, and the portion o f the accounts receivable for which CCC will reimburse the exporter or assignee, is determined by CCC in advance for each country. Typically, the Corporation guarantees 98 percent of the principal amount and 8 percent per annum interest. II. Statutory Authority for the Programs* 15 U .S.C . § 714b7 sets out the general powers of the CCC. These include the power to “ determine the character of and the necessity for its obligations and expenditures and the manner in which they shall be incurred, allowed, and paid.” 3 T h e fo llo w in g d escrip tio n o f these p ro g ram s is based on discussio n s w ith m em bers o f yo u r O ffice, and upon a m em o ran d u m attached to y o u r letter to m e dated N ovem ber 2 0 , 1981. 4 T h e m a jo r diffe re n ce betw een the tw o program s is that G S M -1 0 1 is lim ited to protecting o n ly against n o n co m m ercial n s k s , w h ile G S M -102 c o v e rs all risks. Compare 1 C .F .R . §§ 1 4 8 7 .2 0 0 and 1 487.4(a), with 7 C .F .R . § 1493.4(a). U n d er the G SM -102 p ro g ra m , CC C relieves expo rters o r assignees o f com m ercial risk s w hich m ay b e difficult for the ex p o rter or assignee to assess because o f lack o f fam iliarity w ith foreign leg al system s o r b an k in g p ractice s, o r a lack o f adequate inform ation. C C C now relies exclusively on the G S M -1 0 2 p ro g ram and has c e ase d issu in g new G S M -1 0 1 risk assurance agreem ents. 5 See 7 C .F .R . §§ 1 4 8 7 .2 -4 ; 1487.9(d); 1493.2; 1493.4; 1493.8(b)(3)(iv). 6 A q u e stio n related to th is o n e was prev io u sly addressed in a letter and m em orandum from this O ffice to Claude C o ffm a n , D ep u ty G en eral C ounsel, D ep artm en t of A griculture (D ec. 3 , 1973). In th at co rresp o n d en ce, Leon U lm a n , D e p u ty A ssista n t A ttorney General, expressed do u b t regarding C C C ’s authority to sell “ tim e d rafts” which it in ten d ed to draw ag a in st ce rta in bank ob lig atio n s it po ssessed . T he ban k obligations w ere obtained u n d er a C C C ex p o rt cre d it sales p ro g ram . Mr. Ulman s tated that “ although we w ant to co operate, w e are not yet persuaded that C C C h as th e req u isite au thority [to sell its drafts].” T h e m em oran d u m em phasized that C C C lack ed specific statu to ry au thority to sell secu rities or assets, and opined th a t th e “ n ecessary and ap p ro p riate" pow ers clause found in its c h a rte r m ay not be used as authority to s e ll securities an d pledge the full faith and cred it o f the U nited States. Cf. 15 U .S .C . § 714b(m ). T h e p resen t qu estio n relates to programs m a terially d iffe re n t from the A griculture D ep artm en t's p roposal in 1973 to sell “ tim e d ra fts.” T h e m o st decisive d iffe re n ce is that th e program s at issu e in the cu rren t m atter d o n ot involve an y sale o f assets o w n ed b y C C C , or any g u aran tees fo r su ch sale. T h e re is, in o ther w ords, n o issue regarding au thority to se ll g o v ern m en t obligations b a c k e d by the full faith and cred it o f the N ation. Rathei; the qu estion here co n c e rn s C C C au thority to guarantee e x p o rt cred it sales o f A m erican agricultural exports. 7 It h as b ee n h eld that § 7 1 4 b — among o th e r grants o f authority to th e C C C — m u st b e broadly in terpreted. See Hiatt Grain & Feed, Inc. v. Bergland. 44 6 F. Supp. 4 5 7 , 4 7 2 -7 3 (D . K an . 1978), affd. 602 F.2d 9 2 9 (10th Cir. 1979), cert, denied, 4 4 4 U .S . 1073 (1980). 234 15U.S.C. § 714b(j). In addition, the CCC is vested with “ such powers as may be necessary or appropriate for the exercise of the powers specifically vested in the Corporation, and all such incidental powers as are customary in corporations generally[.]” 15 U.S.C. § 714b(m). Finally, 15 U.S.C. § 714c provides: the Corporation is authorized to use its general powers only to— * * * * * (f) Export or cause to be exported, or aid in the development of foreign markets for, agricultural commodities. Commenting upon § 714c, the Senate Report on the CCC charter act states: It is believed that there should be available to American agri­ culture an agency with the flexible authority vested in the Corpo­ ration by this section. . . . * * * * * Subsection (f) authorizes the Corporation to export or cause to be exported, or aid in the development of foreign markets for, agricultural commodities. It is essential to the agricultural econo­ my of the United States that it maintain and expand its markets abroad for agricultural commodities. This subsection empowers the Corporation to carry out operations to this end S. Rep. No. 1022, 80th Cong., 2d Sess. 12-13, reprinted in 1948 U.S. Code Cong. Serv. 2138, 2151. The Department of Agriculture interprets these statutes as providing sound authority for the GSM—101 and GSM-102 programs. See 43 Fed. Reg. 4033 (1978); 45 Fed. Reg. 64898 (1980). An agency’s interpretation of a statute it is charged with implementing is entitled to substantial deference. See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,381 (1969); Udall v. Tollman, 380 U.S. 1, 16 (1965); Lenkin v. D istrict c f Columbia, 461 F.2d 1215, 1227 (D.C. Cir. 1972). Regardless of any deference due the Agriculture Department’s interpretation, there is no doubt that the GSM-101 and GSM -102 programs are a valid exercise of the CCC’s general power to “ determine the character of and the necessity for its obligations . . . and the mannerin which they shall be incurred[.]” 15U.S.C. § 7 14b(j)- That general power has been exercised in this instance for the purpose of promoting exports of United States agricultural commodities. See 7 C.F.R. §§ 1487.1(a), 1493.1(a). This purpose is explicitly authorized by 15 U.S.C. § 714c(f). We therefore find support for these programs in the plain meaning of these provisions. Furthermore, the broad language of the CCC charter act and its legislative history both indicate that a variety of programs may—indeed should— be developed by the CCC to assist in promoting American agricultural exports. GSM-101 and GSM -102 are just such programs, and therefore are within the ambit of authority provided the CCC in § 714. T h eo d o r e B . O lson Assistant Attorney General Office c f Legal Counsel 235

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Constitutionality of Proposed Budget Process Reform Legislation Proposed legislation that would assign the Congressional Budget Office the duty to determine whether a spending bill would exceed current spending limits, thereby requiring a supermajority (tw o-thirds) vote in each House o f Congress for passage, is constitutional. Such a delegation would not raise problems under INS v. Chadha, because Congress may by rule require a superm ajority m ajority vote in each House for passage of certain legislation under Art. I, § S, cl. 2. The proposed legislation may also subject spending bills passed in this manner to rescission by the President. W ith respect to entitlem ents, however, Congress must enact legislation specifi­ cally m aking the expenditure o f a certain percentage o f the appropriated funds non-mandatory before such rescission authority m ay be exercised. May 26, 1987 M em orandum O p in io n for th e C o un sel to the P r e s id e n t At the request of your staff, this Office has considered the constitutionality of draft legislation, prepared by the White House Working Group on Budget Reform, entitled the “Budget Process Reform Act of 1987.” We are satisfied that the basic process that the bill would establish would be constitutional. The following comments suggest ways certain specific provisions of the bill might be changed in order to avoid or minimize possible constitutional issues. I. Determinations by the Congressional Budget Office A central feature of the draft bill is the assignment (in § 21) to the Congres­ sional Budget Office (CBO) of the duty to determine, with respect to each spending bill, whether passage of the bill would cause the budget category within which the bill falls to exceed the spending ceiling established by the “budget law” enacted earlier in the year (or the previous year’s spending level, if no budget law is enacted). This determination has two important conse­ quences under the draft bill: (1) under § 7, a supermajority (two-thirds) vote in each House of Congress would be required for passage of the spending bill if CBO determines it would exceed its spending ceiling (or previous year’s spending level); and (2) under § 25, any bill that would thus be subject to a supermajority vote requirement would also be subject to the rescission author­ ity that would be granted to the President under that section. 44 This delegation to CBO of authority to make a determination that has such significant consequences gives rise to a possible constitutional question of whether that determination constitutes legislative action, and if it does, whether the constitutional requirements for legislative action would be satisfied. The Supreme Court has made it clear that any legislative action — i.e., any congres­ sional action that has binding legal effect outside the Legislative Branch — must comply with the constitutional requirements of bicameral passage and presentment to the President. INS v. Chadha, 462 U.S. 919, 952 (1983). It seems clear that the first consequence of a positive CBO determination — requirement of a supermajority vote in each House of Congress — does not run afoul of these requirements. Its effect would only be on the internal legislative practices of each House of Congress, and would thus be limited to the Legisla­ tive Branch. It would therefore not constitute legislative action within the meaning of Chadha. Moreover, because “[e]ach House may determine the Rules of its Proceedings,” U.S. Const, art. I, § 5, cl. 2, it is within Congress’ constitutional authority to adopt legislative procedures of this kind. We note in passing that, unlike a constitutional amendment, the draft legisla­ tion would not have a truly binding effect on Congress. Clearly, Congress cannot by legislation prevent itself from enacting future legislation pursuant to whatever procedures it chooses to follow at that future time. A future Congress can always legislatively change what a previous Congress has done. In a legally enforceable sense, therefore, such future lawmaking would be regulated only by the requirements of the Constitution. Thus, notwithstanding the provi­ sions of the draft bill, a future Congress could follow whatever procedures it chooses to apply with respect to a particular appropriations bill, including passage by less than a supermajority. Or it could choose simply to disregard the CBO determination. Although strong political pressures would certainly oper­ ate against defiance of the budget process requirements, and the President could surely cite noncompliance as a basis for a veto decision, a subsequent appropriations law passed in compliance with constitutional requirements would be valid, notwithstanding any noncompliance with the procedures of this bill. We also believe that the second consequence of a positive CBO determina­ tion — identification of appropriations that would be subject to Presidential rescission — does not violate the bicameral action and presentment require­ ments, but we base this conclusion on different grounds from those applicable to the first consequence. The practical effect in this regard of the CBO determi­ nation would indeed be to bind parties outside the Legislative Branch, because the President’s authority to rescind appropriations would extend only to appro­ priations based on bills that are enacted under the supermajority requirement, which in turn is based on the CBO determination. Legislative action would thus be involved, but in our view the actual legislative action would be the enact­ ment of the spending bill subsequent to the CBO determination and prior to the rescission authorization to the President becoming effective. The essential point is that the scope of the President’s rescission authority would be defined not by the CBO determination itself, but rather by the subsequent congressional 45 enactment of the spending bill. That enactment would satisfy the bicameral action and presentment requirements.1 We stress that under the draft legislation the ultimate decisionmaker on defining the scope of the President’s rescission authority would not be an arm of the Congress, but rather would be Congress itself acting in compliance with the constitutional requirements for legislative action. The budget process role that is contemplated for CBO under this bill thus differs in a critical respect from the role the General Accounting Office (GAO) was given under the Gramm-Rudman-Hollings Act. See Bowsher v. Synar, 478 U.S. 714 (1986). Under Gramm-Rudman-Hollings, GAO was authorized to present binding budget reduction calculations directly to the President. In contrast, under the draft bill, CBO’s implicit instructions to the President concerning what pro­ grams are subject to his rescission authority are presented through the Con­ gress, pursuant to procedures that satisfy constitutional requirements.2 Although, for the reasons stated above, we believe that a strong argument can be made to sustain the role of CBO in defining the scope of the President’s rescission authority, that argument turns principally on whether the subsequent enactment of the spending bill may properly be viewed as congressional action that itself has the effect of defining that scope. Under the draft bill, it would appear that any such congressional action would have to be viewed as implied. We suggest, therefore, that consideration be given to requiring in the draft bill that the congressional action be express. Under one possible version of such a requirement, any spending bill enacted pursuant to a CBO determination would have to include, most likely in introductory language (such as the “whereas” section), a statement that a two-thirds vote was required on the basis of the CBO determination that the bill would exceed the spending ceiling. An alterna­ tive approach would be to require that each such spending bill state that appropriations authorized under the bill would be subject to the President’s rescission authority. II. Rescission of Enittitlemeinit Appropriations Section 25 of the draft bill would add a new § 689 to Title 2, United States Code. Under that section, the President would be authorized to rescind any spending appropriations that are authorized by legislation enacted pursuant to the supermajority voting requirement. Thus, under the regime established by 1 A n alternative w ay to analyze this second consequence o f the CBO determ ination is to take the view that the subsequent appropriations law — w hich is passed pursuant to a superm ajority vote triggered by the CBO determ ination — w ould am ount to an im plied congressional ratification or adoption o f the CBO determ ina­ tion. W e p refer the analysis taken in the text, because in o ur view it is based on a more accurate description of the process contem plated under the d ra ft legislation. U nder either analysis, however, the critical fact is that intervening betw een the C B O determ ination and the establishm ent o f the President’s rescission authority is a legislative actiun effected in com pliance with constitutional requirem ents. 2 A n additional d istinction — although o f less significance for this analysis — is that G ramm-RudmanH ollings involved a d elegation to G A O o f an executive function (determ ining how to im plem ent spending reductions), w hile the draft b ill involves a delegation to C B O o f a legislative function (defining the program s w ith respect to w hich the President is b ein g delegated rescission authority). 46 the draft bill, any such appropriations law would by clear implication provide that all appropriations are non-mandatory. Congress certainly may make expenditure of a particular appropriation non­ mandatory. See Train v. City o f New York, 420 U.S. 35 (1975). A fortiori, Congress may expressly grant the President the authority to rescind any appro­ priation pursuant to a congressionally established procedure. In contrast to the non-mandatory appropriation situation, however, a Presidential rescission of a mandatory appropriation would amount to an unconstitutional unilateral amend­ ment of the appropriations law. Congress may not authorize the President to circumvent the constitutionally required process for amending previously en­ acted laws any more than it may authorize itself to do so. C f INS v. Chadha, supra. Application of the draft bill’s Presidential rescission authority to entitlement appropriations presents a special situation. Unlike spending based on the usual appropriations bill, entitlement payments are generally made on the basis of two separate statutory enactments. The first statute establishes the entitlement and generally fixes a specified amount to which each person meeting the statutory requirements is entitled. The second statute is an appropriations bill that authorizes the expenditure of funds up to a given amount.3 Thus, if the President utilized the rescission authority granted by the draft bill to reduce entitlement payments below the statutorily prescribed level, he would, in effect, be amending unilaterally the previously adopted entitlement statute. However, entitlement statutes may be changed only by other duly adopted statutes; Congress may not delegate to the President unilateral power to do so himself. This conclusion does not mean, however, that it would be impossible for Congress to delegate to the President power to control expenditures under entitlement programs. To the contrary, the statute could be drafted so as to provide such authority. First, it is clear that Congress itself has the power to amend or reduce entitlements that it has previously granted. For example, the Supreme Court has held with respect to Social Security that “a person covered by the Act has not such a right in benefit payments as would make every defeasance of ‘accrued’ interests violative of the Due Process Clause of the Fifth Amendment.” Flemming v. Nestor, 363 U.S. 603, 611 (1960). The Court has also held that the “fact that social security benefits are financed in part by taxes on an employee’s wages does not in itself limit the power of Congress to fix the levels of benefits under the Act or the conditions upon which they may be paid. Nor does an expectation of public benefits confer a contractual right to receive the expected amounts.” Richardson v. Belcher, 404 U.S. 78, 80 (1971). Congress could utilize this power to effect a general cross-cutting amend­ ment to all entitlement statutes that would make a certain percentage of the entitlement amounts subject to limitation or complete withdrawal either by Congress through the appropriations process, or by the President through the rescission process proposed by the draft bill. Thus, the draft bill could include a 3 In many cases, such appropriations bills set no absolute lim its on entitlem ent expenditures, but rather state that the Executive may expend an amount sufficient to pay all individuals who qualify under the provisions o f the relevant entitlem ent statute. 47 provision explicitly amending all entitlement acts so as to permit some Presi­ dential control over entitlement expenditures in the same way as the draft bill would permit control over expenditures pursuant to appropriations bills. A cross-cutting provision would thus avoid the constitutional problem by making the expenditure of a certain percentage of appropriated funds non-mandatory.4 HII. Limiting the Reasons on which the President Can Rely Wlhen Exercising the Rescission Aratiooty Proposed 2 U.S.C. § 689(b) (see § 25 of the draft bill) would permit the President to rescind “excess budget authority” only for “reasons of economy, efficiency, or fiscal management of the Government.” The apparent purpose of this provision would be to indicate that the President’s authority is not intended to extend to situations in which the President’s primary reason for desiring to rescind budget authority is disagreement with congressional programmatic objectives. Although the provision does not give rise to an issue of constitu­ tional law, you may wish to consider its separation of powers policy implications. The distinction that § 689(b) would draw might turn out to be illusory and unenforceable. It would be very difficult to separate motives of economy from policy judgments concerning the efficacy of a particular program. Moreover, although we believe that disputes arising under this section between Presidents and Congress would almost always involve only “political questions” that should not be resolved by the courts,5 the litigation potential created by such a provision should be recognized. Giving the courts an additional excuse to attempt to second-guess or inquire into the motives of the President could potentially give the courts an opportunity to seek to exercise significant “politi­ cal” power, a role that is not contemplated under the Constitution and that they are institutionally ill-suited to exercise. IV. Technical Language Change to Avoid Amtlnoiriizimg Legislative Veto Proposed 2 U.S.C. § 689(d)(1) (see § 25 of the draft bill) is clearly intended to provide for congressional disapproval of a Presidential rescission by the constitutionally permissible means of a bill that is enacted in compliance with 4 W e note that C ongress has already effected such an am endm ent to a specific entitlem ent statute in the context o f the food stam p program. The so-called L ugar A m endm ent authorized the Secretary o f Agriculture to reduce the otherw ise required food stam p allotm ents if insufficient funds w ere appropriated to fund the program at its full level, and additionally authorized the Secretary to change the allocation form ula if such a redu ctio n w ere necessary. 7 U.S.C. § 2027(b)-<d). 5 See Goldwater v. Carter, 444 U.S. 9 9 6 , 1002-06 (1979) (R ehnquist, J., concurring); Barnes v. Kline , 759 F.2d 21, 57 (D .C. C ir. 1985) (Bork, J ., dissenting) (“ [I]t is absolutely inconceivable that Fram ers who intended the federal courts to arbitrate directly d isputes between the President and C ongress should have failed to m ention that function or to h a v e mentioned ju d icial review at all. The statesmen who carefully spelled out the functions o f Congress a n d the President and the details o f how the executive and legislative b ran ch es m ight check each other could hardly have failed even to m ention the judicial linchpin o f the con stitu tio n al system they w ere creating — not if they had even the rem otest idea that the judiciary was to play such a central and dominant role ”), vacated on other grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987). 48 the bicameral action and presentment requirements of the Constitution. As written, however, the provision technically provides instead for a two-house legislative veto: a rescission would take effect unless within 45 legislative days of Congress’ receipt of the President’s rescission statement, “Congress shall have completed action on and sent to the President fo r his approvaP’ a bill disapproving the rescission. Id. (emphasis added). Thus, the disapproval would technically take effect upon presentment to the President, and the constitutional requirement that the President have an opportunity to veto the disapproval bill would be circumvented. See INS v. Chadha , supra. To accomplish the purpose that we assume is intended, we suggest that the above-quoted language be deleted and the phrase “is enacted into law” be added at the end of the sentence. Thus, under the draft bill as revised, a rescission would take effect “unless within 45 legislative days of the receipt of the President’s rescission message, a bill dealing solely with such rescission that restores all or part of such excess budget authority is enacted into law.” If you believe that 45 days would not be enough time to allow for a congressional attempt to override a Presidential veto,6 you might consider allowing instead for some longer period, such as 60 days. C harles J. C ooper Assistant Attorney General Office o f Legal Counsel 6 A veto would be alm ost a certainty. B ecause the joint resolution w ould be a rejection o f the President’s rescission, a veto would constitute a sim ple reassertion o f the rescission. 49

Write a legal research memo on the following topic.

Providing Government Films to the Democratic National Committee or Congressmen Government motion picture films may be made available to the Democratic National Committee or congressmen when public release is authorized by statute. In the absence of statutory authority, government films may be made available to the Committee or congressmen on a revocable loan basis if a public interest can be shown to justify such loan and if the films are available equally to other private organizations. It would be improper for any government agency to produce a film for the specific purpose of making it available to the Democratic National Committee or to congressmen. December 26, 1963 MEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL TO THE PRESIDENT This is in response to your memorandum of June 15, 1963, requesting my views upon the use for non-governmental purposes of motion picture films produced by federal departments and agencies. Your request has reference to a memorandum from Paul Southwick, dated June 3, 1963, in which he outlines a proposed use of government motion picture films documenting activities of the Kennedy administration. His memorandum states in part: I am requesting Federal agencies wherever possible to obtain both still and motion picture films to document activities of the Kennedy Administrative, with particular emphasis on human interest. Example: films showing men being put to work on Accelerated Public Work Projects. The intended uses of movies include two basic ones: by Congressmen and Senators on their local “public service” TV programs, and later, in a documentary or series of documentaries, depicting progress under the Kennedy Administration. The latter would have a partisan use1 and will probably be produced, directly or indirectly, in coordination with the Democratic National Committee. It is hoped that professional help would be donated for editing, arranging and narrating. Question: Are there any legal pitfalls in regard to such use of government films? I don’t see any problem in regard to stills—they 1 I assume from this statement that the inquiry has no relationship to any films which might be made or released for historical rather than partisan purposes. 285 Supplemental Opinions of the Office of Legal Counsel in Volume 1 are public property, publicly released, for use by anyone. Still pictures are already being used regularly in the ‘Democrat’ and I assume this is proper. With movies, we would want to excerpt, rearrange and edit. Could government movies be made available to DNC for such purpose? If not, could they be made available to some other non-government group for essentially the same purpose? With respect to still pictures, it appears that there is no legal problem since Mr. Southwick indicates that he refers only to pictures “publicly released, for use by anyone.” Consequently, this memorandum is confined to a discussion of the use of government motion picture films. I. Summary Government motion picture films may be made available to the Democratic National Committee or congressmen in circumstances in which public release is authorized by statute. In the absence of statutory authority, government films may be made available to the Committee on a revocable loan basis if a public interest can be shown to justify such loan and if the films are available equally to other private organizations. However, it would be improper for any government agency to produce a film for the specific purpose of making it available to the Democratic National Committee or to congressmen, and, as a matter of policy, an arrangement which creates the suspicion that the films were produced for such a purpose should be avoided. II. Discussion Some federal agencies have specific statutory authority to release government films for public use. However, specific statutory authorization for general public release of government films appears to be limited to a few agencies. For example, the Agriculture Department is authorized to loan, rent or sell copies of films. 5 U.S.C. § 554 (1958). Also, the Secretary of the Interior is authorized to prepare for free distribution or exhibit or to offer for sale films pertaining to the National Fisheries Center and Aquarium. 16 U.S.C. § 1052(b)(2) (Supp. IV 1958). Statutory permission for the public release of films may be restricted. For example, under the United States Information and Educational Exchange Act of 1948, the United States Information Agency (“USIA”) is authorized to produce films for “dissemination abroad.” Pub. L. No. 80-402, § 501, 62 Stat. 6, 9 (1948) (codified at 22 U.S.C. § 1461 (1958)).2 In addition, provisions of some appropria2 During the visit of Mrs. John F. Kennedy to India and Pakistan, the USIA produced two films for “dissemination abroad,” one of the First Lady’s visit to Pakistan and one of her visit to India. Pursuant to authority contained in 22 U.S.C. § 1437, the USIA contracted with United Artists for the production of a third film of Mrs. Kennedy’s trip. This film, utilizing in part government footage, was produced at 286 Providing Government Films to the Democratic National Committee or Congressmen tion acts forbid use of appropriations for publicity or propaganda purposes. For example, the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act for 1963, Pub. L. No. 87-843, 76 Stat. 1080, contains in title VII the following provision: No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by Congress. Id. § 701. A systematic practice of a government agency to produce or obtain films and turn them over to a political organization might well raise questions as to the use of appropriated funds under such a provision. Absent specific statutory authority, the right of the head of a department or agency to give, lend, sell, or otherwise dispose of government film to a private organization would appear to be limited by constitutional and statutory prohibitions and by the necessity for a determination as to whether the proposed disposition would be in the public interest. Article 4, Section 3, Clause 2 of the Constitution gives to the Congress the power “to dispose of . . . Property belonging to the United States.” Under Article 4, Section 3, Clause 2 of the Constitution, “property once acquired by the Government may not be sold, or title otherwise disposed of, except under the authority of Congress.” Grant of Revocable Licenses Under Government-Owned Patents, 34 Op. Att’y Gen. 320, 322 (1924). Attorney General Stone stated that “this prohibition extends to any attempt to alienate a part of the property, or in general, in any manner to limit or restrict the full and exclusive ownership of the United States therein.” Id. As a consequence of this constitutional prohibition, a government agency was held not to have authority to sell maps to individuals or private companies without statutory authorization. Puerto Rico Reconstruction Company—Sale of Prints of Survey Map, 39 Op. Att’y Gen. 324, 325 (1939). Congressional authority appears to be unnecessary, however, to permit the head of a department or agency3 to grant to individuals or organizations revocable licenses to use government property for a purpose beneficial to the government or in the public interest. The distinction between alienation of government property and the granting of a revocable use license in the public interest was discussed by Attorney General Stone: the expense of United Artists and was commercially released through the Selzer Company. The government benefited from this arrangement by obtaining a third film of Mrs. Kennedy’s trip produced at the expense of a private company and by use of United Artists’ distribution facilities in countries in which USIA has no facilities. The government footage was loaned to United Artists, which returned the original to the government after making copies. Dissemination of one of the films in the United States was admitted by USIA not to be authorized. 3 See infra note 4. 287 Supplemental Opinions of the Office of Legal Counsel in Volume 1 . . . And it has been uniformly held that revocable licenses, in the public interest, for the use of Government property, could be given by the head of the appropriate Department. [Revocable Licenses, 22 Op. Att’y Gen. 240, 245 (1898); Government-Owned Site at Aqueduct Bridge, 30 Op. 470, 482 (1915); Transfer of Property from One Government Department to Another, 32 Op. 511, 513 (1921); Use of a Portion of Camp Lewis Military Reservation by the Veterans’ Bureau, 33 Op. 325, 327 (1922).] The power has been frequently exercised by such Departments in accordance with these opinions. When the law has been so construed by Government Departments during a long period as to permit a certain course of action, and Congress has not seen fit to intervene, the interpretation so given is strongly persuasive of the existence of the power. . . . In [United States v. MacDaniel, 32 U.S. (7 Pet.) 1, 14 (1833)], it is made clear that the head of a Government Department does not have to show statutory authority for everything he does. Reasonable latitude in the exercise of discretion is implied. “Usages have been established in every Department of the Government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits . . . . Usage can not alter the law, but it is evidence of the construction given to it.” . . . .... Under section 161 of the Revised Statutes, the Head of each Department regulates the custody, use, and preservation of property pertaining to it. So that it may be said that while the Constitution prohibits the alienation of the title, ownership or control of Government property without Congressional sanction, Congress has given the Head of a Department authority and control over the “use” and preservation of such property in his charge. Grant of Revocable Licenses, 34 Op. Att’y Gen. at 326–27. See also Government Research Facilities—Use by Graduate and Faculty Scientists—National Bureau of Standards Cooperative Program, 36 Comp. Gen. 561, 563–64 (1957). It would seem to follow from the foregoing that, subject to appropriate conditions, the head of a department or agency4 may permit the use of government films 4 Undoubtedly, the head of an agency, as well as the head of a department, possesses authority to permit non-governmental use of official property. Although in Grant of Revocable Licenses, 34 Op. Att’y Gen. 320, Attorney General Stone relied in part upon Rev. Stat. § 161 (5 U.S.C. § 22), which authorizes the head of an executive department to regulate the custody, use and preservation of property belonging to that department, it does not appear that the Attorney General’s opinion would have been different if Rev. Stat. § 161 had not been in force. Consequently, the opinion seems to be 288 Providing Government Films to the Democratic National Committee or Congressmen by private organizations if a public interest can be demonstrated. If a government decision should be made that public dissemination of any film is in the public interest, the Democratic National Committee or congressmen would be entitled to access to the film equally with any other private organization. This conclusion does not, however, dispose of all of the questions raised by Mr. Southwick’s memorandum. He states that the films are intended to be used by congressmen in their “public service” broadcasts and for a series of documentaries to be a produced in coordination with the Democratic National Committee which would probably have a “partisan use.” Nothing in the conclusion stated above would justify a government agency in producing or collecting films for such purposes. Statutory or other authority to make or collect films and to distribute them to the public does not, as I have stated, preclude distribution to persons or organizations which may use them for partisan political purposes. However, it can hardly be contended that such authority extends to production or collection of films in order to foster such purposes. 5 As a realistic matter, films made or collected for use either by a political committee or for a congressman’s “public service” broadcasts would in effect be produced or assembled for partisan political purposes. I might add that a systematic practice of government agencies’ supplying films to be used for private political purposes raises some questions which should be seriously considered. I think that no question at all is presented when it is the mission of a government organization, such as the Library of Congress, to maintain a film or picture library, with prints available to the general public. Those who wish to make use of its facilities for their private political purposes are as entitled to do so as anyone is. But where the collection or production and distribution of films is incidental to the basic mission of any agency, a close working relationship with persons or organizations who use the films for political purposes is apt to create the suspicion that, in the first instance, they were made or collected for those purposes. Obviously this should be avoided. NORBERT A. SCHLEI Assistant Attorney General Office of Legal Counsel broad enough to support the right of the head of an agency to allow private use of government property subject to appropriate conditions. In this connection, it is of interest that the Comptroller General has expressed the opinion that the Federal Communications Commission, an independent agency, may issue a revocable license for the use of government property. Public Property—Administrative Authority to Dispose Of, 22 Comp. Gen. 563 (1942). 5 With respect to agencies subject to statutory limitations on the use of appropriated funds for publicity or propaganda purposes, such activity might also violate the provisions of the relevant appropriation act. 289

Write a legal research memo on the following topic.

Section 609 of the FY 1996 Omnibus Appropriations Act A provision of an appropriations law purporting to condition the use of funds to pay for the United States’ diplomatic representation to Vietnam on the President’s making a particular detailed certifi­ cation “ within 60 days” does not require the cutoff of the covered funds until such time as the President has made the certification, but instead permits use of the funds to maintain diplomatic representation in Vietnam for 60 days after enactment. Taken as a whole, the provision impermissibly impairs the exercise of the core Presidential power to recognize, and maintain diplomatic relations with, a foreign government. Hence, the provision is unconstitutional and without legal force or effect. May 15, 1996 M e m o r a n d u m O p in io n fo r t h e D epartm ent of L e g a l A d v is e r State You have sought our advice on section 609 of the Fiscal Year 1996 Omnibus Appropriations Act (H.R. 3019), Pub. L. No. 104-134, 104 Stat. 1321, 1321— 63 (“ the Act” ), which the President signed into law on April 26, 1996.1 That section purports to condition the use of appropriated funds to pay for the United States’ diplomatic representation to Vietnam on the President’s making a detailed certification “ within 60 days.” You have asked whether section 609 prohibits the use of appropriated funds for this purpose from the moment the Act was signed into law, unless the President, within 60 days thereafter, provides the requisite certification, and so enables diplomatic relations between the two countries to re­ sume. 2 At the very least, section 609 does not require a cutoff of funds until the Presi­ dent makes the certification. Rather, the use of appropriated funds for maintaining diplomatic representation to Vietnam remains lawful and proper during the sixty days after enactment, so that the President, during that period, may gather and assess the facts needed to enable him to decide whether or not to provide the certification, without disrupting the United States’ existing diplomatic relations with Vietnam in the interval. This construction follows the natural meaning of the language of the section, comports with the rational and efficient use of govern­ ment resources, and reduces the likelihood of unnecessary diplomatic friction. More importantly, we believe that section 609, taken as a whole, impermissibly impairs the exercise of a core Presidential power— the authority to recognize, >The section originated as section 609 of the Commerce, Justice, State and the Judiciary Appropriations Bill for Fiscal Year 1996 (H.R. 2076). 2 Several members o f Congress have written to the Secretary o f State to advocate this view o f the provision’s meaning. See Letter for the Honorable Warren Christopher, Secretary o f State, from Senator Bob Smith, et al. (Apr. 26, 1996) ("C ongressional Letter” ). In support o f their interpretation, the writers attach a tw o paragraph opinion from an Associate General Counsel o f the General Accounting Office. See Letter for the Honorable Robert C. Smith, United States Senate, from Gary I. Kepplinger, Associate General Counsel, General Accounting Office (Apr. 26, 1996) ( “ GAO O pinion” ). 189 Opinions o f the Office o f Legal Counsel in Volume 20 and to maintain diplomatic relations with, a foreign government.3 Accordingly, section 609 is unconstitutional and without legal force or effect. Section 609, in its entirety, reads as follows: None of the funds appropriated or otherwise made available by this Act may be obligated or expended to pay for any cost incurred for (1) opening or operating any United States diplomatic or con­ sular post in the Socialist Republic of Vietnam that was not oper­ ating on July 11, 1995; (2) expanding any United States diplomatic or consular post in the Socialist Republic of Vietnam that was oper­ ating on July 11, 1995; or (3) increasing the total number of per­ sonnel assigned to United States diplomatic or consular posts in the Socialist Republic of Vietnam above the levels existing on July 11, 1995, unless the President certifies within 60 days, based upon all information available to the United States Government that the Government of the Socialist Republic of Vietnam is cooperating in full faith with the United States in the following four areas: (1) Resolving discrepancy cases, live sightings and field ac­ tivities, (2) Recovering and repatriating American remains, (3) Accelerating efforts to provide documents that will help lead to fullest possible accounting of POW/MIA’s, (4) Providing further assistance in implementing trilateral in­ vestigations with Laos. The statutory reference to “ July 11, 1995” keys the provisions of the bill to the date of the President’s offer to establish diplomatic relations with Vietnam. See Rem arks by the President Announcing the Normalization o f Diplom atic R ela­ tions with Vietnam, 2 Pub. Papers of William J. Clinton 1073 (July 11, 1995). In announcing that offer, the President stated that from the beginning of his Ad­ ministration, “ any improvement in relationships between America and Vietnam has depended upon making progress on the issue of Americans who were missing in action or held as prisoners of war.” Id. Noting that he had lifted the trade embargo against Vietnam seventeen months earlier “ in response to their coopera­ tion and to enhance our efforts to secure the remains of lost Americans and to 3 There is yet another apparent constitutional flaw in section 609: it purports to prescribe to the President the m anner in w hich he must proceed to recover the remains o f Americans, and to account for POWs and M lAs, in V ietnam. Such detailed prescriptions may w ell encroach on the President’s constitutional authority as Commander in C hief. W e do not press that objection here. 190 Section 609 o f the FY 1996 Omnibus Appropriations Act determine the fate of those whose remains have not been found,” id., the President stated that the Government of Vietnam had, in the interval, “ taken important steps to help us resolve many cases,” including releasing the remains of Americans, delivering documents that shed light on the fate of MIAs, assisting efforts to re­ duce discrepancy cases, and stepping up cooperation with Laos, where many Americans were lost. Id. The President stated that “ [n]ever before in the history of warfare has such an extensive effort been made to resolve the fate of soldiers who did not return,” but he added that “ normalization of our relations with Viet­ nam is not the end of our effort.” Id. On July 12, 1995, the Government of Viet­ nam agreed to diplomatic relations with the United States. Soon thereafter, the United States Liaison Office in Vietnam was upgraded to a Diplomatic Post. The four certification requirements in section 609 relate, respectively, to resolv­ ing discrepancy cases, recovering American remains, accelerating the provision of documents relating to POWs and MIAs, and promoting trilateral investigations with Laos. All four conditions derive directly from a July 2, 1993 Presidential statement that set forth the areas in which the United States expected to see progress before expanding diplomatic relations with the Government of Vietnam. See Statement by the President on United States Policy Toward Vietnam, 1 Pub. Papers of William J. Clinton 990 (July 2, 1993).4 The State Department advises us that later statements and testimony have referred, in varying language, to the same four areas, and that, since July, 1993, progress in United States-Vietnamese relations has been measured in terms of the satisfaction of the four criteria. I. Section 609 provides that “ [n]one of the funds appropriated or otherwise made available by this Act may be obligated or expended to pay for any cost incurred” for the stated purposes, “ unless the President certifies within 60 days, based upon all information available to the United States Government that the Government of the Socialist Republic of Vietnam is cooperating in full faith with the United States” in four areas relating to POWs and MIAs. The Congressional Letter, sent just after the bill was passed and signed, argues that the provision forbids any expenditure of funds before the President makes a certification. The letter relies on and attaches a six-sentence opinion of the Associate General Counsel of the General Accounting Office. According to that opinion, the “ plain language” of the section leads to the conclusion that “ no obligations or expenditures may be 4 In that statement, the President announced that Vietnam would have access to the International Monetary Fund, and that he would be sending a high-level delegation to Vietnam. He explained that “ any further steps in relations between our two nations depend on tangible progress on the outstanding POW/M1A cases," and said that the delega­ tion would make clear that “ (w]e insist upon efforts by the Vietnamese in four key areas,” including (1) remains, (2) discrepancy cases, (3) investigations with Laos and (4) archival material. Id. at 991. These four conditions are substantially the same as those that section 609 treats as mandates that the President must certify Vietnam has met. 191 Opinions o f the Office o f Legal Counsel in Volume 20 made prior to the President’s certification.” The Congressional Letter also refers to, but does not supply, an opinion of the Senate Legislative Counsel. We conclude that, under the better reading, section 609 would not cut off funds until 60 days have elapsed. Section 609 purports to forbid obligations or expendi­ tures “ unless the President certifies within 60 days” that certain facts exist; the provision does not say that funds may not be obligated or expended “ until” the President certifies or unless the President “ has certified.” The most natural read­ ing of the language actually used is that funds are to be cut off if sixty days pass without the Presidential certification. Our reading is supported by section 609’s requirement that the President make his decision “ based upon all information available to the United States Govern­ ment.” The statute thus contemplates a wide-ranging inquiry, covering every agency of the Government that might have relevant information. To require a termination of funds before the 60-day period elapsed would push the President toward making a hasty and ill-considered decision. Such a decision would conflict with the full inquiry that section 609 requires. Furthermore, the Supreme Court has cautioned that Congress must express its intent clearly before a statute is read “ so as to give rise to a serious question of separation of powers which in turn would . . . implicate[] sensitive issues of the authority of the Executive over relations with foreign nations.” NLRB v. C atholic Bishop o f Chicago, 440 U.S. 490, 500 (1979) (describing McCulloch v. Sociedad N acional d e M arineros d e Honduras, 372 U.S. 10 (1963)). See also Public Citizen v. U nited States D ep 't o f Justice, 491 U.S. 440, 465-67 (1989); Arm strong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). Section 609, if read to order an immediate cut off of funds, would impede the President’s conduct of foreign affairs. On that reading, section 609 could require largely ending oper­ ations at the Embassy pending the certification and then starting up operations again after a certification was made. Such a procedure not only would entail severe administrative difficulty, but also could cause diplomatic embarrassment. Such lurches from full to lesser diplomatic relations and back again would call into question the reliability and stability of the United States’ conduct of foreign af­ fairs. As we discuss below, we believe that section 609 encroaches on the Presi­ dent’s constitutional powers and is therefore invalid. At the least, however, the “ within 60 days” language of section 609 should be construed in a manner that avoids seriously impairing the President in the exercise of his constitutional re­ sponsibilities. In offering a different interpretation, the GAO Opinion relies on the “ plain language” of the section. However, the “ plain language” does not support the GAO Opinion. Furthermore, even if (contrary to our view) section 609 in at least some circumstances might cut off funds immediately, the GAO Opinion’s “ plain language” is not the literal language of section 609. The literal language of sec­ tion 609 would be that expenditures made even before the Presidential certification 192 Section 609 o f the FY 1996 Omnibus Appropriations Act would be lawful, as long as the President made the certification at any time during the 60-day period. The GAO Opinion simply asserts that the “ plain language” makes a Presidential certification “ a precondition to the availability of the funds,” without explaining why this result follows. When section 609 was being considered by Congress, it would have been a simple matter to draft the language to achieve the result that the authors of the Congressional Letter now desire. Such language could have stated— but did not state — that no funds appropriated or otherwise made available by the Act could be obligated or expended “ unless the President has previously certified” that the requisite conditions had been met. Instead of seeking to amend the provision, the authors waited until the legislation was enacted and then sought to place a par­ ticular interpretation on the language. As post-enactment legislative history, the Congressional Letter sheds no light on the meaning of the language. See, e.g., Sullivan v. Finkelstein, 496 U.S. 617, 631-32 (1990) (Scalia, J., concurring in part); Tataranowicz v. Sullivan, 959 F.2d 268, 278 n.6 (D.C. Cir. 1992), cert, denied, 506 U.S. 1048 (1993); Michigan United Conservation Clubs v. Lujan, 949 F.2d 202, 208-10 (6th Cir. 1991); Multnomah Legal Servs. Workers Union v. Legal Services Corp., 936 F.2d 1547, 1555 (9th Cir. 1991).5 II. More fundamentally, section 609’s prohibition on the use of appropriated funds to maintain diplomatic relations with Vietnam unless the President provides Con­ gress with a detailed certification is an unconstitutional condition on the exercise of the President’s power to control the recognition and non-recognition of foreign governments— a power that flows directly from his textually-committed authority to receive ambassadors, U.S. Const, art. II, § 3 .6 It is by now firmly established that “ [p]olitical recognition is exclusively a function of the Executive.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964).7 As President Wood­ row Wilson (himself a leading constitutional scholar) stated in a message to Con­ gress in 1919, “ the initiative in directing the relations of our Government with foreign governments is assigned by the Constitution to the Executive, and to the 5 If the “ plain language" o f section 609 required an immediate termination o f funds, it is hard to see why the authors o f the Congressional Letter thought it necessary to seek an opinion on the point from the G AO. The insistence that the “ plain language" supports their view rings hollow. 6 Relaled)y, o f course, the President has the pow er to appoint Ambassadors, and to make treaties, by and with the advice and consent o f the Senate. U.S. Const, ait. II, § 2 , cl. 2. 7 See also United Slates v. Belmont, 301 U.S. 324, 330 (1937); Goldwater v. Carter, 444 U.S. 996, 1007 (1979) (Brennan, J., dissenting); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994); Phelps v. Reagan, 812 F.2d 1293, 1294 (10th Cir. 1987); Americans United fo r Separation o f Church and State v. Reagan, 786 F.2d 194, 202 (3d Cir.), cert, denied, 479 U.S. 914 (1986); Republic o f Vietnam v. Pfizer, Inc., 556 F.2d 892, 894 (8th Cir. 1977); Restatement (Third) o f the Foreign Relations Law o f the United States §204 (1987); 1 Green Hackworth, Digest o f International Law 161-62(1940). 193 Opinions o f the Office o f Legal Counsel in Volume 20 Executive, only.” 8 Accordingly, Congress may not determine the conditions that a foreign government must satisfy in order to be recognized by, or to enter into normal diplomatic relations with, the United States. The Executive’s recognition power9 necessarily subsumes within itself the power to withhold or deny recognition, to determine the conditions on which rec­ ognition will be accorded, and to define the nature and extent of diplomatic con­ tacts with an as-yet unrecognized government.10 The United States’ diplomatic history has illustrated, on many occasions, the importance of the Executive’s pow­ ers to withhold or condition recognition.11 Just as Congress may not usurp the Executive’s power by attempting to compel the President affirmatively to recog­ nize a particular government as the sole sovereign of a disputed area,12 so also it may not ordain that the Executive is to withhold recognition, or that the Execu­ tive is not to accord recognition unless the foreign government concerned complies with requirements that Congress, rather than the Executive, imposes. Were Con8 President W oodrow W ilson to Senator A lbert B. Fall, Dec. 8, 1919, reprinted in S. Doc. No. 66-285, at 843D (1920). Sim ilarly, when the Senate Foreign Relations Committee informed the executive branch during President G rover C leveland's second Administration that it proposed to report out a resolution that purported to recognize the independence o f a Republic o f Cuba, the Secretary o f State, Richard Olney, responded that that resolution, if adopted, could only be regarded as "an expression o f opinion,” because *‘[t]he power to recognize the so-called R epublic o f C uba as an independent state rests exclusively w ith the Executive.” See Eugene V. Rostow, Great Cases Make Bad Law; The War Powers Act, 5 0 Tex. L. Rev. 833, 866 (1972) (quoting Olney statement). 9 “ R ecognition” has been defined as “ the act o f the Executive taking note of the facts [e.g., that a particular governm ent holds pow er in a certain territory] and indicating a willingness to allow all the legal consequences of that noting to operate. These are consequences in international law. W hether consequences also follow in municipal law is a m atter for municipal law itself to determ ine.” 1 D aniel Patrick O ’Connell, International Law 128 (1970) (footnote om itted). The Executive may engage in diplomatic o r other dealings with a government that it does not recognize, for exam ple by entering into treaties o r other agreem ents with that government. ,0 The P resident’s recognition power “ uicludes the power to determine the policy which is to govern the question o f recognition.” United States v. Pink, 315 U .S. 203, 229 (1942). The courts have given effect both to the Executive’s refusal to recognize particular governments, an d to the policies underlying such non-recognition. See, e.g., Latvian State Cargo & Passenger S.S. Line v. McGrath, 188 F.2d 1000, 1003 (D.C. C ir.), cert, denied, 342 U.S. 816 (1951); The Maret, 145 F.2d 431, 442 (3d Cir. 1944); Russian Republic v. Cibrario, 235 N.Y. 255, 263-65 (1923). 11 Such occasions include President Wilson’s refusal to recognize the H uerta government o f Mexico in 1913 (which contributed to its downfall a year later); the refusal o f W ilson’s successors until President Franklin Roosevelt to recognize the U nion o f Soviet Socialist Republics; the Hoover Administration’s non-recognition of the Japanese puppet state o f M anchukuo in 1932; and the non-recognition o f the People’s Republic o f China from the Truman A dm inistration until President Nixon’s de facto recognition o f that government in 1972. See Congressional Research Service, The Constitution o f the Untied States o f America: Analysis and Interpretation, S. Doc. No. 99-16, at 567 (1987). A lthough originally it was the policy o f the United States to “ accept any foreign government existing de facto, respecting every fact as supreme over all theory,” Construction o f the Mesilla Treaty, 7 Op. A tt’y Gen. 582, 587 (1855), recognition has come to depend on a variety o f foreign policy concerns. Thus, the United States has at tim es withheld recognition unless the foreign government concerned has agreed to comply with particular conditions. See, e.g., Establishment of Diplomatic Relations With Albania, 13 D ep’t St. Bull. 767 (1945); American Mission to Albania Withdrawn, 15 Dep’t St. Bull. 913 (1946); American Support o f Free Elections in Eastern Europe, 17 D ep’t St. Bull. 407, 409 (1947) (non-recognition o f Albania fo r failure to satisfy conditions required by Executive). In this A dm inistration, the President has stated that he had used the possibility of United States recognition of the G overnm ent o f A ngola as “ leverage towards promoting an end to the civil war and hostilities” in that country. Remarks and an Exchange With Reporters Prior to Discussions With Archbishop Desmond Tutu, 1 Pub. Papers o f W illiam J. Clinton 704, 704 (May 19, 1993). See also Louis L. Jaffe, Judicial Aspects o f Foreign Relations 107-10 (1933) (through non-recognition, U nited States at various times pursued policy goal of discouraging violent revolutions against existing governments); U.S. Policy on Nonrecognition o f Communist China, 39 D ep’t St. Bull. 385 (1958) (bases o f United States policy on nonrecognition o f Communist China). 12 See Bill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123 (1995). 194 Section 609 o f the FY 1996 Omnibus Appropriations Act gress to seek to direct and control the exercise of the recognition power in any of these ways, it would violate separation of powers principles. The Supreme Court has identified two fashions in which Congress may impermissibly encroach on the Executive power. First, Congress may attempt to exercise itself one of the functions that the Constitution commits solely to the Executive, thus “ posting] a ‘danger of congressional usurpation of Executive Branch functions.’ ” Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Bow­ sher v. Synar, 478 U.S. 714, 727 (1986)). Second, Congress may not attempt to “ ‘impermissibly undermine’ the powers of the Executive Branch, [Commodity Futures Trading Comm’n v.] Schor, [478 U.S. 833 (1986)] at 856, or *disrupt[] the proper balance between the coordinate branches [by] preventing] the Execu­ tive Branch from accomplishing its constitutionally assigned functions,’ Nixon v. Administrator o f General Services, [433 U.S. 425 (1977)] at 433.” M orrison, 487 U.S. at 695. Section 609 both poses a “ danger of congressional usurpation” of the Executive function of recognition, and “ impermissibly undermine[s]” that authority. In ef­ fect, section 609 requires the President either (1) to reduce our diplomatic presence in, and contacts with, Vietnam to the levels that existed immediately before his July 11,1995 offer to normalize relations, or else (2) to go forward with normal­ izing relations, but only if Vietnam satisfies specific conditions that Congress, rather than the Executive, demands. This Congress may not do: if the United States is to impose conditions precedent on Vietnam for being recognized, it is for the President, not Congress, to decide what those conditions a re .13 Specifically, section 609 purports to impose a certification requirement on the availability of funds (1) to “ open[] or operat[e]” a diplomatic or consular post in Vietnam that was not operating on the date the President offered to establish diplomatic relations with that country, (2) to “ expand[]” any such post that was operating in Vietnam before that date, or (3) to augment the number of personnel assigned to United States diplomatic or consular posts in Vietnam before that date. In our view, each of these three restrictions is unconstitutional. That the first two restrictions (on opening, operating or expanding any diplomatic or consular post in Vietnam) overtly infringe on the President’s recognition power is, we think, clear.14 While the unconstitutionality of the third restriction (on the number of 13 The fact that the conditions Congress imposed in section 609 are similar to those that the President himself set forth in July, 1993 does not alter the analysis. The President retained the discretion to revise his criteria, apply them flexibly, o r take account o f other unrelated factors, in making an overall judgment as to the wisdom of normal­ izing our relations with Vietnam. As codified in section 609, however, the criteria have been transformed into hardand-fast requirements that the President must certify Vietnam to have met before our diplomatic relations with its government can be normalized. Section 609 precludes the President from making the finely-shaded, situation-sensitive judgments that are necessary for conducting a successful recognition policy. 14 An 1855 opinion by Attorney General Caleb Cushing, though rendered on grounds o f the Appointments Clause rather than on the basis o f the recognition power, supports our conclusion that Congress may not attempt to dictate to the President the level o f our diplomatic representation to Vietnam. Attorney General Cushing addressed himself to legislation that stated that, from and alter a date certain, the President “ shall/* by and with the Senate’s advice and consent, “ appoint representatives o f the grade o f envoys extraordinary and ministers plenipotentiary” to desContinued 195 Opinions o f the Office o f Legal Counsel in Volume 20 personnel assigned to such posts) may be less patent, we think that, in the par­ ticular context surrounding the enactment of section 609, it too impermissibly in­ vades a core Presidential power. As we have explained, section 609 was enacted against the backdrop of the progress that the Government of Vietnam had made between July, 1993 and July, 1995 in resolving POW/MIA issues, the President’s July 11, 1995 offer to the Government of Vietnam, that government’s response to it, and the ensuing diplomatic dealings between the two nations. Indeed, one of the signatories of the Congressional Letter explicitly stated that the purpose of a prior version of section 609 was to “ bar[] the use of Federal funds for implementing the President’s ill-considered, pre-mature [sic] decision to expand diplomatic relations with Vietnam.” 141 Cong. Rec. H7765 (daily ed. July 26, 1995) (remarks of Rep. Gilman).15 Thus, the unmistakeable intent and effect of section 609’s restrictions, taken as a whole, are to return the United States’ diplo­ matic relations with Vietnam to the very limited level that existed before the Presi­ dent’s offer, or else to require that Vietnam demonstrably satisfy requirements imposed by legislative mandate. Thus, even if Congress may, for reasons of econ­ omy or efficiency, reduce the size of embassy staff, it may not do so as part of an effort, as here, to direct and control the recognition power in a particular instance. HI. The fact that in section 609 Congress is seeking to control the exercise of the Presidential recognition power indirectly, through the appropriations process, rath­ er than as a direct mandate, does not change our conclusion. Broad as Congress’s spending power undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional en d s.16 In particular, as our Office has insisted over ignated countries. Ambassadors and other Public Ministers o f the United States, 7 Op. A tt’y Gen. 186, 214 (1855). The Attorney G eneral opined that in this context, 14 'shall* must be construed to signify ‘m ay;’ for Congress cannot by law constitutionally require the President to make removals o r appointments of public ministers on a given day, or to make such appointm ents o f a prescribed rank, o r to make o r not make them at this or that place. . . . [W]e are therefore not to read this act as requiring the President to appoint and maintain a minister of the rank o f envoy extraordinary at the courts o f London, Paris, St. Petersburg, Madrid, Mexico, Copenhagen, regardless of what may, in his judgm ent and that o f the Senate, be the necessities or interests o f the public service; nor to read it as forbidding him to leave either o f those legations, or an y other, in the hands of a mere charge d ’affaires.” Id. at 217-18. In the A ttorney G eneral’s view, the President had “ the absolute discretion at all times . . . to appoint a public m inister o f such degree as he and [the Senate] might please for any particular mission, or not to appoint any.” Id. at 219. 15 See also Some in Congress oppose recognition o f Vietnam, The Baltimore Sun, July 11, 1995, at 1A, available in 1995 W L 2452091 (reporting statements by members o f Congress threatening to bar use of Federal funds for diplom atic relations with Vietnam). l6See United States v. Klein, 80 U.S. (13 W all.) 128 (1872) (appropriations act unconstitutionally intruded on President’s pardon power); United States v. Lovett, 328 U.S. 303, 316 (1946) (appropriations power misused to im pose bill o f attainder); cf. Metropolitan Washington Airports Auth. v. Citizens fo r the Abatement o f Aircraft Noise, Inc., 501 U .S. 252, 271 (1991) (Congress m ay not use its power over Federal property to achieve ends by indirect means that it is forbidden to achieve directly); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 594 (1926) (State legislature cannot attach unconstitutional condition to privilege that it may deny). See also Authority o f Congressional Committees to Disapprove Action o f Executive Branch, 41 Op. A tt’y Gen. 230, 233 (1955) (A tt’y Gen. Brownell) ( “ If the practice o f attaching invalid conditions to legislative enactments were permissible, it is 196 Section 609 o f the FY 1996 Omnibus Appropriations Act the course of several Administrations, “ Congress may not use its power over ap­ propriation of public funds ‘to attach conditions to Executive Branch appropria­ tions requiring the President to relinquish his constitutional discretion in foreign affairs.’ ” Issues Raised by Provisions Directing Issuance o f Official or D iplo­ matic Passports, 16 Op. O.L.C. 18, 28 (1992) (quoting Issues R aised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3 (1990) (quoting Constitu­ tionality o f Proposed Statutory Provision Requiring P rior Congressional N otifica­ tion f o r Certain CIA C overt Actions, 13 Op. O.L.C. 258, 261 (1989))).17 Indeed, it has long been established that the spending power may not be de­ ployed to invade core Presidential prerogatives in the conduct of diplomacy.18 As early as 1818, an attempt by Representative Henry Clay to use appropriations bill rider to compel the recognition of a South American government was criti­ cized by other members of Congress as a violation of separation of powers prin­ ciples, and it soon proved to be abortive.19 Then-Secretary of State (and later President) John Quincy Adams also urged constitutional objections to Clay’s pro­ posal before President Monroe’s Cabinet: Instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bod­ ies. It was, I had no doubt, by our Constitution an act of the Execu­ tive authority. General Washington had exercised it in recognizing evident that the constitutional system o f the separability o f the branches o f Government would be placed in the gravest jeopardy.” ); Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. A tt’y Gen. 56, 61 (1933) (A tt’y Gen. Mitchell) ( “ This proviso can not be sustained on the theory that it is a proper condition attached to an appropriation. Congress holds the purse strings, and it may grant or withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted and impose conditions in respect to its use, provided always that the conditions do not require operation o f the Government in a way forbidden by the Constitution.” ); Memorial o f Captain Meigs, 9 Op. A tt’y Gen 462, 469-70 (1860) (A tt’y Gen. Black) (concluding that appropriations bill that contained condition that money be spent only under supervision of congressionaJly-designated individual was invalid); William P. Barr, contribution to symposium on The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 623, 628 (1990) ( “ Congress cannot use the appropriations pow er to control a Presidential power that is beyond its direct control” ); Harold H. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L J . 1255, 1303 n.218 (1988) (citing support for view that Congress acts unconstitutionally if it refuses to appropriate funds for President to can y out his enumerated constitutional responsibilities); Kate Stith, Congress’ Power o f the Purse , 97 Yale L J . 1343, 1351 (1988). 17 See also The President's Compliance with the “Timely Notification" Requirement o f Section 501(b) o f the National Security Act, 10 Op. O.L.C. 159, 169-70 (1986) (“ [WJhile Congress unquestionably possesses the power to make decisions as to the appropriation o f public funds, it may not attach conditions to Executive Branch appropriations that require the President to relinquish any o f his constitutional discretion in foreign affairs.” ). ,8This limitation on legislative pow er has been acknowledged by members of Congress See O rrin Hatch, contribu­ tion to symposium, What the Constitution Means by Executive Power, 43 U. Miami L. Rev. 197, 200-01 (1988) ( “ constitutional foreign policy functions may not be eliminated by a congressional refusal to appropriate funds. The Congress may net, for example, deny the President funding to receive ambassadors, negotiate treaties, or deliver foreign policy addresses . . . . Congress oversteps its role when it undertakes to dictate the specific terms o f inter­ national relations.” ); Eli E. Nobleman, Financial Aspects o f Congressional Participation in Foreign Relations, 289 Annals Am. Acad. Pol. & Soc. Sci. 145, 150 (1953) (citing remarks o f Representative Darnel W ebster, objecting on constitutional grounds in 1826 to appropriations rider that purported to attach instructions to United States dip­ lomats). 19See Edward S. Corwin, The President: Office and Powers 1787-1984, at 216 (5th rev. ed. 1984). 197 Opinions o f the Office o f Legal Counsel in Volume 20 the French Republic by the reception of Mr. Genest. Mr. Madison had exercised it by declining several years to receive, and by finally receiving, Mr. Onis; and in this instance I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House of Congress a party to an act which it was his exclu­ sive right and duty to perform. [ 20] Accordingly, Congress may not attempt indirectly, through the use of its spend­ ing power, to control the exercise of the President’s exclusive right to grant or withhold political recognition. Section 609 is such an attempt; thus, it is an uncon­ stitutional encroachment on the President’s power. IV. Because section 609 is, in our view, invalid, we regard it as being without legal force or effect.21 The past practice of the executive branch demonstrates its refusal to comply with unconstitutional spending conditions that trench on core Executive powers. Particularly pertinent in this regard is an opinion written in 1960 by Attorney General William Rogers for President Eisenhower concerning such an unconstitu­ tional condition.22 Attorney General Rogers’ opinion dealt with a provision of a statute that di­ rected that certain expenses of a State Department office be charged to certain appropriations, provided that all documents relating to activities of that office were furnished upon request to Congress. A related statute provided for termination of funds if all documents were not produced, unless the President certified that he had forbidden the disclosure of the documents to protect the public interest. The State Department refused to furnish a number of documents requested by a House subcommittee, and the President certified that he had forbidden their disclosure. The Comptroller General, interpreting the former statute as not incor­ porating a “ public interest” exception permitting the President to withhold the documents from Congress, directed that funds not be made available to liquidate obligations incurred from the following day forward. The Attorney General con­ cluded that the statute should be construed to include a “ public interest” excep­ tion because, as applied under the circumstances, it would otherwise embody an unconstitutional condition. He based this conclusion in part on the reasoning that: 20 Quoted in id. at 216-17. 21 The invalidity o f section 609 does not, o f itself, undermine the validity o f the Act as a whole, or cause any o f its other provisions to fail. 22Mutual Security Program— Cutoff o f Funds from Office o f Inspector General and Comptroller, 41 Op. A tt’y Gen. 507 (1960) (construing the Mutual Security Act o f 1959, 73 Stat. 253). 198 Section 609 o f the FY 1996 Omnibus Appropriations Act the Constitution does not permit any indirect encroachment by Con­ gress upon this authority of the President through resort to condi­ tions attached to appropriations such as are contended to be con­ tained in . . .the act.23 Further, the Attorney General concluded that “ the Comptroller General’s view that the proviso . . . has cut off funds under the circumstances disclosed here is an erroneous interpretation of the meaning of this statute,” and that “ if this view of the Comptroller General as to the meaning of this statute is correct, the proviso is unconstitutional.” 24 He stated that, despite the Comptroller General’s view that appropriated funds had been cut off, the funds “ continue to be available as heretofore.” 25 Accordingly, we conclude that funds elsewhere appropriated in the Act for State Department diplomatic activities abroad may lawfully be obligated or expended for diplomatic relations with the Government of Vietnam if those funds are other­ wise available for that purpose, without the President’s having to certify that Viet­ nam has met the conditions purportedly imposed by section 609. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel “ Id. at 530. 24 Id. 23 Id. at 531. 199

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Authority of the Nuclear Regulatory Commission to Collect Annual Charges from Federal Agencies T h e N u clear R eg u latory C om m ission has statutory authority to collect annual charges from fed eral ag en cies th at hold licenses issued by the NRC. July 30, 1991 M e m o r a n d u m O p in io n fo r th e G e n e r a l Co u n s e l N u c l e a r Re g u l a t o r y Co m m is s io n This memorandum responds to your request for our opinion whether sec­ tion 6101 o f the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. No. 101-508, 104 Stat. 1388, 1388-298, authorizes the Nuclear Regula­ tory Commission (“NRC”) to collect annual charges from federal agencies that hold NRC licenses. We conclude that section 6101 of OBRA does authorize the NRC to collect such charges. I. Section 6101(a) of OBRA requires that the NRC “shall annually assess and collect such fees and charges as are described in subsections (b) and (c).” Id. § 6101(a)(1), 104 Stat. at 1388-298. Subsection (b) sets forth the user fees that the NRC shall collect: (b) Fees for Service or Thing o f Value. — Pursuant to sec­ tion 9701 of title 31, United States Code, any person who receives a service or thing of value from the Commission shall pay fees to cover the Commission’s costs in providing any such service or thing of value. Id. § 6101(b), 104 Stat. at 1388-298 to 299. Section 9701 of title 31, United States Code, authorizes federal agencies to collect fees for “each service or thing of value provided by [the agency] to a person (except a person on official business o f the United States Government).” 31 U.S.C. § 9701(a). 74 It is settled law that federal agencies may not charge other federal agencies user fees under section 9701,1 see 56 Comp. Gen. 275, 277 (1977), and we understand that you are not intending to do so. Subsection (c) of section 6101 sets forth the annual charges that the NRC is to collect: (c) Annual Charges. — (1) Persons Subject to Charge. — Any licensee of the Commission may be required to pay, in addition to the fees set forth in subsection (b), an annual charge. (2) Aggregate Amount of Charges. — The aggregate amount of the annual charge collected from all licensees shall equal an amount that approximates 100 percent of the budget authority of the Commission in the fiscal year in which such charge is collected, less any amount appropriated to the Com­ mission from the Nuclear Waste Fund and the amount of fees collected under subsection (b) in such fiscal year. (3) Amount Per Licensee. — The Commission shall es­ tablish, by rule, a schedule of charges fairly and equitably allocating the aggregate amount of charges described in para­ graph (2) among licensees. To the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the alloca­ tion of the Commission’s resources among licensees or classes of licensees. OBRA § 6101(c), 104 Stat. at 1388-299. On April 12, 1991, the NRC published a proposed rule that would establish annual charges pursuant to section 6101(c). See 56 Fed. Reg. 14,870 (1991). In the proposed rule, the NRC stated its intention to levy annual charges on all licensees, including federal agencies. Ten federal agencies submitted comments opposing the proposed rule on the grounds that the NRC should not impose annual charges on other government agencies.2 You then requested a legal opinion from this Office on the legality of imposing annual charges on federal agencies.3 We 1 O f course, other statutes may authorize the collection of user fees from government agencies. See 42 U.S.C. § 2201(w) (authorizing the NRC to collect certain fees “ from any other Government agency” ). ! The ten agencies are the Departments of Commerce, Energy, Interior, and Veterans Affairs, the E nvi­ ronm ental Protection Agency, the National Aeronautics and Space Administration, the Defense N uclear Agency, and the m ilitary Departments of the Army, Navy and Air Force. 5 You have agreed to be bound by our opinion. See Letter for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from William C. Parler, General Counsel, Nuclear Regulatory C om ­ mission (May 20, 1991). 75 requested the views o f the ten interested agencies and all but one have re­ sponded.4 Two agencies (Commerce and NASA) expressed the view that the NRC lacked legal authority to impose annual charges on them. Two agen­ cies (EPA and Veterans Affairs) took no position on the legal issue. The Department of Defense, representing five of the interested agencies, con­ cluded that the NRC could impose annual charges. We will refer to these comments as appropriate in this memorandum. II. By its terms, section 6101(c)(1) provides that “[a]ny licensee o f the Com­ mission" may be required to pay an annual charge. The term “licensee of the Commission” is not defined in section 6101 or elsewhere in OBRA. Nevertheless, the structure o f the Atomic Energy Act of 1954 as a whole makes clear that federal agencies are within the class of licensees. The Act requires “any person” to obtain a license from the Commission5 in order to conduct activities regulated under the Act, 42 U.S.C. §2131, and the term “person” is defined in section 11 (s) of the Act to include “Government agencfies] other than the Commission.”6 42 U.S.C. § 2014(s). Additionally, the Act expressly permits federal agencies authorized to engage in the pro­ duction, marketing and distribution of electric energy to obtain commercial licenses. See 42 U.S.C. § 2020. Thus, because the NRC’s regulatory au­ thority clearly extends to the licensing of federal agencies, the term “licensee o f the Commission” as used in OBRA refers to all licensees, including gov­ ernment agencies. The conclusion that section 6101(c)(1) covers all licensees of the Com­ mission is reinforced by the requirements of paragraphs (2) and (3) o f that section. Paragraph (2) requires that the aggregate amount of the annual charges collected from “all licensees” approximate 100% of the Commission’s budget authority (less the amount of user fees collected and other specified amounts). Paragraph (3) requires that, to the extent practicable, annual charges shall have a “reasonable relationship” to the cost of providing regulatory services to the particular licensee or class of licensees being charged. If the Commission were to exempt federal licensees, other licensees would have to bear costs not directly related to the cost of providing service to them. 4 We requested that the Defense Nuclear Agency and the military departments consolidate their views into a single subm ission from the Departm ent of Defense. The Department of Energy informed us that the view s o f its one interested component. Naval Reactors, would also be incorporated into D efense's subm ission. The D epartm ent of the Interior did not subm it any views. ’ The “Com m ission” referenced throughout the Atomic Energy Act is the Atomic Energy Commission, which has been abolished. See 42 U.S.C. § 2014(f) (defining the “Commission"); 42 U.S.C. § 5814(a) (abolishing the Com m ission). The functions of the Atomic Energy Commission were transferred to the N RC and the Energy Research and Developm ent Administration in the Department o f Energy. See 42 U.S.C . § 5 8 4 1 (0 , (g );4 2 U.S.C. § 5814(b), (c). Because all o f the licensing functions are assigned to the NRC , see 42 U.S.C. § 5841 (0 , (g), we will treat all references to the “Commission” in the Atomic Energy Act as references to the NRC. 6 "G overnm ent agency” is broadly defined to include "any executive departm ent,. . . or other establish­ m ent in the executive branch o f the Governm ent.” 42 U.S.C. § 2014(1). 76 Given the “reasonable relationship” requirement, it would be anomalous to construe the statute so that the Commission is prohibited from setting the charges based on a direct, one-to-one relationship to the costs of providing services to a licensee or class of licensees. In its response to our request for comments, the Department of Com­ merce argues that the dependent clause in section 6101(c)(1), “in addition to the fees set forth in subsection (b),” limits the universe of licensees subject to the annual charge. Under Commerce’s view, Congress intended that the annual charge be levied as an additional element to the user fees authorized under section 6101(b) and 31 U.S.C. § 9701. Thus, only those licensees that are subject to a user fee under 31 U.S.C. § 9701, which excludes govern­ ment agencies, would be subject to the additional annual charge. We disagree. Under the ordinary rules of English grammar, the dependent clause “in addition to” cannot be construed as modifying the subject of the sentence, “ [a]ny licensee of the Commission.” Rather, the clause modifies “to pay . . . an annual charge,” making explicit that a licensee paying user fees under section 6101(b) must pay the annual charge in addition to the user fees and may not offset the expense of the user fees against the annual charge. A licensee that pays an annual charge but, for whatever reason, pays no user fees under section 6101(b) can still be described as paying its annual charge “in addition to the fees set forth in subsection (b).” The annual fee is “in addition to” the licensee’s user fee liability, which, in the case of federal agencies, happens to be zero. While the legislative history of OBRA does not expressly address the NRC’s authority to assess annual charges against federal agencies, two state­ ments in the legislative history tend to confirm the plain meaning of section 6101(c). First, the Conference Report states that section 6101(c) authorizes the NRC “to assess annual charges against all of its licensees.” H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 961 (1990) (emphasis added). This statement is perhaps even more explicit than the text of section 6101(c)(1). Second, in 1986, when the first provision that authorized the NRC to collect annual charges was enacted into law, see the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 7601, 100 Stat. 82, 146 (1986), the conference managers explained that the annual charges were “intended . . . to establish a standard separate and d istin ct from the Commission’s existing authority under [31 U.S.C. § 9701].” 132 Cong. Rec. 4887 (1986) (emphasis added) (adoption of statement in Senate); id. at 3797 (same in House). See also H.R. Conf. Rep. No. 964, at 961 (reaffirming the statement of the managers). This statement militates against construing the annual charges provision consistent with the limitations of 31 U.S.C. § 9701. III. Based on a plain meaning of the text of section 6101(c) of OBRA, we conclude that the NRC can impose annual charges on government agencies. 77 Both agencies that argued against the legality o f the NRC’s action, however, argued that such a result should be rejected in the absence of an explicit statem ent o f Congressional intent. Assuming arguendo that the plain mean­ ing of the text does not provide such a statement, we have searched to see if any background principle of law or canon of construction would require a clear statement of Congressional intention. We have found none. The Department of Commerce argues that the NRC proposal violates established fiscal law. Contrary to Commerce’s views, agencies that pay the annual charges out of their appropriations will not violate 31 U.S.C. § 1301(a), which requires that appropriated funds be applied only to the objects for which the appropriations were made. An agency that holds an NRC license as part o f its mission already expends appropriations in obtaining the license (e.g., the salary of the employee who fills out the application for the li­ cense). Paying an annual charge will be just an additional expenditure. Nor does 31 U.S.C. § 1532, which requires authorization by law to with­ draw funds from the appropriation account and credit them to another, preclude annual license charges to federal agencies where those charges are deposited into the general fund of the Treasury. The annual charges collected by the NRC are not credited to an “appropriation account” but are deposited into the general fund of the Treasury pursuant to the miscellaneous receipts stat­ ute, 31 U.S.C. § 3302(b). Funds deposited into the general fund of the Treasury are not appropriated funds and are not available for expenditure. We have also determined that the so-called “anti-augmentation” principle is inapplicable in these circumstances. The “anti-augmentation” principle is “a general rule that an agency may not augment its appropriations from ou tside sources without specific statutory authority.” Principles o f Federal A ppropriations Law 5-62 (GAO 1982) (emphasis added). The anti-augmen­ tatio n p rin c ip le prohibits augm entation from both governm ent and non-government sources. This principle is not applicable here because sec­ tion 6101(c) provides express statutory authority for the NRC to recover 100% o f its budget authority through user fees and annual charges from outside sources. Moreover, the user fees and annual charges will not aug­ m ent the N R C ’s budget because, as previously mentioned, they will be deposited into the general fund of the Treasury.7 7 We note in passing that it is not unprecedented for one government agency to charge another for goods or services, or even to impose fines on another, even though the authorizing statutory section does not expressly reference governm ent agencies. See, e.g., FBI Authority To Charge User Fees For Record C heck Services, 15 Op. O.L.C. 18 (1991) (concluding that Pub. L. No. 101-162, 103 Stat. 988, 998-99 (1989) authorizes the FBI to collect user fees from the State Department to process fingerprint identifi­ cation records and name checks); Memorandum for J. Paul McGrath, Assistant Attorney General, Civil D ivision, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recov­ ery o f Costs o f Representing Copyright R oyalty Tribunal in Distribution Disputes Pursuant to 17 U.S.C. § I I I (July 1, 1983) (Civil Division may charge the Copyright Royalty Tribunal for the provision of certain legal services); Constitutionality o f N uclear Regulatory Commission's Im position o f Civil Pen­ a ltie s on the A ir Force, 13 Op. O.L.C. 131 (1989) (concluding that NRC could impose penalties on ex ecu tiv e agency). 78 CONCLUSION We conclude for the reasons stated that section 6101(c) of OBRA autho­ rizes the NRC to collect annual charges from other government agencies. JOHN O. MCGINNIS Deputy Assistant Attorney General Office o f Legal Counsel 79

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Authority of the Nuclear Regulatory Commission to Collect Annual Charges from Federal Agencies T h e N u clear R eg u latory C om m ission has statutory authority to collect annual charges from fed eral ag en cies th at hold licenses issued by the NRC. July 30, 1991 M e m o r a n d u m O p in io n fo r th e G e n e r a l Co u n s e l N u c l e a r Re g u l a t o r y Co m m is s io n This memorandum responds to your request for our opinion whether sec­ tion 6101 o f the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. No. 101-508, 104 Stat. 1388, 1388-298, authorizes the Nuclear Regula­ tory Commission (“NRC”) to collect annual charges from federal agencies that hold NRC licenses. We conclude that section 6101 of OBRA does authorize the NRC to collect such charges. I. Section 6101(a) of OBRA requires that the NRC “shall annually assess and collect such fees and charges as are described in subsections (b) and (c).” Id. § 6101(a)(1), 104 Stat. at 1388-298. Subsection (b) sets forth the user fees that the NRC shall collect: (b) Fees for Service or Thing o f Value. — Pursuant to sec­ tion 9701 of title 31, United States Code, any person who receives a service or thing of value from the Commission shall pay fees to cover the Commission’s costs in providing any such service or thing of value. Id. § 6101(b), 104 Stat. at 1388-298 to 299. Section 9701 of title 31, United States Code, authorizes federal agencies to collect fees for “each service or thing of value provided by [the agency] to a person (except a person on official business o f the United States Government).” 31 U.S.C. § 9701(a). 74 It is settled law that federal agencies may not charge other federal agencies user fees under section 9701,1 see 56 Comp. Gen. 275, 277 (1977), and we understand that you are not intending to do so. Subsection (c) of section 6101 sets forth the annual charges that the NRC is to collect: (c) Annual Charges. — (1) Persons Subject to Charge. — Any licensee of the Commission may be required to pay, in addition to the fees set forth in subsection (b), an annual charge. (2) Aggregate Amount of Charges. — The aggregate amount of the annual charge collected from all licensees shall equal an amount that approximates 100 percent of the budget authority of the Commission in the fiscal year in which such charge is collected, less any amount appropriated to the Com­ mission from the Nuclear Waste Fund and the amount of fees collected under subsection (b) in such fiscal year. (3) Amount Per Licensee. — The Commission shall es­ tablish, by rule, a schedule of charges fairly and equitably allocating the aggregate amount of charges described in para­ graph (2) among licensees. To the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the alloca­ tion of the Commission’s resources among licensees or classes of licensees. OBRA § 6101(c), 104 Stat. at 1388-299. On April 12, 1991, the NRC published a proposed rule that would establish annual charges pursuant to section 6101(c). See 56 Fed. Reg. 14,870 (1991). In the proposed rule, the NRC stated its intention to levy annual charges on all licensees, including federal agencies. Ten federal agencies submitted comments opposing the proposed rule on the grounds that the NRC should not impose annual charges on other government agencies.2 You then requested a legal opinion from this Office on the legality of imposing annual charges on federal agencies.3 We 1 O f course, other statutes may authorize the collection of user fees from government agencies. See 42 U.S.C. § 2201(w) (authorizing the NRC to collect certain fees “ from any other Government agency” ). ! The ten agencies are the Departments of Commerce, Energy, Interior, and Veterans Affairs, the E nvi­ ronm ental Protection Agency, the National Aeronautics and Space Administration, the Defense N uclear Agency, and the m ilitary Departments of the Army, Navy and Air Force. 5 You have agreed to be bound by our opinion. See Letter for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from William C. Parler, General Counsel, Nuclear Regulatory C om ­ mission (May 20, 1991). 75 requested the views o f the ten interested agencies and all but one have re­ sponded.4 Two agencies (Commerce and NASA) expressed the view that the NRC lacked legal authority to impose annual charges on them. Two agen­ cies (EPA and Veterans Affairs) took no position on the legal issue. The Department of Defense, representing five of the interested agencies, con­ cluded that the NRC could impose annual charges. We will refer to these comments as appropriate in this memorandum. II. By its terms, section 6101(c)(1) provides that “[a]ny licensee o f the Com­ mission" may be required to pay an annual charge. The term “licensee of the Commission” is not defined in section 6101 or elsewhere in OBRA. Nevertheless, the structure o f the Atomic Energy Act of 1954 as a whole makes clear that federal agencies are within the class of licensees. The Act requires “any person” to obtain a license from the Commission5 in order to conduct activities regulated under the Act, 42 U.S.C. §2131, and the term “person” is defined in section 11 (s) of the Act to include “Government agencfies] other than the Commission.”6 42 U.S.C. § 2014(s). Additionally, the Act expressly permits federal agencies authorized to engage in the pro­ duction, marketing and distribution of electric energy to obtain commercial licenses. See 42 U.S.C. § 2020. Thus, because the NRC’s regulatory au­ thority clearly extends to the licensing of federal agencies, the term “licensee o f the Commission” as used in OBRA refers to all licensees, including gov­ ernment agencies. The conclusion that section 6101(c)(1) covers all licensees of the Com­ mission is reinforced by the requirements of paragraphs (2) and (3) o f that section. Paragraph (2) requires that the aggregate amount of the annual charges collected from “all licensees” approximate 100% of the Commission’s budget authority (less the amount of user fees collected and other specified amounts). Paragraph (3) requires that, to the extent practicable, annual charges shall have a “reasonable relationship” to the cost of providing regulatory services to the particular licensee or class of licensees being charged. If the Commission were to exempt federal licensees, other licensees would have to bear costs not directly related to the cost of providing service to them. 4 We requested that the Defense Nuclear Agency and the military departments consolidate their views into a single subm ission from the Departm ent of Defense. The Department of Energy informed us that the view s o f its one interested component. Naval Reactors, would also be incorporated into D efense's subm ission. The D epartm ent of the Interior did not subm it any views. ’ The “Com m ission” referenced throughout the Atomic Energy Act is the Atomic Energy Commission, which has been abolished. See 42 U.S.C. § 2014(f) (defining the “Commission"); 42 U.S.C. § 5814(a) (abolishing the Com m ission). The functions of the Atomic Energy Commission were transferred to the N RC and the Energy Research and Developm ent Administration in the Department o f Energy. See 42 U.S.C . § 5 8 4 1 (0 , (g );4 2 U.S.C. § 5814(b), (c). Because all o f the licensing functions are assigned to the NRC , see 42 U.S.C. § 5841 (0 , (g), we will treat all references to the “Commission” in the Atomic Energy Act as references to the NRC. 6 "G overnm ent agency” is broadly defined to include "any executive departm ent,. . . or other establish­ m ent in the executive branch o f the Governm ent.” 42 U.S.C. § 2014(1). 76 Given the “reasonable relationship” requirement, it would be anomalous to construe the statute so that the Commission is prohibited from setting the charges based on a direct, one-to-one relationship to the costs of providing services to a licensee or class of licensees. In its response to our request for comments, the Department of Com­ merce argues that the dependent clause in section 6101(c)(1), “in addition to the fees set forth in subsection (b),” limits the universe of licensees subject to the annual charge. Under Commerce’s view, Congress intended that the annual charge be levied as an additional element to the user fees authorized under section 6101(b) and 31 U.S.C. § 9701. Thus, only those licensees that are subject to a user fee under 31 U.S.C. § 9701, which excludes govern­ ment agencies, would be subject to the additional annual charge. We disagree. Under the ordinary rules of English grammar, the dependent clause “in addition to” cannot be construed as modifying the subject of the sentence, “ [a]ny licensee of the Commission.” Rather, the clause modifies “to pay . . . an annual charge,” making explicit that a licensee paying user fees under section 6101(b) must pay the annual charge in addition to the user fees and may not offset the expense of the user fees against the annual charge. A licensee that pays an annual charge but, for whatever reason, pays no user fees under section 6101(b) can still be described as paying its annual charge “in addition to the fees set forth in subsection (b).” The annual fee is “in addition to” the licensee’s user fee liability, which, in the case of federal agencies, happens to be zero. While the legislative history of OBRA does not expressly address the NRC’s authority to assess annual charges against federal agencies, two state­ ments in the legislative history tend to confirm the plain meaning of section 6101(c). First, the Conference Report states that section 6101(c) authorizes the NRC “to assess annual charges against all of its licensees.” H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 961 (1990) (emphasis added). This statement is perhaps even more explicit than the text of section 6101(c)(1). Second, in 1986, when the first provision that authorized the NRC to collect annual charges was enacted into law, see the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 7601, 100 Stat. 82, 146 (1986), the conference managers explained that the annual charges were “intended . . . to establish a standard separate and d istin ct from the Commission’s existing authority under [31 U.S.C. § 9701].” 132 Cong. Rec. 4887 (1986) (emphasis added) (adoption of statement in Senate); id. at 3797 (same in House). See also H.R. Conf. Rep. No. 964, at 961 (reaffirming the statement of the managers). This statement militates against construing the annual charges provision consistent with the limitations of 31 U.S.C. § 9701. III. Based on a plain meaning of the text of section 6101(c) of OBRA, we conclude that the NRC can impose annual charges on government agencies. 77 Both agencies that argued against the legality o f the NRC’s action, however, argued that such a result should be rejected in the absence of an explicit statem ent o f Congressional intent. Assuming arguendo that the plain mean­ ing of the text does not provide such a statement, we have searched to see if any background principle of law or canon of construction would require a clear statement of Congressional intention. We have found none. The Department of Commerce argues that the NRC proposal violates established fiscal law. Contrary to Commerce’s views, agencies that pay the annual charges out of their appropriations will not violate 31 U.S.C. § 1301(a), which requires that appropriated funds be applied only to the objects for which the appropriations were made. An agency that holds an NRC license as part o f its mission already expends appropriations in obtaining the license (e.g., the salary of the employee who fills out the application for the li­ cense). Paying an annual charge will be just an additional expenditure. Nor does 31 U.S.C. § 1532, which requires authorization by law to with­ draw funds from the appropriation account and credit them to another, preclude annual license charges to federal agencies where those charges are deposited into the general fund of the Treasury. The annual charges collected by the NRC are not credited to an “appropriation account” but are deposited into the general fund of the Treasury pursuant to the miscellaneous receipts stat­ ute, 31 U.S.C. § 3302(b). Funds deposited into the general fund of the Treasury are not appropriated funds and are not available for expenditure. We have also determined that the so-called “anti-augmentation” principle is inapplicable in these circumstances. The “anti-augmentation” principle is “a general rule that an agency may not augment its appropriations from ou tside sources without specific statutory authority.” Principles o f Federal A ppropriations Law 5-62 (GAO 1982) (emphasis added). The anti-augmen­ tatio n p rin c ip le prohibits augm entation from both governm ent and non-government sources. This principle is not applicable here because sec­ tion 6101(c) provides express statutory authority for the NRC to recover 100% o f its budget authority through user fees and annual charges from outside sources. Moreover, the user fees and annual charges will not aug­ m ent the N R C ’s budget because, as previously mentioned, they will be deposited into the general fund of the Treasury.7 7 We note in passing that it is not unprecedented for one government agency to charge another for goods or services, or even to impose fines on another, even though the authorizing statutory section does not expressly reference governm ent agencies. See, e.g., FBI Authority To Charge User Fees For Record C heck Services, 15 Op. O.L.C. 18 (1991) (concluding that Pub. L. No. 101-162, 103 Stat. 988, 998-99 (1989) authorizes the FBI to collect user fees from the State Department to process fingerprint identifi­ cation records and name checks); Memorandum for J. Paul McGrath, Assistant Attorney General, Civil D ivision, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recov­ ery o f Costs o f Representing Copyright R oyalty Tribunal in Distribution Disputes Pursuant to 17 U.S.C. § I I I (July 1, 1983) (Civil Division may charge the Copyright Royalty Tribunal for the provision of certain legal services); Constitutionality o f N uclear Regulatory Commission's Im position o f Civil Pen­ a ltie s on the A ir Force, 13 Op. O.L.C. 131 (1989) (concluding that NRC could impose penalties on ex ecu tiv e agency). 78 CONCLUSION We conclude for the reasons stated that section 6101(c) of OBRA autho­ rizes the NRC to collect annual charges from other government agencies. JOHN O. MCGINNIS Deputy Assistant Attorney General Office o f Legal Counsel 79

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Constitutionality of Proposed Regulations of Joint Committee on Printing Proposed regulations issued by the Jo in t Committee on Printing, which purport to regulate a broad array o f printing activities o f the Executive Branch, are not authorized by statute. T he proposed regulations are unconstitutional on tw o grounds. First, because members of the Joint Com m ittee on Printing are n o t appointed in accordance with the Appointments Clause, art. n , § 2, cl.2 o f the Constitution, they may not perform Executive functions, such as rulem aking, which m ay be perform ed only by properly appointed Officers of the United States. Second, the delegation of legislative power to the Joint Committee on Printing violates the constitutional requirements fo r legislative action, bicameral passage and presentment to the President. April 11, 1984 M em orandum O O p in io n f f ic e o f M for th e C o un sel anagem ent and to the D ir e c t o r , Budget This responds to your request for our opinion on the constitutionality, in light of the Supreme Court’s decisions in Buckley v. Valeo, 424 U.S. 1 (1976), and 1 N S \. Chadha, 462U.S.919(1983),of the proposed regulations published by the Joint Committee on Printing on November 11, 1983. For the reasons discussed below, we conclude that the regulations are statutorily unsupported and constitutionally impermissible. The proposed regulations would effect a significant departure from the historical role of the Joint Committee on Printing (JCP).1 Specifically, they would redefine “printing” to encompass virtually all processes by which leg­ ible material is created or stored, thus increasing the number of activities purportedly subject to JCP oversight and control. These activities include, among others, planning and design of government publications (defined to mean any textual material reproduced for distribution to government depart­ ments or to the public), word processing, data storage and document retrieval, apparently subsuming the operation of every copying facility of a department. The proposed regulations would require executive departments to submit an­ nual plans outlining their intended activities and to seek advance approval of all projected goals, policies, strategies, purchases, publications, and means of distribution. In addition, departments would be asked to submit plans for a 1 This is not to say that the current role of the JCP necessarily enjoys statutory authority or constitutional sanction. We have not attempted to evaluate those issues in this memorandum. 42 second and third year, seeking JCP approval of all projections relating to the expanded concept of printing. These obligations would “provide the committee with a broader and better overview of all of the Federal Government’s printing and publishing activities.” 129 Cong. Rec. 32286 (1983) (remarks of JCP Chairman Hawkins). The revised regulations, governing storage, duplication and distribution of information, “seek to replace JCP micro-management pro­ cedures with oversight and policymaking functions.” Id. The JCP is composed of the Chairman and two members of the Committee on Rules and Administration of the Senate and the Chairman and two members of the Committee on House Administration of the House of Representatives. 44 U.S.C. § 101. Vacancies are filled by the President of the Senate and the Speaker of the House of Representatives. Id. § 102. The authorized functions of the JCP are specified in various provisions of 44 U.S.C. This memorandum will address, in turn, the three major legal issues sug­ gested by these regulations: (1) whether there is statutory authority for the proposed regulations, (2) whether the regulations would involve congressional performance of executive functions, and (3) whether a joint committee of Congress is seeking to exercise legislative power. We conclude that the pro­ posed regulations fail on all three grounds.2 I. Statutory Authority The first issue we address is the statutory basis for promulgation of these “legislative” rules. The Printing and Documents statute, 44 U.S.C., contains three sections upon which the JCP relies for its “regulatory” authority. The first is 44 U.S.C. § 103, which allows the JCP to “use any measures it considers necessary to remedy neglect, delay, duplication, or waste in the public printing and binding and the distribution of Government publications.” Second, § 501 provides that all government printing, binding, and blank book work shall be done at the Government Printing Office (GPO), except: (1) work the JCP considers “to be urgent or necessary to have done elsewhere” and (2) printing in field plants operated by executive or independent departments, “if approved by the Joint Committee on Printing.” Finally, § 502 provides that if the Public Printer is unable to do certain printing work at the GPO, he may enter into contracts to have the work produced elsewhere, “with the approval of the Joint Committee on Printing.” As far as we are aware, these statutory provisions constitute the full extent to which the entire Congress might have been said to empower the JCP to participate in the decisionmaking process involving print­ ing and distribution of materials published by the Executive Branch. The proposed regulations were published in the Congressional Record on November 11,1983, a gesture apparently not mandated by any existing statute. 2 B ecause we conclude that the regulations as a w hole cannot legally be enforced against the Executive Branch, w e do not seek in this m emorandum to discuss the legality o f various provisions o f the regulations individually. C onsequently, we have not attem pted to resolve the specific question raised in your request regarding the regulations’ apparent effect o f transferring to the G PO revenues that ordinarily would be paid into the accounts o f individual agencies o r the U nited States Treasury. 43 Nor are we aware of any other procedural requirements that might apply to promulgation of “regulations” such as these. Although Congress has enacted an elaborate scheme in the Administrative Procedure Act (APA) to control the issuance of regulations by executive agencies and to protect the persons subject to them by requiring broad opportunity for public notice and comment and availability of an administrative record reflecting these comments, we do not know of any analogous protections for those putatively subject to “legislative regulations.” On the one hand, for the reasons stated in Part II of this memoran­ dum, “legislative regulations” can apply only internally in Congress. Therefore one would not necessarily expect a scheme such as the APA to apply. On the other, it could also be assumed that had Congress contemplated or intended to authorize a committee’s issuance of broad, binding regulations that could have an effect on the public and on the Executive Branch, it might have enacted a procedure comparable to the APA to ensure that the practice comports with the principles of due process. Thus, it could be argued that it is doubtful that Congress intended to authorize this committee to assume a regulatory role with respect to persons outside the Legislative Branch. See INS v. Chadha, 462 U.S. at 951. At the very least, authority to regulate in a sweeping fashion cannot be presumed without an express indication that Congress has specifically del­ egated regulatory power.3 The three statutory provisions mentioned above fall far short of a clear delegation of regulating authority. A. 4 4 U.S.C. § 103 The first, § 103 was originally enacted in 1852 in the following form: The Joint Committee on Printing shall have power to adopt such measures as may be deemed necessary to remedy any neglect or delay in the execution of the public printing, provided that no contract, agreement, or arrangement entered into by this com­ mittee shall take effect until the same shall have been approved by that house o f Congress to which the printing belongs, and when the printing d elayed relates to the business o f both houses, until both houses shall have approved o f such contract or a r­ rangement. Ch. 1, 10 Stat. 35 (1852) (emphasis added). The language of that section, particularly the underlined portion, manifests its purpose: to allow the JCP to take remedial steps with regard to problems that may arise in having Congress’ printing performed. The statute sought only to govern printing work for either or both Houses of Congress. The proviso, requiring one- or two-House approval for JCP remedial actions, was removed 3 Cf. Industrial Union D ep’t, AFL-CIO v. American Petroleum Inst., 448 U.S 607, 6 8 5 -8 6 (1980) (R ehnquist, J., concurring) (delegation o f regulatory authority to executive must provide “intelligible prin­ ciple” to gu id e exercise o f discretion). 44 in 1894 when Congress passed an amendment which left the JCP alone in charge of curing delay in congressional printing. The reason for the amendment was that “[i]t seemed to the committee [JCP] that this approval of their action in each instance by Congress would produce delay and defeat rather than advance efforts to prevent neglect or delay.” 27 Cong. Rec. 30 (1894) (conference report). Congress gave no indication of any intention to change the scope of the JCP’s remedial powers. Evidently, therefore, the committee’s powers contin­ ued to extend only to the oversight of printing performed for either or both Houses of Congress. By the time the JCP obtained this authority to remedy delay in the public printing without approval of either or both Houses, Congress had already passed a resolution requiring all public printing to be done at the newly formed government printing establishment (the precursor to § 501). Res. 25, 12 Stat. 118 (1860). Consequently, at the time Congress granted the JCP power over the “public printing,” that term applied, without exception, to the operations of the GPO alone. Bearing in mind this relation between the precursors to §§ 103 and 501, we believe the authority given the JCP to remedy delay “in the execution of the public printing” was intended to extend only to the operations of the GPO, itself an organization within the Legislative Branch.4 No subsequent legislative history of which we are aware has evinced a congressional intention to recast § 103 so that the JCP’s remedial powers over the public printing would encompass operations outside the GPO.5 That section does not supply a foundation for the JCP’s attempt to reach beyond the GPO to all related activities irrespective of where they are conducted. B. 44 U.S.C. § 501 The second provision asserted as authority for the proposed regulations explicitly grants the JCP power to approve certain Executive Branch decisions regarding operation of field plant printing facilities. 44 U.S.C. § 501(2). Sec­ tion 501 also allows the JCP to approve the outside printing of other classes of work when “necessary” or “urgent.” Id. § 501(1). Neither the statute nor its history gives any suggestion, however, that the power to approve printing work was intended to be expanded into an all-encompassing authority to regulate all aspects of operations in the Executive Branch unrelated to the common under­ standing of “printing.” The legislative history of § 501 reflects an evolution, first, from a rule promulgated in 1860, requiring all printing to be done at the GPO, Res. 25, § 5, 12 Stat. 118 (1860), to an enactment of 1895, allowing exceptions to be 4 See Lewis v. Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (W ald, J., concurring) (citing § 103 as exam ple o f congressional control over G PO in support o f conclusion that G PO is a legislative unit). s The section was am ended in 1919, w hen the words “duplication" and “w aste” and the phrase “and the distribution o f G overnm ent publications” were added. Ch. 86, § 11, 40 Stat. 1270 (1919). No discussion or explanation o f the change appears in the legislative history. See 57 Cong. Rec. 3865 (1919); H.R. Rep. No. 1146, 65th Cong., 3d Sess. 7 (1919). 45 “provided by law,” ch. 23, § 87,28 Stat. 662 (1895). That provision was altered in 1919, when Congress permitted certain classes of work to be done elsewhere than in the District of Columbia if the JCP deemed it necessary, ch. 86, § 11,40 Stat. 1270 (1919), based on an explanation that such flexibility would save money for the government, 57 Cong. Rec. 3865 (amending H.R. 14078, 65th Cong., 3d Sess. (1919)). Finally, the two exceptions now codified in § 501 were enacted in 1949 to save further time and expense by permitting printing to be accomplished in the area where it is needed. Pub. L. No. 156, 63 Stat. 405 (1949). The explanations of the various amendments, although brief, indicate that the JCP’s role was intended merely to ensure that the considerations of efficiency and economy were met in every case. H.R. Rep. No. 841, 81st Cong., 1st Sess. (1949), reprinted in 1949 U.S.C.C.A.N. 1515-16. Congress has never expressed, in connection with § 501, that it expected the JCP’s approval power to be expanded into authority for overseeing, specifying, and regulating internal operations of the Executive Branch. C. 4 4 U.S.C. § 5 0 2 Nor does § 502, which authorizes the Public Printer to obtain certain con­ tract work, expressly or impliedly endow the JCP with the power to regulate the activities of the Executive Branch. By its terms that section allocates powers between the JCP and the GPO, a division of responsibilities among units largely within the Legislative Branch, and does not directly affect any activities of Executive departments. Notwithstanding the absence of any express legislative authority for the JCP’s assumption of the role of a regulatory commission over Executive Branch printing, word processing and information distribution systems, the ICP Chairman has characterized the Committee’s efforts as a “regulatory scheme.” 129 Cong. Rec. 32286 (1983). By redefining the statutory term “printing,” the JCP has, in effect, attempted to control all functions related to the creation of a written word or symbol, including “all systems, processes and equipment used to plan . . . the form and style of an original reproducible image.” Id. (Proposed Regulations, Title I, number 3). That attempt strays far from the JCP’s statutory grant of authority under § 103, § 501, or § 502. Because no legal foundation can be identified in support of either the “regulatory” expansion of the statutory term “printing” or the breadth of the entire proposed scheme over Executive Branch management decisions, estab­ lished principles of administrative law compel the conclusion that the JCP has exceeded its statutory authority in issuing the proposed rules. Cf. 5 U.S.C. § 706(2)(c) (agency rulemaking); City o f Overton Park v. Volpe, 401 U.S. 402, 415 (1971); Schilling v. Rogers, 363 U.S. 666, 676-77 (1960); L. Jaffe, Judicial C ontrol o f Administrative Action 359 (1965). Although we believe that the proposed regulatory scheme lacks a valid statutory basis, we proceed to examine the implications of the regulations for the constitutional separation o f powers. 46 II. Legislative and Executive Functions In view of the purported binding effect of the JCP’s proposed regulations on Executive Branch agencies, the question arises whether the JCP, a Legislative Branch entity, is seeking to exercise executive functions in a manner that violates constitutional principles of the separation of powers. In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court, p er curiam, struck down a provision of the Federal Election Campaign Act of 1971 which gave the Federal Election Commission, whose members were not all appointed by the President, the power to perform broad functions, including rulemaking, for enforcement of the Act. Id. at 141. The Court found that the Commission, so composed, was constitutionally precluded from performing executive tasks, because of the failure to comply with the Appointments Clause, U.S. Const, art. II, § 2, cl. 2: [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 Appointments 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 Heads of Departments. The pivotal term “Officers of the United States” was explained by the Court to mean “any appointee[s] exercising significant authority pursuant to the laws of the United States,” 424 U.S. at 126, and again as “all appointed officials exercising responsibility under the public laws of the Nation.” Id. at 131. Officials meeting these qualifications must be appointed in the manner pre­ scribed in Article II of the Constitution. Id. at 126. This is because the Legislature “cannot ingraft executive duties upon a legislative office,” Id. at 136 (quoting Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)); nor can it insulate persons performing executive tasks from the President’s power to remove them. Id. In short, the Court held that Congress may not itself appoint persons to perform duties that may be performed only by an officer of the United States. In analyzing the powers conferred on the Federal Election Commission, the Court in Buckley described three types of statutory functions: “functions relat­ ing to the flow of necessary information — receipt, dissemination, and investi­ gation; functions relating to the Commission’s task of fleshing out the statute — rulemaking and advisory opinions; and functions necessary to ensure com­ pliance with the statute and rules — informal procedures, administrative deter­ minations and hearings, and civil suits.” 424 U.S. at 137. The Court held that “insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees,” 47 the Commission as then composed could constitutionally exercise them. How­ ever, “when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result.” Id. at 137-38. The Court held that each of the Commission’s functions related to rulemaking and rendering advisory opinions “represents the performance of a significant gov­ ernmental duty exercised pursuant to a public law,” which could be performed only by persons appointed in accordance with the Appointments Clause. Id. at 141. At the same time, the Supreme Court disavowed any intention to “deny to Congress ‘all power to appoint its own inferior officers to carry out appropriate legislative functions.’” 424 U.S. at 128. Because, as discussed above, members of the JCP are not appointed in accord with Article II, we must address whether, by issuing and implementing the proposed regulations, the JCP would be performing functions of officers of the United States or merely carrying out appropriate legislative functions. Applying the rule of Buckley v. Valeo to the rulemaking powers arrogated to itself by the JCP, we conclude that those powers are not “sufficiently removed from the administration and enforcement of public law to allow [them] to be performed by” persons not appointed in accordance with the Appointments Clause. 424 U.S at 141. We have described above the nature and extent of the JCP’s proposed involvement in the printing operations of the Executive Branch, and the putatively binding nature of the JCP rules. Accordingly, like the rulemaking and advice-giving functions of the Federal Election Commission at issue in Buckley, the JCP’s activities “represent the performance of a signifi­ cant governmental duty exercised pursuant to a public law.” Id. Insofar as the JCP enjoys investigative and informative powers of the type generally delegated to congressional committees, the Constitution is no bar to its exercise of those powers. Buckley v. Valeo, 424 U.S. at 137; McGrain v. Daugherty, 273 U.S. 135, 175 (1927). One might assert that the JCP’s powers over the GPO are just such internal powers which allow it to control all operations of the GPO and that Congress may constitutionally require all Executive Branch agencies to use the GPO facilities for all their printing needs.6 Because certain standards and rules must necessarily be permissible in running the operations of the GPO, it might be suggested, the JCP inevitably exerts some powers over Executive agencies, which might then arguably be expanded to other arenas to the extent printing outside the GPO is permitted. However, the proposed regulations bear no relation to the smooth operation of the GPO; rather, they focus primarily on outside activities involving manage­ ment of information. Thus, the GPO foundation upon which to build the expanded and comprehensive JCP regulatory structure is absent from the proposed regulatory scheme. We do not believe the constitutional demarcation of executive and legislative functions can be so easily eroded. 6 The constitu tio n ality o f a statute requiring all agencies to use the G PO for their printing is not an issue necessary to evaluate the validity of the proposed regulations or the existing statutes. We therefore do not attem pt to resolve this question. 48 The most egregious and illustrative provision in this regard is the require­ ment that each Executive department submit annually to the JCP a plan outlin­ ing its printing and distribution activities anticipated for the fiscal year and the following two years. Under the proposed regulations, the JCP would review each of these plans to determine its conformity with the objectives of the “Federal printing program,” specifically evaluating the efficiency and cost effectiveness of the plan and the printing and distribution requirements of the Executive department. Only upon approval of the JCP could a department implement its plan. This “Federal printing program,” a construct of the JCP, clearly involves the interpretation and implementation of policy directives that it is the job of the Legislature (acting as a legislature and not a committee) to identify and of the Executive to fulfill. Each step in this “micro-management” process constitutes a uniquely executive function, to execute faithfully the laws as constitutionally enacted by Congress. In sum, administrative functions such as policymaking and rulemaking are quintessentially and traditionally executive duties; they are the duties of “Of­ ficers of the United States.” See Springer v. Philippine Islands, 277 U.S. 189, 202 (1928).7 Yet the JCP unequivocally acknowledges its intention “to replace JCP micro-management procedures with oversight and policymaking func­ tions,” 129 Cong. Rec. 32285 (1983), and to establish a new “regulatory scheme,” id. at 32285, all with respect to putative control of the Executive Branch. We cannot reconcile this endeavor with the Supreme Court’s clear delineation of the functions assigned to the three Branches of the Government by the Constitution.8 This is not the first attempt at an express transformation of the JCP to a policymaking executive body. In 1919, Congress attempted explicitly to pro­ vide, by statute, for a broad system of JCP regulatory authority not unlike the present scheme. Under the bill, passed by both Houses of Congress, no journal, magazine, periodical, or similar Government publi­ cation shall be printed, issued, or discontinued by any branch or officer of the Government service unless the same shall have been authorized under such regulations as shall be prescribed by the Joint Committee on Printing . . . . [T]he foregoing provisions of this section shall also apply to mimeographing, multigraphing, 1 Cf. Lewis v Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (W ald, J., concurring) (JCP’s order that Public Printer halt furlough plans for GPO em ployees did not “encroach[] on another branch and thereby offend[] the constitutional separation o f pow ers" only because GPO is a legislative, rather than an executive, unit). Each branch o f the Federal G overnm ent can conduct the hiring and firing o f em ployees within that branch, to carry out the respective m ission o f that branch, w ithout treading upon the separation-of-pow ers doctrine. O f course, Congress can regulate hiring and firing o f civil servants in the Executive Branch, but only by legislation, not by com m ittee fiat. 8 This conclusion w ould seem to apply equally to the “JC P m icro-m anagem ent procedures" currently in place as well as the establishm ent by the JC P o f a new “regulatory schem e." It would seem irrefutable under Buckley and Chadha that m icro-m anagem ent o f Executive Branch agencies is an inherently executive function, and one w hich m ust therefore be perform ed by o fficers o f the U nited States duly appointed pursuant to A rticle II o f the C onstitution. 49 and other processes used for the duplication of typewritten and printed matter, other than official correspondence and office records. H.R. 12610, 66th Cong., 2d Sess. (1919). President Wilson vetoed the bill, voicing an adamant repudiation of any right Congress claimed to endow a committee “with power to prescribe ‘regulations’ under which executive departments may operate.”9 This historical perspective highlights an important aspect of the separation of powers issue. Following Congress’ failure to accomplish its objective once through a constitutional process, the JCP may not now attempt to effect the same end by “regulation,” circumventing the possible intervention of a Presidential veto. This usurpation of executive power is the very evil that the Supreme Court recognized when it quoted from The Federalist in its opinion in INS v. Chadha: If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of selfdefence. 462 U.S. at 947 (quoting The Federalist No. 73. at 458 (A. Hamilton) (H. Lodge ed. 1888)). III. Legislative Action We next consider whether the JCP’s proposed regulations can be treated as an exercise of Congress’ constitutional power to legislate and, if so, whether the JCP could by itself exercise that legislative power. In 1690, John Locke wrote that “the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.” 10 Nearly three hundred years later, the Supreme Court, in INS v. Chadha, restated the same principle as firmly embodied in the United States Constitution. The Court forcefully articulated the broad constitutional principle that all exercises of legislative power must undergo bicameral passage and presentment to the President unless the Consti­ tution specifically authorizes a departure from the standard procedure. 462 U.S. at 946-51. Whether a particular action constitutes an exercise of legisla­ tive power requiring adherence to the rules of bicameral passage and present­ ment depends upon whether it is legislative in character. An action by Congress 9 V eto M essage on Legislative, Executive and Judicial A ppropriation B ill, H.R. Doc. No. 764, 66th Cong., 2d Sess. 2 -3 (1920). President W ilso n 's veto message was one basis upon which, in 1933, then A ttorney G eneral W illiam D. M itchell concluded that a statutory provision authorizing a joint com m ittee o f C ongress to m ake final decisions regarding certain tax refunds w as a trespass upon the constitutional separation of pow ers. H e reasoned that the provision “ attem pts to entrust to mem bers o f the legislative branch, acting ex officio, executive functions in the execution o f the law , and it attem pts to give a com m ittee o f the legislative branch pow er to approve o r disapprove executive acts.” 37 Op. A tt’y Gen. 56, 58 (1933). 10 J. Locke, Second Treatise of Government § 141, at 381 (P. Laslett ed. 1980). 50 is “legislative” if it purports to have “the purpose and effect of altering the legal rights, duties and relations of persons, including . . . Executive Branch officials .. ., outside the legislative branch.” Id. at 952. Of the three statutory bases relied upon by the JCP for authority to issue its proposed regulations, only one explicitly allows the committee to approve or disapprove decisions of persons outside the Legislative Branch. 44 U.S.C. § 501(2). Section 501(2), which purports to allow the JCP unilaterally to create exceptions to the general rule that all printing must be accomplished through the GPO, would have the effect of empowering a committee of Congress to forestall, regulate, revise or manage executive printing operations which have been authorized through the legislative process in the form of authorization and appropriations acts for the agencies involved. This action inevitably affects the rights, duties, and relations of members of the other branches of government, and appears to meet the test for legislative action.11 The Supreme Court has also indicated that, in determining whether an act is legislative in character, it is useful to examine the nature of the congressional action which the committee’s power supplants. Chadha, 462 U.S. at 962. Until the predecessor to § 501 was amended in 1919 to give some discretion to the JCP,12 all printing had been centralized in the GPO, “except in cases otherwise provided by law.”13 This history suggests that the Committee’s power to create exceptions to the statute originated as a substitute for plenary legislation — an action indubitably legislative in character. We conclude that § 501 improperly seeks to delegate legislative power to the JCP in abrogation of the constitutional requirements of bicameral passage and presentment. Consequently, even the bare statutory approval power — unembellished by interpretative regulations — must fall as a compromise of the constitutional requirements for legislative action.14 Under the other two sources of putative authority propounded by the JCP, the proposed regulations fare no better. Although neither § 103 nor § 502 explicitly authorizes the JCP to affect the rights and relations of extra-legislative officials, the JCP proffers those sections as authority for placing con­ straints on the implementation of executive printing operations already sane11 Sim ilarly, § 501(1) purportedly enables the JCP, by itself, to create exem ptions from the legislated rule that all printing be done at the G PO. Although it does not operate expressly upon the statutory functions o f the Executive Branch, it does purport to delegate a legislative function to a com m ittee of Congress, which is also im perm issible under Chadha. 462 U.S. at 952. Except insofar as the provision allow s the JC P to control the internal printing affairs o f C ongress, id. at 955 n.21, it inevitably alters the rights, duties and relations o f persons outside that branch by perm itting a com m ittee to effect an exception to a legislated rule, and therefore is an unconstitutional exercise o f legislative power. 12 Ch. 86, § 11, 4 0 Stat. 1270 (1919) (printing to be done by GPO “except such classes o f work as shall be deem ed by the Jo in t Com m ittee on Printing to be urgent o r necessary to have done elsew here than in the D istrict o f C olum bia fo r the exclusive use o f any field service outside o f said D istrict”). 13 Ch. 23, § 87, 28 Stat. 662 (1895). 14 This O ffice recently provided an opinion devoted exclusively to the constitutionality o f the statutory approval pow er granted the JC P in 44 U.S.C. § 501(2). The opinion concluded that this pow er is invalid under INS v. Chadha, and that the ability o f Executive departm ents to conduct authorized field-plant printing remains effective. M em orandum for W illiam H. Taft, IV, D eputy Secretary o f Defense, from Theodore B. O lson, A ssistant A ttorney G eneral, O ffice o f Legal Counsel 15 (Mar. 2, 1984). 51 tioned with budget authority and appropriated funds. Insofar as the two sec­ tions can reasonably support the issuance of regulations restricting the lawful operations of all agencies and departments of the Federal Government, they too authorize a committee’s exercise of legislative power and therefore cannot survive under Chadha. “A joint committee has not [sic] power to legislate, and legislative power cannot be delegated to it.” 37 Op. Att’y Gen. 56, 58 (1933). IV. Conclusion The defects in the committee approval and regulatory mechanism discussed here could well have been the object of the views articulated twenty-five years ago by then-Acting Attorney General William P. Rogers: Legislative proposals and enactments in recent years have re­ flected a growing trend whereby authority is sought to be vested in congressional committees to approve or disapprove actions of the executive branch. Of the several legislative devices em­ ployed, that which subjects executive department action to the prior approval or disapproval of congressional committees may well be the most inimical to responsible government. It not only permits organs of the legislative branch to take binding actions having the effect of law without the opportunity for the Presi­ dent to participate in the legislative process, but it also permits mere handfuls of members to speak for a Congress which is given no opportunity to participate as a whole. An arrangement of this kind tends to undermine the President’s position as the responsible Chief Executive. 41 Op. Att’y Gen. 300, 301 (1957). For the reasons expressed above, we have concluded that the regulations proposed by the Joint Committee on Printing are without foundation in law. First, no statute grants to the JCP, with adequate specificity, authority to issue regulations purporting to control operations within the Executive Branch for which budget authority and appropriated funds exist. Second, the JCP’s at­ tempted performance of executive functions in administering the laws trans­ gresses the rule of separation of powers set forth in Buckley v. Valeo. Finally, a congressional committee’s promulgation of rules binding on the other branches runs afoul of the constitutional requirement, affirmed in INS v. Chadha, that all legislative actions, with a few specifically stated exceptions not relevant here, undergo bicameral passage and presentment to the President. T h eo d o r e B. O lso n A ssistant Attorney General Office o f Legal Counsel 52

Write a legal research memo on the following topic.

Liability of Contractors in Airbridge Denial Programs A contractor ordinarily will not be criminally liable for assisting in certain foreign government programs for the aerial interdiction of illegal narcotics traffic. March 1, 2004 MEMORANDUM OPINION FOR THE DEPUTY LEGAL ADVISER DEPARTMENT OF STATE You have asked for our opinion about the circumstances in which a contractor may be criminally liable for assisting in certain foreign government programs for the aerial interdiction of illegal narcotics traffic.1 We believe that a contractor ordinarily will not be liable for providing such assistance.2 I. In 1994, we advised the Deputy Attorney General on the lawfulness of certain forms of United States Government (“USG”) assistance to the Republics of Colombia and Peru. United States Assistance to Countries That Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148 (1994) (“1994 Opinion”). The 1994 Opinion concluded that the Aircraft Sabotage Act of 1984, which 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 cause[] damage to such an aircraft which renders that aircraft incapable of flight or which is likely to endanger that aircraft’s safety in flight,” 18 U.S.C. § 32(b)(2) (1994), generally applies to government actors, including the police and military personnel of foreign governments. 1994 Opinion, 18 Op. O.L.C. at 153–55.3 Moreover, the criminal prohibition can apply even if no United States aircraft was involved and even if the act was not committed in this country. Id. at 152–53. The 1994 Opinion advised that there was a “substantial risk that USG personnel who furnish assistance to the aerial interdiction programs of those countries could 1 Letter for M. Edward Whelan III, Acting Assistant Attorney General, from Samuel Witten, Deputy Legal Adviser, Department of State (Aug. 4, 2003) (“State Department Letter”). 2 The Criminal Division concurs in this analysis. 3 The Opinion concluded, however, that section 32(b)(2) implicitly recognizes certain defenses that are presumed to be available as to criminal prohibitions generally. 18 Op. O.L.C. at 163. In particular, section 32(b)(2) does not “criminaliz[e] actions by military personnel that are lawful under international law and the laws of armed conflict.” Id. at 164. The Opinion noted that application of section 32(b)(2) to such cases “could readily lead to absurdities.” Id. In addition, “even in cases in which the laws of armed conflict are inapplicable,” section 32(b)(2) would not apply to actions taken by an officer who “reasonably believes that the aircraft poses a threat of serious physical harm” to the officer or another person where the threat is “direct and immediate” and “no reasonably safe alternative would dispel that threat.” 1994 Opinion, 18 Op. O.L.C. at 164–65; cf. United States v. Bailey, 444 U.S. 394, 409–10 (1980). 13 Opinions of the Office of Legal Counsel in Volume 28 be aiding and abetting criminal violations of the Aircraft Sabotage Act.” Id. at 149 (citing 18 U.S.C. § 2(a)). The 1994 Opinion also cautioned that, absent certain preventive steps, “United States aid to Colombia and Peru might also implicate USG personnel in those governments’ shootdown policies on a conspiracy rationale.” Id. at 160–61 (citing 18 U.S.C. § 371 (1994)). To address these concerns, the 1994 Opinion recommended that the USG take certain steps. The risk that provision of aid to Colombia or Peru would fall within the criminal prohibition on aiding or abetting in 18 U.S.C. § 2(a) could be averted by obtaining a “reliable assurance . . . that the foreign government would carry out no shootdowns falling within the prohibition of § 32(b)(2).” Id. at 159. If the foreign government refused to give such an assurance, the USG would need to insist on a number of conditions designed to ensure that, in shooting down civil aircraft, the foreign government would use no assistance that had come from the USG. Id. at 160. Furthermore, the USG could “make [its] disapproval of shootdowns in violation of section 32(b) clear in order to eliminate any suggestion that USG personnel have entered into a conspiratorial agreement with foreign officials involving unlawful shootdowns,” and “USG agencies should specifically instruct their personnel not to enter into any agreements or arrangements with the officials or agents of foreign governments that encourage or condone shootdowns.” Id. at 161–62. In October 1994, in response to the Executive Branch’s articulation of the scope of section 32(b), as reflected in the 1994 Opinion, Congress enacted an express exception to any criminal culpability under federal law for certain lawenforcement shootdowns. National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 1012, 108 Stat. 2663, 2837 (1994) (codified at 22 U.S.C. § 2291-4 (1994)). This exception, as later amended, provides that employees and agents of a foreign country engaged in interdictions, under specified circumstances, are not liable for shooting down civil aircraft: Notwithstanding any other provision of law, it shall not be unlawful for authorized employees or agents of a foreign country (including members of the armed forces of that country) to interdict or attempt to interdict an aircraft in that country’s territory or airspace if— (1) that aircraft is reasonably suspected to be primarily engaged in illicit drug trafficking; and (2) the President of the United States has, during the 12-month period ending on the date of the interdiction, certified to Congress with respect to that country that— (A) interdiction is necessary because of the extraordinary threat posed by illicit drug trafficking to the national security of that country; and 14 Liability of Contractors in Airbridge Denial Programs (B) the country has appropriate procedures in place to protect against innocent loss of life in the air and on the ground in connection with interdiction, which shall at a minimum include effective means to identify and warn an aircraft before the use of force directed against the aircraft. 22 U.S.C. § 2291-4(a) (2000 & Supp. II 2003).4 If the conditions specified as to foreign personnel are met, agents and employees of the United States are not liable for assisting the foreign personnel who shoot down the aircraft: Notwithstanding any other provision of law, it shall not be unlawful for authorized employees or agents of the United States (including members of the Armed Forces of the United States) to provide assistance for the interdiction actions of foreign countries authorized under subsection (a) of this section. The provision of such assistance shall not give rise to any civil action seeking money damages or any other form of relief against the United States or its employees or agents (including members of the Armed Forces of the United States). Id. § 2291-4(b) (2000). Accordingly, when an aircraft is “reasonably suspected to be primarily engaged in illicit drug trafficking” and the President of the United States has determined prior to the interdiction that, with respect to a country, interdiction is “necessary because of the extraordinary threat posed by illicit drug trafficking to the national security of that country,” and that the country “has appropriate procedures in place to protect against innocent loss of life,” id. § 22914(a)(1)–(2), the employees and agents of the foreign government and the USG employees and agents who assist them are guilty of no crime as a result of interdicting the aircraft in that foreign country’s territory or airspace. In December 1994, the President made the requisite findings with regard to the Republics of Colombia and Peru, Presidential Determination No. 95-7, 3 C.F.R. 1046 (1995) (Colombia); Presidential Determination No. 95-9, 3 C.F.R. 1047 (1995) (Peru). However, after the Government of Peru in April 2001 accidentally shot down a plane carrying missionaries, the USG suspended its assistance to both countries. The program for Colombia has now been resumed, and programs for other countries could conceivably follow. You have asked us to examine the possible liability of contractors, engaged by the USG or the foreign government, who offer assistance in the conduct of an “airbridge denial program” meeting the standards of the exception in section 2291-4. 4 The term “interdict” means “to damage, render inoperative, or destroy the aircraft.” 22 U.S.C. § 2291-4(d)(1) (Supp. II 2003). 15 Opinions of the Office of Legal Counsel in Volume 28 II. We begin with what should be the exceptional case: where the foreign government is conducting an airbridge denial program that the President has certified under 22 U.S.C. § 2291-4, but an employee or agent of the foreign government nonetheless shoots down a plane in violation of 18 U.S.C. § 32(b). For example, if a foreign government pilot willfully shoots down an aircraft that is not reasonably suspected of being primarily engaged in illegal drug trafficking, the question to be decided is whether a contractor who has given assistance for the interdiction (for example, by supplying and maintaining the radar used in the interdiction) could be liable as aiding and abetting the crime or conspiring to commit it. We start with the exceptional case because it allows us to set out the principles that govern the liability of accessories to crimes. With that background, we then will turn to the usual case, in which a civil aircraft is shot down but the interdiction is lawful because of the exception in 22 U.S.C. § 2291-4. A. In 1909, Congress enacted a general aiding and abetting statute, which has since been amended and codified as 18 U.S.C. § 2(a) (2000) and now provides: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.” Section 2(a) does not create an independent substantive offense, but instead provides that accessories are to be treated and punished as though they were principals. In other words, it eliminates the common-law distinction between principals in the first degree, principals in the second degree, and accessories before the fact. See Standefer v. United States, 447 U.S. 10, 19 (1980); United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177–78 (6th Cir. 1992).5 As the Supreme Court has noted, section 2(a) declares that “those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing the crime.” Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 181 (1994) (citing Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)). As this formulation suggests, and as the plain terms of section 2(a) require, an accessory is culpable under section 2(a) only if the government proves that the underlying offense was, in fact, committed (although the government need not prove the actual identity of the principal).6 5 Under 18 U.S.C. § 3 (2000), accessories after the fact are guilty of a separate offense and suffer lesser punishment. 6 See, e.g., United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996); United States v. Hill, 55 F.3d 1197, 1204–05 (6th Cir. 1995); Superior Growers, 982 F.2d at 178; United States v. Horton, 921 F.2d 540, 543–44 (4th Cir. 1990); United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982). 16 Liability of Contractors in Airbridge Denial Programs The critical question for present purposes is the type of scienter that section 2(a) requires for accessory culpability. “In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’” Nye & Nissen, 336 U.S. at 619 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)); see also 1994 Opinion, 18 Op. O.L.C. at 156.7 The accessory must provide the assistance with the specific intent of aiding the commission of the offense. Because, as we said in 1994, “[t]he contours of this element in the definition of aiding and abetting are not without ambiguity,” id. at 157, and because the Department has addressed the issue of aider and abettor culpability in its Report on the Availability of Bombmaking Information, the Extent to Which Its Dissemination is Controlled By Federal Law, and the Extent to Which Such Dissemination May Be Subject to Regulation Consistent With the First Amendment to the United States Constitution, Submitted to the United States House of Representatives and the United States Senate at 20–21 (April 29, 1997) (“Bombmaking Information Report”), available at http://cryptome.org/abi.htm (last visited June 6, 2013), we believe that further elaboration upon the discussion we offered in the 1994 Opinion is appropriate. In its discussion of culpability under section 2(a) in connection with the provision of bombmaking information, the Department’s Bombmaking Information Report explained: [T]he aider must not only know that her assistance will be in the service of a crime; she also must share in the criminal intent. The defendant must “‘participate in [the venture] as in something that he wishes to bring about, that he seek by his action to make it succeed.’” Nye & Nissen, 336 U.S. at 619 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). As Judge Hand explained in the seminal Peoni case, the intent standard for criminal aiding and abetting is not the same as the “natural consequences of one’s act” test that is the touchstone for “intent” in the civil tort context; criminal intent to aid the crime has “nothing whatever to do with the probability that the forbidden result [will] follow upon the accessory’s conduct.” Peoni, 100 F.2d at 402. Rather, the aider must have a “purposive attitude” toward the commission of the offense. Id. 7 The question of an accessory’s scienter may be somewhat different where the underlying offense does not require purposive conduct, such as where the necessary state of mind for commission of the underlying offense is recklessness or negligence, or where the statute imposes strict liability. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.7(e), at 149–52 (1986); see generally Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining Within the Constraints of Intent, 31 Loy. L.A. L. Rev. 1351 (1998). Because section 32(b)(2) is not such an offense, we need not here consider such questions. 17 Opinions of the Office of Legal Counsel in Volume 28 Bombmaking Information Report at 19 (footnote omitted). The report accordingly concluded that section 2(a) “generally would not prohibit or punish the dissemination of bombmaking information in the case where the disseminator does not have the specific purpose of facilitating a crime but nevertheless knows that a particular recipient thereof intends to use it for unlawful ends.” Id. at 26. The following conclusions regarding the scienter element of aiding and abetting liability are consistent with the Bombmaking Information Report: (i) the scienter element requires that the aider actually “seek by his action to make [the crime] succeed,” id. at 19; (ii) while the aider’s knowledge (or suspicion) that aid will be (or is likely to be) used to commit crimes may be relevant to the evidentiary question of whether the actor purposively assisted the crime, such knowledge is not dispositive of the question of shared purpose, id.; and (iii) it should not, for purposes of section 2(a), automatically be presumed that an aider “intends” the “natural consequences” of his acts, id. As the Department explained in the Bombmaking Information Report, before the Court’s decision in Nye & Nissen there had been a growing debate in the lower courts on whether section 2(a) required purposive assistance, particularly in the case where a person knows, or strongly suspects, that aid he or she provides in the ordinary course of conduct or business will be used to commit a criminal offense.8 It was the view of Judge Learned Hand that “purposive attitude” was essential, and that aiding and abetting under section 2(a) has “nothing whatsoever to do with the probability that the forbidden result would follow upon the accessory’s conduct.” Peoni, 100 F.2d at 402; accord id. (arguing that the “natural consequence of [one’s] . . . act” principle, although germane to a civil case, is not the rule of criminal aiding and abetting culpability). As Judge Hand elaborated in United States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff’d, 311 U.S. 205 (1940): 8 As the Model Penal Code notes, “there are many and important cases” in this category, for exam- ple: A lessor rents with knowledge that the premises will be used to establish a bordello. A vendor sells with knowledge that the subject of the sale will be used in the commission of a crime. A doctor counsels against an abortion during the third trimester but, at the patient’s insistence, refers her to a competent abortionist. A utility provides telephone or telegraph service, knowing it is used for bookmaking. An employee puts through a shipment in the course of his employment though he knows the shipment is illegal. A farm boy clears the ground for setting up a still, knowing that the venture is illicit. Model Penal Code § 2.06 cmt. 6(c), at 316 (Official Draft & Revised Comments 1985). 18 Liability of Contractors in Airbridge Denial Programs In [Peoni] we tried to trace down the doctrine as to abetting and conspiracy, as it exists in our criminal law, and concluded that the seller’s knowledge was not alone enough. Civilly, a man’s liability extends to any injuries which he should have apprehended to be likely to follow from his acts. If they do, he must excuse his conduct by showing that the interest which he was promoting outweighed the dangers which its protection imposed upon others; but in civil cases there has been a loss, and the only question is whether the law shall transfer it from the sufferer to another. There are indeed instances of criminal liability of the same kind, where the law imposes punishment merely because the accused did not forbear to do that from which the wrong was likely to follow; but in prosecutions for conspiracy or abetting, his attitude towards the forbidden undertaking must be more positive. It is not enough that he does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome. That view was challenged, most prominently by Judge John J. Parker in Backun v. United States, 112 F.2d 635 (4th Cir. 1940). In dicta in that case, Judge Parker wrote: Guilt as an accessory depends, not on “having a stake” in the outcome of crime. . . . The seller may not ignore the purpose for which the purchase is made if he is advised of that purpose, or wash his hands of the aid that he has given the perpetrator of a felony by the plea that he has merely made a sale of merchandise. One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun. Id. at 637. In Nye & Nissen, the Court, quoting Peoni, 100 F.2d at 402, held that “[i]n order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’” 336 U.S. at 619 (emphasis added). More recently, in Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994), the Court reaffirmed Nye & Nissen. In Central Bank, the government argued that section 2(a) was pertinent authority for applying a “recklessness” standard for civil aiding and abetting liability under section 10(b) of the Securities and Exchange Act, 15 U.S.C. § 78j(b) (1994). The Court rejected that argument, in part on the ground that the government’s reliance on section 2(a) was “inconsistent” with its argument that a recklessness standard should govern: 19 Opinions of the Office of Legal Counsel in Volume 28 Criminal aiding and abetting liability under § 2(a) requires proof that the defendant “in some sort associate[d] himself with the venture, that he participate[d] in it as in something that he wishe[d] to bring about, that he [sought] by his action to make it succeed.” Nye & Nissen, 336 U.S., at 619 (internal quotation marks omitted). But recklessness, not intentional wrongdoing, is the theory underlying the aiding and abetting allegations in the case before us. 511 U.S. at 190.9 With respect to culpability for aiding and abetting under section 2(a), then, the general question under the Peoni test is whether an individual “[sought] by his action to make [the crime] succeed,” Nye & Nissen, 336 U.S. at 619 (internal quotation marks and citation omitted), i.e., whether the individual “knowingly did some act for the purpose of [aiding] . . . the commission of that crime,” and whether the defendant “acted with the intention of causing the crime charged to be committed.” 1 Edward J. Devitt et al., Federal Jury Practice & Instructions § 18.01, at 693 (4th ed. 1992) (brackets in original). A portion of our 1994 Opinion states a rule that appears to go beyond the scienter requirement of section 2(a) as analyzed above. The 1994 Opinion suggests that “USG agencies and personnel may not provide information (whether ‘real-time’ or other) or other USG assistance (including training and equipment) to Colombia or Peru in circumstances in which there is a reasonably foreseeable possibility that 9 Moreover, the Court’s use of the Peoni standard in Nye & Nissen has led the courts of appeals to adopt that standard. See, e.g., United States v. Teffera, 985 F.2d 1082, 1086 (D.C. Cir. 1993); United States v. de la Cruz-Paulino, 61 F.3d 986, 998 (1st Cir. 1995); United States v. Campa, 679 F.2d 1006, 1010 (1st Cir. 1982); United States v. Best, 219 F.3d 192, 199–200 (2d Cir. 2000); United States v. Jenkins, 90 F.3d 814, 821 (3d Cir. 1996); United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984); Rice v. Paladin Enters., 128 F.3d 233, 251 (4th Cir. 1997) (dictum) (quoting Peoni, 100 F.2d at 402, and characterizing Nye & Nissen as “adopting Judge Hand’s view of the criminal intent requirement”); United States v. Horton, 921 F.2d 540, 543 (4th Cir. 1990); United States v. Richeson, 825 F.2d 17, 21 (4th Cir. 1987); United States v. Branch, 91 F.3d 699, 730 (5th Cir. 1996); United States v. Jaramillo, 42 F.3d 920, 923–24 (5th Cir. 1995); Rattigan v. United States, 151 F.3d 551, 557–58 (6th Cir. 1998); United States v. Hill, 55 F.3d 1197, 1201–02 (6th Cir. 1995); United States v. Sewell, 159 F.3d 275, 278 (7th Cir. 1998); United States v. Simpson, 979 F.2d 1282, 1288 (8th Cir. 1992); United States v. Carranza, 289 F.3d 634, 642 (9th Cir.), cert. denied, 537 U.S. 1037 (2002); United States v. VasquezChan, 978 F.2d 546, 552 (9th Cir. 1992); United States v. Sanchez-Mata, 925 F.2d 1166, 1169 (9th Cir. 1991); United States v. McMahon, 562 F.2d 1192, 1195 (10th Cir. 1977); United States v. Howard, 13 F.3d 1500, 1502 (11th Cir. 1994); cf. Model Penal Code § 2.06(3)(a)(ii) & cmt. 6(c), at 296, 313–19 (recommending the adoption of the equivalent of the Peoni standard in criminal codes). Some panel decisions of the Seventh Circuit analyze the scienter requirement of section 2(a) in a manner that could be construed to be in tension with one or more aspects of the Nye & Nissen/Peoni rationale, see United States v. Fountain, 768 F.2d 790, 797–98 (7th Cir. 1985); United States v. Zafiro, 945 F.2d 881, 887– 88 (7th Cir. 1991), aff’d on other grounds, 506 U.S. 534 (1993); United States v. Ortega, 44 F.3d 505, 508 (7th Cir. 1995); see also United States v. Irwin, 149 F.3d 565, 569–76 (7th Cir. 1998); but an en banc decision of the Seventh Circuit indicates that the Peoni rule is the governing law in that circuit as well. See United States v. Piño-Perez, 870 F.2d 1230, 1235 (7th Cir. 1989) (en banc) (“We and other courts have endorsed Judge Learned Hand’s definition of aiding and abetting . . . .”). 20 Liability of Contractors in Airbridge Denial Programs such information or assistance will be used in shooting down civil aircraft, including aircraft suspected of drug trafficking.” 18 Op. O.L.C. at 162. As far as section 2(a) is concerned, however, a person could be culpable as an aider and abettor only if he provided aid to a foreign nation with the purpose of helping an unlawful shootdown succeed.10 Applying the test for aiding and abetting liability, we turn to the question whether a contractor could be liable when the government it has assisted engages in an unlawful shootdown. Under the applicable test, a contractor would aid and abet a violation of section 32(b)(2) only if he sought by his aid to make the unlawful interdiction succeed.11 There is no definitive test for determining when circumstantial evidence would warrant an inference of the requisite scienter. The nature of the assistance and its relation to the underlying crime, as well as the gravity of the crime, may be pertinent in determining whether the aider sought to make the unlawful shootdown succeed. For example, if the crime is particularly grave, the assistance is essential (in the sense that without it the crime could not be committed and the principal could not readily obtain the assistance from another source), and the particular type of assistance cannot easily be (and is not typically) put to lawful use, it may be reasonable to infer that the facilitator harbored the necessary intent to satisfy 10 It is unclear whether the language in the 1994 Opinion regarding any “reasonably foreseeable possibility” of the unlawful use of the aid could be understood in light of the particular factual background presented there and the concomitant risk that the relevant facts might have been susceptible to an inference of purposive facilitation. See 18 Op. O.L.C. at 162. In particular, the 1994 Opinion observed that certain “USG personnel [had] been fully engaged in the air interdiction operations of each country, providing substantial assistance that . . . contributed in an essential, direct and immediate way” to the ability of the countries at issue “to shoot down civil aircraft.” Id. at 158. Under certain factual scenarios, a finder of fact might have been warranted in finding the requisite scienter for purposes of section 2(a). Moreover, we concluded in the 1994 Opinion that in the shootdown context, because the issue is an individual’s intent, aiding and abetting culpability could not definitively be negated simply by virtue of an official announcement that the USG was opposed to any violations of section 32(b)(2), and, in particular, that the USG was opposed to the use of USG aid in unlawful shootdowns. Id. at 157–58. To be sure, such clear statements, combined with unambiguous instructions to USG personnel never to provide aid for the purpose of facilitating unlawful shootdowns, would have helped to minimize the likelihood of a judicial finding of impermissibly motivated facilitation where aid provided by USG personnel did, in fact, assist a foreign nation in an unlawful shootdown. Cf. id. at 161–62 (advice concerning mitigation of risk of prosecution for unlawful conspiracy). But in particular cases, circumstantial evidence might still have permitted an inference that particular USG personnel, contrary to announced government policy, had provided aid for the purpose of facilitating unlawful shootdowns. Occasionally, “aid rendered with guilty knowledge [that it will be used unlawfully] implies purpose since it has no other motivation.” Model Penal Code § 2.06 cmt. 6(c), at 316. We need not try to resolve such issues here. 11 We should stress, however, that this test does not depend upon the accessory’s ultimate motive. If the person sought by his actions to increase the likelihood that an unlawful shootdown succeed, it does not matter why he wished to facilitate the shootdown—for instance, because of a desire to retain amicable relations with the foreign country. 21 Opinions of the Office of Legal Counsel in Volume 28 the Peoni standard.12 See Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943) (“While [intent to further the unlawful scheme] is not identical with mere knowledge that another purposes unlawful action, it is not unrelated to such knowledge.”). Particularly as to lawful uses of assistance, there is a critical difference between the circumstances of the 1994 Opinion and the circumstances in which a contractor would act now. Now, under specified conditions, the foreign government can lawfully interdict civil aircraft reasonably suspected of being primarily engaged in illegal drug trafficking, whereas in 1994 it could not do so. The circumstances, therefore, do not naturally suggest the possibility that those providing assistance for the airbridge denial program share the purpose of conducting illegal interdictions. On the contrary, the more natural inference, absent particular facts indicating otherwise, is that the contractor intends the assistance to be used in accordance with the rules of the program that the President has certified under 22 U.S.C. § 2291-4. Given such an intent, the contractor would not be guilty of aiding and abetting under 18 U.S.C. § 2(a). B. The general conspiracy statute, 18 U.S.C. § 371 (2000), provides a criminal penalty “[i]f two or more persons conspire . . . to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy.” As the Supreme Court has explained, “agreement remains the essential element of the crime [of conspiracy under 18 U.S.C. § 371], and serves to distinguish conspiracy from aiding and abetting which, although often based on agreement, does not require proof of that fact.” Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975). In the 1994 Opinion, we considered whether a court “might . . . construe ongoing USG assistance [used to shoot down civil aircraft] as evidence of an agreement” that would amount to a conspiracy. 18 Op. O.L.C. at 161. We recommended that the USG “make [its] disapproval of shootdowns in 12 See, e.g., Hill, 55 F.3d at 1201, discussing who could be culpable under section 2(a) for aiding and abetting an unlawful gambling business: [I]t is quite obvious that bettors should not be held criminally liable either under the [substantive] statute or under § 2 and that local merchants who sell the accounting paper or the computers on which bets are registered are not sufficiently connected to the enterprise to be included even if they know that their goods will be used in connection with the work of the business. On the other hand, it seems similarly obvious that the seller of computer hardware or software who is fully knowledgeable about the nature and scope of the gambling business would be liable under § 2 if he installs the computer, electronic equipment and cables necessary to operate a “wire shop” or a parimutuel betting parlor, configures the software programs to process betting information and instructs the owners of the gambling business on how to use the equipment to make the illegal business more profitable and efficient. Such actions would probably be sufficient proof that the seller intended to further the criminal enterprise. 22 Liability of Contractors in Airbridge Denial Programs violation of § 32(b) clear in order to eliminate any suggestion that USG personnel have entered into a conspiratorial agreement with foreign officials.” Id. at 161–62. We also recommended that “USG agencies should specifically instruct their personnel not to enter into any agreements or arrangements with the officials or agents of foreign governments that encourage or condone shootdowns.” Id. at 162 (citation omitted). Once again, the significant difference between the present circumstances and those in 1994 is that, under 22 U.S.C. § 2291-4, a foreign government may maintain a lawful program in which certain civil aircraft are shot down. A contractor who supplies assistance for interdictions, but does not agree to the use of the assistance for unlawful shootdowns, is not guilty of conspiracy. Ordinarily, moreover, if a contractor is providing assistance for a lawful program, and a pilot or other participant in the foreign government’s chain of command in that program commits an act that leads to an illegal shootdown, there will be no reason for a finder of fact to infer that the contractor had agreed to assist in that unlawful act. The reasonable inference, absent facts to the contrary, would be that the contractor, far from agreeing to an illegal use of its assistance, intended that the assistance would be used in accordance with the program that has been certified.13 III. We now turn to, and can briefly dispose of, what should be the more usual case, in which a contractor’s assistance is used for lawful interdictions. Section 2291-4 declares that, when the conditions of a Presidential determination and reasonable suspicion of drug trafficking have been met, “it shall not be unlawful for authorized employees or agents of a foreign country . . . to interdict or attempt to interdict an aircraft in that country’s territory or airspace,” and “it shall not be unlawful for authorized employees or agents of the United States . . . to provide assistance for the interdiction actions.” 22 U.S.C. § 2291-4(a), (b). When these provisions apply, they rule out a contractor’s liability for aiding and abetting. The statute on aiding and abetting provides: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C. § 2(a). As the Supreme Court has explained, and as we noted above, section 2(a) declares that “those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime.” Central Bank, 511 U.S. at 181 (citing Nye & Nissen, 336 U.S. at 619). An accessory thus may be culpable under section 2(a) only if the government proves that the underlying offense was, in fact, committed. See, e.g., United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996); United States v. Hill, 55 F.3d 1197, 1204–05 (6th Cir. 1995); 13 We do not address any possible application of 18 U.S.C. § 2339A, which deals with the provision of material support in connection with a variety of offenses, including 18 U.S.C. § 32. 23 Opinions of the Office of Legal Counsel in Volume 28 Superior Growers, 982 F.2d at 178; United States v. Horton, 921 F.2d 540, 543– 44 (4th Cir. 1990); United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982). Here, however, under section 2291-4, the action that the contractor has assisted “shall not be unlawful,” and there is no underlying offense that the contractor could aid and abet.14 Nor would the lawful interdiction of a civil aircraft create any liability for a contractor under 18 U.S.C. § 371. Because there would be no agreement “to commit any offense against the United States,” the contractor could not be guilty of an unlawful conspiracy under 18 U.S.C. § 371. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 14 In some circumstances, a contractor might be an “agent” of the United States or the foreign government and thus covered directly by the language in 22 U.S.C. § 2291-4 declaring that the specified actions by “authorized employees or agents” are not unlawful. In view of our discussion in the text, we need not resolve the question of the circumstances under which a contractor would be an “agent.” 24

Write a legal research memo on the following topic.

Authority of the President to Designate Another Member as Chairman of the Federal Power Commission While a substantial argument can be made to support the President’s the authority to change the existing designation of the Chairman of the Federal Power Commission and to designate another member of that agency as Chairman, sufficient doubt exists so as to preclude a reliable prediction as to the result should the matter be judicially tested. Apparently the only remedies the present Chairman would have, if his designation should be recalled and another member of the Commission designated as Chairman, would be to bring an action in the nature of quo warranto or sue for the additional $500-a-year annual salary of the Chairman in the Court of Claims. Since the Chairman has no functions additional to those of any other commissioner affecting parties appearing before the Commission, their rights could not be affected even if he should win such a suit. February 28, 1961 MEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL TO THE PRESIDENT This memorandum examines the President’s authority to change the existing designation of the Chairman of the Federal Power Commission and to designate another member of that agency as Chairman. It concludes that, while a substantial argument can be made to support the President’s authority to do so, sufficient doubt exists so as to preclude a reliable prediction as to the result should the matter be judicially tested. Nevertheless, it should be emphasized that apparently the only remedies the present Chairman would have, if his designation should be recalled and another member of the Commission designated as Chairman, would be to bring an action in the nature of quo warranto or sue for the additional $500a-year annual salary of the Chairman in the Court of Claims. Since the Chairman has no functions additional to those of any other commissioner affecting parties appearing before the Commission, their rights could not be affected even if he should win such a suit. I. Section 3 of Reorganization Plan 9 of 1950, 3 C.F.R. 166 (Supp. 1950), 64 Stat. 1265, relating to the Federal Power Commission, provides: Designation of Chairman.—The functions of the Commission with respect to choosing a Chairman from among the commissioners composing the Commission are hereby transferred to the President. Plan 9 was submitted to the Congress by President Truman on March 13, 1950, along with six others relating to six of the regulatory boards and commissions. The plans were “designed to strengthen the internal administration of these bodies,” 206 Authority of the President to Designate Another Member as Chairman of the FPC and a feature was to vest in the President the function of designating the Chairman “in those instances where this function is not already a Presidential one.” H.R. Doc. No. 81-504, at 4 (1950). At the time Plan 9 was transmitted, section 1 of the Federal Water Power Act, as amended, provided for election of the Chairman “by the commission itself,” and permitted “each chairman when so elected to act as such until the expiration of his term of office.” Pub. L. No. 65-280, § 1, 41 Stat. 1063 (June 10, 1920), as amended by Pub. L. No. 71-412, 46 Stat. 797 (June 23, 1930). The President explained, in his transmittal message, with respect to Plans 7–13: In the plans relative to four commissions—the Interstate Commerce Commission, the Federal Trade Commission, the Federal Power Commission, and the Securities and Exchange Commission— the function of designating the Chairman is transferred to the President. The President by law now designates the Chairmen of the other three regulatory commissions covered by these plans. The designation of all Chairmen by the President follows out the general concept of the Commission on Organization for providing clearer lines of management responsibility in the executive branch. H.R. Doc. No. 81-504, at 5.1 No mention was made in the message of the statutory provision relating to the term of service of the Chairman of the Federal Power Commission until the expiration of his term of office. Nor was it mentioned by Budget Director Frederick J. Lawton, when he supported Plan 9 in hearings before the Senate Committee which considered it along with others. Mr. Lawton testified: The plans affecting the Interstate Commerce Commission, the Federal Trade Commission, and the Federal Power Commission provide that the President shall designate a Commissioner to serve as Chairman. These provisions will vest uniformly in the President the function of designating Commission Chairmen. At present he already designates the Chairmen in the Federal Communications Commission, the National Labor Relations Board, and the Civil Aeronautics Board. . . . .... 1 For a further discussion of the concept of the Commission on Organization of the Executive Branch of the Government in this area, see Commission on Organization of the Executive Branch of the Government, The Independent Regulatory Commissions, Rep. No. 12, at 5–6 (1949), reprinted in H.R. Doc. No. 81-116, at 5–6 (1949), which emphasized the desirability of the Chairman exercising administrative control. 207 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Since the President now designates some Chairmen and does not designate others, and since Presidential designation has . . . advantages pointed out by the task force, these plans authorize Presidential designation of Chairmen in all cases. Reorganization Plans Nos. 7, 8, 9, and 11 of 1950: Hearings on S. Res. 253, 254, 255, and 256 Before the S. Comm. on Expenditures in the Executive Departments, 81st Cong. 30–31 (1950) (“Reorganization Hearings”). Because the President at that time had the power to designate the Chairman of each of the three regulatory bodies referred to,2 it could be inferred that the intent to produce uniformity in this respect extended to the Federal Power Commission. However, the fact that Plan 9 dealt only with the designation of the Chairman, and left his term, as fixed by the Federal Water Power Act, untouched was expressly called to the attention of the Senate Committee on Expenditures in the Executive Departments, the only congressional body which held a hearing on the plan. 3 That Committee had before it comments, submitted at its request, by the Federal Power Commission. A separate statement was also submitted by one of its commissioners. The Commission commented favorably on the plan and observed that, although it had “recommended that the present statutory provision that a Chairman be elected and retain office for the balance of his term be amended, so as to provide that the Chairman be elected annually,” it saw “no serious objection to the proposed designation of the Chairman by the President.” Reorganization Hearings at 215. In his separate statement, Commissioner Thomas C. Buchanan took sharp issue with the provision for choosing a Chairman. He stated: The provision for the selection of the Chairman by the President changes only the method of “choosing” and does not affect the term of the Chairman so selected under existing law. The term of a Federal Power Commissioner is presently 5 years, therefore, a President in the fourth year of his term might select as Chairman the member of the Commission nominated by him and confirmed by the Senate during that year. Under the terms of plan 9 as applied to the old law, the Chairman so selected would serve as such not only during the fourth year of the Presidential term in which 2 The Federal Communications Act, Pub. L. No. 73-416, § 4, 48 Stat. 1064, 1066 (1934), and the National Labor Relations Act, Pub. L. No. 74-198, § 3, 49 Stat. 449, 451 (1935), provided no fixed term for the Chairmen. However, the Civil Aeronautics Act, Pub. L. No. 75-706, § 201, 52 Stat. 973, 980 (1938), provided for designation of the Chairman annually by the President. 3 No resolution for disapproval of Plan 9 was introduced in the House of Representatives. Consequently, there were no hearings or discussion on the floor in that branch of the Congress. 208 Authority of the President to Designate Another Member as Chairman of the FPC he was appointed, but likewise 4 years of the succeeding term even though there may be a change in the Presidential office. The provision of plan 9 relating to appointment might better carry out the intent of the administration if it provided that . . . chairmen shall be appointed annually by the President. Id. at 215–16. Despite the Buchanan observations, the Senate Committee reported favorably and recommended that the Congress approve Plan 9. It reported: The designation of the Federal Power Commission Chairman by the President would provide an entirely normal channel of communication to the Commission without impairing its independence in any way. The alleged “inherent dangers” which some witnesses projected into the future simply do not exist in fact as was proved conclusively during the committee hearings when witnesses were unable to cite any evidence whatsoever of Presidential domination of the chairmen of the five regulatory agencies which he presently appoints. S. Rep. No. 81-1563, at 5–6 (1950). When the Plan reached the floor of the Senate, the matter of presidential designation of the Chairman was an important subject of debate. Strong objection was voiced by Senator Long to permitting the President “to name the chairman.” 96 Cong. Rec. 7380 (May 22, 1950). Senator Capehart likewise opposed the Plan “for the simple reason that under it the President will be given authority to name the Chairman.” Id. Senator Johnson called attention of the Senate to the peculiar application of the presidential designation provisions to the Federal Power Commission, quoting the statement filed with the Senate Committee by Commissioner Buchanan, and noted that none had “found any fault with Mr. Buchanan’s facts” in regard to the proposal. Id. at 7381. Senator Johnson’s reference was not pursued. Objections to presidential designation did not prevail and the resolution to disapprove the Plan was defeated by a vote of 37 to 36. Id. at 7383 (disapproving S. Res. 255, 81st Cong.). As a result Plan 9 became effective—pursuant to the provisions of the Reorganization Act of 1949, Pub. L. No. 81-109, 63 Stat. 203 (codified at 5 U.S.C. §§ 133z et seq. (1958))—on May 24, 1950. 64 Stat. 1265. II. In light of the foregoing history a substantial argument can be made that approval of Plan 9 by the Congress resulted in vesting in the President the authority to designate the Chairman of the Federal Power Commission and to change that designation from time to time without limitation. The argument would rest on the 209 Supplemental Opinions of the Office of Legal Counsel in Volume 1 reasoning that the purpose of the plans, as described in the presidential message and executive testimony, was to bring uniformity into the designation arrangements for all seven of the regulatory commissions for which plans were submitted. Since Congress was aware of the existing right of the Chairman to serve as such throughout his term in the Federal Power Commission, it might be assumed that in the interest of uniformity it was meant to substitute for that arrangement an unlimited authority in the President with respect to the designation and removal of the Chairman of the Federal Power Commission and that this was accomplished by Plan 9. Moreover, the power to remove an officer is traditionally regarded as an incident of the power to designate or choose him, cf. Myers v. United States, 272 U.S. 52, 161 (1926), and it seems it would be logical to conclude that, in context, the power to choose a Chairman conferred on the President by Plan 9 was intended to be broad enough to cover the incidental power of replacing him. This is made plain by the President’s statement that the purpose of the plans was to give the President the same powers with respect to the Federal Power Commission as he already had with respect to at least two other regulatory commissions and by the testimony of the Budget Director emphasizing the need for uniformity. In other words, the function of “choosing a chairman” was intended to include all the powers incident thereto, including removal as Chairman, and therefore the plan, when it became effective, operated as subsequent legislation repealing previous inconsistent legislation. It is true that Commissioner Buchanan had presented to the Committee his view that once a commissioner had been designated as Chairman the designation could not be changed during that commissioner’s term. However, there is no evidence that the Committee adopted this view, the report being silent in this respect. Similarly, it can be argued that the fact that Commissioner Buchanan’s view was also brought to the attention of the Senate is no indication that this was the view the Senate took of the matter. Further, if Plan 9 had been enacted in the course of the removal legislative process, greater weight might have to be given to Congress’s failure to adopt an appropriate amendment to meet the problem raised by the contention that Plan 9 dealt only with the method of designating the Chairman as provided in the Federal Water Power Act, and not with his term. But the process of adoption of a reorganization plan differs markedly from the normal legislative process, and less weight must, therefore, be afforded to the failure to amend. Under section 6 of the Reorganization Act of 1949 (5 U.S.C. § 133z-4 (1958)) Congress had no opportunity to amend. A plan could either be permitted to take effect or be rejected by a resolution of either House expressing disfavor. Finally, it appears clear that the President intended to place the Federal Power Commission in a situation similar to the other regulatory agencies. The House permitted the plan to go into effect on his recommendation without discussion, thereby adopting his view of the matter. Furthermore, in the absence of an 210 Authority of the President to Designate Another Member as Chairman of the FPC opportunity to amend, the Senate discussion should not be regarded as establishing a different intention. On the other hand, Plan 9 literally refers only to “[t]he functions of the Commission with respect to choosing a Chairman” (emphasis supplied). It does not purport to deal with his term. This interpretation gains strength from the fact that the Chairman of the Civil Aeronautics Board, one of the agencies to which the President pointed as a model, had a fixed term of one year. 49 U.S.C. § 1321(a)(2) (1958). It can, therefore, be contended that the intent was actually to deal only with designation and that, even if broader powers to replace had been intended to be conferred upon the President, the language simply failed to effectuate this result. It may be of significance in this respect that, as it now appears in the United States Code, section 1 of the Federal Water Power Act, which incorporates both the original provisions of the Federal Water Power Act and Plan 9, states that the President shall designate the Chairman and that “[e]ach Chairman, when so designated, shall act as such until the expiration of his term of office.” 16 U.S.C. § 792 (1958). Thus, rather than repealing prior legislation, the language of Plan 9 can be read consistently with section 1 of the Federal Water Power Act. Removal of the limitation can, of course, be effected through amending legislation. It is not altogether clear that the reorganization method (if lapsed reorganization authority is reinstated as presently proposed) would be an available means for action which only alters the statutory term of the Chairman. Section 4(2) of the Reorganization Act of 1949 provides that any plan transmitted by the President, pursuant to section 3, “may include provisions for the appointment and compensation of the head” of an agency. 5 U.S.C. § 133z-2(2). The term of office of the head of the agency so provided for “shall not be fixed at more than four years.” However, section 4(2) appears to limit the President’s authority to provide for the appointment of the head of an agency only to circumstances in which “the President finds, and in his message transmitting the plan declares, that by reason of a reorganization made by the plan such provisions are necessary.” The implication, therefore, is that the authority conferred by section 4(2) may be used only in support of a reorganization plan containing other provisions. It would follow that, unless the provision relating to the Chairman were part of a reorganization plan affecting other operations of the Federal Power Commission, the authority contained in the section would not be available. Even if the President should designate a new Chairman and it should ultimately be decided by the courts that the President was not authorized to do so, the decision would not appear appreciably to affect the operations of the Commission in the interim. The provisions of the statute which created the Federal Power Commission (Pub. L. No. 66-280), the legislation which reorganized the Commission in 1930 (Pub. L. No. 71-412), and its rules and regulations have been examined, and nothing therein indicates that the powers of the Commission are to be exercised other than by the Commission as a whole. There are no unique powers vested in the Chairman which are any different from those vested in other 211 Supplemental Opinions of the Office of Legal Counsel in Volume 1 members of the Commission. The Commission is authorized and empowered to act as a body no matter which of its members is Chairman. 16 U.S.C. § 797 (1958). The provisions of Reorganization Plan 9 did not change this statutory pattern. The plan transferred administrative functions to the Chairman, but it was intended, as the President explained in his message transmitting the plan, that the changes affected only “[p]urely executive duties.” H.R. Doc. No. 81-504, at 4 (1950) (quotation omitted). It was made clear that the plan vested in the Chairman . . . responsibility for appointment and supervision of personnel employed under the Commission, for distribution of business among such personnel and among administrative units of the [Federal Power] Commission, and for the usage and expenditure of funds. Id. The Senate Committee found that the Plan did not “derogate from the statutory responsibilities placed upon the other members of the Commission. They remain exactly as they are . . . .” S. Rep. No. 81-1563, at 3 (1950) (quotation omitted). Accordingly, it is difficult to see how a change in the chairmanship could affect the Commission or the rights of third parties. The possibility exists that administrative actions, e.g., employments, discharge, etc., taken by a Chairman, later determined to have been improperly designated, could be challenged, but this is believed to be of minimal consideration. III. Even if it were to be assumed that the Chairman had functions which were unique to his office, the authority of his successor to act as Chairman probably could not be challenged by third parties under the “well-recognized rule that the title of one holding a public office is not subject to collateral attack and that his title can only be inquired into in some direct proceeding instituted for that purpose.” Annotation, Habeas Corpus on Ground of Defective Title to Office of Judge, Prosecuting Attorney, or Other Officer Participating in Petitioner’s Trial or Confinement, 58 A.L.R. 529, 529 (1945); see also Ex parte Henry Ward, 173 U.S. 452 (1899); McDowell v. United States, 159 U.S. 596 (1895). It is assumed, however, that if the present Chairman were replaced his remedy would be either to sue in the Court of Claims for the additional salary ($500 per year) of which he would be deprived, for the period between the date of the change and the date on which his term of office expires, or to bring an action in the nature of quo warranto. Such an action was initiated by a member of the War Claims Commission upon his removal by President Eisenhower. The action was dismissed on the merits in the District Court, and in the Court of Appeals the appeal was dismissed as moot by stipulation of the parties. See Wiener v. United 212 Authority of the President to Designate Another Member as Chairman of the FPC States, 357 U.S. 349, 351 n.* (1958), cf. Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1914). As pointed out above, even if the present Chairman should prevail in any such suit, this would not affect the actions of the Federal Power Commission in the interim. NICHOLAS deB. KATZENBACH Assistant Attorney General Office of Legal Counsel 213

Write a legal research memo on the following topic.

Fourth Amendment Implications of Military Use of Forward Looking Infrared Radars Technology for Civilian Law Enforcement Forw ard L ooking In frared R adars (FL IR ) reconnaissance o f structures on private lan d s does not constitute a search w ithin the m eaning o f the Fourth A m endm ent. D epartm ent o f D efen se personnel engaged in such surveillance would not be su b ject to liability for dam ages in a constitutional tort action. March 4, 1992 M em orandum D O p in io n f o r t h e epartm ent o f D General C o u n sel efen se This memorandum is in response to your request for further advice con­ cerning the use of Forward Looking Infrared Radars (“FLIR”) technology by the Department of Defense (“DoD”) to assist civilian law enforcement agen­ cies. In a memorandum dated February 19, 1991, this Office advised that, under existing statutory authority, DoD may assist civilian law enforcement agencies to identify or confirm suspected illegal drug production within struc­ tures located on private property by conducting aerial reconnaissance that uses FLIR technology.1 You subsequently requested an opinion from this Office on the question whether FLIR surveillance of structures on private property constitutes a “search” within the meaning of the Fourth Amendment.2 A memorandum that you have made available to us preliminarily concludes that FLIR reconnaissance of structures on private lands does constitute such a search.3 For the reasons set forth herein, we conclude that it does not. 1M ilitary Use o f Infrared Radars Technology to Assist Civilan Law Enforcement Agencies, 15 Op. O.L.C. 36(1991). 2Letter for J. Michael Luttig, Assistant Attorney General, Office o f Legal Counsel, from Terrence O ’Donnell, General Counsel, Department of Defense (Apr. 11, 1991). 3Memorandum for Terrence O’Donnell, Genera) Counsel, Department o f Defense, from Robert M. Smith, Jr. (Sept. 19, 1990) (“Smith Memorandum"). Other parties to examine the issue have reached differing conclusions. Compare Memorandum for Office of the Deputy C hief of Staff for Operations and Plans, from Patrick J. Parrish, Assistant to the General Counsel, Department of the Arm y (Sept. 17, 1990) (FLIR surveillance is a search under Fourth Amendment) with M emorandum for Joint Chiefs o f Staff, from Lt. Col. C.W. Hoffman, Jr., Deputy LLC (Aug. 14, 1990) (FLIR not a search) an d M em oran­ dum of Staff Judge Advocate for the Commander-in-Chief of the Pacific Command (attached to Letter for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from Terrence O ’Donnell. General Counsel, Departm ent of Defense (Nov. 21, 1990)) (same). 41 L Our February 19 memorandum sets forth the facts relevant to FLIR tech­ nology, and we briefly recount them here. FLIR is a passive technology that detects infrared radiation generated by heat-emitting objects. Infrared rays are received by the FLIR system, electronically processed, and projected on a screen as a visual image in the shape of the object that is emitting the heat. The w anner the object, the brighter the image of the object appears. See U nited States v. Sanchez, 829 F.2d 757, 759 (9th Cir. 1987); United States v. Kilgus, 571 F.2d 508, 509 (9th Cir. 1978); United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991), a ff’d sub nom. United States v. Feeney, 984 F.2d (9th Cir. 1993). FLIR does not have the characteristics of an X-ray technology. We have been informed that it cannot provide information concerning the interior of a container or structure. It detects only heat emanating from surfaces that are directly exposed to the FLIR system. Thus, for example, if there were heat-producing objects within a building, FLIR could detect that more infra­ red radiation was being emitted from the building’s roof than if the building were empty, but the system could not identify the shapes of heat-emitting objects located within the structure. Nor could the system identify the source o f the heat or the precise location of the heat source within the structure. Law enforcement agencies believe that FLIR technology can be useful in identifying buildings that house marijuana crops, or methamphetamine or other drug processing laboratories. In particular, FLIR can aid law enforce­ ment officials in establishing probable cause to believe that criminal activity is being conducted within a particular building by determining whether the building is radiating unusually large amounts of heat (due to the use of high intensity lighting or combustion generators) or unusually small amounts of heat (due to heavy insulation designed to mask the use of lighting or genera­ tors). Recently, therefore, federal and state law enforcement agencies have requested that military aircraft equipped with FLIR fly over suspect build­ ings on private lands and produce infrared images of those structures.4 We concluded in our February 19 memorandum that DoD has authority to provide the requested assistance under the provisions of 10 U.S.C. §§ 371-378, which are designed to promote cooperation between military personnel and ci­ vilian law enforcement officials. We now consider whether such assistance constitutes a “search” within the meaning of the Fourth Amendment to the Constitution. 4 The D epartm ent of Defense has informed us of three requests for assistance that present the question w hether such surveillance constitutes a Fourth Amendment search. The Drug Enforcement Adminis­ tration (“DEA ") has asked the Army to conduct infrared imaging o f a bam on private land in which the DEA suspects that m arijuana is being cultivated. Second, a law enforcem ent agency has requested that an A rm y flight crew conduct a training mission over certain private lands and buildings in the vicinity o f W ichita, K ansas, using an Army helicopter equipped with FLIR, to identify suspected illegal mari­ ju an a cultivation. Third, the DEA has asked that the Army undertake flights in OH-58D helicopters equipped w ith FLIR, at a height of at least 500 feet above ground, to identify dwellings and other structures on private land in Arizona that the DEA suspects contain methamphetamine laboratories. 42 II. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particu­ larly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Until the 1960’s, the Supreme Court interpreted the amendment to apply only to searches or seizures of the tangible things re­ ferred to in the text: “persons, houses, papers, and effects.” In O lm stead v. United States, 277 U.S. 438, 465 (1928), overruled by Berger v. New York, 388 U.S. 41 (1967), for example, the Court held that the interception of telephone conversations by government wiretaps did not implicate the Fourth Amendment, reasoning that “[t]he language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office.” The traditional interpretation of the Fourth Amendment was also limited to cases where the government committed a physical trespass to acquire information. In Olmstead, the Court noted that the wiretaps were conducted “without trespass upon any property of the defendants.” 277 U.S. at 457. In two eavesdropping cases, Goldman v. United States, 316 U.S. 129, 134-35 (1942), overruled by Katz v. United States, 389 U.S. 347 (1967), and On Lee v. United States, 343 U.S. 747, 751-52 (1952), the absence of a physical trespass was important to the Court’s conclusion that no Fourth Amendment search had been conducted. Only where “eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occu­ pied by the petitioners” did the Court hold that eavesdropping implicated the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 509 (1961). These limitations on the scope of the Fourth Amendment were eliminated by the Court in a series of decisions during the 1960s. In Berger, 388 U.S. at 51, the Court held that “ ‘conversation’ was within the Fourth Amendment’s protections, and that the use of electronic devices to capture it was a ‘search’ within the meaning of the Amendment” In Katz, 389 U.S. at 353, the Court overruled the “trespass” doctrine enunciated in Olmstead, and held that eaves­ dropping conducted through the placement of a listening device on the outside of a telephone booth constituted a “search and seizure” under the Fourth Amendment. Subsequent decisions have constructed a two-part inquiry, derived from Justice Harlan’s concurring opinion in Katz, to determine whether a govern­ ment activity constitutes a Fourth Amendment search: “[F]irst, has the 43 individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). See also California u Greenwood, 486 U.S. 35, 39 (1988); United States v. Knotts, 460 U.S. 276, 280-81 (1983); Smith v. M aryland, 442 U.S. 735, 740 (1979); K a tz , 389 U.S. at 361 (Harlan, J„ concurring). A. It will always be difficult to determine with certainty whether the owners or users of specific structures have subjective expectations of privacy that would be infringed by the proposed aerial reconnaissance. On the face of the matter, however, it seems unlikely that the owner of a structure would subjectively expect that the amount of heat emitted from the roof of the structure will remain private. Heat is inevitably discharged from structures that contain electrical equipment such as lights or generators, and we are informed by DoD that FLIR equipment has been used by law enforcement agencies for years to detect heat-emitting objects. Smith Memorandum at 6. The only court to address the Fourth Amendment implications of FLIR con­ cluded that the owners of a private residence that was monitored by FLIR “did not manifest an actual expectation o f privacy in the heat waste since they voluntarily vented it outside the garage where it could be exposed to the public and in no way attempted to impede its escape or exercise domin­ ion over it.” Penny-Feeney, 773 F. Supp. at 226. Moreover, it is likely that most people expect that law enforcement agencies will use information that is available to them for the detection of crime. Absent more detailed infor­ mation about the expectations of the individuals involved, we will turn to the second prong of the Fourth Amendment inquiry described by the Su­ preme Court for determining whether government activity constitutes a Fourth Am endment search.5 1. The second question posed by the Supreme Court’s analysis is whether FLIR surveillance, by detecting the amount of heat emitted from the exterior o f a structure on private property, intrudes upon an expectation of privacy that society is willing to recognize as reasonable. The Supreme Court has not developed a clear doctrine that would indicate what is an objectively ’ The Suprem e Court has never relied solely on the first prong of its two-part inquiry to hold that a governm ent activity is not a search under the Fourth Amendment. The Court itself has suggested that the “ subjective” elem ent o f the inquiry m ay be an “ inadequate index o f Fourth Amendment protection,” Sm ith v. M aryland, 442 U.S. at 740 n.5, because, “[fjor exam ple, if the Government w ere suddenly to announce on nationw ide television that all homes henceforth would be subject to warrantless entry, individuals thereafter m ight not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects." Id. 44 reasonable expectation of privacy in a case where neither a physical trespass into a home or curtilage nor a physical search of tangible objects enumer­ ated in the text of the Fourth Amendment is involved. In Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978), the Court did explain that “[l]egitimation of expectations of privacy by law must have a source outside o f the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”6 Sim i­ larly, in Robbins v. California, 453 U.S. 420, 428 (1981), disposition'bverruled on other grounds, United States v. Ross, 456 U.S. 798 (1982), a plurality of the Court ventured that “[expectations of privacy are established by general social norms.” What remains unclear from these and other decisions, how­ ever, is the m ethodology that should be employed to determ ine w hat expectations o f privacy “society” is prepared to recognize as reasonable. The Fourth Amendment’s protections are best discerned by reference to the Supreme C ourt’s prior decisions in the area. Cf. Allen v. Wright, 468 U.S. 737, 751 (1984) (given the absence of precise definitions in standing doctrine, courts may answer standing questions through comparison with prior cases). Applying the oft-stated principle articulated by the Court in Katz that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” Katz, 389 U.S. at 351 (citations omitted), we conclude that the use of FLIR to conduct aerial reconnaissance of structures is not a Fourth Amendment search.7 The Supreme Court has applied the “public exposure” rule to cases in­ volving aerial surveillance of private property.8 In Ciraolo, the Court held that police officers did not conduct a Fourth Amendment search when they traveled over respondent Ciraolo’s home in a fixed-wing aircraft at an alti­ tude of 1000 feet and observed, with the naked eye, marijuana plants growing in a garden within the curtilage of Ciraolo’s home. Although the home and garden were surrounded by double fences of six and ten feet in height, the Court noted that “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” 476 U.S. at 213-14. Accordingly, the Court held that “respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.” Id. at 214. Similarly, in Florida v. Riley, 488 U.S. 445 (1989), the Court held that helicopter surveillance of the interior of a greenhouse, located within the ‘ The Supreme Court has referred interchangeably to “legitimate" and “reasonable” expectations o f privacy. See Ciraolo, 476 U.S. at 220 n.4 (Powell, I., dissenting). ’ The District Court in Penny-Feeney, 773 F. Supp. at 226-28, relied to some extent on the “public exposure" doctrine to hold that FLIR surveillance of a private home did not violate a reasonable expec­ tation o f privacy of the residents. Although we concur with the result in that case, we do not agree with all of the court's reasoning. 8The Court has not equated the scope of the "public exposure” doctrine with subjective expectations o f privacy. The Court has assumed that a person may have a subjective expectation of privacy even in that which he “knowingly exposes to the public." E.g., Ciraolo, 476 U.S. at 213. 45 curtilage of respondent Riley’s home, did not constitute a search under the Fourth Amendment. Although the interior of Riley’s greenhouse was not visible from the adjoining road, the investigating officer discovered that the sides and roof of the greenhouse were left partially open, and that the inte­ rior o f the greenhouse — including marijuana plants — could be observed with the naked eye from a helicopter circling over Riley’s property at an altitude o f 400 feet. A plurality of the Court, noting that “[a]ny member of the public could legally have been flying over Riley’s property in a helicop­ ter at the altitude of 400 feet and could have observed Riley’s greenhouse,” concluded that the case was controlled by Ciraolo. Id. at 451. Justice O ’Connor, concurring in Riley, also concluded that there was no Fourth Amendment search, although she believed that “there is no reason to assume that compliance with FAA regulations alone” means that the govern­ ment has not interfered with a reasonable expectation of privacy. Id. at 453 (O ’Connor, J., concurring in judgment). In Justice O’Connor’s view, the controlling question was whether “the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regular­ ity that R iley’s expectation of privacy from aerial observation was not ‘one that society is prepared to recognize as reasonable.’” Id. at 454 (quoting K a tz , 389 U.S. at 361) (internal quotations omitted). Because Riley had not shown that air travel at an altitude of 400 feet was extraordinary, Justice O ’Connor concluded that the helicopter surveillance was not a “search.” The Court has also applied the “public exposure” doctrine to hold that an individual has no reasonable expectation of privacy in garbage left at the curb outside his home for pickup by trash collectors, California v. Green­ w ood, in telephone numbers dialed and thus conveyed automatically to the telephone company, Smith v. M aryland, or in a route traveled by an automo­ bile on a public highway or the movements of objects in “open fields,” even when they are monitored surreptitiously by an electronic beeper. United States v. Knotts. In each of these cases, the Court reasoned that individuals had openly displayed their activities or objects to public view and therefore enjoyed no expectation of privacy that society is prepared to recognize as reasonable. We believe that the use o f FLIR to observe heat emissions from the exterior o f structures on private property is analogous to the surveillance activities undertaken by the government in the “public exposure” cases. As­ suming that the aerial surveillance is to take place from airspace sometimes used by the public — and we have not been provided with precise informa­ tion on that issue — the question presented by FLIR surveillance is quite com parable to those decided by the Court in Ciraolo and Riley. “[T]he home and its curtilage are not necessarily protected from inspection that involves no physical invasion.” Riley, 488 U.S. at 449 (plurality opinion). The owner of a structure on private property knowingly, indeed almost in­ evitably, emits heat from the structure, and any member of the public flying over the structure could detect those heat emissions with FLIR. 46 We recognize, of course, that the investigating officers in Ciraolo and Riley conducted their visual observations with the naked eye, while FLIR surveillance employs technology to detect what an investigator could not observe on his own. Decisions of the Supreme Court and courts o f appeals suggest, however, that the use of technological means to gather information will not amount to a Fourth Amendment search where the government does not thereby observe the interior of a structure or any other “intimate details” o f the home or curtilage. In view of the limited information disclosed by FLIR, we do not believe that the use of such technology in the proposed recon­ naissance missions would constitute a “search” under the Fourth Amendment. As a threshold matter, it is clear that the use of technological devices to acquire information that would be unattainable through the use of natural senses does not necessarily implicate the Fourth Amendment. In United States v. Lee, 274 U.S. 559, 563 (1927), the Supreme Court held that the use of a searchlight by the Coast Guard to examine a boat on the high seas did not violate the Fourth Amendment. The Court explained that “[s]uch use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” In On Lee, 343 U.S. at 754, the Court said in dictum that “[t]he use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one sup­ poses to be private indiscretions.” And in United States v. White, 401 U.S. 745, 753 (1971), a plurality of the Court concluded that “[a]n electronic recording will many times produce a more reliable rendition of what a de­ fendant has said than will the unaided memory o f a police agent . . ., but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amend­ ment privilege against a more accurate version of the events in question.” The courts of appeals have held that the interception o f communications from radio frequencies that are accessible to the general public does not constitute a Fourth Amendment search, even though radio waves cannot be perceived by natural senses. E.g., United States v. Rose, 669 F.2d 23, 26 (1st Cir.), cert, denied, 459 U.S. 828 (1982); Edwards v. Bardwell, 632 F. Supp. 584, 589 (M.D. La.), aff'd, 808 F.2d 54 (5th Cir. 1986). The Supreme Court discussed the use of sophisticated surveillance equip­ ment in Dow Chemical Co. v. United States, 476 U.S. 227 (1986). There, the Court considered the Fourth Amendment implications of aerial surveil­ lance by the Environmental Protection Agency, which made use o f precise photographic equipment to observe the open areas of an industrial facility. In holding that the surveillance was not a “search,” the Court noted that the photographic equipment could permit “identification of objects such as wires as small as 1/2-inch in diameter,” id. at 238, and addressed the significance of the equipment for the Fourth Amendment: 47 It may well be, as the Government concedes, that surveil­ lance o f private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally pro­ scribed absent a warrant. But the photographs here are not so revealing o f intimate details as to raise constitutional con­ cerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility’s buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. Id. (emphasis added). So too here, FLIR does not reveal intimate details concerning persons, objects, o r events within structures. The C ourt’s concern over observation of “intimate details” has been re­ peated in cases involving private homes and their curtilage. In Ciraolo, for example, the Court went out o f its way to note that “[t]he State acknowl­ edges that ‘[a]erial observation of curtilage may become invasive, either due to physical intrusiveness or through modem technology which discloses to the senses those intimate associations, objects or activities otherwise imper­ ceptible to police or fellow citizens.’” 476 U.S. at 215 n.3 (emphasis added). M ore significantly, the plurality in Riley, in concluding that helicopter sur­ veillance of Riley’s greenhouse did not constitute a search, found it important that “no intimate details connected with the use of the home or curtilage were observed.” 488 U.S. at 452.9 The courts of appeals that have considered the Fourth Amendment impli­ cations o f magnification technology used by the government to collect information have distinguished between surveillance of the interior of a home, which has been deemed a search, and observation of the curtilage, which has not. In U nited States v. Taborda, 635 F.2d 131 (2d Cir. 1980), the Second Circuit held that the use of a high-powered telescope to peer through the window o f an apartment was a “search” under the Fourth Amendment. The court reasoned that “[t]he vice of telescopic viewing into the interior of a hom e is that it risks observation not only of what the householder should realize might be seen by unenhanced viewing, but also o f intimate details o f a p e rso n ’s private life, which he legitimately expects will not be observed either by naked eye or enhanced vision.” Id. at 138-39 (emphasis added). ’ Justice Brennan, in his dissent in Riley, criticized the majority on this point, suggesting that the police ju st as easily could have observed intim ate details o f Riley's personal activities, although all they hap­ pened to observe was evidence of crime. 488 U.S. at 463 (Brennan, J., dissenting). FLIR, however, is incapable of revealing intim ate details. It simply provides information about surface heat, from which general inferences som etim es can be draw n. A ccord United States v. Kim, 415 F. Supp. 1252, 1254-56 (D. Haw. 1976) (use of telescope to view inside of apartment was Fourth Am endm ent “search”); State v. Ward, 617 P.2d 568, 571-73 (Haw. 1980) (use of binocu­ lars to view inside of apartment was “search”); State v. Knight, 621 P.2d 370, 373 (Haw. 1980) (aerial observation with binoculars of inside of closed greenhouse was “search”).10 Subsequently, however, the Second Circuit distinguished Taborda in a case involving the use of binoculars and a high-powered spotting scope to observe an outdoor area adjacent to a house and garage. In United States v. Lace, 669 F.2d 46 (2d Cir.), cert, denied, 459 U.S. 854 (1982), the court explained that Taborda “proscribed the use of a telescope by a policeman only so far as it enhanced his view into the interior of a home.” Id. at 51. The Fourth Amendment was not implicated by the use of binoculars and a spotting scope “in places where the defendant otherwise has exposed him­ self to public view.” Id. Reflecting subsequently on Taborda and Lace, the Second Circuit declared that “it was not the enhancement of the senses p e r se that was held unlawful in Taborda, but the warrantless invasion o f the right to privacy in the home. In contrast, the warrantless use of supplemen­ tal resources including mechanical devices, such as binoculars, to observe activities outside the home has been consistently approved by the courts.” United States v. Bonfiglio, 713 F.2d 932, 937 (2d Cir. 1983). The Ninth Circuit, when considering surveillance conducted with magni­ fication devices, has similarly focused on the privacy interest associated with the area or activity observed, rather than on the nature of the technol­ ogy used. In United States v. Allen, 675 F.2d 1373 (9th Cir. 1980) (Kennedy, J.), cert, denied, 454 U.S. 833 (1981), the court held that surveillance of private ranch property from a Coast Guard helicopter, by a Customs official using binoculars and a telephoto lens, did not infringe upon a reasonable expectation of privacy. The court emphasized that “[w]e are not presented with an attempt to reduce, by the use of vision-enhancing devices or the incidence o f aerial observation, the privacy expectation associated with the interiors o f residences or other structures .” Id. at 1380 (emphasis added). Other courts have approved the distinction for Fourth Amendment purposes between enhanced viewing of the interior of private structures and the en­ hanced viewing of activities or objects outside such buildings. D ow Chemical Co. v. United States, 749 F.2d 307, 314-15 & n.2 (6th Cir. 1984), aff'd, 476 U.S. 227 (1986); United States v. Michael, 645 F.2d 252, 258 n.16 (5th Cir.), cert, denied, 454 U.S. 950 (1981); United States v. Devorce, 526 F. Supp. 191, 201 10 Prior to Taborda, some courts held that enhanced viewing o f the interior of certain structures on private property did not constitute a search. Fullbright v. United States, 392 F.2d 432, 434 (10ih Cir.) (use o f binoculars to view inside of open shed near house), cert, denied, 393 U.S. 830 (1968); People v. Hicks, 364 N.E.2d 440, 444 (111. App. 1st Dist. 1977) (use of binoculars to view interior of residence); State v. Thompson, 241 N.W.2d 511, 513 (Neb. 1976) (use of binoculars to view interior o f residence through curtains); State v. Manly, 530 P.2d 306 (Wash.) (use of binoculars to view interior of apartm ent), cert, denied, 423 U.S. 855 (1975); Commonwealth v. Hernley, 263 A.2d 904 (Pa. Super. 1970) (use of binoculars to look through window of print shop), cert denied, 401 U.S. 914 (1971). 49 (D. Conn. 1981). Cf. New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”); Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion) (taking of paint scrapings from the exterior of a vehicle left in a public parking lot did not infringe legitimate expectation of privacy where “nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched”). State and federal courts have followed a similar line of reasoning when considering the use o f light-intensifying “nightscopes” to conduct surveil­ lance in the dark. In United States v. Ward, 546 F. Supp. 300, 310 (W.D. Ark. 1982), a f f ’d in relevant p a rt, 703 F.2d 1058, 1062 (8th Cir. 1983), the court held that the use of a nightscope to observe the movements of indi­ viduals outside a bam did not constitute a search, where “[t]he officers did not ‘peep’ or peer into or through any windows or skylights,” or “obtain a view o f objects or persons normally physically obscured.” Id. at 310. In U nited States v. Hensel, 509 F. Supp. 1376 (D. Me. 1981), a ff’d, 699 F.2d 18 (1st Cir.), cert, denied, 461 U.S. 958 (1983), the court stated that the use of nightscopes “transgresses no Fourth Amendment rights” where drug enforce­ ment agents used the scopes to observe activities on a private dock “but could not see into the buildings.” Id. at 1384 n.9. The First Circuit, al­ though not resolving the issue, subsequently characterized this conclusion as “a reasonable position to take, given the case law on the subject.” 699 F.2d at 41. The Tennessee Court of Criminal Appeals reached the same conclu­ sion in State v. Cannon, 634 S.W.2d 648 (Tenn. Crim. App. 1982), noting that the nightscope was used “to observe the traffic and activity on the outside o f the dwelling,” but that it was “of no value in surveying activity in the interior of the house.” Id. at 651. See also Newberry v. State, 421 So.2d 546, 549 (Fla. App. 1982), appeal dismissed, 426 So.2d 27 (Fla. 1983); State v. D enton, 387 So.2d 578, 584 (La. 1980). Like the Second Circuit in Taborda with respect to telescopes, the Supreme Court of Pennsylvania has placed limits on the use of night vision equipment when it is used to dis­ cover “intimate details” within a dwelling. In Commonwealth v. Williams, 431 A.2d 964, 966 (Pa. 1981), the Court held that when such equipment was used for nine days to observe activity within private apartment, including two acts of sexual intercourse, then the surveillance constituted a “search” under the Fourth Amendment. Following the reasoning of these decisions, we do not believe that the use of FLIR to detect the amount of heat emanating from structures on private lands constitutes a Fourth Amendment search. FLIR does not permit obser­ vation of the interior of homes or other structures. It cannot be used to peer through windows or skylights. It does not reveal even the shape or precise location of heat-emitting objects within a building, but shows only the amount of heat emitted from the exterior of a structure. When compared with the observations made by investigating officers in Ciraolo and Riley (which in­ cluded the interior o f Riley’s greenhouse and the specific plants growing in 50 Ciraolo’s garden) and in Lace, Allen, and other lower court decisions (which included the movement of persons and vehicles within the curtilage o f a residence), external heat emissions are not the sort of “intimate detail” likely to raise concerns under the public exposure cases.11 III. A. The Smith Memorandum predicts, however, that the public exposure ra­ tionale “is unlikely to be adopted by the courts” with respect to FLIR. Smith Memorandum at 27. In its view, the public exposure doctrine should not be extended to cases where the technology adds a “sixth sense” to those natu­ rally possessed by investigating officers. The memorandum contends that nightscopes and binoculars reveal activities that would have been visible to the human eye absent darkness or distance, and that the electronic beeper employed to monitor a vehicle on public roads in United States v. Knotts revealed only activities that would have been visible to passersby. By contrast, the memorandum argues, FLIR “permits observation of something that pass­ ersby cannot perceive with their natural senses,” and its use is thus not likely to be sanctioned under the public exposure doctrine. Smith Memorandum at 27. Assuming that there is a viable distinction between technologies that en­ hance existing senses and those that permit “extra-sensory” perception, and assuming that FLIR permits government agents to observe what they could not detect with their natural senses, those facts alone do not mean that the use of FLIR is a “search” under the Fourth Amendment. Federal and state courts have held that the interception of radio waves — which themselves cannot be perceived by the natural senses — does not constitute a “search.” The United States Court of Appeals for the First Circuit, for example, con­ cluded that there is no reasonable expectation of privacy in a communications broadcast on a ham radio frequency, which is “commonly known to be a means of communication to which large numbers of people have access as receivers.” Rose, 669 F.2d at 26. Similarly, the Fifth Circuit summarily affirmed the decision of a district court which concluded that “[t]here is no reasonable expectation of privacy in a communication which is broadcast by radio in all directions to be overheard by countless people who have pur­ chased and daily use receiving devices such as a ‘bearcat’ scanner or who "T h e relatively minimal information disclosed by FLIR clearly distinguishes it from X-ray-like tech­ nologies, which could perm it the viewing of persons or objects through opaque structures or containers. As the United States said in its brief in Dow Chemical, if “the government possessed a sophisticated Xray device that enabled it to see through the walls of a house, there seems little doubt that the use o f such a device to discover objects or activities located inside a dwelling would be subject to Fourth Am end­ ment regulation." B rief for the United States at 24 n.12, 476 U.S. 227 (1986) (No. 84-1259). See United States v. Haynie, 637 F.2d 227 (4th Cir. 1980) (use of X-ray machine to reveal shapes of objects is a Fourth Amendment search), cert, denied, 451 U.S. 972(1981); United States v. Henry, 615 F.2d 1223 (9th cir. 1980) (same). 51 happen to have another mobile radio telephone tuned to the same frequency.” E dw ards v. Bardwell, 632 F. Supp. at 589. Accord Edwards u State Farm Ins. Co., 833 F.2d 535, 538-39 (5th Cir. 1987). Three other circuits have likewise held that there is no reasonable expectation of privacy in radio telephone or cordless telephone conversations. Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989), cert, denied, 493 U.S. 1022 (1990); United States v. H all, 488 F.2d 193, 198 (9th Cir. 1973); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970), cert, denied, 400 U.S. 1000 (1971).12 These decisions demonstrate that the question whether the acquisition of informa­ tion is a “search” must depend on more than whether the information may be perceived by the natural senses. In any event, we believe it is virtually impossible to divide surveillance techniques neatly between those that allow “extra-sensory” perception and those that merely employ the natural senses. It is hardly clear, for example, that night vision equipment, the use of which has been held not to constitute a search, permits merely “enhancement o f the natural sense of sight.” Smith Memorandum at 27. One jurist to consider the question thought not, and observed that a nightscope “not only magnifies what the viewer could see with the naked eye, but also makes possible the observation of activities which the viewer could not see because o f darkness.” State v. Denton, 387 So.2d at 584. On the other hand, the First Circuit has opined that “[u]se o f a beeper to monitor a vehicle involves something more” than “magnification o f the observer’s senses,” United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert, denied, 435 U.S. 926 (1978), even though the Smith Memoran­ dum maintains that beeper surveillance reveals only activities that would be visible to passersby, and thus is not “extra-sensory.” Smith Memorandum at 27. In short, virtually all of the devices used by investigating officers in some sense permit the collection of information that could not “naturally” be observed. The distinction between natural and “extra-sensory” observa­ tions thus seems to have little analytical or constitutional significance. Even if that distinction were important, it is not at all clear that FLIR would be categorized properly as a device that permits observations that humans could not make with their natural senses. At some level, heat ema­ nations can be observed through the natural sense o f sight. The naked eye can perceive heat waves rising from a warm object. The relative speeds at which snow melts from the roofs of various structures can give indications about the relative heat emissions from those structures. The natural senses can also feel heat emanations when they are in close proximity to the human body. Thus, it could be argued that FLIR merely enhances the capacity of the natural senses to perceive heat. ,2See also Slate v. Delaurier, 488 A .2d 688, 694 (R.I. 1985) (owners of cordless telephone had no reasonable expectation o f privacy in their conversations, which could be intercepted with standard AM/ FM radio); State v. Howard, 679 P.2d 197, 206 (Kan. 1984) (same); People v. M edina, 234 Cal. Rptr. 256, 262 (Cal. Ct. App.) (no reasonable expectation of privacy in message sent through pager system, w here conversation “'could be intercepted by anyone with a radio scanner or another pager”), cert, denied, 484 U.S. 929 (1987). 52 Courts generally have held that the relevant question for determining whether surveillance infringes upon a legitimate expectation of privacy is not merely how information is collected but what information is collected. If an object of government surveillance is recognized by society as enjoying a privacy interest of sufficient magnitude, the government’s activity will constitute a “search.” Technology that allows the government to view the interior of a home almost certainly implicates the Fourth Amendment. But we are not prepared to say, as the Smith Memorandum suggests, that any “extra-sensory” technological development that assists authorities in ferret­ ing out crime is automatically one that society would deem unreasonably intrusive, no matter how minimal the intrusion on the privacy interests of the citizenry. The Supreme Court has “never equated police efficiency with unconstitutionality,” Knotts , 460 U.S. at 284, and we fear that acceptance of the Smith Memorandum’s analysis would come perilously close to doing so. B. More fundamentally, the Smith Memorandum suggests that extension of the public exposure doctrine to endorse the use of FLIR would threaten to “repudiate” Katz, because “any member of the public who could obtain a sophisticated listening device could have heard everything the police heard” in Katz. Smith Memorandum at 28. This contention does illustrate that the public exposure doctrine must have limits, and it points to an internal ten­ sion in the reasoning of Katz itself. It could reasonably be argued that Katz, given the availability of listening devices, knowingly exposed his conversa­ tions to the public by using a public telephone booth to place his calls. It may well be that the Supreme Court will eventually be forced to revisit its Fourth Amendment jurisprudence and explain the relationship between K atz and the “public exposure” doctrine. In the light of decisions subsequent to Katz, however, it appears that the Court concluded that the eavesdropping in Katz was a search not simply because the FBI employed technology, but because the technology permitted the interception of “private communication.” 389 U.S. at 352. Private com­ munications, like private papers and the interior of a home, implicate a privacy interest of the highest degree. As Justice Brandeis explained in his prescient dissent in Olmstead, the Supreme Court has long held that private letters are protected by the Fourth Amendment, see Ex parte Jackson, 96 U.S. 727 (1877), and “[t]here is, in essence, no difference between the sealed letter and the private telephone message.” Olm stead, 277 U.S. at 475 (Brandeis, J., dissenting). “Society” is plainly prepared to recognize as reasonable the expectation that private telephone calls will remain free from monitoring by the government. Heat emissions from the exterior of a struc­ ture — providing, as they do, no precise details about a structure’s interior — do not, in our view, enjoy a similar status. 53 c. The principal case relied on by the Smith Memorandum for the conclu­ sion that FLIR surveillance is a Fourth Amendment search is United States v. Karo, 468 U.S. 705 (1984). In Karo, drug enforcement agents installed an electronic beeper in a can of ether, which they believed was to be delivered to buyers for use in extracting cocaine from clothing that had been imported into the United States. After the ether was delivered to the buyers, who had no knowledge o f the presence of the beeper, the agents monitored the move­ ment of the can of ether within a private residence where it was stored and used. The Court held that “the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights o f those who have a justifiable interest in the privacy of the resi­ dence.” Id. at 714. After reciting the basic rule that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exi­ gent circumstances,” id. at 714-15, the Court explained that monitoring of the beeper inside the private residence was the functional equivalent of a physical search of the premises: In this case, had a DEA agent thought it useful to enter the . . . residence to verify that the ether was actually in the house and had he done so surreptitiously and without a war­ rant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amend­ ment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously em­ ploys an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose resi­ dence is being watched. Id. at 715. The Court distinguished its earlier decision in United States v. K notts, which held that the monitoring of a beeper on public roads was not a Fourth Amendment search. The Karo Court concluded that although the use o f a beeper inside a home is “less intrusive than a full-scale search,” it “reveal [s] a critical fact about the interior of the premises that the Govern­ ment is extremely interested in knowing and that it could not have otherwise obtained without a warrant.” Id. The Smith Memorandum states that it “appears likely” that the Supreme Court would hold, primarily on the authority of Karo, that FLIR surveillance is a Fourth Amendment search. Smith Memorandum at 25. The Memorandum 54 reasons that FLIR would enable investigators to deduce whether an object, such as a generator, is within a private structure in which there is a reason­ able expectation of privacy. Accordingly, like a beeper, FLIR could permit the government to leam “a critical fact about the interior of the premises” without obtaining a warrant. We do not believe that Karo should be read so broadly. First, it is clear that not every acquisition of information by the government from which it can deduce facts about the interior of a residence or other private structure constitutes a search. In California v. Greenwood, 486 U.S. 35 (1988), for example, the Court held that a search of trash placed outside a home for removal by the trash collector did not infringe upon a legitimate expectation of privacy of the homeowner. The Court reached this conclusion despite the fact that, as the dissent pointed out, “a sealed trash bag harbors telling evi­ dence of the ‘intimate activity associated with the sanctity of a man’s home and the privacies of life.’” Id. at 50 (Brennan, J., dissenting) (internal quota­ tions omitted). Likewise, in Smith v. Maryland, 442 U.S. 735 (1979), the Court held that the installation and use of a pen register to record telephone numbers dialed by Smith was not a search, although the pen register re­ vealed to police telephone numbers that Smith dialed within the privacy of his own home. See id. at 743. Many other observations permit police to discern what might in some cases be “critical facts” about the interior of a residence, although they almost certainly do not constitute searches under the Fourth Amendment. The sighting through a nightscope of smoke emanating from a chimney on top of a house, for example, allows an inference that a fire is burning inside the house. Observation through binoculars of light beams coming from a window permits the conclusion that someone (or some device) has activated a light inside the house. Yet in light of the decisions of the Supreme Court in Ciraolo and Riley and of the various state and lower federal courts involv­ ing binoculars and nightscopes, we believe it quite unlikely that the Supreme Court would hold, by analogy to Karo, that such observations of activity exposed to public view infringe upon Fourth Amendment rights. Second, the Court in Karo rested its holding on the fact that the govern­ ment had “surreptitiously employ[ed] an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.” 468 U.S. at 715 (emphasis added). By contrast, the owner of a structure on private property has full knowledge that heat is emitted from the structure and, presumably, that it can be monitored by infrared radars.13 The result in Karo would likely have been different had the owner of the residence knowingly placed his own beeper in the ether 11 We are informed by DoD that “infrared technology has been in use by local, state, and federal law enforcem ent officials for years." Smith Memorandum at 6. FLIR is mentioned in a reported court decision as early as 1977, see U nited States v. P otter, 552 F.2d 901, 906 n.7 (9th Cir. 1977), and it has been discussed by several courts in the last fourteen years. The existence and usefulness o f FLIR may be Continued 55 container and voluntarily conveyed the signal to anyone in the public who might desire to monitor it. C f United States v. Rose, 699 F.2d at 26 (no reasonable expectation of privacy in communications broadcast on a ham radio frequency); Edwards v. Bardwell, 632 F.2d at 589. The Smith Memorandum contends that “the only constitutional signifi­ cance of the fact in Karo that the beeper monitoring was done ‘surreptitiously’ appears to be that it was done without the knowledge and consent of Karo” and that “[t]o this extent, the proposed use of FLIR is as surreptitious as was the use of the beeper in Karo.” Smith Memorandum at 25. As noted, we believe this analysis fails to recognize the distinction between knowing and unknowing conveyance of information for receipt by the public. Karo did not know that the beeper was emitting its signal from the interior of his residence, because DEA agents surreptitiously planted the beeper in his home. By contrast, the owner of a structure on private property knows that he is emitting heat through the roof of the structure.14 D. Finally, the Smith Memorandum predicts that a court considering the use of FLIR over private property would invoke the Supreme Court’s cautionary note in Dow Chemical that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.” 476 U.S. at 238. See Smith Memorandum at 27. Whatever the significance of this dictum, we do not believe it applicable to aerial recon­ naissance that makes use of FLIR. While FLIR equipment may be expensive, we are informed that it is available to any member of the public who might wish to purchase it for use. FLIR does not, therefore, constitute “surveil­ lance equipment not generally available to the public.” To be sure, the proposed uses of FLIR raise difficult Fourth Amendment issues. FLIR enables the government to acquire information concerning heat emissions from private structures that has not been readily available in the past. We do not believe, however, that every technological advance in the service of law enforcement will inevitably infringe upon expectations of privacy that society is willing to honor. FLIR collects information about heat that is emanating from the exterior of structures and conveyed openly into the atmosphere. It does not reveal any precise or intimate details about 15(....continued) known am ong the citizenry as well, for law enforcement officials have informed DoD that individuals attem pting to cultivate illegal drugs “w ill often insulate their growing houses in an effort to preclude discovery of the intense heat generated by [the cultivation] process.” Smith Memorandum at 1. 14The M em orandum also relies on a num ber of lower court decisions holding that the use o f a m agne­ tom eter to detect metal on a person is a search under the Fourth Amendment. See, e.g.. U n ited States v. A lb a ra d o , 495 F.2d 799 (2d Cir. 1974); U nited States v. B e ll , 464 F.2d 667 (2d Cir.), cert, d e n ie d , 409 U.S. 991 (1972); U n ite d S ta te s v. E p p erso n , 454 F.2d 769 (4th Cir.), cert, d en ied , 406 U.S. 947 (1972). Continued 56 the interior of a structure. Any member of the public flying over a building with FLIR could acquire the information proposed to be collected by DoD personnel. In view of these factors and the relevant court precedents, we believe that the proposed use of FLIR to conduct aerial reconnaissance over structures located on private lands would not constitute a “search” under the Fourth Amendment, unless travel at the altitude to be flown by the aircraft carrying FLIR equipment is extraordinary. We believe this caveat is necessary, be­ cause Justice O’Connor’s concurring opinion in Florida v. Riley seemed to indicate that aerial surveillance from airspace that is rarely, if ever, traveled by the public would interfere with a reasonable expectation of privacy. 488 U.S. at 455 (O’Connor, J., concurring); see also United States v. Hendrickson, 940 F.2d 320, 323 (8th Cir.), cert, denied, 502 U.S. 992 (1991). It is uncer­ tain whether the Supreme Court will ultimately adopt the reasoning of the Riley plurality or Justice O’Connor concurrence, but for the time being, the law is unsettled with respect to aerial surveillance conducted from airspace that an individual could prove is rarely, if ever, used by the general public. If DoD encounters a situation in which FLIR surveillance would be carried out from airspace that is rarely used by the public, we would be pleased to examine that issue in more depth. IV. You have also expressed concern that DoD personnel who conduct FLIR surveillance might be subject to tort liability in an action brought under Bivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics, 403 U.S. 388 (1971). We do not believe that DoD personnel engaged in such activity will be liable for damages. If, as we believe, FLIR surveillance does not constitute a Fourth Amendment search, there would of course be no constitutional violation and no potential liability. Even if a court were to disagree with our conclusion and hold that FLIR surveillance is a search, we do not believe that DoD personnel would be subject to liability for monetary damages. Federal officers are entitled to “qualified immunity” from tort suits for actions taken in the course of their official duties. E.g., Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court explained that an officer is entitled to such immunity unless he violates a constitutional right that is “clearly established” at the time 14(....continued) S e e Smith M emorandum at 14 & n.33. These decisions contain little or no analysis o f the question whether use o f such a device is a Fourth Amendment search, and we agree with DoD that “we cannot be certain that the [Supreme] Court would agree their use is a search or that it would apply the same analysis to use o f FLIR.” Id. In any event, the use of a magnetometer is distinguishable from FLIR in at least one crucial respect. The magnetometer cases do not fall within the public exposure doctrine, because it is not true that “any member o f the public” could learn what the governm ent discovers through a magnetometer. The government is able to make use of a magnetometer only because it can require individuals to pass through the mechanism in order to travel on airplanes. S e e A lb a ra d o , 495 F.2d at 806-07. 57 of the officer’s action. The right must be “clearly established” in this particular­ ized sense: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640. Given the uncertainty surrounding what expectations of privacy “society is prepared to recognize as reasonable,” we do not believe that the use of FLIR from airspace that is used by the general public — even if ultimately held to be a Fourth Amendment search — would violate a “clearly estab­ lished” constitutional right of the owners of structures on private lands. As our legal analysis (and the difference of opinion among those to have exam­ ined the issue) shows, a reasonable officer certainly could believe that the use of FLIR to conduct aerial reconnaissance of private structures is lawful. Accordingly, we do not think that DoD personnel providing that type of assistance to civilian law enforcement agencies would be subject to liability for damages in a constitutional tort action. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office of Legal Counsel 58

Write a legal research memo on the following topic.

Fourth Amendment Implications of Military Use of Forward Looking Infrared Radars Technology for Civilian Law Enforcement Forw ard L ooking In frared R adars (FL IR ) reconnaissance o f structures on private lan d s does not constitute a search w ithin the m eaning o f the Fourth A m endm ent. D epartm ent o f D efen se personnel engaged in such surveillance would not be su b ject to liability for dam ages in a constitutional tort action. March 4, 1992 M em orandum D O p in io n f o r t h e epartm ent o f D General C o u n sel efen se This memorandum is in response to your request for further advice con­ cerning the use of Forward Looking Infrared Radars (“FLIR”) technology by the Department of Defense (“DoD”) to assist civilian law enforcement agen­ cies. In a memorandum dated February 19, 1991, this Office advised that, under existing statutory authority, DoD may assist civilian law enforcement agencies to identify or confirm suspected illegal drug production within struc­ tures located on private property by conducting aerial reconnaissance that uses FLIR technology.1 You subsequently requested an opinion from this Office on the question whether FLIR surveillance of structures on private property constitutes a “search” within the meaning of the Fourth Amendment.2 A memorandum that you have made available to us preliminarily concludes that FLIR reconnaissance of structures on private lands does constitute such a search.3 For the reasons set forth herein, we conclude that it does not. 1M ilitary Use o f Infrared Radars Technology to Assist Civilan Law Enforcement Agencies, 15 Op. O.L.C. 36(1991). 2Letter for J. Michael Luttig, Assistant Attorney General, Office o f Legal Counsel, from Terrence O ’Donnell, General Counsel, Department of Defense (Apr. 11, 1991). 3Memorandum for Terrence O’Donnell, Genera) Counsel, Department o f Defense, from Robert M. Smith, Jr. (Sept. 19, 1990) (“Smith Memorandum"). Other parties to examine the issue have reached differing conclusions. Compare Memorandum for Office of the Deputy C hief of Staff for Operations and Plans, from Patrick J. Parrish, Assistant to the General Counsel, Department of the Arm y (Sept. 17, 1990) (FLIR surveillance is a search under Fourth Amendment) with M emorandum for Joint Chiefs o f Staff, from Lt. Col. C.W. Hoffman, Jr., Deputy LLC (Aug. 14, 1990) (FLIR not a search) an d M em oran­ dum of Staff Judge Advocate for the Commander-in-Chief of the Pacific Command (attached to Letter for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from Terrence O ’Donnell. General Counsel, Departm ent of Defense (Nov. 21, 1990)) (same). 41 L Our February 19 memorandum sets forth the facts relevant to FLIR tech­ nology, and we briefly recount them here. FLIR is a passive technology that detects infrared radiation generated by heat-emitting objects. Infrared rays are received by the FLIR system, electronically processed, and projected on a screen as a visual image in the shape of the object that is emitting the heat. The w anner the object, the brighter the image of the object appears. See U nited States v. Sanchez, 829 F.2d 757, 759 (9th Cir. 1987); United States v. Kilgus, 571 F.2d 508, 509 (9th Cir. 1978); United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991), a ff’d sub nom. United States v. Feeney, 984 F.2d (9th Cir. 1993). FLIR does not have the characteristics of an X-ray technology. We have been informed that it cannot provide information concerning the interior of a container or structure. It detects only heat emanating from surfaces that are directly exposed to the FLIR system. Thus, for example, if there were heat-producing objects within a building, FLIR could detect that more infra­ red radiation was being emitted from the building’s roof than if the building were empty, but the system could not identify the shapes of heat-emitting objects located within the structure. Nor could the system identify the source o f the heat or the precise location of the heat source within the structure. Law enforcement agencies believe that FLIR technology can be useful in identifying buildings that house marijuana crops, or methamphetamine or other drug processing laboratories. In particular, FLIR can aid law enforce­ ment officials in establishing probable cause to believe that criminal activity is being conducted within a particular building by determining whether the building is radiating unusually large amounts of heat (due to the use of high intensity lighting or combustion generators) or unusually small amounts of heat (due to heavy insulation designed to mask the use of lighting or genera­ tors). Recently, therefore, federal and state law enforcement agencies have requested that military aircraft equipped with FLIR fly over suspect build­ ings on private lands and produce infrared images of those structures.4 We concluded in our February 19 memorandum that DoD has authority to provide the requested assistance under the provisions of 10 U.S.C. §§ 371-378, which are designed to promote cooperation between military personnel and ci­ vilian law enforcement officials. We now consider whether such assistance constitutes a “search” within the meaning of the Fourth Amendment to the Constitution. 4 The D epartm ent of Defense has informed us of three requests for assistance that present the question w hether such surveillance constitutes a Fourth Amendment search. The Drug Enforcement Adminis­ tration (“DEA ") has asked the Army to conduct infrared imaging o f a bam on private land in which the DEA suspects that m arijuana is being cultivated. Second, a law enforcem ent agency has requested that an A rm y flight crew conduct a training mission over certain private lands and buildings in the vicinity o f W ichita, K ansas, using an Army helicopter equipped with FLIR, to identify suspected illegal mari­ ju an a cultivation. Third, the DEA has asked that the Army undertake flights in OH-58D helicopters equipped w ith FLIR, at a height of at least 500 feet above ground, to identify dwellings and other structures on private land in Arizona that the DEA suspects contain methamphetamine laboratories. 42 II. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particu­ larly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Until the 1960’s, the Supreme Court interpreted the amendment to apply only to searches or seizures of the tangible things re­ ferred to in the text: “persons, houses, papers, and effects.” In O lm stead v. United States, 277 U.S. 438, 465 (1928), overruled by Berger v. New York, 388 U.S. 41 (1967), for example, the Court held that the interception of telephone conversations by government wiretaps did not implicate the Fourth Amendment, reasoning that “[t]he language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office.” The traditional interpretation of the Fourth Amendment was also limited to cases where the government committed a physical trespass to acquire information. In Olmstead, the Court noted that the wiretaps were conducted “without trespass upon any property of the defendants.” 277 U.S. at 457. In two eavesdropping cases, Goldman v. United States, 316 U.S. 129, 134-35 (1942), overruled by Katz v. United States, 389 U.S. 347 (1967), and On Lee v. United States, 343 U.S. 747, 751-52 (1952), the absence of a physical trespass was important to the Court’s conclusion that no Fourth Amendment search had been conducted. Only where “eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occu­ pied by the petitioners” did the Court hold that eavesdropping implicated the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 509 (1961). These limitations on the scope of the Fourth Amendment were eliminated by the Court in a series of decisions during the 1960s. In Berger, 388 U.S. at 51, the Court held that “ ‘conversation’ was within the Fourth Amendment’s protections, and that the use of electronic devices to capture it was a ‘search’ within the meaning of the Amendment” In Katz, 389 U.S. at 353, the Court overruled the “trespass” doctrine enunciated in Olmstead, and held that eaves­ dropping conducted through the placement of a listening device on the outside of a telephone booth constituted a “search and seizure” under the Fourth Amendment. Subsequent decisions have constructed a two-part inquiry, derived from Justice Harlan’s concurring opinion in Katz, to determine whether a govern­ ment activity constitutes a Fourth Amendment search: “[F]irst, has the 43 individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). See also California u Greenwood, 486 U.S. 35, 39 (1988); United States v. Knotts, 460 U.S. 276, 280-81 (1983); Smith v. M aryland, 442 U.S. 735, 740 (1979); K a tz , 389 U.S. at 361 (Harlan, J„ concurring). A. It will always be difficult to determine with certainty whether the owners or users of specific structures have subjective expectations of privacy that would be infringed by the proposed aerial reconnaissance. On the face of the matter, however, it seems unlikely that the owner of a structure would subjectively expect that the amount of heat emitted from the roof of the structure will remain private. Heat is inevitably discharged from structures that contain electrical equipment such as lights or generators, and we are informed by DoD that FLIR equipment has been used by law enforcement agencies for years to detect heat-emitting objects. Smith Memorandum at 6. The only court to address the Fourth Amendment implications of FLIR con­ cluded that the owners of a private residence that was monitored by FLIR “did not manifest an actual expectation o f privacy in the heat waste since they voluntarily vented it outside the garage where it could be exposed to the public and in no way attempted to impede its escape or exercise domin­ ion over it.” Penny-Feeney, 773 F. Supp. at 226. Moreover, it is likely that most people expect that law enforcement agencies will use information that is available to them for the detection of crime. Absent more detailed infor­ mation about the expectations of the individuals involved, we will turn to the second prong of the Fourth Amendment inquiry described by the Su­ preme Court for determining whether government activity constitutes a Fourth Am endment search.5 1. The second question posed by the Supreme Court’s analysis is whether FLIR surveillance, by detecting the amount of heat emitted from the exterior o f a structure on private property, intrudes upon an expectation of privacy that society is willing to recognize as reasonable. The Supreme Court has not developed a clear doctrine that would indicate what is an objectively ’ The Suprem e Court has never relied solely on the first prong of its two-part inquiry to hold that a governm ent activity is not a search under the Fourth Amendment. The Court itself has suggested that the “ subjective” elem ent o f the inquiry m ay be an “ inadequate index o f Fourth Amendment protection,” Sm ith v. M aryland, 442 U.S. at 740 n.5, because, “[fjor exam ple, if the Government w ere suddenly to announce on nationw ide television that all homes henceforth would be subject to warrantless entry, individuals thereafter m ight not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects." Id. 44 reasonable expectation of privacy in a case where neither a physical trespass into a home or curtilage nor a physical search of tangible objects enumer­ ated in the text of the Fourth Amendment is involved. In Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978), the Court did explain that “[l]egitimation of expectations of privacy by law must have a source outside o f the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”6 Sim i­ larly, in Robbins v. California, 453 U.S. 420, 428 (1981), disposition'bverruled on other grounds, United States v. Ross, 456 U.S. 798 (1982), a plurality of the Court ventured that “[expectations of privacy are established by general social norms.” What remains unclear from these and other decisions, how­ ever, is the m ethodology that should be employed to determ ine w hat expectations o f privacy “society” is prepared to recognize as reasonable. The Fourth Amendment’s protections are best discerned by reference to the Supreme C ourt’s prior decisions in the area. Cf. Allen v. Wright, 468 U.S. 737, 751 (1984) (given the absence of precise definitions in standing doctrine, courts may answer standing questions through comparison with prior cases). Applying the oft-stated principle articulated by the Court in Katz that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” Katz, 389 U.S. at 351 (citations omitted), we conclude that the use of FLIR to conduct aerial reconnaissance of structures is not a Fourth Amendment search.7 The Supreme Court has applied the “public exposure” rule to cases in­ volving aerial surveillance of private property.8 In Ciraolo, the Court held that police officers did not conduct a Fourth Amendment search when they traveled over respondent Ciraolo’s home in a fixed-wing aircraft at an alti­ tude of 1000 feet and observed, with the naked eye, marijuana plants growing in a garden within the curtilage of Ciraolo’s home. Although the home and garden were surrounded by double fences of six and ten feet in height, the Court noted that “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” 476 U.S. at 213-14. Accordingly, the Court held that “respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.” Id. at 214. Similarly, in Florida v. Riley, 488 U.S. 445 (1989), the Court held that helicopter surveillance of the interior of a greenhouse, located within the ‘ The Supreme Court has referred interchangeably to “legitimate" and “reasonable” expectations o f privacy. See Ciraolo, 476 U.S. at 220 n.4 (Powell, I., dissenting). ’ The District Court in Penny-Feeney, 773 F. Supp. at 226-28, relied to some extent on the “public exposure" doctrine to hold that FLIR surveillance of a private home did not violate a reasonable expec­ tation o f privacy of the residents. Although we concur with the result in that case, we do not agree with all of the court's reasoning. 8The Court has not equated the scope of the "public exposure” doctrine with subjective expectations o f privacy. The Court has assumed that a person may have a subjective expectation of privacy even in that which he “knowingly exposes to the public." E.g., Ciraolo, 476 U.S. at 213. 45 curtilage of respondent Riley’s home, did not constitute a search under the Fourth Amendment. Although the interior of Riley’s greenhouse was not visible from the adjoining road, the investigating officer discovered that the sides and roof of the greenhouse were left partially open, and that the inte­ rior o f the greenhouse — including marijuana plants — could be observed with the naked eye from a helicopter circling over Riley’s property at an altitude o f 400 feet. A plurality of the Court, noting that “[a]ny member of the public could legally have been flying over Riley’s property in a helicop­ ter at the altitude of 400 feet and could have observed Riley’s greenhouse,” concluded that the case was controlled by Ciraolo. Id. at 451. Justice O ’Connor, concurring in Riley, also concluded that there was no Fourth Amendment search, although she believed that “there is no reason to assume that compliance with FAA regulations alone” means that the govern­ ment has not interfered with a reasonable expectation of privacy. Id. at 453 (O ’Connor, J., concurring in judgment). In Justice O’Connor’s view, the controlling question was whether “the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regular­ ity that R iley’s expectation of privacy from aerial observation was not ‘one that society is prepared to recognize as reasonable.’” Id. at 454 (quoting K a tz , 389 U.S. at 361) (internal quotations omitted). Because Riley had not shown that air travel at an altitude of 400 feet was extraordinary, Justice O ’Connor concluded that the helicopter surveillance was not a “search.” The Court has also applied the “public exposure” doctrine to hold that an individual has no reasonable expectation of privacy in garbage left at the curb outside his home for pickup by trash collectors, California v. Green­ w ood, in telephone numbers dialed and thus conveyed automatically to the telephone company, Smith v. M aryland, or in a route traveled by an automo­ bile on a public highway or the movements of objects in “open fields,” even when they are monitored surreptitiously by an electronic beeper. United States v. Knotts. In each of these cases, the Court reasoned that individuals had openly displayed their activities or objects to public view and therefore enjoyed no expectation of privacy that society is prepared to recognize as reasonable. We believe that the use o f FLIR to observe heat emissions from the exterior o f structures on private property is analogous to the surveillance activities undertaken by the government in the “public exposure” cases. As­ suming that the aerial surveillance is to take place from airspace sometimes used by the public — and we have not been provided with precise informa­ tion on that issue — the question presented by FLIR surveillance is quite com parable to those decided by the Court in Ciraolo and Riley. “[T]he home and its curtilage are not necessarily protected from inspection that involves no physical invasion.” Riley, 488 U.S. at 449 (plurality opinion). The owner of a structure on private property knowingly, indeed almost in­ evitably, emits heat from the structure, and any member of the public flying over the structure could detect those heat emissions with FLIR. 46 We recognize, of course, that the investigating officers in Ciraolo and Riley conducted their visual observations with the naked eye, while FLIR surveillance employs technology to detect what an investigator could not observe on his own. Decisions of the Supreme Court and courts o f appeals suggest, however, that the use of technological means to gather information will not amount to a Fourth Amendment search where the government does not thereby observe the interior of a structure or any other “intimate details” o f the home or curtilage. In view of the limited information disclosed by FLIR, we do not believe that the use of such technology in the proposed recon­ naissance missions would constitute a “search” under the Fourth Amendment. As a threshold matter, it is clear that the use of technological devices to acquire information that would be unattainable through the use of natural senses does not necessarily implicate the Fourth Amendment. In United States v. Lee, 274 U.S. 559, 563 (1927), the Supreme Court held that the use of a searchlight by the Coast Guard to examine a boat on the high seas did not violate the Fourth Amendment. The Court explained that “[s]uch use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” In On Lee, 343 U.S. at 754, the Court said in dictum that “[t]he use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one sup­ poses to be private indiscretions.” And in United States v. White, 401 U.S. 745, 753 (1971), a plurality of the Court concluded that “[a]n electronic recording will many times produce a more reliable rendition of what a de­ fendant has said than will the unaided memory o f a police agent . . ., but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amend­ ment privilege against a more accurate version of the events in question.” The courts of appeals have held that the interception o f communications from radio frequencies that are accessible to the general public does not constitute a Fourth Amendment search, even though radio waves cannot be perceived by natural senses. E.g., United States v. Rose, 669 F.2d 23, 26 (1st Cir.), cert, denied, 459 U.S. 828 (1982); Edwards v. Bardwell, 632 F. Supp. 584, 589 (M.D. La.), aff'd, 808 F.2d 54 (5th Cir. 1986). The Supreme Court discussed the use of sophisticated surveillance equip­ ment in Dow Chemical Co. v. United States, 476 U.S. 227 (1986). There, the Court considered the Fourth Amendment implications of aerial surveil­ lance by the Environmental Protection Agency, which made use o f precise photographic equipment to observe the open areas of an industrial facility. In holding that the surveillance was not a “search,” the Court noted that the photographic equipment could permit “identification of objects such as wires as small as 1/2-inch in diameter,” id. at 238, and addressed the significance of the equipment for the Fourth Amendment: 47 It may well be, as the Government concedes, that surveil­ lance o f private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally pro­ scribed absent a warrant. But the photographs here are not so revealing o f intimate details as to raise constitutional con­ cerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility’s buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. Id. (emphasis added). So too here, FLIR does not reveal intimate details concerning persons, objects, o r events within structures. The C ourt’s concern over observation of “intimate details” has been re­ peated in cases involving private homes and their curtilage. In Ciraolo, for example, the Court went out o f its way to note that “[t]he State acknowl­ edges that ‘[a]erial observation of curtilage may become invasive, either due to physical intrusiveness or through modem technology which discloses to the senses those intimate associations, objects or activities otherwise imper­ ceptible to police or fellow citizens.’” 476 U.S. at 215 n.3 (emphasis added). M ore significantly, the plurality in Riley, in concluding that helicopter sur­ veillance of Riley’s greenhouse did not constitute a search, found it important that “no intimate details connected with the use of the home or curtilage were observed.” 488 U.S. at 452.9 The courts of appeals that have considered the Fourth Amendment impli­ cations o f magnification technology used by the government to collect information have distinguished between surveillance of the interior of a home, which has been deemed a search, and observation of the curtilage, which has not. In U nited States v. Taborda, 635 F.2d 131 (2d Cir. 1980), the Second Circuit held that the use of a high-powered telescope to peer through the window o f an apartment was a “search” under the Fourth Amendment. The court reasoned that “[t]he vice of telescopic viewing into the interior of a hom e is that it risks observation not only of what the householder should realize might be seen by unenhanced viewing, but also o f intimate details o f a p e rso n ’s private life, which he legitimately expects will not be observed either by naked eye or enhanced vision.” Id. at 138-39 (emphasis added). ’ Justice Brennan, in his dissent in Riley, criticized the majority on this point, suggesting that the police ju st as easily could have observed intim ate details o f Riley's personal activities, although all they hap­ pened to observe was evidence of crime. 488 U.S. at 463 (Brennan, J., dissenting). FLIR, however, is incapable of revealing intim ate details. It simply provides information about surface heat, from which general inferences som etim es can be draw n. A ccord United States v. Kim, 415 F. Supp. 1252, 1254-56 (D. Haw. 1976) (use of telescope to view inside of apartment was Fourth Am endm ent “search”); State v. Ward, 617 P.2d 568, 571-73 (Haw. 1980) (use of binocu­ lars to view inside of apartment was “search”); State v. Knight, 621 P.2d 370, 373 (Haw. 1980) (aerial observation with binoculars of inside of closed greenhouse was “search”).10 Subsequently, however, the Second Circuit distinguished Taborda in a case involving the use of binoculars and a high-powered spotting scope to observe an outdoor area adjacent to a house and garage. In United States v. Lace, 669 F.2d 46 (2d Cir.), cert, denied, 459 U.S. 854 (1982), the court explained that Taborda “proscribed the use of a telescope by a policeman only so far as it enhanced his view into the interior of a home.” Id. at 51. The Fourth Amendment was not implicated by the use of binoculars and a spotting scope “in places where the defendant otherwise has exposed him­ self to public view.” Id. Reflecting subsequently on Taborda and Lace, the Second Circuit declared that “it was not the enhancement of the senses p e r se that was held unlawful in Taborda, but the warrantless invasion o f the right to privacy in the home. In contrast, the warrantless use of supplemen­ tal resources including mechanical devices, such as binoculars, to observe activities outside the home has been consistently approved by the courts.” United States v. Bonfiglio, 713 F.2d 932, 937 (2d Cir. 1983). The Ninth Circuit, when considering surveillance conducted with magni­ fication devices, has similarly focused on the privacy interest associated with the area or activity observed, rather than on the nature of the technol­ ogy used. In United States v. Allen, 675 F.2d 1373 (9th Cir. 1980) (Kennedy, J.), cert, denied, 454 U.S. 833 (1981), the court held that surveillance of private ranch property from a Coast Guard helicopter, by a Customs official using binoculars and a telephoto lens, did not infringe upon a reasonable expectation of privacy. The court emphasized that “[w]e are not presented with an attempt to reduce, by the use of vision-enhancing devices or the incidence o f aerial observation, the privacy expectation associated with the interiors o f residences or other structures .” Id. at 1380 (emphasis added). Other courts have approved the distinction for Fourth Amendment purposes between enhanced viewing of the interior of private structures and the en­ hanced viewing of activities or objects outside such buildings. D ow Chemical Co. v. United States, 749 F.2d 307, 314-15 & n.2 (6th Cir. 1984), aff'd, 476 U.S. 227 (1986); United States v. Michael, 645 F.2d 252, 258 n.16 (5th Cir.), cert, denied, 454 U.S. 950 (1981); United States v. Devorce, 526 F. Supp. 191, 201 10 Prior to Taborda, some courts held that enhanced viewing o f the interior of certain structures on private property did not constitute a search. Fullbright v. United States, 392 F.2d 432, 434 (10ih Cir.) (use o f binoculars to view inside of open shed near house), cert, denied, 393 U.S. 830 (1968); People v. Hicks, 364 N.E.2d 440, 444 (111. App. 1st Dist. 1977) (use of binoculars to view interior of residence); State v. Thompson, 241 N.W.2d 511, 513 (Neb. 1976) (use of binoculars to view interior o f residence through curtains); State v. Manly, 530 P.2d 306 (Wash.) (use of binoculars to view interior of apartm ent), cert, denied, 423 U.S. 855 (1975); Commonwealth v. Hernley, 263 A.2d 904 (Pa. Super. 1970) (use of binoculars to look through window of print shop), cert denied, 401 U.S. 914 (1971). 49 (D. Conn. 1981). Cf. New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”); Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion) (taking of paint scrapings from the exterior of a vehicle left in a public parking lot did not infringe legitimate expectation of privacy where “nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched”). State and federal courts have followed a similar line of reasoning when considering the use o f light-intensifying “nightscopes” to conduct surveil­ lance in the dark. In United States v. Ward, 546 F. Supp. 300, 310 (W.D. Ark. 1982), a f f ’d in relevant p a rt, 703 F.2d 1058, 1062 (8th Cir. 1983), the court held that the use of a nightscope to observe the movements of indi­ viduals outside a bam did not constitute a search, where “[t]he officers did not ‘peep’ or peer into or through any windows or skylights,” or “obtain a view o f objects or persons normally physically obscured.” Id. at 310. In U nited States v. Hensel, 509 F. Supp. 1376 (D. Me. 1981), a ff’d, 699 F.2d 18 (1st Cir.), cert, denied, 461 U.S. 958 (1983), the court stated that the use of nightscopes “transgresses no Fourth Amendment rights” where drug enforce­ ment agents used the scopes to observe activities on a private dock “but could not see into the buildings.” Id. at 1384 n.9. The First Circuit, al­ though not resolving the issue, subsequently characterized this conclusion as “a reasonable position to take, given the case law on the subject.” 699 F.2d at 41. The Tennessee Court of Criminal Appeals reached the same conclu­ sion in State v. Cannon, 634 S.W.2d 648 (Tenn. Crim. App. 1982), noting that the nightscope was used “to observe the traffic and activity on the outside o f the dwelling,” but that it was “of no value in surveying activity in the interior of the house.” Id. at 651. See also Newberry v. State, 421 So.2d 546, 549 (Fla. App. 1982), appeal dismissed, 426 So.2d 27 (Fla. 1983); State v. D enton, 387 So.2d 578, 584 (La. 1980). Like the Second Circuit in Taborda with respect to telescopes, the Supreme Court of Pennsylvania has placed limits on the use of night vision equipment when it is used to dis­ cover “intimate details” within a dwelling. In Commonwealth v. Williams, 431 A.2d 964, 966 (Pa. 1981), the Court held that when such equipment was used for nine days to observe activity within private apartment, including two acts of sexual intercourse, then the surveillance constituted a “search” under the Fourth Amendment. Following the reasoning of these decisions, we do not believe that the use of FLIR to detect the amount of heat emanating from structures on private lands constitutes a Fourth Amendment search. FLIR does not permit obser­ vation of the interior of homes or other structures. It cannot be used to peer through windows or skylights. It does not reveal even the shape or precise location of heat-emitting objects within a building, but shows only the amount of heat emitted from the exterior of a structure. When compared with the observations made by investigating officers in Ciraolo and Riley (which in­ cluded the interior o f Riley’s greenhouse and the specific plants growing in 50 Ciraolo’s garden) and in Lace, Allen, and other lower court decisions (which included the movement of persons and vehicles within the curtilage o f a residence), external heat emissions are not the sort of “intimate detail” likely to raise concerns under the public exposure cases.11 III. A. The Smith Memorandum predicts, however, that the public exposure ra­ tionale “is unlikely to be adopted by the courts” with respect to FLIR. Smith Memorandum at 27. In its view, the public exposure doctrine should not be extended to cases where the technology adds a “sixth sense” to those natu­ rally possessed by investigating officers. The memorandum contends that nightscopes and binoculars reveal activities that would have been visible to the human eye absent darkness or distance, and that the electronic beeper employed to monitor a vehicle on public roads in United States v. Knotts revealed only activities that would have been visible to passersby. By contrast, the memorandum argues, FLIR “permits observation of something that pass­ ersby cannot perceive with their natural senses,” and its use is thus not likely to be sanctioned under the public exposure doctrine. Smith Memorandum at 27. Assuming that there is a viable distinction between technologies that en­ hance existing senses and those that permit “extra-sensory” perception, and assuming that FLIR permits government agents to observe what they could not detect with their natural senses, those facts alone do not mean that the use of FLIR is a “search” under the Fourth Amendment. Federal and state courts have held that the interception of radio waves — which themselves cannot be perceived by the natural senses — does not constitute a “search.” The United States Court of Appeals for the First Circuit, for example, con­ cluded that there is no reasonable expectation of privacy in a communications broadcast on a ham radio frequency, which is “commonly known to be a means of communication to which large numbers of people have access as receivers.” Rose, 669 F.2d at 26. Similarly, the Fifth Circuit summarily affirmed the decision of a district court which concluded that “[t]here is no reasonable expectation of privacy in a communication which is broadcast by radio in all directions to be overheard by countless people who have pur­ chased and daily use receiving devices such as a ‘bearcat’ scanner or who "T h e relatively minimal information disclosed by FLIR clearly distinguishes it from X-ray-like tech­ nologies, which could perm it the viewing of persons or objects through opaque structures or containers. As the United States said in its brief in Dow Chemical, if “the government possessed a sophisticated Xray device that enabled it to see through the walls of a house, there seems little doubt that the use o f such a device to discover objects or activities located inside a dwelling would be subject to Fourth Am end­ ment regulation." B rief for the United States at 24 n.12, 476 U.S. 227 (1986) (No. 84-1259). See United States v. Haynie, 637 F.2d 227 (4th Cir. 1980) (use of X-ray machine to reveal shapes of objects is a Fourth Amendment search), cert, denied, 451 U.S. 972(1981); United States v. Henry, 615 F.2d 1223 (9th cir. 1980) (same). 51 happen to have another mobile radio telephone tuned to the same frequency.” E dw ards v. Bardwell, 632 F. Supp. at 589. Accord Edwards u State Farm Ins. Co., 833 F.2d 535, 538-39 (5th Cir. 1987). Three other circuits have likewise held that there is no reasonable expectation of privacy in radio telephone or cordless telephone conversations. Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989), cert, denied, 493 U.S. 1022 (1990); United States v. H all, 488 F.2d 193, 198 (9th Cir. 1973); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970), cert, denied, 400 U.S. 1000 (1971).12 These decisions demonstrate that the question whether the acquisition of informa­ tion is a “search” must depend on more than whether the information may be perceived by the natural senses. In any event, we believe it is virtually impossible to divide surveillance techniques neatly between those that allow “extra-sensory” perception and those that merely employ the natural senses. It is hardly clear, for example, that night vision equipment, the use of which has been held not to constitute a search, permits merely “enhancement o f the natural sense of sight.” Smith Memorandum at 27. One jurist to consider the question thought not, and observed that a nightscope “not only magnifies what the viewer could see with the naked eye, but also makes possible the observation of activities which the viewer could not see because o f darkness.” State v. Denton, 387 So.2d at 584. On the other hand, the First Circuit has opined that “[u]se o f a beeper to monitor a vehicle involves something more” than “magnification o f the observer’s senses,” United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert, denied, 435 U.S. 926 (1978), even though the Smith Memoran­ dum maintains that beeper surveillance reveals only activities that would be visible to passersby, and thus is not “extra-sensory.” Smith Memorandum at 27. In short, virtually all of the devices used by investigating officers in some sense permit the collection of information that could not “naturally” be observed. The distinction between natural and “extra-sensory” observa­ tions thus seems to have little analytical or constitutional significance. Even if that distinction were important, it is not at all clear that FLIR would be categorized properly as a device that permits observations that humans could not make with their natural senses. At some level, heat ema­ nations can be observed through the natural sense o f sight. The naked eye can perceive heat waves rising from a warm object. The relative speeds at which snow melts from the roofs of various structures can give indications about the relative heat emissions from those structures. The natural senses can also feel heat emanations when they are in close proximity to the human body. Thus, it could be argued that FLIR merely enhances the capacity of the natural senses to perceive heat. ,2See also Slate v. Delaurier, 488 A .2d 688, 694 (R.I. 1985) (owners of cordless telephone had no reasonable expectation o f privacy in their conversations, which could be intercepted with standard AM/ FM radio); State v. Howard, 679 P.2d 197, 206 (Kan. 1984) (same); People v. M edina, 234 Cal. Rptr. 256, 262 (Cal. Ct. App.) (no reasonable expectation of privacy in message sent through pager system, w here conversation “'could be intercepted by anyone with a radio scanner or another pager”), cert, denied, 484 U.S. 929 (1987). 52 Courts generally have held that the relevant question for determining whether surveillance infringes upon a legitimate expectation of privacy is not merely how information is collected but what information is collected. If an object of government surveillance is recognized by society as enjoying a privacy interest of sufficient magnitude, the government’s activity will constitute a “search.” Technology that allows the government to view the interior of a home almost certainly implicates the Fourth Amendment. But we are not prepared to say, as the Smith Memorandum suggests, that any “extra-sensory” technological development that assists authorities in ferret­ ing out crime is automatically one that society would deem unreasonably intrusive, no matter how minimal the intrusion on the privacy interests of the citizenry. The Supreme Court has “never equated police efficiency with unconstitutionality,” Knotts , 460 U.S. at 284, and we fear that acceptance of the Smith Memorandum’s analysis would come perilously close to doing so. B. More fundamentally, the Smith Memorandum suggests that extension of the public exposure doctrine to endorse the use of FLIR would threaten to “repudiate” Katz, because “any member of the public who could obtain a sophisticated listening device could have heard everything the police heard” in Katz. Smith Memorandum at 28. This contention does illustrate that the public exposure doctrine must have limits, and it points to an internal ten­ sion in the reasoning of Katz itself. It could reasonably be argued that Katz, given the availability of listening devices, knowingly exposed his conversa­ tions to the public by using a public telephone booth to place his calls. It may well be that the Supreme Court will eventually be forced to revisit its Fourth Amendment jurisprudence and explain the relationship between K atz and the “public exposure” doctrine. In the light of decisions subsequent to Katz, however, it appears that the Court concluded that the eavesdropping in Katz was a search not simply because the FBI employed technology, but because the technology permitted the interception of “private communication.” 389 U.S. at 352. Private com­ munications, like private papers and the interior of a home, implicate a privacy interest of the highest degree. As Justice Brandeis explained in his prescient dissent in Olmstead, the Supreme Court has long held that private letters are protected by the Fourth Amendment, see Ex parte Jackson, 96 U.S. 727 (1877), and “[t]here is, in essence, no difference between the sealed letter and the private telephone message.” Olm stead, 277 U.S. at 475 (Brandeis, J., dissenting). “Society” is plainly prepared to recognize as reasonable the expectation that private telephone calls will remain free from monitoring by the government. Heat emissions from the exterior of a struc­ ture — providing, as they do, no precise details about a structure’s interior — do not, in our view, enjoy a similar status. 53 c. The principal case relied on by the Smith Memorandum for the conclu­ sion that FLIR surveillance is a Fourth Amendment search is United States v. Karo, 468 U.S. 705 (1984). In Karo, drug enforcement agents installed an electronic beeper in a can of ether, which they believed was to be delivered to buyers for use in extracting cocaine from clothing that had been imported into the United States. After the ether was delivered to the buyers, who had no knowledge o f the presence of the beeper, the agents monitored the move­ ment of the can of ether within a private residence where it was stored and used. The Court held that “the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights o f those who have a justifiable interest in the privacy of the resi­ dence.” Id. at 714. After reciting the basic rule that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exi­ gent circumstances,” id. at 714-15, the Court explained that monitoring of the beeper inside the private residence was the functional equivalent of a physical search of the premises: In this case, had a DEA agent thought it useful to enter the . . . residence to verify that the ether was actually in the house and had he done so surreptitiously and without a war­ rant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amend­ ment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously em­ ploys an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose resi­ dence is being watched. Id. at 715. The Court distinguished its earlier decision in United States v. K notts, which held that the monitoring of a beeper on public roads was not a Fourth Amendment search. The Karo Court concluded that although the use o f a beeper inside a home is “less intrusive than a full-scale search,” it “reveal [s] a critical fact about the interior of the premises that the Govern­ ment is extremely interested in knowing and that it could not have otherwise obtained without a warrant.” Id. The Smith Memorandum states that it “appears likely” that the Supreme Court would hold, primarily on the authority of Karo, that FLIR surveillance is a Fourth Amendment search. Smith Memorandum at 25. The Memorandum 54 reasons that FLIR would enable investigators to deduce whether an object, such as a generator, is within a private structure in which there is a reason­ able expectation of privacy. Accordingly, like a beeper, FLIR could permit the government to leam “a critical fact about the interior of the premises” without obtaining a warrant. We do not believe that Karo should be read so broadly. First, it is clear that not every acquisition of information by the government from which it can deduce facts about the interior of a residence or other private structure constitutes a search. In California v. Greenwood, 486 U.S. 35 (1988), for example, the Court held that a search of trash placed outside a home for removal by the trash collector did not infringe upon a legitimate expectation of privacy of the homeowner. The Court reached this conclusion despite the fact that, as the dissent pointed out, “a sealed trash bag harbors telling evi­ dence of the ‘intimate activity associated with the sanctity of a man’s home and the privacies of life.’” Id. at 50 (Brennan, J., dissenting) (internal quota­ tions omitted). Likewise, in Smith v. Maryland, 442 U.S. 735 (1979), the Court held that the installation and use of a pen register to record telephone numbers dialed by Smith was not a search, although the pen register re­ vealed to police telephone numbers that Smith dialed within the privacy of his own home. See id. at 743. Many other observations permit police to discern what might in some cases be “critical facts” about the interior of a residence, although they almost certainly do not constitute searches under the Fourth Amendment. The sighting through a nightscope of smoke emanating from a chimney on top of a house, for example, allows an inference that a fire is burning inside the house. Observation through binoculars of light beams coming from a window permits the conclusion that someone (or some device) has activated a light inside the house. Yet in light of the decisions of the Supreme Court in Ciraolo and Riley and of the various state and lower federal courts involv­ ing binoculars and nightscopes, we believe it quite unlikely that the Supreme Court would hold, by analogy to Karo, that such observations of activity exposed to public view infringe upon Fourth Amendment rights. Second, the Court in Karo rested its holding on the fact that the govern­ ment had “surreptitiously employ[ed] an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.” 468 U.S. at 715 (emphasis added). By contrast, the owner of a structure on private property has full knowledge that heat is emitted from the structure and, presumably, that it can be monitored by infrared radars.13 The result in Karo would likely have been different had the owner of the residence knowingly placed his own beeper in the ether 11 We are informed by DoD that “infrared technology has been in use by local, state, and federal law enforcem ent officials for years." Smith Memorandum at 6. FLIR is mentioned in a reported court decision as early as 1977, see U nited States v. P otter, 552 F.2d 901, 906 n.7 (9th Cir. 1977), and it has been discussed by several courts in the last fourteen years. The existence and usefulness o f FLIR may be Continued 55 container and voluntarily conveyed the signal to anyone in the public who might desire to monitor it. C f United States v. Rose, 699 F.2d at 26 (no reasonable expectation of privacy in communications broadcast on a ham radio frequency); Edwards v. Bardwell, 632 F.2d at 589. The Smith Memorandum contends that “the only constitutional signifi­ cance of the fact in Karo that the beeper monitoring was done ‘surreptitiously’ appears to be that it was done without the knowledge and consent of Karo” and that “[t]o this extent, the proposed use of FLIR is as surreptitious as was the use of the beeper in Karo.” Smith Memorandum at 25. As noted, we believe this analysis fails to recognize the distinction between knowing and unknowing conveyance of information for receipt by the public. Karo did not know that the beeper was emitting its signal from the interior of his residence, because DEA agents surreptitiously planted the beeper in his home. By contrast, the owner of a structure on private property knows that he is emitting heat through the roof of the structure.14 D. Finally, the Smith Memorandum predicts that a court considering the use of FLIR over private property would invoke the Supreme Court’s cautionary note in Dow Chemical that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.” 476 U.S. at 238. See Smith Memorandum at 27. Whatever the significance of this dictum, we do not believe it applicable to aerial recon­ naissance that makes use of FLIR. While FLIR equipment may be expensive, we are informed that it is available to any member of the public who might wish to purchase it for use. FLIR does not, therefore, constitute “surveil­ lance equipment not generally available to the public.” To be sure, the proposed uses of FLIR raise difficult Fourth Amendment issues. FLIR enables the government to acquire information concerning heat emissions from private structures that has not been readily available in the past. We do not believe, however, that every technological advance in the service of law enforcement will inevitably infringe upon expectations of privacy that society is willing to honor. FLIR collects information about heat that is emanating from the exterior of structures and conveyed openly into the atmosphere. It does not reveal any precise or intimate details about 15(....continued) known am ong the citizenry as well, for law enforcement officials have informed DoD that individuals attem pting to cultivate illegal drugs “w ill often insulate their growing houses in an effort to preclude discovery of the intense heat generated by [the cultivation] process.” Smith Memorandum at 1. 14The M em orandum also relies on a num ber of lower court decisions holding that the use o f a m agne­ tom eter to detect metal on a person is a search under the Fourth Amendment. See, e.g.. U n ited States v. A lb a ra d o , 495 F.2d 799 (2d Cir. 1974); U nited States v. B e ll , 464 F.2d 667 (2d Cir.), cert, d e n ie d , 409 U.S. 991 (1972); U n ite d S ta te s v. E p p erso n , 454 F.2d 769 (4th Cir.), cert, d en ied , 406 U.S. 947 (1972). Continued 56 the interior of a structure. Any member of the public flying over a building with FLIR could acquire the information proposed to be collected by DoD personnel. In view of these factors and the relevant court precedents, we believe that the proposed use of FLIR to conduct aerial reconnaissance over structures located on private lands would not constitute a “search” under the Fourth Amendment, unless travel at the altitude to be flown by the aircraft carrying FLIR equipment is extraordinary. We believe this caveat is necessary, be­ cause Justice O’Connor’s concurring opinion in Florida v. Riley seemed to indicate that aerial surveillance from airspace that is rarely, if ever, traveled by the public would interfere with a reasonable expectation of privacy. 488 U.S. at 455 (O’Connor, J., concurring); see also United States v. Hendrickson, 940 F.2d 320, 323 (8th Cir.), cert, denied, 502 U.S. 992 (1991). It is uncer­ tain whether the Supreme Court will ultimately adopt the reasoning of the Riley plurality or Justice O’Connor concurrence, but for the time being, the law is unsettled with respect to aerial surveillance conducted from airspace that an individual could prove is rarely, if ever, used by the general public. If DoD encounters a situation in which FLIR surveillance would be carried out from airspace that is rarely used by the public, we would be pleased to examine that issue in more depth. IV. You have also expressed concern that DoD personnel who conduct FLIR surveillance might be subject to tort liability in an action brought under Bivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics, 403 U.S. 388 (1971). We do not believe that DoD personnel engaged in such activity will be liable for damages. If, as we believe, FLIR surveillance does not constitute a Fourth Amendment search, there would of course be no constitutional violation and no potential liability. Even if a court were to disagree with our conclusion and hold that FLIR surveillance is a search, we do not believe that DoD personnel would be subject to liability for monetary damages. Federal officers are entitled to “qualified immunity” from tort suits for actions taken in the course of their official duties. E.g., Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court explained that an officer is entitled to such immunity unless he violates a constitutional right that is “clearly established” at the time 14(....continued) S e e Smith M emorandum at 14 & n.33. These decisions contain little or no analysis o f the question whether use o f such a device is a Fourth Amendment search, and we agree with DoD that “we cannot be certain that the [Supreme] Court would agree their use is a search or that it would apply the same analysis to use o f FLIR.” Id. In any event, the use of a magnetometer is distinguishable from FLIR in at least one crucial respect. The magnetometer cases do not fall within the public exposure doctrine, because it is not true that “any member o f the public” could learn what the governm ent discovers through a magnetometer. The government is able to make use of a magnetometer only because it can require individuals to pass through the mechanism in order to travel on airplanes. S e e A lb a ra d o , 495 F.2d at 806-07. 57 of the officer’s action. The right must be “clearly established” in this particular­ ized sense: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640. Given the uncertainty surrounding what expectations of privacy “society is prepared to recognize as reasonable,” we do not believe that the use of FLIR from airspace that is used by the general public — even if ultimately held to be a Fourth Amendment search — would violate a “clearly estab­ lished” constitutional right of the owners of structures on private lands. As our legal analysis (and the difference of opinion among those to have exam­ ined the issue) shows, a reasonable officer certainly could believe that the use of FLIR to conduct aerial reconnaissance of private structures is lawful. Accordingly, we do not think that DoD personnel providing that type of assistance to civilian law enforcement agencies would be subject to liability for damages in a constitutional tort action. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office of Legal Counsel 58

Write a legal research memo on the following topic.

Fourth Amendment Implications of Military Use of Forward Looking Infrared Radars Technology for Civilian Law Enforcement Forw ard L ooking In frared R adars (FL IR ) reconnaissance o f structures on private lan d s does not constitute a search w ithin the m eaning o f the Fourth A m endm ent. D epartm ent o f D efen se personnel engaged in such surveillance would not be su b ject to liability for dam ages in a constitutional tort action. March 4, 1992 M em orandum D O p in io n f o r t h e epartm ent o f D General C o u n sel efen se This memorandum is in response to your request for further advice con­ cerning the use of Forward Looking Infrared Radars (“FLIR”) technology by the Department of Defense (“DoD”) to assist civilian law enforcement agen­ cies. In a memorandum dated February 19, 1991, this Office advised that, under existing statutory authority, DoD may assist civilian law enforcement agencies to identify or confirm suspected illegal drug production within struc­ tures located on private property by conducting aerial reconnaissance that uses FLIR technology.1 You subsequently requested an opinion from this Office on the question whether FLIR surveillance of structures on private property constitutes a “search” within the meaning of the Fourth Amendment.2 A memorandum that you have made available to us preliminarily concludes that FLIR reconnaissance of structures on private lands does constitute such a search.3 For the reasons set forth herein, we conclude that it does not. 1M ilitary Use o f Infrared Radars Technology to Assist Civilan Law Enforcement Agencies, 15 Op. O.L.C. 36(1991). 2Letter for J. Michael Luttig, Assistant Attorney General, Office o f Legal Counsel, from Terrence O ’Donnell, General Counsel, Department of Defense (Apr. 11, 1991). 3Memorandum for Terrence O’Donnell, Genera) Counsel, Department o f Defense, from Robert M. Smith, Jr. (Sept. 19, 1990) (“Smith Memorandum"). Other parties to examine the issue have reached differing conclusions. Compare Memorandum for Office of the Deputy C hief of Staff for Operations and Plans, from Patrick J. Parrish, Assistant to the General Counsel, Department of the Arm y (Sept. 17, 1990) (FLIR surveillance is a search under Fourth Amendment) with M emorandum for Joint Chiefs o f Staff, from Lt. Col. C.W. Hoffman, Jr., Deputy LLC (Aug. 14, 1990) (FLIR not a search) an d M em oran­ dum of Staff Judge Advocate for the Commander-in-Chief of the Pacific Command (attached to Letter for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from Terrence O ’Donnell. General Counsel, Departm ent of Defense (Nov. 21, 1990)) (same). 41 L Our February 19 memorandum sets forth the facts relevant to FLIR tech­ nology, and we briefly recount them here. FLIR is a passive technology that detects infrared radiation generated by heat-emitting objects. Infrared rays are received by the FLIR system, electronically processed, and projected on a screen as a visual image in the shape of the object that is emitting the heat. The w anner the object, the brighter the image of the object appears. See U nited States v. Sanchez, 829 F.2d 757, 759 (9th Cir. 1987); United States v. Kilgus, 571 F.2d 508, 509 (9th Cir. 1978); United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991), a ff’d sub nom. United States v. Feeney, 984 F.2d (9th Cir. 1993). FLIR does not have the characteristics of an X-ray technology. We have been informed that it cannot provide information concerning the interior of a container or structure. It detects only heat emanating from surfaces that are directly exposed to the FLIR system. Thus, for example, if there were heat-producing objects within a building, FLIR could detect that more infra­ red radiation was being emitted from the building’s roof than if the building were empty, but the system could not identify the shapes of heat-emitting objects located within the structure. Nor could the system identify the source o f the heat or the precise location of the heat source within the structure. Law enforcement agencies believe that FLIR technology can be useful in identifying buildings that house marijuana crops, or methamphetamine or other drug processing laboratories. In particular, FLIR can aid law enforce­ ment officials in establishing probable cause to believe that criminal activity is being conducted within a particular building by determining whether the building is radiating unusually large amounts of heat (due to the use of high intensity lighting or combustion generators) or unusually small amounts of heat (due to heavy insulation designed to mask the use of lighting or genera­ tors). Recently, therefore, federal and state law enforcement agencies have requested that military aircraft equipped with FLIR fly over suspect build­ ings on private lands and produce infrared images of those structures.4 We concluded in our February 19 memorandum that DoD has authority to provide the requested assistance under the provisions of 10 U.S.C. §§ 371-378, which are designed to promote cooperation between military personnel and ci­ vilian law enforcement officials. We now consider whether such assistance constitutes a “search” within the meaning of the Fourth Amendment to the Constitution. 4 The D epartm ent of Defense has informed us of three requests for assistance that present the question w hether such surveillance constitutes a Fourth Amendment search. The Drug Enforcement Adminis­ tration (“DEA ") has asked the Army to conduct infrared imaging o f a bam on private land in which the DEA suspects that m arijuana is being cultivated. Second, a law enforcem ent agency has requested that an A rm y flight crew conduct a training mission over certain private lands and buildings in the vicinity o f W ichita, K ansas, using an Army helicopter equipped with FLIR, to identify suspected illegal mari­ ju an a cultivation. Third, the DEA has asked that the Army undertake flights in OH-58D helicopters equipped w ith FLIR, at a height of at least 500 feet above ground, to identify dwellings and other structures on private land in Arizona that the DEA suspects contain methamphetamine laboratories. 42 II. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particu­ larly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Until the 1960’s, the Supreme Court interpreted the amendment to apply only to searches or seizures of the tangible things re­ ferred to in the text: “persons, houses, papers, and effects.” In O lm stead v. United States, 277 U.S. 438, 465 (1928), overruled by Berger v. New York, 388 U.S. 41 (1967), for example, the Court held that the interception of telephone conversations by government wiretaps did not implicate the Fourth Amendment, reasoning that “[t]he language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office.” The traditional interpretation of the Fourth Amendment was also limited to cases where the government committed a physical trespass to acquire information. In Olmstead, the Court noted that the wiretaps were conducted “without trespass upon any property of the defendants.” 277 U.S. at 457. In two eavesdropping cases, Goldman v. United States, 316 U.S. 129, 134-35 (1942), overruled by Katz v. United States, 389 U.S. 347 (1967), and On Lee v. United States, 343 U.S. 747, 751-52 (1952), the absence of a physical trespass was important to the Court’s conclusion that no Fourth Amendment search had been conducted. Only where “eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occu­ pied by the petitioners” did the Court hold that eavesdropping implicated the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 509 (1961). These limitations on the scope of the Fourth Amendment were eliminated by the Court in a series of decisions during the 1960s. In Berger, 388 U.S. at 51, the Court held that “ ‘conversation’ was within the Fourth Amendment’s protections, and that the use of electronic devices to capture it was a ‘search’ within the meaning of the Amendment” In Katz, 389 U.S. at 353, the Court overruled the “trespass” doctrine enunciated in Olmstead, and held that eaves­ dropping conducted through the placement of a listening device on the outside of a telephone booth constituted a “search and seizure” under the Fourth Amendment. Subsequent decisions have constructed a two-part inquiry, derived from Justice Harlan’s concurring opinion in Katz, to determine whether a govern­ ment activity constitutes a Fourth Amendment search: “[F]irst, has the 43 individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). See also California u Greenwood, 486 U.S. 35, 39 (1988); United States v. Knotts, 460 U.S. 276, 280-81 (1983); Smith v. M aryland, 442 U.S. 735, 740 (1979); K a tz , 389 U.S. at 361 (Harlan, J„ concurring). A. It will always be difficult to determine with certainty whether the owners or users of specific structures have subjective expectations of privacy that would be infringed by the proposed aerial reconnaissance. On the face of the matter, however, it seems unlikely that the owner of a structure would subjectively expect that the amount of heat emitted from the roof of the structure will remain private. Heat is inevitably discharged from structures that contain electrical equipment such as lights or generators, and we are informed by DoD that FLIR equipment has been used by law enforcement agencies for years to detect heat-emitting objects. Smith Memorandum at 6. The only court to address the Fourth Amendment implications of FLIR con­ cluded that the owners of a private residence that was monitored by FLIR “did not manifest an actual expectation o f privacy in the heat waste since they voluntarily vented it outside the garage where it could be exposed to the public and in no way attempted to impede its escape or exercise domin­ ion over it.” Penny-Feeney, 773 F. Supp. at 226. Moreover, it is likely that most people expect that law enforcement agencies will use information that is available to them for the detection of crime. Absent more detailed infor­ mation about the expectations of the individuals involved, we will turn to the second prong of the Fourth Amendment inquiry described by the Su­ preme Court for determining whether government activity constitutes a Fourth Am endment search.5 1. The second question posed by the Supreme Court’s analysis is whether FLIR surveillance, by detecting the amount of heat emitted from the exterior o f a structure on private property, intrudes upon an expectation of privacy that society is willing to recognize as reasonable. The Supreme Court has not developed a clear doctrine that would indicate what is an objectively ’ The Suprem e Court has never relied solely on the first prong of its two-part inquiry to hold that a governm ent activity is not a search under the Fourth Amendment. The Court itself has suggested that the “ subjective” elem ent o f the inquiry m ay be an “ inadequate index o f Fourth Amendment protection,” Sm ith v. M aryland, 442 U.S. at 740 n.5, because, “[fjor exam ple, if the Government w ere suddenly to announce on nationw ide television that all homes henceforth would be subject to warrantless entry, individuals thereafter m ight not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects." Id. 44 reasonable expectation of privacy in a case where neither a physical trespass into a home or curtilage nor a physical search of tangible objects enumer­ ated in the text of the Fourth Amendment is involved. In Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978), the Court did explain that “[l]egitimation of expectations of privacy by law must have a source outside o f the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”6 Sim i­ larly, in Robbins v. California, 453 U.S. 420, 428 (1981), disposition'bverruled on other grounds, United States v. Ross, 456 U.S. 798 (1982), a plurality of the Court ventured that “[expectations of privacy are established by general social norms.” What remains unclear from these and other decisions, how­ ever, is the m ethodology that should be employed to determ ine w hat expectations o f privacy “society” is prepared to recognize as reasonable. The Fourth Amendment’s protections are best discerned by reference to the Supreme C ourt’s prior decisions in the area. Cf. Allen v. Wright, 468 U.S. 737, 751 (1984) (given the absence of precise definitions in standing doctrine, courts may answer standing questions through comparison with prior cases). Applying the oft-stated principle articulated by the Court in Katz that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” Katz, 389 U.S. at 351 (citations omitted), we conclude that the use of FLIR to conduct aerial reconnaissance of structures is not a Fourth Amendment search.7 The Supreme Court has applied the “public exposure” rule to cases in­ volving aerial surveillance of private property.8 In Ciraolo, the Court held that police officers did not conduct a Fourth Amendment search when they traveled over respondent Ciraolo’s home in a fixed-wing aircraft at an alti­ tude of 1000 feet and observed, with the naked eye, marijuana plants growing in a garden within the curtilage of Ciraolo’s home. Although the home and garden were surrounded by double fences of six and ten feet in height, the Court noted that “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” 476 U.S. at 213-14. Accordingly, the Court held that “respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.” Id. at 214. Similarly, in Florida v. Riley, 488 U.S. 445 (1989), the Court held that helicopter surveillance of the interior of a greenhouse, located within the ‘ The Supreme Court has referred interchangeably to “legitimate" and “reasonable” expectations o f privacy. See Ciraolo, 476 U.S. at 220 n.4 (Powell, I., dissenting). ’ The District Court in Penny-Feeney, 773 F. Supp. at 226-28, relied to some extent on the “public exposure" doctrine to hold that FLIR surveillance of a private home did not violate a reasonable expec­ tation o f privacy of the residents. Although we concur with the result in that case, we do not agree with all of the court's reasoning. 8The Court has not equated the scope of the "public exposure” doctrine with subjective expectations o f privacy. The Court has assumed that a person may have a subjective expectation of privacy even in that which he “knowingly exposes to the public." E.g., Ciraolo, 476 U.S. at 213. 45 curtilage of respondent Riley’s home, did not constitute a search under the Fourth Amendment. Although the interior of Riley’s greenhouse was not visible from the adjoining road, the investigating officer discovered that the sides and roof of the greenhouse were left partially open, and that the inte­ rior o f the greenhouse — including marijuana plants — could be observed with the naked eye from a helicopter circling over Riley’s property at an altitude o f 400 feet. A plurality of the Court, noting that “[a]ny member of the public could legally have been flying over Riley’s property in a helicop­ ter at the altitude of 400 feet and could have observed Riley’s greenhouse,” concluded that the case was controlled by Ciraolo. Id. at 451. Justice O ’Connor, concurring in Riley, also concluded that there was no Fourth Amendment search, although she believed that “there is no reason to assume that compliance with FAA regulations alone” means that the govern­ ment has not interfered with a reasonable expectation of privacy. Id. at 453 (O ’Connor, J., concurring in judgment). In Justice O’Connor’s view, the controlling question was whether “the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regular­ ity that R iley’s expectation of privacy from aerial observation was not ‘one that society is prepared to recognize as reasonable.’” Id. at 454 (quoting K a tz , 389 U.S. at 361) (internal quotations omitted). Because Riley had not shown that air travel at an altitude of 400 feet was extraordinary, Justice O ’Connor concluded that the helicopter surveillance was not a “search.” The Court has also applied the “public exposure” doctrine to hold that an individual has no reasonable expectation of privacy in garbage left at the curb outside his home for pickup by trash collectors, California v. Green­ w ood, in telephone numbers dialed and thus conveyed automatically to the telephone company, Smith v. M aryland, or in a route traveled by an automo­ bile on a public highway or the movements of objects in “open fields,” even when they are monitored surreptitiously by an electronic beeper. United States v. Knotts. In each of these cases, the Court reasoned that individuals had openly displayed their activities or objects to public view and therefore enjoyed no expectation of privacy that society is prepared to recognize as reasonable. We believe that the use o f FLIR to observe heat emissions from the exterior o f structures on private property is analogous to the surveillance activities undertaken by the government in the “public exposure” cases. As­ suming that the aerial surveillance is to take place from airspace sometimes used by the public — and we have not been provided with precise informa­ tion on that issue — the question presented by FLIR surveillance is quite com parable to those decided by the Court in Ciraolo and Riley. “[T]he home and its curtilage are not necessarily protected from inspection that involves no physical invasion.” Riley, 488 U.S. at 449 (plurality opinion). The owner of a structure on private property knowingly, indeed almost in­ evitably, emits heat from the structure, and any member of the public flying over the structure could detect those heat emissions with FLIR. 46 We recognize, of course, that the investigating officers in Ciraolo and Riley conducted their visual observations with the naked eye, while FLIR surveillance employs technology to detect what an investigator could not observe on his own. Decisions of the Supreme Court and courts o f appeals suggest, however, that the use of technological means to gather information will not amount to a Fourth Amendment search where the government does not thereby observe the interior of a structure or any other “intimate details” o f the home or curtilage. In view of the limited information disclosed by FLIR, we do not believe that the use of such technology in the proposed recon­ naissance missions would constitute a “search” under the Fourth Amendment. As a threshold matter, it is clear that the use of technological devices to acquire information that would be unattainable through the use of natural senses does not necessarily implicate the Fourth Amendment. In United States v. Lee, 274 U.S. 559, 563 (1927), the Supreme Court held that the use of a searchlight by the Coast Guard to examine a boat on the high seas did not violate the Fourth Amendment. The Court explained that “[s]uch use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” In On Lee, 343 U.S. at 754, the Court said in dictum that “[t]he use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one sup­ poses to be private indiscretions.” And in United States v. White, 401 U.S. 745, 753 (1971), a plurality of the Court concluded that “[a]n electronic recording will many times produce a more reliable rendition of what a de­ fendant has said than will the unaided memory o f a police agent . . ., but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amend­ ment privilege against a more accurate version of the events in question.” The courts of appeals have held that the interception o f communications from radio frequencies that are accessible to the general public does not constitute a Fourth Amendment search, even though radio waves cannot be perceived by natural senses. E.g., United States v. Rose, 669 F.2d 23, 26 (1st Cir.), cert, denied, 459 U.S. 828 (1982); Edwards v. Bardwell, 632 F. Supp. 584, 589 (M.D. La.), aff'd, 808 F.2d 54 (5th Cir. 1986). The Supreme Court discussed the use of sophisticated surveillance equip­ ment in Dow Chemical Co. v. United States, 476 U.S. 227 (1986). There, the Court considered the Fourth Amendment implications of aerial surveil­ lance by the Environmental Protection Agency, which made use o f precise photographic equipment to observe the open areas of an industrial facility. In holding that the surveillance was not a “search,” the Court noted that the photographic equipment could permit “identification of objects such as wires as small as 1/2-inch in diameter,” id. at 238, and addressed the significance of the equipment for the Fourth Amendment: 47 It may well be, as the Government concedes, that surveil­ lance o f private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally pro­ scribed absent a warrant. But the photographs here are not so revealing o f intimate details as to raise constitutional con­ cerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility’s buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. Id. (emphasis added). So too here, FLIR does not reveal intimate details concerning persons, objects, o r events within structures. The C ourt’s concern over observation of “intimate details” has been re­ peated in cases involving private homes and their curtilage. In Ciraolo, for example, the Court went out o f its way to note that “[t]he State acknowl­ edges that ‘[a]erial observation of curtilage may become invasive, either due to physical intrusiveness or through modem technology which discloses to the senses those intimate associations, objects or activities otherwise imper­ ceptible to police or fellow citizens.’” 476 U.S. at 215 n.3 (emphasis added). M ore significantly, the plurality in Riley, in concluding that helicopter sur­ veillance of Riley’s greenhouse did not constitute a search, found it important that “no intimate details connected with the use of the home or curtilage were observed.” 488 U.S. at 452.9 The courts of appeals that have considered the Fourth Amendment impli­ cations o f magnification technology used by the government to collect information have distinguished between surveillance of the interior of a home, which has been deemed a search, and observation of the curtilage, which has not. In U nited States v. Taborda, 635 F.2d 131 (2d Cir. 1980), the Second Circuit held that the use of a high-powered telescope to peer through the window o f an apartment was a “search” under the Fourth Amendment. The court reasoned that “[t]he vice of telescopic viewing into the interior of a hom e is that it risks observation not only of what the householder should realize might be seen by unenhanced viewing, but also o f intimate details o f a p e rso n ’s private life, which he legitimately expects will not be observed either by naked eye or enhanced vision.” Id. at 138-39 (emphasis added). ’ Justice Brennan, in his dissent in Riley, criticized the majority on this point, suggesting that the police ju st as easily could have observed intim ate details o f Riley's personal activities, although all they hap­ pened to observe was evidence of crime. 488 U.S. at 463 (Brennan, J., dissenting). FLIR, however, is incapable of revealing intim ate details. It simply provides information about surface heat, from which general inferences som etim es can be draw n. A ccord United States v. Kim, 415 F. Supp. 1252, 1254-56 (D. Haw. 1976) (use of telescope to view inside of apartment was Fourth Am endm ent “search”); State v. Ward, 617 P.2d 568, 571-73 (Haw. 1980) (use of binocu­ lars to view inside of apartment was “search”); State v. Knight, 621 P.2d 370, 373 (Haw. 1980) (aerial observation with binoculars of inside of closed greenhouse was “search”).10 Subsequently, however, the Second Circuit distinguished Taborda in a case involving the use of binoculars and a high-powered spotting scope to observe an outdoor area adjacent to a house and garage. In United States v. Lace, 669 F.2d 46 (2d Cir.), cert, denied, 459 U.S. 854 (1982), the court explained that Taborda “proscribed the use of a telescope by a policeman only so far as it enhanced his view into the interior of a home.” Id. at 51. The Fourth Amendment was not implicated by the use of binoculars and a spotting scope “in places where the defendant otherwise has exposed him­ self to public view.” Id. Reflecting subsequently on Taborda and Lace, the Second Circuit declared that “it was not the enhancement of the senses p e r se that was held unlawful in Taborda, but the warrantless invasion o f the right to privacy in the home. In contrast, the warrantless use of supplemen­ tal resources including mechanical devices, such as binoculars, to observe activities outside the home has been consistently approved by the courts.” United States v. Bonfiglio, 713 F.2d 932, 937 (2d Cir. 1983). The Ninth Circuit, when considering surveillance conducted with magni­ fication devices, has similarly focused on the privacy interest associated with the area or activity observed, rather than on the nature of the technol­ ogy used. In United States v. Allen, 675 F.2d 1373 (9th Cir. 1980) (Kennedy, J.), cert, denied, 454 U.S. 833 (1981), the court held that surveillance of private ranch property from a Coast Guard helicopter, by a Customs official using binoculars and a telephoto lens, did not infringe upon a reasonable expectation of privacy. The court emphasized that “[w]e are not presented with an attempt to reduce, by the use of vision-enhancing devices or the incidence o f aerial observation, the privacy expectation associated with the interiors o f residences or other structures .” Id. at 1380 (emphasis added). Other courts have approved the distinction for Fourth Amendment purposes between enhanced viewing of the interior of private structures and the en­ hanced viewing of activities or objects outside such buildings. D ow Chemical Co. v. United States, 749 F.2d 307, 314-15 & n.2 (6th Cir. 1984), aff'd, 476 U.S. 227 (1986); United States v. Michael, 645 F.2d 252, 258 n.16 (5th Cir.), cert, denied, 454 U.S. 950 (1981); United States v. Devorce, 526 F. Supp. 191, 201 10 Prior to Taborda, some courts held that enhanced viewing o f the interior of certain structures on private property did not constitute a search. Fullbright v. United States, 392 F.2d 432, 434 (10ih Cir.) (use o f binoculars to view inside of open shed near house), cert, denied, 393 U.S. 830 (1968); People v. Hicks, 364 N.E.2d 440, 444 (111. App. 1st Dist. 1977) (use of binoculars to view interior of residence); State v. Thompson, 241 N.W.2d 511, 513 (Neb. 1976) (use of binoculars to view interior o f residence through curtains); State v. Manly, 530 P.2d 306 (Wash.) (use of binoculars to view interior of apartm ent), cert, denied, 423 U.S. 855 (1975); Commonwealth v. Hernley, 263 A.2d 904 (Pa. Super. 1970) (use of binoculars to look through window of print shop), cert denied, 401 U.S. 914 (1971). 49 (D. Conn. 1981). Cf. New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”); Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion) (taking of paint scrapings from the exterior of a vehicle left in a public parking lot did not infringe legitimate expectation of privacy where “nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched”). State and federal courts have followed a similar line of reasoning when considering the use o f light-intensifying “nightscopes” to conduct surveil­ lance in the dark. In United States v. Ward, 546 F. Supp. 300, 310 (W.D. Ark. 1982), a f f ’d in relevant p a rt, 703 F.2d 1058, 1062 (8th Cir. 1983), the court held that the use of a nightscope to observe the movements of indi­ viduals outside a bam did not constitute a search, where “[t]he officers did not ‘peep’ or peer into or through any windows or skylights,” or “obtain a view o f objects or persons normally physically obscured.” Id. at 310. In U nited States v. Hensel, 509 F. Supp. 1376 (D. Me. 1981), a ff’d, 699 F.2d 18 (1st Cir.), cert, denied, 461 U.S. 958 (1983), the court stated that the use of nightscopes “transgresses no Fourth Amendment rights” where drug enforce­ ment agents used the scopes to observe activities on a private dock “but could not see into the buildings.” Id. at 1384 n.9. The First Circuit, al­ though not resolving the issue, subsequently characterized this conclusion as “a reasonable position to take, given the case law on the subject.” 699 F.2d at 41. The Tennessee Court of Criminal Appeals reached the same conclu­ sion in State v. Cannon, 634 S.W.2d 648 (Tenn. Crim. App. 1982), noting that the nightscope was used “to observe the traffic and activity on the outside o f the dwelling,” but that it was “of no value in surveying activity in the interior of the house.” Id. at 651. See also Newberry v. State, 421 So.2d 546, 549 (Fla. App. 1982), appeal dismissed, 426 So.2d 27 (Fla. 1983); State v. D enton, 387 So.2d 578, 584 (La. 1980). Like the Second Circuit in Taborda with respect to telescopes, the Supreme Court of Pennsylvania has placed limits on the use of night vision equipment when it is used to dis­ cover “intimate details” within a dwelling. In Commonwealth v. Williams, 431 A.2d 964, 966 (Pa. 1981), the Court held that when such equipment was used for nine days to observe activity within private apartment, including two acts of sexual intercourse, then the surveillance constituted a “search” under the Fourth Amendment. Following the reasoning of these decisions, we do not believe that the use of FLIR to detect the amount of heat emanating from structures on private lands constitutes a Fourth Amendment search. FLIR does not permit obser­ vation of the interior of homes or other structures. It cannot be used to peer through windows or skylights. It does not reveal even the shape or precise location of heat-emitting objects within a building, but shows only the amount of heat emitted from the exterior of a structure. When compared with the observations made by investigating officers in Ciraolo and Riley (which in­ cluded the interior o f Riley’s greenhouse and the specific plants growing in 50 Ciraolo’s garden) and in Lace, Allen, and other lower court decisions (which included the movement of persons and vehicles within the curtilage o f a residence), external heat emissions are not the sort of “intimate detail” likely to raise concerns under the public exposure cases.11 III. A. The Smith Memorandum predicts, however, that the public exposure ra­ tionale “is unlikely to be adopted by the courts” with respect to FLIR. Smith Memorandum at 27. In its view, the public exposure doctrine should not be extended to cases where the technology adds a “sixth sense” to those natu­ rally possessed by investigating officers. The memorandum contends that nightscopes and binoculars reveal activities that would have been visible to the human eye absent darkness or distance, and that the electronic beeper employed to monitor a vehicle on public roads in United States v. Knotts revealed only activities that would have been visible to passersby. By contrast, the memorandum argues, FLIR “permits observation of something that pass­ ersby cannot perceive with their natural senses,” and its use is thus not likely to be sanctioned under the public exposure doctrine. Smith Memorandum at 27. Assuming that there is a viable distinction between technologies that en­ hance existing senses and those that permit “extra-sensory” perception, and assuming that FLIR permits government agents to observe what they could not detect with their natural senses, those facts alone do not mean that the use of FLIR is a “search” under the Fourth Amendment. Federal and state courts have held that the interception of radio waves — which themselves cannot be perceived by the natural senses — does not constitute a “search.” The United States Court of Appeals for the First Circuit, for example, con­ cluded that there is no reasonable expectation of privacy in a communications broadcast on a ham radio frequency, which is “commonly known to be a means of communication to which large numbers of people have access as receivers.” Rose, 669 F.2d at 26. Similarly, the Fifth Circuit summarily affirmed the decision of a district court which concluded that “[t]here is no reasonable expectation of privacy in a communication which is broadcast by radio in all directions to be overheard by countless people who have pur­ chased and daily use receiving devices such as a ‘bearcat’ scanner or who "T h e relatively minimal information disclosed by FLIR clearly distinguishes it from X-ray-like tech­ nologies, which could perm it the viewing of persons or objects through opaque structures or containers. As the United States said in its brief in Dow Chemical, if “the government possessed a sophisticated Xray device that enabled it to see through the walls of a house, there seems little doubt that the use o f such a device to discover objects or activities located inside a dwelling would be subject to Fourth Am end­ ment regulation." B rief for the United States at 24 n.12, 476 U.S. 227 (1986) (No. 84-1259). See United States v. Haynie, 637 F.2d 227 (4th Cir. 1980) (use of X-ray machine to reveal shapes of objects is a Fourth Amendment search), cert, denied, 451 U.S. 972(1981); United States v. Henry, 615 F.2d 1223 (9th cir. 1980) (same). 51 happen to have another mobile radio telephone tuned to the same frequency.” E dw ards v. Bardwell, 632 F. Supp. at 589. Accord Edwards u State Farm Ins. Co., 833 F.2d 535, 538-39 (5th Cir. 1987). Three other circuits have likewise held that there is no reasonable expectation of privacy in radio telephone or cordless telephone conversations. Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989), cert, denied, 493 U.S. 1022 (1990); United States v. H all, 488 F.2d 193, 198 (9th Cir. 1973); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970), cert, denied, 400 U.S. 1000 (1971).12 These decisions demonstrate that the question whether the acquisition of informa­ tion is a “search” must depend on more than whether the information may be perceived by the natural senses. In any event, we believe it is virtually impossible to divide surveillance techniques neatly between those that allow “extra-sensory” perception and those that merely employ the natural senses. It is hardly clear, for example, that night vision equipment, the use of which has been held not to constitute a search, permits merely “enhancement o f the natural sense of sight.” Smith Memorandum at 27. One jurist to consider the question thought not, and observed that a nightscope “not only magnifies what the viewer could see with the naked eye, but also makes possible the observation of activities which the viewer could not see because o f darkness.” State v. Denton, 387 So.2d at 584. On the other hand, the First Circuit has opined that “[u]se o f a beeper to monitor a vehicle involves something more” than “magnification o f the observer’s senses,” United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert, denied, 435 U.S. 926 (1978), even though the Smith Memoran­ dum maintains that beeper surveillance reveals only activities that would be visible to passersby, and thus is not “extra-sensory.” Smith Memorandum at 27. In short, virtually all of the devices used by investigating officers in some sense permit the collection of information that could not “naturally” be observed. The distinction between natural and “extra-sensory” observa­ tions thus seems to have little analytical or constitutional significance. Even if that distinction were important, it is not at all clear that FLIR would be categorized properly as a device that permits observations that humans could not make with their natural senses. At some level, heat ema­ nations can be observed through the natural sense o f sight. The naked eye can perceive heat waves rising from a warm object. The relative speeds at which snow melts from the roofs of various structures can give indications about the relative heat emissions from those structures. The natural senses can also feel heat emanations when they are in close proximity to the human body. Thus, it could be argued that FLIR merely enhances the capacity of the natural senses to perceive heat. ,2See also Slate v. Delaurier, 488 A .2d 688, 694 (R.I. 1985) (owners of cordless telephone had no reasonable expectation o f privacy in their conversations, which could be intercepted with standard AM/ FM radio); State v. Howard, 679 P.2d 197, 206 (Kan. 1984) (same); People v. M edina, 234 Cal. Rptr. 256, 262 (Cal. Ct. App.) (no reasonable expectation of privacy in message sent through pager system, w here conversation “'could be intercepted by anyone with a radio scanner or another pager”), cert, denied, 484 U.S. 929 (1987). 52 Courts generally have held that the relevant question for determining whether surveillance infringes upon a legitimate expectation of privacy is not merely how information is collected but what information is collected. If an object of government surveillance is recognized by society as enjoying a privacy interest of sufficient magnitude, the government’s activity will constitute a “search.” Technology that allows the government to view the interior of a home almost certainly implicates the Fourth Amendment. But we are not prepared to say, as the Smith Memorandum suggests, that any “extra-sensory” technological development that assists authorities in ferret­ ing out crime is automatically one that society would deem unreasonably intrusive, no matter how minimal the intrusion on the privacy interests of the citizenry. The Supreme Court has “never equated police efficiency with unconstitutionality,” Knotts , 460 U.S. at 284, and we fear that acceptance of the Smith Memorandum’s analysis would come perilously close to doing so. B. More fundamentally, the Smith Memorandum suggests that extension of the public exposure doctrine to endorse the use of FLIR would threaten to “repudiate” Katz, because “any member of the public who could obtain a sophisticated listening device could have heard everything the police heard” in Katz. Smith Memorandum at 28. This contention does illustrate that the public exposure doctrine must have limits, and it points to an internal ten­ sion in the reasoning of Katz itself. It could reasonably be argued that Katz, given the availability of listening devices, knowingly exposed his conversa­ tions to the public by using a public telephone booth to place his calls. It may well be that the Supreme Court will eventually be forced to revisit its Fourth Amendment jurisprudence and explain the relationship between K atz and the “public exposure” doctrine. In the light of decisions subsequent to Katz, however, it appears that the Court concluded that the eavesdropping in Katz was a search not simply because the FBI employed technology, but because the technology permitted the interception of “private communication.” 389 U.S. at 352. Private com­ munications, like private papers and the interior of a home, implicate a privacy interest of the highest degree. As Justice Brandeis explained in his prescient dissent in Olmstead, the Supreme Court has long held that private letters are protected by the Fourth Amendment, see Ex parte Jackson, 96 U.S. 727 (1877), and “[t]here is, in essence, no difference between the sealed letter and the private telephone message.” Olm stead, 277 U.S. at 475 (Brandeis, J., dissenting). “Society” is plainly prepared to recognize as reasonable the expectation that private telephone calls will remain free from monitoring by the government. Heat emissions from the exterior of a struc­ ture — providing, as they do, no precise details about a structure’s interior — do not, in our view, enjoy a similar status. 53 c. The principal case relied on by the Smith Memorandum for the conclu­ sion that FLIR surveillance is a Fourth Amendment search is United States v. Karo, 468 U.S. 705 (1984). In Karo, drug enforcement agents installed an electronic beeper in a can of ether, which they believed was to be delivered to buyers for use in extracting cocaine from clothing that had been imported into the United States. After the ether was delivered to the buyers, who had no knowledge o f the presence of the beeper, the agents monitored the move­ ment of the can of ether within a private residence where it was stored and used. The Court held that “the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights o f those who have a justifiable interest in the privacy of the resi­ dence.” Id. at 714. After reciting the basic rule that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exi­ gent circumstances,” id. at 714-15, the Court explained that monitoring of the beeper inside the private residence was the functional equivalent of a physical search of the premises: In this case, had a DEA agent thought it useful to enter the . . . residence to verify that the ether was actually in the house and had he done so surreptitiously and without a war­ rant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amend­ ment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously em­ ploys an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose resi­ dence is being watched. Id. at 715. The Court distinguished its earlier decision in United States v. K notts, which held that the monitoring of a beeper on public roads was not a Fourth Amendment search. The Karo Court concluded that although the use o f a beeper inside a home is “less intrusive than a full-scale search,” it “reveal [s] a critical fact about the interior of the premises that the Govern­ ment is extremely interested in knowing and that it could not have otherwise obtained without a warrant.” Id. The Smith Memorandum states that it “appears likely” that the Supreme Court would hold, primarily on the authority of Karo, that FLIR surveillance is a Fourth Amendment search. Smith Memorandum at 25. The Memorandum 54 reasons that FLIR would enable investigators to deduce whether an object, such as a generator, is within a private structure in which there is a reason­ able expectation of privacy. Accordingly, like a beeper, FLIR could permit the government to leam “a critical fact about the interior of the premises” without obtaining a warrant. We do not believe that Karo should be read so broadly. First, it is clear that not every acquisition of information by the government from which it can deduce facts about the interior of a residence or other private structure constitutes a search. In California v. Greenwood, 486 U.S. 35 (1988), for example, the Court held that a search of trash placed outside a home for removal by the trash collector did not infringe upon a legitimate expectation of privacy of the homeowner. The Court reached this conclusion despite the fact that, as the dissent pointed out, “a sealed trash bag harbors telling evi­ dence of the ‘intimate activity associated with the sanctity of a man’s home and the privacies of life.’” Id. at 50 (Brennan, J., dissenting) (internal quota­ tions omitted). Likewise, in Smith v. Maryland, 442 U.S. 735 (1979), the Court held that the installation and use of a pen register to record telephone numbers dialed by Smith was not a search, although the pen register re­ vealed to police telephone numbers that Smith dialed within the privacy of his own home. See id. at 743. Many other observations permit police to discern what might in some cases be “critical facts” about the interior of a residence, although they almost certainly do not constitute searches under the Fourth Amendment. The sighting through a nightscope of smoke emanating from a chimney on top of a house, for example, allows an inference that a fire is burning inside the house. Observation through binoculars of light beams coming from a window permits the conclusion that someone (or some device) has activated a light inside the house. Yet in light of the decisions of the Supreme Court in Ciraolo and Riley and of the various state and lower federal courts involv­ ing binoculars and nightscopes, we believe it quite unlikely that the Supreme Court would hold, by analogy to Karo, that such observations of activity exposed to public view infringe upon Fourth Amendment rights. Second, the Court in Karo rested its holding on the fact that the govern­ ment had “surreptitiously employ[ed] an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.” 468 U.S. at 715 (emphasis added). By contrast, the owner of a structure on private property has full knowledge that heat is emitted from the structure and, presumably, that it can be monitored by infrared radars.13 The result in Karo would likely have been different had the owner of the residence knowingly placed his own beeper in the ether 11 We are informed by DoD that “infrared technology has been in use by local, state, and federal law enforcem ent officials for years." Smith Memorandum at 6. FLIR is mentioned in a reported court decision as early as 1977, see U nited States v. P otter, 552 F.2d 901, 906 n.7 (9th Cir. 1977), and it has been discussed by several courts in the last fourteen years. The existence and usefulness o f FLIR may be Continued 55 container and voluntarily conveyed the signal to anyone in the public who might desire to monitor it. C f United States v. Rose, 699 F.2d at 26 (no reasonable expectation of privacy in communications broadcast on a ham radio frequency); Edwards v. Bardwell, 632 F.2d at 589. The Smith Memorandum contends that “the only constitutional signifi­ cance of the fact in Karo that the beeper monitoring was done ‘surreptitiously’ appears to be that it was done without the knowledge and consent of Karo” and that “[t]o this extent, the proposed use of FLIR is as surreptitious as was the use of the beeper in Karo.” Smith Memorandum at 25. As noted, we believe this analysis fails to recognize the distinction between knowing and unknowing conveyance of information for receipt by the public. Karo did not know that the beeper was emitting its signal from the interior of his residence, because DEA agents surreptitiously planted the beeper in his home. By contrast, the owner of a structure on private property knows that he is emitting heat through the roof of the structure.14 D. Finally, the Smith Memorandum predicts that a court considering the use of FLIR over private property would invoke the Supreme Court’s cautionary note in Dow Chemical that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.” 476 U.S. at 238. See Smith Memorandum at 27. Whatever the significance of this dictum, we do not believe it applicable to aerial recon­ naissance that makes use of FLIR. While FLIR equipment may be expensive, we are informed that it is available to any member of the public who might wish to purchase it for use. FLIR does not, therefore, constitute “surveil­ lance equipment not generally available to the public.” To be sure, the proposed uses of FLIR raise difficult Fourth Amendment issues. FLIR enables the government to acquire information concerning heat emissions from private structures that has not been readily available in the past. We do not believe, however, that every technological advance in the service of law enforcement will inevitably infringe upon expectations of privacy that society is willing to honor. FLIR collects information about heat that is emanating from the exterior of structures and conveyed openly into the atmosphere. It does not reveal any precise or intimate details about 15(....continued) known am ong the citizenry as well, for law enforcement officials have informed DoD that individuals attem pting to cultivate illegal drugs “w ill often insulate their growing houses in an effort to preclude discovery of the intense heat generated by [the cultivation] process.” Smith Memorandum at 1. 14The M em orandum also relies on a num ber of lower court decisions holding that the use o f a m agne­ tom eter to detect metal on a person is a search under the Fourth Amendment. See, e.g.. U n ited States v. A lb a ra d o , 495 F.2d 799 (2d Cir. 1974); U nited States v. B e ll , 464 F.2d 667 (2d Cir.), cert, d e n ie d , 409 U.S. 991 (1972); U n ite d S ta te s v. E p p erso n , 454 F.2d 769 (4th Cir.), cert, d en ied , 406 U.S. 947 (1972). Continued 56 the interior of a structure. Any member of the public flying over a building with FLIR could acquire the information proposed to be collected by DoD personnel. In view of these factors and the relevant court precedents, we believe that the proposed use of FLIR to conduct aerial reconnaissance over structures located on private lands would not constitute a “search” under the Fourth Amendment, unless travel at the altitude to be flown by the aircraft carrying FLIR equipment is extraordinary. We believe this caveat is necessary, be­ cause Justice O’Connor’s concurring opinion in Florida v. Riley seemed to indicate that aerial surveillance from airspace that is rarely, if ever, traveled by the public would interfere with a reasonable expectation of privacy. 488 U.S. at 455 (O’Connor, J., concurring); see also United States v. Hendrickson, 940 F.2d 320, 323 (8th Cir.), cert, denied, 502 U.S. 992 (1991). It is uncer­ tain whether the Supreme Court will ultimately adopt the reasoning of the Riley plurality or Justice O’Connor concurrence, but for the time being, the law is unsettled with respect to aerial surveillance conducted from airspace that an individual could prove is rarely, if ever, used by the general public. If DoD encounters a situation in which FLIR surveillance would be carried out from airspace that is rarely used by the public, we would be pleased to examine that issue in more depth. IV. You have also expressed concern that DoD personnel who conduct FLIR surveillance might be subject to tort liability in an action brought under Bivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics, 403 U.S. 388 (1971). We do not believe that DoD personnel engaged in such activity will be liable for damages. If, as we believe, FLIR surveillance does not constitute a Fourth Amendment search, there would of course be no constitutional violation and no potential liability. Even if a court were to disagree with our conclusion and hold that FLIR surveillance is a search, we do not believe that DoD personnel would be subject to liability for monetary damages. Federal officers are entitled to “qualified immunity” from tort suits for actions taken in the course of their official duties. E.g., Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court explained that an officer is entitled to such immunity unless he violates a constitutional right that is “clearly established” at the time 14(....continued) S e e Smith M emorandum at 14 & n.33. These decisions contain little or no analysis o f the question whether use o f such a device is a Fourth Amendment search, and we agree with DoD that “we cannot be certain that the [Supreme] Court would agree their use is a search or that it would apply the same analysis to use o f FLIR.” Id. In any event, the use of a magnetometer is distinguishable from FLIR in at least one crucial respect. The magnetometer cases do not fall within the public exposure doctrine, because it is not true that “any member o f the public” could learn what the governm ent discovers through a magnetometer. The government is able to make use of a magnetometer only because it can require individuals to pass through the mechanism in order to travel on airplanes. S e e A lb a ra d o , 495 F.2d at 806-07. 57 of the officer’s action. The right must be “clearly established” in this particular­ ized sense: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640. Given the uncertainty surrounding what expectations of privacy “society is prepared to recognize as reasonable,” we do not believe that the use of FLIR from airspace that is used by the general public — even if ultimately held to be a Fourth Amendment search — would violate a “clearly estab­ lished” constitutional right of the owners of structures on private lands. As our legal analysis (and the difference of opinion among those to have exam­ ined the issue) shows, a reasonable officer certainly could believe that the use of FLIR to conduct aerial reconnaissance of private structures is lawful. Accordingly, we do not think that DoD personnel providing that type of assistance to civilian law enforcement agencies would be subject to liability for damages in a constitutional tort action. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office of Legal Counsel 58

Write a legal research memo on the following topic.

Obligating Carryover Funds in Violation of OMB Zero-Dollar Apportionment Rule At least in circumstances where an agency fails to submit an apportionment request for carryover funds to the Office of Management and Budget before the start of a fiscal year, the automatic zero-dollar apportionment effected by section 120.57 of OMB Circular A-11 is a valid apportionment for purposes of the Anti-Deficiency Act. As a result, in such circumstances, 31 U.S.C. § 1517 would prohibit an agency from expending or obligating funds exceeding that apportionment of zero. September 29, 2016 MEMORANDUM OPINION FOR THE ASSISTANT GENERAL COUNSEL ADMINISTRATION AND TRANSACTIONS DEPARTMENT OF COMMERCE For purposes of federal fiscal law, an “apportionment” specifies the amount of money in an appropriation account an agency can obligate or expend during a particular period of time, or on a particular project or function. See 31 U.S.C. § 1512. The Anti-Deficiency Act (“ADA” or “Act”) gives the President the authority to apportion the appropriations available to federal agencies. Id. § 1513(b)(1). The President has delegated this authority to the Office of Management and Budget (“OMB”). Exec. Order No. 6166, § 16 (June 10, 1933), as amended by Exec. Order No. 12608, § 2 (Sept. 9, 1987), 3 C.F.R. 245 (1987 comp.). The ADA also provides that United States Government officers and employees may not make or authorize expenditures or obligations of funds “exceeding . . . an apportionment.” 31 U.S.C. § 1517(a)(1). You have asked whether an official would violate this provision of the Act if she obligated appropriated funds in violation of an OMB rule that automatically apportions certain kinds of funds in the amount of zero dollars. 1 1 See Letter for Karl Remón Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Rafael A. Madan, Acting Assistant General Counsel for Administration, Department of Commerce (Sept. 18, 2015) (“Commerce Letter”). In preparing this opinion, we also received the views of OMB. See Letter for Karl Remón Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Ilona Cohen, General Counsel, Office of Management and Budget (Jan. 8, 2016) (“OMB Letter”). At our request, both the Department and OMB supplemented their initial views 90 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule The OMB rule at issue, which appears in section 120.57 of OMB Circular A-11, 2 imposes an automatic zero-dollar apportionment for carryover funds—i.e., unobligated balances that remain available from a prior fiscal year—until and unless OMB issues an account-specific apportionment for the same funds. You have explained that, in your view, while OMB’s rule is formally structured as an apportionment, it is in effect a prohibition on agencies’ obligating carryover funds in advance of later, account-specific apportionments. As you point out, the text of the ADA suggests, and at least one federal court of appeals has held, that while the ADA expressly forbids obligations in advance of appropriations, it does not similarly bar obligations in advance of apportionments. Relying on that reading of the ADA, you contend that section 120.57 improperly eliminates this distinction between appropriations and apportionments under the Act; converts a violation of an administrative rule that temporarily precludes the use of funds pending an account-specific apportionment into a full-blown ADA violation; and wrongly imposes ADA penalties on agencies for using carryover funds even after they have made clear that there is a programmatic need to use them. OMB disagrees, explaining that in its view, section 120.57 constitutes a fully valid apportionment that “achieve[s] the most effective and economical use” of carryover funds, as the ADA itself requires. See 31 U.S.C. § 1512(a). As a result, OMB asserts, any obligation or expenditure made in excess of the zero-dollar apportionment set forth in section 120.57 would violate the ADA. As explained in more detail below, we conclude that, at least in circumstances where an agency fails to request a non-zero apportionment of carryover funds before the start of a fiscal year, section 120.57 effects a valid apportionment for purposes of the ADA. Nothing in the ADA forby e-mail. See E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Angelia Talbert-Duarte, Department of Commerce, Re: DOC Opinion Request (Feb. 12, 2016, 9:36 AM) (“Talbert-Duarte E-mail”); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Heather V. Walsh, Office of Management and Budget, Re: DOC Opinion Request (May 12, 2016, 9:37 AM) (“Walsh E-mail”); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Andrea Torczon, Department of Commerce, Re: DOC Opinion Request (June 2, 2016, 9:57 AM) (“Torczon E-mail”). 2 OMB Circular No. A-11, Preparation, Submission, and Execution of the Budget (July 2016) (“Circular A-11”), https://www.whitehouse.gov/sites/default/files/omb/assets/a11_ current_year/a11_2016.pdf. 91 40 Op. O.L.C. 90 (2016) bids automatic zero-dollar apportionments, or requires OMB to issue account-specific apportionments in non-zero amounts. And even if the requirement that OMB apportion carryover funds to achieve “the most effective and economical use” of those appropriations imposes a substantive standard whose violation could render an apportionment ineffective under the ADA, we believe OMB’s application of section 120.57 in the circumstances described above would meet that “effective and economical use” standard. Further, under such circumstances, we do not think automatically imposing a zero-dollar apportionment on carryover funds impermissibly eliminates any feature of the ADA, improperly punishes violations of an administrative rule, or improperly imposes ADA penalties on agencies obligating or expending funds at a time when the ADA suggests that they should be able to use them. As a result, in the circumstances described, an agency’s obligation of carryover funds in excess of the rule’s zero-dollar apportionment would be an expenditure “exceeding . . . an apportionment” in violation of the ADA. This opinion has two parts. In Part I, we discuss the relevant statutory and factual background. In Part II, we explain our reasons for concluding that section 120.57 effects a valid apportionment under the ADA. I. A. 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 Anti-Deficiency Act “reinforces and elaborates on this constitutional limitation.” Memorandum for Judith R. Starr, General Counsel, Pension Benefit Guaranty Corporation, from Troy A. McKenzie, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Whether the Pension Benefit Guaranty Corporation May Enter Into and Incrementally Fund Multiyear Leases Exceeding Five Years at 3 (Sept. 30, 2015). A key provision of the Act, 31 U.S.C. § 1341, states that officers and employees of the United States Government may not “make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation,” or “involve [the] government in a contract or obligation for the payment 92 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule of money before an appropriation is made unless authorized by law.” Id. § 1341(a)(1)(A), (B). The ADA also requires appropriated funds to be “apportioned.” Id. § 1512(a). As suggested above, apportionment is “an administrative process by which . . . appropriated funds are distributed to agencies in portions over the period of their availability.” 2 Government Accountability Office (“GAO”), Principles of Federal Appropriations Law 6-116 (3d ed. 2006) (“Federal Appropriations Law”). 3 The purpose of apportionment is “to minimize the potential for engaging in expenditures that exceed congressional appropriations.” United States Marshals Service Obligation to Take Steps to Avoid Anticipated Appropriations Deficiency, 23 Op. O.L.C. 105, 106 (1999). Consistent with that goal, the ADA requires “appropriation[s] available for obligation for a definite period” to be apportioned “to prevent obligation or expenditure at a rate that would indicate a necessity for a deficiency or supplemental appropriation for the period,” and “appropriation[s] for an indefinite period”—the kind of appropriation at issue here—to be apportioned “to achieve the most effective and economical use” of those appropriations. 31 U.S.C. § 1512(a). As noted above, the President has the responsibility to make written apportionments for the Executive Branch, id. § 1513(b)(1), and has delegated this responsibility to OMB, Exec. Order No. 6166, § 16. In exercising this delegated authority, OMB has the discretion to apportion funds by time periods, activities, functions, projects, objects, or some combination thereof. 31 U.S.C. § 1512(b)(1)–(2). In the case of carryover funds—i.e., “unobligated balances that are available from the prior fiscal year(s) in multi-year and no-year accounts,” Circular A-11, supra note 2, § 120.2— the ADA requires agency heads to submit apportionment requests to OMB no later than forty days before the beginning of the next fiscal year. 31 U.S.C. § 1513(b)(1)(A). OMB, in turn, must apportion the funds not later than twenty days before the start of the fiscal year. Id. § 1513(b)(2)(A). 3 Although the legal interpretations and opinions of the GAO and the Comptroller General are not binding on Executive Branch agencies, they “‘often provide helpful guidance on appropriations matters and related issues.’” State and Local Deputation of Federal Law Enforcement Officers During Stafford Act Deployments, 36 Op. O.L.C. 77, 89 n.8 (2012) (quoting Applicability of Government Corporation Control Act to “Gain Sharing Benefit” Agreement, 24 Op. O.L.C. 212, 216 n.3 (2000)). 93 40 Op. O.L.C. 90 (2016) In a provision that resembles, but does not fully parallel, section 1341’s prohibition on expenditures and obligations in excess or advance of appropriations, section 1517 of title 31 states that government officers and employees “may not make or authorize an expenditure or obligation exceeding . . . an apportionment.” Id. § 1517(a)(1) (emphasis added). Unlike section 1341, section 1517 does not also expressly bar entering into a contract or making an obligation before an apportionment is made. In light of the textual difference between these provisions, at least one federal court of appeals has held that while the ADA prohibits expenditures that “exceed” an existing apportionment, it does not prohibit expenditures made in advance of a later apportionment. See Cessna Aircraft Co. v. Dalton, 126 F.3d 1442, 1451 (Fed. Cir. 1997). Agency heads must report violations of section 1517 immediately to the President and Congress, and transmit a copy of those reports to the Comptroller General. 31 U.S.C. § 1517(b). Officials who violate the section are subject to administrative and criminal penalties, including suspension without pay, removal from office, and, in the case of knowing and willful violations, a fine and possible imprisonment. Id. §§ 1518, 1519. Circular A-11 implements the ADA’s apportionment provisions by giving instructions to agencies about the apportionment process. Section 120.57 of the Circular addresses the apportionment of carryover funds. That provision, in question-and-answer form, states: Must I request that funds apportioned in one fiscal year be apportioned in the next fiscal year if the funds were not obligated and remain available? Yes. When budgetary resources remain available (unexpired) beyond the end of a fiscal year, you must submit a new apportionment request for the upcoming fiscal year. You cannot incur obligations in any year absent an approved apportionment for that year. For instance, if OMB apportioned $1 million for a no-year [account] in [Fiscal Year (“FY”)] 2012 and you obligated no funds, you must still submit an FY 2013 request and receive OMB approval of that request before incurring obligations in FY 2013. Until you receive a written apportionment from OMB, the amount of carryover apportioned is zero dollars. In addition, apportioned anticipated or estimated resources are not available for obligation until the resources are realized. 94 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule Circular A-11, § 120.57. Circular A-11 contrasts the apportionment effected by section 120.57, as well as other kinds of “automatic apportionments,” with “written apportionments” in which OMB approves an agency’s request for an apportionment in a specific amount. Id. § 120.2. 4 OMB also sometimes refers to these “written apportionments” as “accountspecific apportionments.” See OMB Letter at 2. B. We understand that your request for advice was prompted by a situation that arose during Fiscal Year 2014 involving the National Oceanic and Atmospheric Administration (“NOAA”), an operating unit within the Department of Commerce (“Department”). NOAA has a no-year fund called the “Fisheries Enforcement Asset Forfeiture Fund” (“Fisheries Enforcement AFF” or “Fund”), which consists generally of sums received by NOAA as fines, penalties, and forfeitures of property for violations of marine resource laws, along with transferred amounts that are “available until expended.” See Department of Commerce Appropriations Act, 2012, Pub. L. No. 112-55, div. B, § 110, 125 Stat. 552, 591, 602 (2011) (establishing the Fund). 5 Because Fiscal Year 2014 began on October 1, 2013, OMB’s statutory deadline to apportion the unobligated carryover amounts in the Fund fell on September 11, 2013. See 31 U.S.C. § 1513(b)(2)(A). In anticipation of that deadline, the ADA required the Department to submit an apportionment request to OMB by August 22, 2013. See id. § 1513(b)(1)(A). NOAA submitted an initial request to the Department’s internal Office of Budget (“OB”) in August. Commerce Letter at 2. However, due to subsequent back-and-forth between OB and NOAA, the Department did not submit its apportionment request to OMB until December 2013. Id. OMB approved a final version of the apportionment request several months later, on April 11, 2014. Id. This final 4 As Circular A-11 explains, “[a]n automatic apportionment is approved by the OMB Director in the form of a Bulletin or provision in Circular A-11, and typically describes a formula that agencies will use to calculate apportioned amounts. An automatic apportionment is in contrast to the written apportionments, which typically include specific amounts, and which are approved by an OMB Deputy Associate Director (or designee).” Id. § 120.2. 5 A no-year appropriation is an appropriation “that is available for obligation for an indefinite period.” 1 Federal Appropriations Law at 2-14 (3d ed. 2004). 95 40 Op. O.L.C. 90 (2016) version apportioned the unobligated carryover funds in the Fisheries Enforcement AFF by project. Id. The apportionment therefore nominally covered the full fiscal year, even though two quarters of that year had already passed when the apportionment was approved. Until OMB issued this account-specific apportionment in April, however, section 120.57 of Circular A-11 was in effect with respect to the relevant funds. As a result, between October 1, 2013, and April 11, 2014, NOAA was operating under an automatic zero-dollar apportionment for the Fisheries Enforcement AFF. NOAA nonetheless “obligated” funds from the Fisheries Enforcement AFF during Fiscal Year 2014 “before the [account-specific] apportionment was issued.” Id. “The total Fisheries Enforcement AFF obligations during that time,” however, “did not exceed the final apportionment amount for FY 2014” that OMB approved in April. Id. Your opinion request asks us to address whether an agency official violates section 1517 when she obligates funds in violation of OMB’s automatic zero-dollar apportionment under the circumstances just described. Id. at 1, 4 (“I am charged with determining whether NOAA’s violation of OMB’s rule, [section] 120.57 of OMB Circular A-11, of itself constitutes a violation of the ADA.”). As in prior situations involving ADA questions prompted by past conduct, we decline to address whether particular past actions violated the ADA. See Online Terms of Service Agreements with Open-Ended Indemnification Clauses Under the Anti-Deficiency Act, 36 Op. O.L.C. 112, 114 (2012). We will, however, use the features of the scenario you have described to provide general guidance in response to your question. See id. II. As noted above, section 120.57 states in relevant part that “[u]ntil [an agency] receive[s] a written apportionment from OMB, the amount of carryover apportioned [for a given fiscal year] is zero dollars.” Circular A-11, § 120.57 (emphasis added). By its terms, this provision purports to make a default, automatic apportionment of zero dollars in carryover funds until and unless an agency receives a different written apportionment from OMB. Section 120.57 is thus, as OMB explains, an exercise of its delegated statutory authority to apportion appropriations. See OMB Letter at 2 (“[Section] 120.57[] is . . . an application of 31 U.S.C. § 1513, which requires that the President (and, by delegation, OMB) apportion 96 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule appropriations.”). Assuming section 120.57 is a valid exercise of that authority, it would appear straightforward to conclude that obligations or expenditures made in excess of this zero-dollar apportionment would violate the ADA. See 31 U.S.C. § 1517(a)(1). And on its face, the automatic apportionment in section 120.57 does not exceed the limits of OMB’s authority to apportion funds under the ADA. Nothing in the ADA, and no other authority of which we are aware, prevents OMB from using categorical rules that operate automatically to apportion funds in preset amounts, or requires it to issue apportionments on an account-specific basis. Indeed, OMB often relies on automatic, categorical apportionments: another provision of the Circular automatically apportions newly enacted full-year appropriations on a pro rata basis, see Circular A-11, § 120.41, and OMB frequently issues automatic apportionments of amounts provided in continuing resolutions, see, e.g., OMB Bulletin No. 15-03, Apportionment of the Continuing Resolution(s) for Fiscal Year 2016 (Sept. 30, 2015), https://www.whitehouse.gov/sites/ default/files/omb/bulletins/2015/15-03.pdf (last visited ca. Sept. 2016); see also 2 Federal Appropriations Law at 6-141 (3d ed. 2006) (noting OMB’s practice of issuing automatic apportionments in the context of continuing resolutions). We are likewise aware of nothing in the ADA that would preclude OMB from apportioning carryover funds in the amount of zero dollars in the circumstances at issue here. 6 And while the ADA does require apportionments to be “in writing,” 31 U.S.C. § 1513(b)(1), OMB’s automatic-apportionment rules—including the one that appears in section 120.57—satisfy this requirement, because they are set forth in writing in Circular A-11 or in OMB Bulletins. The ADA does provide that “[i]n apportioning or reapportioning an appropriation, a reserve may be established only—(A) to provide for contingencies; (B) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (C) as specifically provided by law.” 31 U.S.C. § 1512(c)(1). However, we understand that OMB has never considered the zero-dollar apportionments of carryover funds effected by section 120.57 to create “reserves.” As discussed below, see infra p. 98, the purpose of the zero-dollar apportionment in section 120.57 is not to “set aside” budgetary resources that might otherwise be used, or be required to be used, in order to “provide for contingencies,” “effect savings,” or for some other purpose. GAO, A Glossary of Terms Used in the Federal Budget Process 25 (Sept. 2005) (defining “reserve”). Rather, the purpose of section 120.57 is simply to ensure that carryover funds will not be used during those portions of their period of availability when they are not needed. 6 97 40 Op. O.L.C. 90 (2016) Automatic apportionments further the purposes of the ADA by (among other things) helping OMB meet the deadlines set forth in that statute. As we explained above, the ADA requires OMB to apportion appropriated funds by a set date—in the case of carryover funds, no later than twenty days before the beginning of the fiscal year for which those funds are available. By requiring apportionments to be in place before the fiscal year starts, these deadlines help ensure that the underlying purposes of the apportionment process are served—“prevent[ing] obligation or expenditure at a rate that would indicate a necessity for a deficiency or supplemental appropriation for the period” in the case of time-limited appropriations, and ensuring that appropriations are used “effective[ly] and economical[ly]” in the case of appropriations available for an indefinite period. 31 U.S.C. § 1512(a). Automatic apportionments make it possible for OMB to meet these statutory deadlines even when doing so would otherwise be difficult, such as when Congress provides temporary funding for agency operations through short-term continuing resolutions, or when an agency fails to submit a specific apportionment request prior to the statutory deadline. See Walsh E-mail. As was just noted, 31 U.S.C. § 1512(a) requires OMB to apportion appropriations for an indefinite period to achieve “the most effective and economical use” of those appropriations. See also 2 Federal Appropriations Law at 6-121 (3d ed. 2006) (identifying this provision as the applicable requirement for no-year funds). OMB agrees that “[a]ll apportionments, including the one in section 120.57, are subject to the requirements of section 1512(a).” Walsh E-mail. It is less clear that if an OMB apportionment failed to meet these requirements, it would then be invalid, such that agencies could make obligations or expenditures in excess of the purported apportionment without violating the ADA. We need not resolve this question, however, because we believe that application of the automatic zero-dollar apportionment in section 120.57 in the circumstances at issue here satisfies the “effective and economical use” standard. To begin with, in requiring every appropriation to be apportioned by certain time periods, projects, or a combination thereof, 31 U.S.C. § 1512(b)(1), the ADA makes clear that the official designated to make an apportionment subject to those requirements must do so “as the official considers appropriate,” id. § 1512(b)(2). The ADA thus gives OMB substantial discretion in making each apportionment, consistent with the 98 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule requirement that the apportionment achieve the most effective and economical use of the funds. And we think that OMB’s exercise of this discretion in section 120.57 was sound. OMB has explained that when an agency “has not requested the use of carryover funds at the beginning of the fiscal year”—as was the case with respect to the Fisheries Enforcement AFF—OMB presumes that the agency “has no present programmatic need for [those] funds.” Walsh E-mail. In our view, it is reasonable for OMB to assume both that agencies are best positioned to evaluate their own fiscal needs, and that they have an incentive to seek any necessary funds for their own operations. It is also reasonable for OMB to assume that agencies understand that the ADA itself requires them to submit apportionment requests for carryover funds forty days prior to the start of a fiscal year, and requires OMB to complete the apportionments twenty days later. See 31 U.S.C. § 1513(b)(1)(A), (b)(2)(A). In light of these considerations, we think it is similarly reasonable to presume that if an agency fails to request funds before the start of a fiscal year, it has no present need for those funds. And in that situation, it makes further sense that imposing a default zero-dollar apportionment would not only allow OMB to comply with its statutory apportionment deadline, but also achieve the most “effective and economical use” of the relevant carryover funds, by ensuring that they are not used during a period when they are not needed. 7 As we understand its position, the Department does not dispute that section 120.57 is, by its terms, an “apportion[ment].” Circular A-11, § 120.57; see, e.g., Talbert-Duarte E-mail (“[W]e recognize that OMB structured § 120.57 as an apportionment of zero.”). Rather, we take the Department’s argument to be that, whatever its formal structure, the substantive effect of section 120.57 is to prevent agencies from obligating or expending funds in advance of an account-specific apportionment. Because we consider only the application of section 120.57 in circumstances where an agency has failed to submit an apportionment request for carryover funds before the start of a fiscal year, we express no view on whether OMB could justify an automatic apportionment of zero dollars by operation of section 120.57 under any other circumstances, including where an agency submits an apportionment request by the agency’s forty-day deadline, where the agency submits a request after the forty-day deadline but before OMB’s twenty-day deadline, or where the agency submits its request after OMB’s twenty-day deadline but before the start of the fiscal year. 7 99 40 Op. O.L.C. 90 (2016) See Commerce Letter at 1 (Although “[the] OMB prohibition is structured as an automatic apportionment of carryover amounts at zero,” “[a]s a consequence of this structure, an agency official who obligates funds in advance of an apportionment violates the OMB rule by exceeding the automatic apportionment amount of zero.”); Talbert-Duarte E-mail (“From the perspective of an agency official to whom the [apportionment rule in section 120.57] applies, the purpose and effect of the rule is the same—there can be no obligation before there is an apportionment of an actual dollar amount.”). According to the Department, this is problematic for three reasons, which we consider in turn. First, the Department contends that, by creating a situation in which agencies can never obligate carryover funds before they are apportioned, “the statutory distinction between [section] 1341”—which prohibits obligations and expenditures both in advance and in excess of appropriations—“and [section] 1517”—which prohibits obligations and expenditures only in excess of apportionments—“is entirely erased.” TalbertDuarte E-mail; see id. (noting that OMB itself states that “[b]y operation of § 120.57, an agency will never be in ‘advance of ’ an apportionment of carryover, because it will always have an apportionment” (quoting OMB Letter at 2)). This argument rests on the premise that, as the Federal Circuit has held, section 1517 does not bar obligations or expenditures in advance of an apportionment. See Cessna Aircraft, 126 F.3d at 1451. We will assume for purposes of this opinion that this conclusion is correct. Even with this assumption, we do not think the Department’s argument is convincing. The Department in effect asserts that the ADA prevents OMB from creating a situation in which an agency will never find itself without an apportionment, because it would then never have the opportunity to obligate or expend funds in advance of an apportionment. But as we explained above, nothing in the ADA bars automatic apportionments, requires that apportionments be account-specific, or requires that apportionments always be made in non-zero amounts. See supra p. 97. Thus, so long as an automatic apportionment meets the standards for apportionment in the ADA, see supra p. 98 (discussing standards), it is a valid apportionment, even if it precludes agencies from ever being without an apportionment. Indeed, such a result seems fully consistent with the ADA’s statutory design. As discussed earlier, Congress specifically created deadlines for apportionments of carryover funds, seeking to ensure 100 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule that they would be completed before the start of any fiscal year. If agencies and OMB adhered to their statutory deadlines, there would—at least in the ordinary course—never be a situation in which an agency had available carryover funds without an apportionment. Thus, the mere fact that OMB has created an automatic-apportionment mechanism that ensures that an apportionment will always be in effect does not by itself make section 120.57 invalid, and in fact accords with congressional design. The Department’s second argument is that section 120.57 should be considered a kind of administrative rule that “temporarily precludes the use of funds as a matter of administrative control” while enabling “OMB to comply with [its statutory] deadlines,” rather than an “apportionment that prescribes [the relevant funds’] use in definite amounts by time periods or activities”—violation of which would trigger potential penalties under the ADA. Torczon E-mail. The Department appears to suggest that, if an OMB rule is merely designed to temporarily prevent agencies from using funds for purposes of administrative control and to ensure OMB’s own ADA compliance, rather than to actually apportion funds under the standards set forth in the ADA, it would not be appropriate to subject agency officials to ADA penalties for violating that rule. Cf. Talbert-Duarte E-mail (“[T]he question we are raising does not concern a ‘zero dollar’ apportionment in a specific situation where programmatic needs dictate that amounts are not necessary for a particular time period. Our question concerns only the automatic, across-the-board application of [section] 120.57.”); Torczon E-mail (While “agencies and OMB are required to comply with the time deadlines established for submitting and approving apportionments,” “[a] violation of the deadlines . . . is not a reportable violation of the [ADA], and we question the appropriateness of factoring the deadlines into the analysis of the issue we raise regarding a reportable violation of section 1517.”). We need not decide whether a rule that merely precluded the use of funds as a matter of administrative control and deadline compliance would be a valid apportionment under the ADA, however, because, at least as applied in situations where an agency fails to submit an apportionment request before the start of a fiscal year, we do not believe section 120.57 is such a rule. For the reasons explained above, see supra pp. 96–99, OMB’s automatic zero-dollar apportionment for carryover funds complies with the ADA’s formal 101 40 Op. O.L.C. 90 (2016) requirements for apportionments, and represents a reasonable exercise of OMB’s apportionment discretion. If an agency fails to request an apportionment before the start of a fiscal year, it is reasonable to presume that the agency has no programmatic need for the relevant funds during that year. There is thus no basis to conclude that a rule setting a zero-dollar apportionment in such a situation is merely an administrative control measure that prevents obligations and expenditures until OMB has time to make an account-specific apportionment. Finally, the Department argues that OMB’s “blanket presumption of no programmatic need” is “inapposite in at least many cases where an agency is actively engaged in the apportionment process with OMB.” Torczon E-mail. The Department acknowledges that, in the situation involving NOAA that gave rise to its opinion request, “internal revisions and delays within the Department . . . caused the [proposed Fisheries Enforcement AFF] apportionment to be submitted late to OMB.” Id. But it points out that “issues raised by sequestration (among other things) delayed the apportionment further for several months after submission to OMB.” Id. OMB’s rationale for its zero-dollar apportionment, the Department suggests, may make sense prior to the point at which an agency makes a request for a non-zero apportionment, but not during the period after such a request is made, but before the account-specific apportionment process is completed. See id. The Department thus contends that, whether because OMB’s rule would not “achieve the most effective and economical use” of the funds during that period, or because the rule would impermissibly undermine Congress’s decision not to subject obligations and expenditures in advance of apportionments to ADA penalties, violation of the rule after a request has been submitted should not give rise to penalties under the ADA. See id. Again, we disagree. For the reasons we have explained, it is in our view reasonable for OMB to presume that, if a request for a non-zero apportionment of carryover funds is not pending at the start of a fiscal year, the agency has no current need for those funds. An agency’s belated request for a non-zero apportionment might call into question the continuing factual accuracy of OMB’s assumption after the request is made. But we do not think such a belated request somehow undermines the validity of the initial default apportionment. The ADA itself makes the start of each fiscal year the critical time for making apportionments for carryover 102 Obligating Carryover Funds in Violation of OMB Zero-Apportionment Rule funds. See 31 U.S.C. § 1513(b)(2)(A). It is therefore reasonable for OMB to set apportionments based on its analysis of the appropriate apportionment as of the start of the fiscal year. The ADA does reflect the possibility that circumstances might change during a fiscal year, by requiring OMB to review apportionments at least four times a year. See id. § 1512(d). But the ADA does not provide any specific instructions about what OMB must do if it determines that an apportionment is no longer appropriate after one of its reviews, let alone provide a specific timeline for providing a revised apportionment. The Act thus appears to leave those matters to OMB’s discretion to “apportion an appropriation . . . as [it] considers appropriate.” Id. § 1512(b)(2). In light of that discretion and the statutory focus on the start of the fiscal year, we do not think the passing of several months between an agency’s belated apportionment request for carryover funds and OMB’s issuance of a new accountspecific apportionment would render the original, default apportionment invalid at any point during the period in which the belated request was pending. 8 III. For the reasons set forth above, we conclude that, at least in circumstances where an agency fails to submit an apportionment request for carryover funds before the start of a fiscal year, the automatic zero-dollar apportionment in section 120.57 of OMB Circular A-11 is a valid appor8 The Department also argues that, in light of the potential penalties involved, the question whether violation of section 120.57 constitutes an ADA violation “should be examined with an eye to the familiar rule of statutory construction commonly known as the rule of lenity.” Commerce Letter at 3–4; see also Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences, 31 Op. O.L.C. 54, 69 (2007) (explaining that the rule of lenity holds that “if ambiguity remains in a criminal statute after textual, structural, historical, and precedential analyses have been exhausted, the narrower construction should prevail”). However, we do not believe this question involves sufficient statutory ambiguity to justify application of the rule of lenity. Rather, for the reasons explained above, we think it clear that, applying ordinary tools of statutory construction to the relevant provisions in the ADA, section 120.57 effects a valid apportionment under that statute. See Lockhart v. United States, 136 S. Ct. 958, 968 (2016) (“We have used the lenity principle to resolve ambiguity in favor of the defendant only . . . when the ordinary canons of statutory construction have revealed no satisfactory construction.”). 103 40 Op. O.L.C. 90 (2016) tionment for purposes of the ADA. As a result, in such circumstances, 31 U.S.C. § 1517 would prohibit an agency from expending or obligating funds exceeding that apportionment. KARL R. THOMPSON Principal Deputy Assistant Attorney General Office of Legal Counsel 104

Write a legal research memo on the following topic.

Steel Industry Compliance Extension Act of 1981 The Steel Industry Compliance Extension A ct o f 1981 (A ct) permits the Administrator of the Environm ental Protection Agency to accede to a steel company’s request for an extension o f otherwise applicable deadlines for compliance with the Clean A ir Act only if the A dm inistrator finds that the company has met its ongoing obligations under its existing consent decrees, or th at any violations are de minimis in nature. While the term “de minimis” is not defined in the Act, the legislative history confirms that it was meant to have its ordinary meaning—that is, “negligible” or “insubstantial o r inconsequential.” November 9, 1981 MEMORANDUM FOR THE ASSISTANT ATTORNEY G EN ERA L, LAND A ND NATURAL RESOURCES DIVISION This responds to your request for our views concerning the proper construction of the term “de minimis” as used in the Steel Industry Compliance Extension Act of 1981, Pub. L. No. 97-23, 95 Stat. 139 (to be codified at 42 U.S.C. § 7413(e)) (Act), familiarly known as the Steel Tripartite Amendment, Tripartite, and Steel Stretch-out. We have found nothing in the statute or its legislative history to suggest that de minimis was meant to have anything other than its usual meaning—that is, negligible, insubstantial, or inconsequential. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 693 (1946). We therefore conclude that the Act does not permit the Administrator of the Environmental Pro­ tection Agency (EPA) to enter into or modify a consent decree for the purpose of extending compliance deadlines under the Clean Air Act, 42 U.S.C. § 7401 et seq. (Supp. IV 1980), unless the Administrator finds that a company is in compliance with its existing consent decrees, or any violations are of a de minimis nature, as defined; at the time the company applies for an extension. In reaching this conclusion, we have carefully reviewed the legisla­ tive history of the Act, including the House and Senate reports,1 the 1 H.R. Rep. No. 161, 97th Cong., 1st Sess. (1981), H.R. Rep. No. 121, 97th Cong., 1st Sess. (1981); S. Rep. No. 133, 97th Cong., 1st Sess. (1981). 326 hearings,2 and the floor debates.3 This material makes it clear that both Congress and the members of the Steel Tripartite Committee (Commit­ tee) who drafted the Act intended that the EPA Administrator have discretion to grant extensions only to those companies who had met their ongoing obligations under a consent decree. I. Background The Clean Air Act Amendments of 1970, 42 U.S.C. § 1857 et seq. (1976) (amending the Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485 (codified at 42 U.S.C. § 1857-1871/) (1970)) (amended 1977), developed lists of air pollutants, promulgated national ambient air qual­ ity standards, 42 U.S.C. § 1857c-4 (1970 ed.), and required each state to develop a plan to implement the air quality standards. Id. at § 1857c-5. The state, or, if it failed to act, the EPA, was authorized to prevent the construction or modification of any new sources of pollution—such as factories—from being built if the construction would prevent attain­ ment or maintenance of the national air quality standards. Id. at § 1875c-5(a) (2)(D), (4). The Clean Air Act Amendments of 1977, 42 U.S.C. § 7401 (Supp. IV 1980), extended the deadlines for meeting most of the standards for pollutants to December 31, 1982. The EPA Admin­ istrator was charged with seeking injunctions and recovering civil pen­ alties against those who violate the Clean Air Act’s provisions. 42 U.S.C. §§7413, 7420 (Supp. IV 1980). Through this enforcement mech­ anism, the Administrator has brought actions and, in most instances, obtained consent decrees. Mandatory investment schedules contained in those decrees insure, through the mechanism of the threat of stipulated damages, that the companies meet the 1982 final compliance deadline.4 By 1979, when the EPA had reached consent decrees with most of the major steel companies, H.R. Rep. No. 121, supra, at 4-8 (Table 1), expenditures for pollution control had become a major drain on the resources available to the steel industry for capital investment. In 1980, for example, 19% of the steel industry’s annual capital expenditure was for pollution control. This was far greater than that spent by compara­ ble heavy industries such as the electric utilities (9.2%) or the automo­ 2 Steel Tripartite Committee Proposal: Hearings on H.R. 1817. H.R. 2024. H.R. 2219. et al. Before the Subcomm. on Health and the Environment o f the House Comm, on Energy and Commerce. 97th Cong., 1st Sess. (1981) [hereafter cjted as Hearings on H.R. 1817\\ Steel Industry Compliance Extension Act o f 1981: Hearing on S. 63 Before the Senate Comm, on Environment and Public Works. 97th Cong., 1st Sess. (1981) [hereafter cited as Hearing on S. 63]\ Report o f the Steel Tripartite Comm. Hearings Before the Senate Comm, on Environment and Public Works. 96th C ong, 2d Sess (1980) [hereafter cited as Tripartite Hearings). 3 127 Cong Rec. H3747-52 (daily ed. June 26, 1981); id. at S6985-87 (daily ed. June 25, 1981); id. at S6605 (daily ed. June 19, 1981); id. at S6090-93 (daily ed. June 11, 1981); id. at H2463-64 (daily ed. May 28, 1981); id. at H2444-56 (daily ed. May 28, 1981). *See C. Stewart, Air Pollution, Human Health and Public Policy 35-48 (1979). See generally. Environmental Law Institute, Air and W ater Pollution Control Law- 1980 (G. Wetstone, ed. 1980); Hearing on S. 63. supra, at 62 (Report of the Steel Tripartite Advisory Committee Working Group on Environmental Protection). 327 tive industry (5.4%). Id. at 9 (Table 2). Not only was the percentage of capital invested higher, it was also more difficult for the steel industry to raise. Id. (Table 3). This, the steel companies argued, was due to pressure on the industry by the federal government not to raise prices, making it increasingly difficult to recapture costs, and because of the willingness of the federal government to sacrifice the domestic steel industry to foreign policy considerations by allowing “dumping” of foreign steel. Hearings on H.R. 1817, supra, at 48-9; Tripartite Hearings, supra, at 101-02 (report prepared by the Congressional Research Serv­ ice). The Steel Tripartite Committee was formed to advise the President on the steel industry’s problems and to suggest ways to revitalize the industry. It was made up of representatives of the senior management of the steel companies, the United Steelworkers of America Union, and the federal government. The Committee’s working group on environ­ mental issues later added a fourth member, the Natural Resources Defense Council (NRDC).5 These disparate groups brought to the negotiating table concerns about the flagging health of the steel indus­ try, the protection of local economies threatened by plant closings, the promotion of worker health and safety, and the public’s interest in continued progress toward the goals of the Clean Air Act. Out of their dynamic balancing of interests and resultant compromises came the 1981 amendments embodied in the Act. In order “to provide the steel industry with vitally needed capital for modernization, while maintain­ ing public health and environmental protection,” the Committee pro­ posed that steel companies be given 3 more years in which to meet the requirements of the Clean Air Act. H.R. Rep. No. 121, supra, at 8-9. The “trade-off’ for the extension of the deadline for compliance with the Clean Air Act was that the companies obtaining the benefit of the extension would invest in modernization efforts the capital resources which would otherwise have gone into more immediate compliance efforts.6 The compromise reflected by the Act was, therefore, to im­ prove the efficiency and productivity of the American steel industry at the cost of some temporary setbacks in the achievement of the goals for cleaner air contained in the Clean Air Act. However, to ensure that the companies would not abandon progress toward pollution control, each company applying for an extension would have to meet six carefully crafted conditions. In order to consent to an extension of the schedule for compliance, the EPA Administrator would have to find: 5T he N R D C is a national environmental group which frequently plays an active role in the legislative process. It was invited to jo in the working group by the Executive Office of the President and the United Steelworkers of America Union. 6 Since the new er equipment would contain the most modern technology, it was argued that it would usually be cleaner than what it was replacing. 328 (A) That the extension is necessary to allow the com­ pany to make capital investments designed to improve efficiency and productivity; (B) That funds equal to what would otherwise have been spent by December, 1982 on pollution control will be spent within two years on capital investments; (C) That the company will enter into a consent decree establishing a schedule for bringing all its stationary sources of pollution into compliance; (D) That the company will have enough money to comply with its consent decrees; (E) That the company is in compliance with existing federal consent decrees or that any violations are de , minimis in nature; and (F) That any extensioin will not result in degradation of air quality during the extension. See Act, § 113(e)(1) (A)-(F). Each of these requirements was included in response to objections that the Act was special-interest legislation. On each of the six, the company “bears the burden of proof.” H.R. Rep. No. 121, supra, at 10. Section 113(e)(1)(E) is Congress’ response to critics who claimed the Act would “give relief to those companies which have been avoiding the law and penaliz[e] those who have complied.” Tripartite Hearings, supra, at 27 (Follow-up Questions for EPA). As finally enacted, § 113(e)(1)(E) requires that the Administrator find[ ], on the basis of information sub­ mitted by the applicant and other information available to [the Administrator] that the applicant is in compliance with existing Federal judicial decrees (if any) entered under section [113] of this Act applicable to its iron- and steel-producing operations or that any violations of such decrees are de minimus [sic] in nature. Act, § 113(e)(1)(E). You have asked us to consider what kind of viola­ tions can be considered de minimis. II. The Meaning of De Minimis Under the Act De minimis is not defined in the Act. It was suggested as the standard by Ms. Frances Dubrowski, NRDC representative, during the late stages of the Committee’s drafting of the Act.7 The suggestion was made in response to the steel industry’s suggestion that the test be “substantial compliance” with one’s consent decree.8 That the parties 7 Telephone conversation with Mr. Stephen D. Ramsey, Chief, Environmental Enforcement Sec­ tion, Land and Natural Resources Division, United States Department of Justice, October 16, 1981. 8 Id. 329 intended a narrow definition is supported by the Senate report which states: A de minimis violation of an emission limitation is a violation resulting from circumstances beyond the control of the source owner or employee which causes no meas­ urable increase in emissions from a source. S. Rep. No. 133, supra, at 4. “The intent of this provision is twofold: to ensure that pollution control expenditures required to be made before the grant of an extension under this act are not deferred and to ensure that only those companies making a good faith effort to comply with existing environmental obligations obtain the benefit of further deadline extensions.” H.R. Rep. No. 121, supra, at 10. De minimis matters have traditionally been defined as “negligible,” “trifles,” “insubstantial and insignificant.” Anderson v. Mt. Clemens Pot­ tery Co., 328 U.S. 680, 692, 693 (1946).9 The legislative history is scanty on the issue, but what there is reflects this understanding. The Senate report, for instance, defines de minimis violations of a consent decree as those resulting in “no measurable increase in emissions from a source.” S. Rep. No. 133, supra, at 4. A violation that “result[s] from circum­ stances beyond the control of the source owner” would bar even a minor violation, if caused by the owner’s fault or neglect. Id. And a violation that really causes “no measurable increase in emissions” must be one so minor as to be truly insignificant. Id. Whether a particular violation is de minimis is a decision that must initially be made by EPA, since the discretion belongs to the Adminis­ trator and it is his expertise which will inform your review and will guide your judgment as to whether you (on behalf of the Attorney General) will approve the modification of the decree. The EPA Imple­ mentation Manual describes the test to be used. In determining what are insignificant deviations, the agency should consider the extent of the delay, the nature of the violation, the good faith of the company, and the extent to which the delay impacts other provisions of the decree. Manual, Ex. G., at 2. We assume this involves determinations of issues such as whether a violation is temporary or, if easily curable, likely to be cured because of the company’s good faith willingness or effort to cure. However, “[w]here emissions limits are in issue, these cannot be viewed as ‘de minimis’ unless they cause no significant increase in emissions from a source.” Id. at 1. 9 See also Industrial Union Depl v. American Petroleum Institute, 448 U.S. 607, 664 (1980) (Burger, J , concurring) (“ insignificant,” "scant o r minimal risks” ); Hunter v. Madison Aye. Corp., 174 F.2d 164, 167 (6th Cir. 1949) ("inconsequential” ). 330 III. The Role of § 113(e)(1)(E) and De Minimis Under the Act The Administrator should make every effort to give effect to Con­ gress’ desire to afford economic relief to the steel industry so that it can devote capital resources to modernization. The Act, however, expressly and unequivocally conditions the companies’ eligibility for an extension of the time deadlines under the Clean Air Act on the Administrator’s making of two crucial findings: no “degradation of air quality,” (§ 113(e)(1)(F)), and no extensions unless a company is “in compliance with existing Federal judicial decrees (if any) . . . [or] any violations of such decrees are de minim[i]s in nature.” (§ 113(e)(1)(E)). If the Admin­ istrator cannot reasonably make such findings, the Act simply does not allow an exercise of discretion that ignores the Act’s language in an attempt to maximize the number of steel companies eligible for relief. Compliance with the pollution control schedules contained in the con­ sent decrees is just as integral a part of the Act as the desire to allow diversion of capital from air pollution equipment to improvements in plant efficiency. Congress clearly contemplated, based in substantial part on the testi­ mony of representatives of the steel industry, that compliance with existing decrees was a condition which was acceptable to the industry and attainable by it. While the provision was being fully debated by the committee that drafted the statute and the Congress that passed it, there was no indication that the steel companies could not or would not comply. In fact, on March 3, 1981, the EPA testified that most of the steel companies would be in compliance with their respective consent decrees by the end of the year. The steel industry used to have a fairly well-deserved reputation as a major polluter of air and water. However, that situation has now changed very much for the better. Where in July 1978 only 32 percent of air pollution sources in the steel industry were in compliance or on court-ordered compliance schedules, by the end of this year that number will be up to approximately 90 percent. Hearings on S. 63, supra, at 6 (statement of Walter C. Barber, Jr., Acting Administrator, EPA); Hearings on H.R. 1817, supra, at 88 (85%) (statement of Walter C. Barber, Jr.); Tripartite Hearings, supra, at 13 (84%) (statement of Michele B. Corash, General Counsel, EPA). Since the steel companies’ representatives were present and made no objec­ tion to these figures,10 Congress must have assumed that this condition could be met by most steel companies. 10 The steel companies complained that because they were complying with their respective consent decrees, they would have no money left for modernization under the Act. See n 13 infra. 331 The necessity of complying with outstanding consent decrees was discussed during the floor debates 11 and the hearings.12 The steel companies themselves expressly recognized that the failure to be in compliance with their respective consent decrees would bar them from relief under the Act and, therefore, that each day’s delay in enacting the law reduced the value of the Act to them. If I might depart from the Chairman’s questions briefly, the point we most want to make here today is that this issue requires immediate legislative action. Those compa­ nies who have existing consent decrees with the EPA are on a schedule of compliance which requires weekly and sometimes daily commitment of funds to meet the Decem­ ber 31, 1982 deadline. Failure to meet these increments of progress places us in technical violation of the consent agreements. S. 63 states that an extension applicant must be in compliance with existing consent agreements. [Emphasis added.] If we are to have any funds to defer for modern­ ization, we must have this amendment now. Hearings on S. 63, supra, at 47 (statement of George A. Stinson, Chair­ man of National Steel Corp.) (March 3, 1981). A few weeks later, the same speaker made the point again. The terms of the agreement, coupled with long leadtimes for construction, require us to commit the funds early in the agreement if we are to meet the 1982 completion dates. Some funds for engineering, for site clearance, and the like have already been, expended, and within a very few weeks we will have to make major capital commit­ ments which in many cases will be impossible to defer further. These commitments are spelled out in the judicial decree with specific dates for action, and failure to meet those dates puts us in technical violation of the agreement. A ny violation o f the agreement would in turn make us ineli­ gible under the provisions o f H.R. 1817 i f it becomes law. For these reasons, we and others need this amendment very soon if it is to have any benefit toward a rapid modernization of the industry. Passage of the amendment later this year under the reauthorization of the Clean Air Act would be of very little, if any, benefit to the industry. 11 127 Cong. Rec ' H3750 (daily ed. June 26, 1981); id. at H2447 (daily ed. May 28, 1981). 12 Tripartite Hearings, supra, at 18 (EPA ), 27 (EPA); Hearings on S. 63, supra, at 91 (NRDC); Hearings on H .R. 1817, supra, at 132 (statement by Pres. Carter submitted by the White House for the record). 332 Hearings on H.R. 1817, supra, at 65 (emphasis added) (March 25, 1981).13 David M. Roderick, Chairman of the United States Steel Corp., made the same point at the same hearings. The existence or prospects of the consent decrees, as I mentioned earlier, is what creates the urgent need for this legislation.............Our willingness to enter into these agreements has created binding obligations to make cap­ ital commitments that I mentioned earlier. In order to comply with our consent decrees and make the milestone schedules which they contain, we must commit millions of dollars virtually every month. Once these funds are committed, they are no longer available to be considered for stretchout, and we lose the opportunities to use these funds in the interim for modernization. Id. at 70. The Administrator’s flexibility in interpreting the Act is limited by the fact that any modification to any consent decree issued pursuant to the terms of the Act must be approved by the judge in whose court the prior consent decree was approved. Act, § 113(e)(7)(B)(ii). Information (unless confidential) used to make the decision and the decision itself will be matters of public record. Id. § 113(e) (3), (7). The right of private parties or states to intervene under § 304 of the Clean Air Act, 42 U.S.C. § 7604 (Supp. IV 1980) for violation of emission standards remains available, § 113(e)(8); H.R. Rep. No. 121, supra, at 13, and would no doubt be exercised if such litigants felt that there had been an abuse of discretion by the Administrator in consenting to an extension where the de minimis finding was not defensible. United States v. Republic Steel Corp., 15 Env’t Rep. (BNA) 1463 (N.D. 111. 1980); Fed. R. Civ. P. 24. Evaluation of whether a violation is de minimis, there­ 13 The steel companies were obliged to meet schedules in their consent decrees premised on a complete cleanup by December 1982. The race to get the Act passed before all the money was committed to compliance as mandated by consent decrees is illustrated in the following exchange between Rep. Waxman and Mr Stinson, Chairman of National Steel Corp., and Mr. Roderick, Chairman o f United States Steel Corp. Mr. Waxman. Mr. Roderick and Mr. Stinson, when is the latest possible date for passage of this legislation to be valuable to the industry? Mr. Stinson. Well, every additional day, Mr Chairman, poses a problem for us. It is quite difficult for me to say whether it is March 31 or April 30, but I could definitely say to you that if it were delayed into the late summer, it would be o f virtually no benefit to us. Mr. Roderick. . . [E]ach month of delay would mean basically about $15 million to $20 million that otherwise would be available for modernization would have to go to environmental commitments, and if by July we didn’t have even the EPA approval by that time, we would pretty well have run the gamut, we would have pretty well have had to commit on almost all the facilities in order to make the 1982 deadline. So I would say legislatively, Mr. Chairman, we would hope that it would be possible to have this legislation sometime no later than the end of April, allowing us time to make our presentations to the EPA and satisfy their requirements so that we would not have to commit, let’s say, after July. Hearings on H.R. 1817. supra, at 90. The Act did not become law until July 17, 1981 333 fore, is not a matter analogous to the exercise of prosecutorial discre­ tion—it is an administrative decision that will be reviewed by the courts and critiqued by highly interested advocates. Unless supported by a cogent rationale, a finding that a violation is de minimis is likely to be rejected. IV. Arguments in Favor of a Broader Meaning of De Minimis We have evaluated several potential arguments that might be ad­ vanced to support a broader meaning of de minimis, but they appear to be unsupported by the traditional meaning of the term or the Act’s legislative history. A. We have considered whether de minimis might be measured against a particular company’s entire pollution control program or its compliance rate with all of its consent decrees, rather than measured against its operations at a particular plant. We do not believe that it may. The Act was an attempt to balance the steel industry’s need for extensions so that it could devote capital resources to modernization against the continuing interest of the public in cleaner air. Exceptions under the Act were to be carefully scrutinized to ensure that all the conditions were met. “T he bill does not authorize the granting of extensions on a blanket basis. Each request for an extension with re­ spect to a specific emission control requirement and facility is to be considered individually.” S. Rep. No. 133, supra, at 1. The emphasis appears to have been placed quite intentionally on individual stationary sources. In fact, rather than a violation at one plant being viewed as de minimis because of compliance at 99% of the company’s other plants, the drafters apparently contemplated that a violation at one plant would preclude the granting of an exception even for the 99% of that company’s plants that are in compliance. The owner of a source which is in violation of an emission limitation after a compliance deadline in an exist­ ing decree is not eligible for a compliance extension beyond 1982 for any source which would otherwise be eligible until the violating source is brought into compli­ ance with the applicable emission limitation. Id. at 4 (emphasis added).14 We therefore do not believe that determi­ nation of whether a violation is de minimis should be made in the context of a company’s entire compliance program. 14 This understanding is reflected in a recent letter from the United States Steel Corp. to the EPA. “ [T]he A ct appears to contemplate th at the Administrator may make a finding related to only one of the applicant's sources which leads to a decision that the applicant is ineligible under the Act, and that the ineligibility then applies to all o f applicant's sources.” Letter from Ms. Dorothy H. Servis, Senior Genera] A ttorney, Environmental and Real Estate, United States Steel Corp., to Mr. Michael Alushin, D irector, Steel T ripartite Task Force, E PA at 2 (Oct. 23, 1981). 334 Moreover, this interpretation of de minimis would lead to an incon­ sistent and unequal application of the de minimis standard. The same violation would be a de minimis violation for a large company with many plants but a substantial violation for a small company with only a few plants. The larger the company, the more violations it could absorb and still obtain an exception. This construction would be particularly anomalous since the larger companies are also presumably generally better able to generate the capital necessary to eliminate violations. We therefore do not find support for the argument that whether a violation is de minimis should be measured against the total company compliance with the Clean Air Act or all of a particular company’s outstanding decrees.16 B. We have also considered whether the Administrator could avoid the issue of whether or not a violation is de minimis by agreeing to modifications of the existing consent decrees to remove the require­ ments that give rise to the violations. We believe that the Act does not authorize such a procedure. Not only would this create a major loop­ hole that would permit the Administrator effectively to eliminate § 113(e)(1)(E) from the Act, but it would also contradict the Act’s language and the repeated statements by all parties assuring Congress that the steel companies knew they had to be in compliance and would be in compliance with their consent decrees. Most importantly, it would contradict the clearly expressed desire of Congress that only companies that had made the effort and expended the funds necessary to comply with their outstanding consent decrees were entitled to this exception. “[EJxisting decrees may not be amended so as to make companies eligible for extensions under this proposal.” H.R. Rep. No. 121, supra, at 10. Congress foresaw and precluded this argument. C. The same response must be made to the suggestion that the Administrator commence contempt actions against the violators and then settle the actions, collect outstanding stipulated penalties, and substitute new compliance schedules. Substitution of new compliance schedules would effectively amend existing consent decrees, contrary to the letter and spirit of the House report. It would permit companies that had failed to abide by their consent decrees access to the benefits of the Act. Since we believe that Congress clearly intended that such 16 A similar argument was rejected in an early case discussing de minimis, N L R B v. Cowell Portland Cement Co., 108 F.2d 198 (9th Cir. 1939), in which the issue was whether a company was doing enough interstate business to fall within the NLRB’s jurisdiction. The quantity of cement shipped out of state is not de minimis merely because it is but a small percentage of respondent's total sales Otherwise, we would have the anomaly of one plant under federal regulation because exporting its entire product of 14,000 barrels while alongside it another competing plant was under state regulation because, though' shipping the same amount of 14,000 barrels, they constituted, say, but 4 percent of its product. Congress could not have intended that it would subject laboring men or employers to such a confusing and, in business competition, such a destructive anom­ aly. Id. at 201 335 companies be barred from an extension under the Act, we do not believe the Administrator may interpret the Act to permit such substi­ tution of new compliance schedules. We believe that de minimis means what it has traditionally meant—an insignificant or insubstantial matter. Where the violation of a consent decree cannot reasonably be described as insignificant, we do not be­ lieve that the Administrator can properly authorize an extension under the Act. V. Conclusion We have not attempted to determine whether any particular com­ pany is or is not in violation of its consent decrees or, if the facts support a finding that there is a violation, whether that violation is de minimis. That would require a factual determination which we are not qualified to make and must be made, subject to your approval, by the Administrator. Each applicant, as noted earlier, has the burden of establishing that it is in compliance with the consent decrees or that its violations are de minimis. The normal meaning o f the term de minimis is entirely consistent with the Act’s legislative history. Indeed, all of the legislative history on the subject supports that conclusion and none of it supports a more expansive definition. Since the EPA and the steel industry and Con­ gress all seemed to believe that nearly all of the steel companies would be in compliance with their consent decrees, the Act did not contem­ plate any substantial deviations from the consent decrees. We have no way of determining whether Congress would have voted for the Act at all if the information had established that the companies were not then substantially in compliance or capable of placing themselves into such a status. We certainly cannot attribute to Congress an intent to allow the EPA Administrator to ignore or deviate in any material way from one of the integral components of the Act. T h e o d o r e B. O l s o n Assistant Attorney General Office o f Legal Counsel 336

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Administration of the Ronald Reagan Centennial Commission The Ronald Reagan Centennial Commission should create an executive committee, composed of its five presidentially appointed members, to discharge the purely executive functions of the Commission. The six congressional members, in turn, could participate in nearly all of the Commission’s activities, including in ceremonial functions, and could advise the executive committee on the formulation of programs that would be technically approved and executed by non-congressional members. May 7, 2010 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have forwarded to our Office a letter from four of the presidentially appointed members of the Ronald Reagan Centennial Commission, in which they request advice on a plan they have developed in order to avoid the constitutional concerns raised by the composition of the Commission under the Ronald Reagan Centennial Commission Act of 2009, Pub. L. No. 111-25, 123 Stat. 1767 (the “Act”). See Letter for Robert Bauer, Counsel to the President, from Peggy Noonan, John F.W. Rogers, Frederick J. Ryan Jr., and Fred W. Smith, Re: Operation of the Ronald Reagan Centennial Commission (Mar. 11, 2010) (“March 11 Letter”). Under this plan, four of the presidentially appointed members of the Commission, and all six congressional members, would vote to delegate to the one other presidentially appointed member the responsibility to exercise the Commission’s duties under section 3(1) of the Act. The remaining ten members would then be limited to advisory and ceremonial functions, and the eleventh, designated member would exercise all of the Commission’s significant executive responsibilities. See Memorandum on Implementation of the Ronald Reagan Centennial Commission Act (“Implementation Memo”) at 3 (attached to March 11 Letter). You have asked for our views of this proposal. The proposal, at least in spirit if not in letter, well addresses the concerns that we previously identified. We believe, however, that the precise form of the proposed solution requires some refinement in order to ensure it conforms to the constitutional understandings on which it appears to be premised and to avoid a potential statutory problem. Thus, 174 Administration of the Ronald Reagan Centennial Commission we conclude that the Commission should instead follow the recommendation this Office offered in a very similar context in its 1984 opinion on Appointments to the Commission on the Bicentennial of the Constitution—namely, to create an “executive committee,” composed of the five presidentially appointed members, which “would be legally responsible for discharging the purely executive functions of the Commission.” 8 Op. O.L.C. 200, 207 (1984) (“Constitution Bicentennial Commission”). These functions would include determining which activities would be “fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth” and “plan[ning], develop[ing], and carry[ing] out” such activities. Pub. L. No. 111-25, § 3(1). The six congressional members, in turn, could “participate in nearly all of the Commission’s activities,” including in ceremonial functions, and could advise the executive committee on “the formulation of programs that would be technically approved and executed by non-congressional members.” Constitution Bicentennial Commission, 8 Op. O.L.C. at 207. At the end of this memorandum, we briefly explain why this recommendation could be implemented in a manner that would not violate the constitutional holding in FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993). I. The Ronald Reagan Centennial Commission Act created an elevenmember commission with responsibility to “plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth.” Pub. L. No. 111-25, § 3(1). Six of the eleven commissioners are members of Congress, appointed by congressional leadership. Id. § 4(a). Four commissioners are appointed by the President, and the remaining commissioner is the Secretary of the Interior. Id. As we explained in a memorandum concerning the constitutionality of the bill before Congress enacted it, the inclusion of members of Congress raises significant concerns under the Appointments Clause and the Ineligibility Clause of the Constitution, and in light of the anti-aggrandizement principle underlying the constitutional separation of powers. See Participation of Members of Congress in the Ronald Reagan Centennial Commission, 33 Op. O.L.C. 193 (2009) (“Reagan Centennial Commission”). 175 34 Op. O.L.C. 174 (2010) To ameliorate these concerns, we suggested that the bill be amended to provide for designation of an executive branch official as the officer responsible for considering the advice and recommendations of the commissioners and then “planning, developing and carrying out” the ceremonial events. Congress did not make any such amendment, however. Therefore, when he signed the bill into law President Obama stated that, in order to implement the Act in a constitutional manner, “members of Congress ‘w[ould] be able to participate only in ceremonial or advisory functions of [the] Commission, and not in matters involving the administration of the act.’” Statement on Signing the Ronald Reagan Centennial Commission Act, 2009 Daily Comp. Pres. Doc. No. 424, at 1 (June 2, 2009) (quoting 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, 1390 (1983)). Four of the five presidentially appointed commissioners (all except the Secretary of the Interior) have proposed the following plan to avoid the constitutional problems we previously identified: First, all Commissioners save one Presidentially appointed Commissioner would elect—subject to their statutory rights—not to exercise the powers set forth in § 3(1) of the Act. Second, the Commission would carry out its planning and other functions up to the point of execution, and then create a final plan in the form of a resolution. Third, the Commission would transmit this resolution to the Presidentially appointed member of the Commission who would be designated to exercise the § 3(1) power. That designated Commissioner would evaluate and potentially execute the resolution as an Officer of the United States. Implementation Memo at 3. II. This proposal raises the following constitutional concern. The six congressional members, along with four of the five presidentially appointed members, would vote to delegate statutory duties to the remaining presidentially appointed commissioner. Those duties would include all of the statutory duties of the Commission, including those that may constitution176 Administration of the Ronald Reagan Centennial Commission ally be exercised only by Commission members who were presidentially appointed. The congressional members lack the authority to exercise the significant executive authority that, under the proposal, they would purport to confer on another member of the Commission. To avoid this anomaly, and to reflect the allocation of authority the Constitution requires, we believe the Commission should follow the recommendation this Office offered in a comparable context in 1984, see Constitution Bicentennial Commission, 8 Op. O.L.C. 200—namely, “to create an executive committee composed of all [five of the Commission members who are constitutionally eligible to exercise the duties of the Commission] that would be legally responsible for discharging the purely executive functions of the Commission,” id. at 207—including, in particular, determining which activities would be “fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth,” Pub. L. No. 111-25, § 3(1), and giving final approval to all executive actions. The six congressional members, in turn, could “participate in nearly all of the Commission’s activities,” could perform ceremonial functions, and could advise the executive committee as to all of its functions, including “the formulation of programs that would be technically approved and executed by non-congressional members.” Constitution Bicentennial Commission, 8 Op. O.L.C. at 207. Moreover, under this approach the entire Commission, including the congressionally appointed members, could also “provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth,” as section 3(2) of the Act authorizes, since such functions do not raise the constitutional problems we have identified. We do not think that the Commission’s establishment of such an “executive committee” would present the problem identified above. Consistent with the President’s signing statement, and in order to avoid serious constitutional questions, we would construe the Act already to limit the exercise of “the purely executive functions of the Commission,” Constitution Bicentennial Commission, 8 Op. O.L.C. at 207, to the five presidentially appointed commissioners who would constitute the “executive committee.” Cf. 58 Fed. Reg. 59,640 (Nov. 10, 1993) (reporting that four days after a court of appeals had held that the presence of two ex officio congressional appointees on the Federal Election Commission was 177 34 Op. O.L.C. 174 (2010) unconstitutional, the FEC “reconstituted itself as a body of six voting members”). Thus, there would be no purported “delegation” of significant authority from congressionally appointed officers to presidentially appointed ones. This formal distinction, while effectively resulting in the same allocation of functions to the congressional members as in the proposal in the Implementation Memo submitted to you, would not present the constitutional infirmities we discussed in our earlier memorandum, or the anomaly described above. Instead, an executive committee would simply exercise those functions that may be properly exercised only by the presidentially appointed officers. Moreover, because this course would involve no delegation of statutory authority within the Commission, it would also avoid a potentially serious statutory problem. The members’ proposal would call for a delegation of the Commission’s statutory duties to a single member. Particularly in light of section 4(h) of the Act, which provides that “[a] majority of the members of the Commission shall constitute a quorum to conduct business, but two or more members may hold hearings,” and the fact that the statute contains neither a specific authority to delegate powers to Commission members, see R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1334 (D.C. Cir. 1983) (citing 45 U.S.C. § 154 (1976)), nor a general rulemaking authority from which certain delegation authorities might be inferred, see Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 121 (1947), we do not see any obvious source of authority for the Commission to delegate its powers to a subset (or one) of its members. That is another reason why the better course would be for the Commission to create an “executive committee,” consisting of the five presidentially appointed members, to exercise the Commission’s statutory authorities. Were the executive committee to consist of fewer than five members, it would raise the issue of the statutory authority of the presidentially appointed members to delegate some of their significant executive authority to that smaller group. But so long as the executive committee consists of all members entitled to exercise significant executive authority under the Constitution, there would be no delegation of Commission duties and thus no statutory problem. 178 Administration of the Ronald Reagan Centennial Commission III. Finally, the members who sent you the March 11 Letter appear to be concerned (see Implementation Memo at 2) that adopting the “executive committee” solution from our 1984 opinion could run afoul of FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993). The court in that case declared invalid a section of the Federal Election Campaign Act, 2 U.S.C. § 437c(a)(1), which provided that the Secretary of the Senate and Clerk of the House or their designees were to be members of the Federal Election Commission “ex officio and without the right to vote.” The FEC had argued that the presence of those members was constitutionally harmless because their only formal role was informational and advisory. The court rejected this argument, reasoning that “the mere presence of agents of Congress on an entity with executive powers offends the Constitution.” 6 F.3d at 827; see also Reagan Centennial Commission, 33 Op. O.L.C. at 199 & n.8. But this case would be distinguishable in important respects from NRA Political Victory Fund. As the United States explained in its brief to the Supreme Court in that case, the statute at issue there compelled the FEC “to afford the Secretary and Clerk an integral role in all its deliberative processes. By participating as members in the FEC’s deliberations, the ex officio agents give Congress the ability to express its views from within the Commission on issues involving the execution and administration of the FECA in specific cases and instances.” Brief for the United States as Amicus Curiae at 18 –19, FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994); see also id. at 20 –21 (warning about the “lack of confidentiality” and explaining that “[t]he prospect that these congressional employees will report on FEC proceedings to Congress may cause the other members to ‘temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process’”) (quoting United States v. Nixon, 418 U.S. 683, 705 (1974)); NRA Political Victory Fund, 6 F.3d at 827 (reasoning that entitling congressional agents to be present during the confidential deliberations of the executive officials was analogous to the compelled presence of nonvoting alternate jurors during jury deliberations); Harold H. Bruff, The Incompatibility Principle, 59 Admin. L. Rev. 225, 255–56 (2007) (“Although Congress opened many of the deliberations of multi-member agencies like the FEC to public view 179 34 Op. O.L.C. 174 (2010) through the Sunshine Act, the Act contains exceptions allowing confidential discussions, which would lose much of their efficacy if congressional monitors were present for discussions among the Commissioners. . . . The values underlying both executive privilege and the incompatibility principle suggest the need for some zone of privacy for executive deliberation.” (footnote omitted)). The Ronald Reagan Centennial Commission, by contrast, could implement our 1984 recommendation in a manner that does not raise these concerns: The executive committee would simply choose to consult with and receive advice from those members not serving on the executive committee. Here, the executive committee alone would be responsible for exercising significant executive authority, and no one other than the presidentially appointed officers would be serving on that decisionmaking body, thereby distinguishing this case from NRA Political Victory Fund, in which the congressional agents were ex officio members of a commission that was required to deliberate as a whole on its decisions. In NRA Political Victory Fund, the congressional agents did not serve on a body in which the decisional and advisory functions were segregated in the manner that our 1984 memorandum suggested and that we recommend to be the proper course here. Moreover, absent the particular problem present in NRA Political Victory Fund, there is nothing constitutionally problematic about members of Congress offering advice designed to influence executive action, as the court in NRA Political Victory Fund itself acknowledged. 6 F.3d at 827 (Congress “enjoys ample channels to advise, coordinate, and even directly influence an executive agency,” including by “direct communication with the [agency]”); see also Mistretta v. United States, 488 U.S. 361, 408 (1989) (the Constitution “anticipates that the coordinate Branches will converse with each other on matters of vital common interest”). MARTIN S. LEDERMAN Deputy Assistant Attorney General Office of Legal Counsel 180

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Divestiture of Stock and Purchase of Government Bonds by an Incoming Secretary of the Treasury The incoming Secretary of the Treasury may purchase government bonds with the proceeds of a stock sale pursuant to a certificate of divestiture properly issued under 26 U.S.C. § 1043 and without violating the prohibition of 31 U.S.C. § 329, provided that he purchases the bonds after his commission is signed by the President but before he takes the oath of office or enters on his duties as Secretary of the Treasury. June 22, 2006 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF GOVERNMENT ETHICS You have asked for our opinion on whether and how an incoming Secretary of the Treasury may buy government bonds with the proceeds of a stock sale pursuant to a “certificate of divestiture” under 26 U.S.C. § 1043 (2000) consistent with 31 U.S.C. § 329 (2000), which forbids the Secretary from “be[ing] involved in buying or disposing of obligations of a State or the United States Government.” 1 We believe that a certificate of divestiture under 26 U.S.C. § 1043 would be available when the President signs the incoming Secretary’s commission, but that the incoming Secretary would not become subject to 31 U.S.C. § 329 until he takes the oath of office or otherwise begins his duties. Accordingly, we conclude that the incoming Secretary may purchase government bonds pursuant to a certificate of divestiture properly issued under 26 U.S.C. § 1043 and without violating the prohibition of 31 U.S.C. § 329, provided that he purchases the bonds after his commission is signed by the President but before he takes the oath of office or enters on his duties as Secretary of the Treasury. I. The President has nominated Henry M. Paulson, Jr., to be Secretary of the Treasury: Mr. Paulson is currently the Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. (“Goldman Sachs”), and holds a large stake in the stock of that company. The Office of Government Ethics (“OGE”) has determined that, to comply with conflict of interest rules and standards, Mr. Paulson will have to sell this stock if he becomes the Secretary. Recognizing the extraordinary tax liability that incoming officers and employees of the government might incur when forced to sell property for such reasons, 1 Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Marilyn L. Glynn, General Counsel, Office of Government Ethics (June 9, 2006). Your question covers the Secretary of the Treasury and the Treasurer of the United States, both of whom are subject to 31 U.S.C. § 329. In this opinion, we refer to the Secretary, but our analysis would cover both officers. 84 Divestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury Congress has provided a mechanism for deferral of the tax. The President or the Director of OGE may issue a “certificate of divestiture” to “an eligible person,” which the statute defines as “an officer or employee of the executive branch of the Federal Government.” 26 U.S.C. § 1043(a), (b)(1). The issuance of such a certificate is predicated on a finding that “divestiture of specific property is reasonably necessary to comply with any Federal conflict of interest statute, regulation, rule, or executive order (including section 208 of title 18, United States Code), or requested by a congressional committee as a condition of confirmation.” 26 U.S.C. § 1043(b)(2). The certificate permits deferral of federal tax on the sale of the property if the proceeds of the sale are invested in “permitted property,” defined as “any obligation of the United States or any diversified investment fund approved by regulations issued by the Office of Government Ethics.” Id. § 1043(a), (b)(3). We are informed that the sale of Mr. Paulson’s stock will generate a large sum of money; that it would be unduly risky to invest the entire sum in equities or equity funds; and that he therefore would invest a portion in less risky securities, including government bonds. Such bonds are ordinarily “permitted property” under a certificate of divestiture. See id. § 1043(b)(3). When Mr. Paulson becomes Secretary of the Treasury, however, he will be subject to another provision, 31 U.S.C. § 329(a)(1)(D), under which “the Secretary of the Treasury and the Treasurer may not . . . be involved in buying or disposing of obligations of a State or the United States Government.” An officer who violates the prohibition in section 329 “shall be fined $3,000, removed from office, and thereafter may not hold an office of the Government.” Id. § 329(a)(2). We understand that before May 2002 the two statutes were reconciled through interpretations under which the term “officer or employee” in 26 U.S.C. § 1043 was taken to apply when a Secretary or Treasurer was confirmed by the Senate and commissioned by the President, but the terms “Secretary of the Treasury and the Treasurer” in 31 U.S.C. § 329 were taken to apply only when those incoming officials took the oath of office. Thus, under these interpretations, after the President signed the commission of an incoming Secretary of the Treasury or Treasurer, the official could receive a certificate of divestiture, sell the conflicting investments, and purchase government bonds with the proceeds of the sale, as long as he completed this process before taking the oath of office. In 2002, however, we issued an opinion concluding that the conflict of interest laws under title 5 and title 18 of the U.S. Code apply to an incoming official when he becomes an “officer or employee” under the definitions in title 5, see 5 U.S.C. §§ 2104, 2105 (2000), and that a person becomes an officer or employee as defined in title 5 only when he begins the duties of the office. Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service, 26 Op. O.L.C. 32 (2002) (“2002 Opinion”). Because a certificate of divestiture may be issued when an “officer or employee” has to sell property to comply with the conflict of interest requirements under titles 5 and 18, our 2002 Opinion raises the question whether the terms “officer or 85 Opinions of the Office of Legal Counsel in Volume 30 employee” in 26 U.S.C. § 1043 must now be given the same meaning as in titles 5 and 18. If so, a certificate of divestiture could not be issued until the incoming Secretary had begun his duties, and, as explained below, 31 U.S.C. § 329 at that time would forbid rolling over the sale proceeds into government bonds. II. A. We believe the term “officer” in 26 U.S.C. § 1043 is best interpreted in light of the purposes of the law, and consistent with the traditional holding of the Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to include an incoming officer whose commission has been signed by the President but who has not yet taken the oath of office or entered on the duties of the office. 2 The term “officer” is susceptible of different meanings depending on the context in issue. According to the traditional understanding explained by the Supreme Court in Marbury, a person becomes an “officer” once his appointment to the office is complete, and the President completes the appointment by signing the commission. Chief Justice Marshall in Marbury wrote that, when the President signs the commission, “the officer is appointed,” 5 U.S. at 157 (emphasis added), and that the appointment “create[s] the officer,” id. at 156. 3 See also Appointment of Midshipman at Naval Academy—Revocation, 28 Op. Att’y Gen. 180, 187 (1910) (characterizing Marbury as holding that when the appointment was complete, Marbury “was . . . an officer”). 4 The appointee’s undertaking the duties of the office is irrelevant to this use of the term “officer.” For that reason, “[w]hen a person, appointed to any office, refuses to accept that office, the successor is nominated in the place of the person who has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy.” Marbury, 5 U.S. at 161–62. As Justice Joseph Story wrote, “[t]he officer appointed [by the signing of the commission] has then conferred on him legal rights, which cannot be resumed [by 2 We do not here construe the meaning of “employee” in 26 U.S.C. § 1043. There is a doctrine that, where an appointee would serve at the pleasure of the President, the President may reconsider his decision to appoint the officer even after the commission is signed and may still decline to make the appointment by arresting the commission in his office—i.e., before it leaves the immediate control of the President. See Case of Franklin G. Adams, 12 Op. Att’y Gen. 304, 306 (1867). Once the commission leaves the President’s office, however, this doctrine would not apply. 4 One sentence in the 2002 Opinion stated that appointment “does not ipso facto make the appointed person an officer or employee” under Marbury, 26 Op. O.L.C. at 36, but the context of the sentence was a treatment of need for an appointee to accept the office before its duties and powers become his. The passage cited an Attorney General opinion treating acceptance of an office as “the assumption of official responsibility.” See Acceptance of a Promotion, 12 Op. Att’y Gen. 229, 230 (1867). 3 86 Divestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury the President].” Joseph Story, Commentaries on the Constitution of the United States 573 (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833) (emphasis added). Thus, relying in part on Marbury, we have concluded that “where two officers in the same body are commissioned on different dates, the officer commissioned first is the senior.” Determination of Date of Commencement of Service of Federal Officers—Renegotiation Board, 1 Op. O.L.C. 121, 121 (1977). And, although the current rule is different, Marbury states that “the salary of the officer commences from his appointment” on the date of the commission. 5 U.S. at 161 (emphasis added); but see Term of Judicial Salaries, 7 Op. Att’y Gen. 303, 307 (1855) (the statement in Marbury “is not good law in the broad generality of the proposition”). By contrast, someone becomes an “officer or employee” for purposes of titles 5 and 18 of the U.S. Code only when he begins his official duties. See 2002 Opinion, 26 Op. O.L.C. at 32. Under 5 U.S.C. § 2104, an officer is defined as someone (1) “required by law to be appointed in the civil service by [the President; a court of the United-States, the head of an Executive agency; or the Secretary of a military department] acting in an official capacity,” (2) “engaged in the performance of a Federal function under authority of law or an Executive act,” and (3) “subject to the supervision” of the President or the head of an executive agency or military department. This special definition leads to the conclusion that, until someone is actually performing a federal function under the supervision of a federal official, he is not yet an “officer” within the meaning of section 2104. And although title 18 does not define the term, we have relied on the title 5 definition of “officer” and “employee” as “‘the most obvious source of a definition’ for title 18 purposes.” 2002 Opinion, 26 Op. O.L.C. at 32 (quoting Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management Councils, 17 Op. O.L.C. 150, 154 (1993) (“Fishery Management Councils”) (quoting Status of an Informal Presidential Advisor as a “Special Government Employee,” 1 Op. O.L.C. 20, 20 (1977) (“Informal Presidential Advisor”))). The 2002 Opinion, which set out this view of the meaning of the terms “officer” and “employee,” observed that we had applied the title 5 statutory definitions of “officer” and “employee” to the conflict of interest restrictions in Executive Order 12674, Principles of Ethical Conduct for Government Officers and Employees, 3 C.F.R. 215 (1989 Comp.), and the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. pt. 2635 (2006). See 2002 Opinion, 26 Op. O.L.C. at 33 (citing Fishery Management Councils, 17 Op. O.L.C. at 150 n.2, 158). We explained our earlier reasoning: First, we noted that we had turned to the title 5 definitions for guidance in interpreting the criminal conflict of interest laws, and “[b]ecause the objectives of the Order and its implementing regulations are closely related to those of the conflicts statutes, we [thought] it reasonable to look to title 5’s definition of ‘employee’ 87 Opinions of the Office of Legal Counsel in Volume 30 when elucidating the Order.” Id. at 154 (citation omitted). Second, the Executive Order adopts the definition of “agency” from title 5, with certain exceptions, Exec. Order No. 12674, § 503(c); and “[w]e [thought] it unlikely that the Order was intended to cover personnel who were employed by ‘agencies’ within the meaning of title 5 but who were not themselves ‘employees’ within the same title.” 17 Op. O.L.C. at 154. Third, while the Executive Order states generally that it is based on the authority vested in the President “by the Constitution and laws of the United States,” Exec. Order No. 12674, pmbl., but does not specify the authorizing statutes, “the most obvious statutory source of authority” is the President’s power under title 5 to “prescribe regulations for the conduct of employees in the executive branch,” 5 U.S.C. § 7301 (2000), and this authority brings into play the definition of “employee” in title 5. 17 Op. O.L.C. at 154. 2002 Opinion, 26 Op. O.L.C. at 33. In using the three-part test from title 5 to interpret conflict of interest restrictions found outside that title, we thus relied on the purposes of, as well as underlying legal authorities for, these other restrictions. Similarly, in applying the three-part test to the criminal conflict of interest restrictions in title 18, we underscored the specific nature of criminal prohibitions. We observed that the rule of lenity weighed in favor of not diluting the test and thus broadening the application of the criminal sanctions in ways that could have harsh results. Id. at 34. Section 1043 of the federal tax code does not regulate the conduct of officials but offers a means to facilitate their compliance with the ethics laws, including compliance required as a condition of entering into office. In light of this purpose, we believe that the term “officer” in section 1043 is best read to have the traditional meaning laid down in Marbury v. Madison. An incoming official must have the capacity to avoid conflicts from the moment he begins service, where the circumstances so demand. He may, for example, own substantial amounts of stock that would create a financial conflict under 18 U.S.C. § 208(a) (2000) in an area where he would need to take urgent action immediately upon assuming the duties of his office. If the official’s holdings would be sufficiently “substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer,” he would be ineligible for a waiver under 18 U.S.C. § 208(b)(1). Foreseeing such a problem, and bearing in mind the obligation of officers and employees “to avoid any actions creating [even] the appearance that they are violating the law or the ethical standards promulgated pursuant to” the President’s direction, see Exec. Order No. 12674, § 101(n), 3 C.F.R. at 216, as amended by Exec. Order No. 12731, 3 C.F.R. 306, 308 (1990 Comp.), the incoming official would need to divest himself of his holdings before entering on his duties. But unless there is some period, before he undertakes the duties of his office, during which he is an “officer” under 26 U.S.C. § 1043 and thus eligible for 88 Divestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury a certificate of divestiture, he may lack any practical means to divest that property. Indeed, the unavailability of a certificate of divestiture for such officers would be “a significant disincentive to the acceptance of high level policy-making positions in the government because of the financial burdens imposed by reason of the recognition of gain,” To Serve with Honor: Report of the President’s Commission on Federal Ethics Law Reform 25 (1989), and might dissuade some officials from consenting to serve. If, however, a certificate of divestiture may be granted when the President signs the commission but before the officer begins his duties, such a consequence—which we cannot believe Congress intended—can be avoided. The language of section 1043, moreover, reveals that the provision is, in part, specifically designed to deal with incoming officials. A certificate of divestiture is available not only if the Director of OGE finds divestiture necessary to avoid conflicts of interest—a determination that might apply to either incoming or incumbent officials—but also specifically is available if divestiture is “requested by a congressional committee as a condition of confirmation.” 26 U.S.C. § 1043(b)(2)(A). This specific focus on incoming officials reinforces the conclusion that section 1043 should be read to permit an official to resolve conflicts before he begins work. Under 26 U.S.C. § 1043(b)(2), a certificate of divestiture can be issued only if a sale of property is “reasonably necessary to comply with any Federal conflict of interest statute, regulation, rule, or executive order (including section 208 of title 18, United States Code), or requested by a congressional committee as a condition of confirmation.” Given the purposes of section 1043, we believe that this judgment can be made as of when the incoming official becomes an “officer” in the traditional sense just outlined. The Director of OGE, at that point, can determine whether the officer, to achieve compliance with federal conflict of interest rules upon his beginning the duties of his office, needs to divest himself of any property holdings. 5 This interpretation, as we understand the facts, accords with existing practice as to the timing of certificates of divestiture. OGE’s view has long been that the Director could issue a certificate when the President signed the incoming officer’s commission. The present issue is, therefore, whether this interpretation should be overturned because of our 2002 Opinion, which found that the conflict of interest laws under titles 5 and 18 do not apply to an incoming officer until he begins the duties of his office. Our interpretation here gives the term “officer” a different meaning in 26 U.S.C. § 1043 from the meaning that the term has in the conflict of interest laws in title 5 and title 18. Arguably, given the absence of a statutory 5 Section 1043 also includes a cross-reference to a definition in title 18, but it does so only to say that a “special Government employee as defined in section 202 of title 18” is not eligible for a certificate of divestiture. 26 U.S.C. § 1043(b)(1)(A). The cross-reference would not support any inference that the meanings of terms in title 18 should apply to section 1043. 89 Opinions of the Office of Legal Counsel in Volume 30 definition governing the provision in title 26, the title 5 definition could be “the most obvious source of a definition,” just as we concluded it was for title 18. A certificate of divestiture may be issued when an “officer or employee” has to sell property to comply with the conflict of interest requirements, most of which are in or pursuant to titles 5 and 18, and it therefore might be argued that section 1043 should incorporate the same meaning of “officer” that applies under those titles and is ultimately traced to 5 U.S.C. § 2104. We nonetheless conclude that employing a different interpretation of the term “officer” in the context of section 1043 is fully consistent with the differing purposes of this provision and the conflict of interest laws of titles 5 and 18. Furthermore, although the 2002 Opinion reached its conclusion on the basis of the express statutory definition of “officer” in title 5 and the longstanding interpretation that title 18 should be given the same meaning, we noted that our interpretation “enable[d] an appointee to wind up his private affairs in an orderly manner (presumably in consultation with the Administration) and therefore [could] be critical to recruiting qualified appointees in the first place.” 26 Op. O.L.C. at 37. The issuance of a certificate of divestiture upon the President’s signing of the commission, but before the officer’s entering on his duties, serves the same ends. 6 B. In keeping with the longstanding interpretation of the Treasury Department, we believe that, for purposes of 31 U.S.C. § 329, Mr. Paulson will not become “[t]he Secretary of the Treasury” until he takes the oath of office or enters on the duties of the office. This understanding of the meaning of “[t]he Secretary of the Treasury” accords with the purposes of 31 U.S.C. § 329. The provision, in substantially the same form, was enacted in 1789 as part of the statute creating the Treasury Department. Act of Sept. 2, 1789, ch. 12, § 8, 1 Stat. 65, 67 (1789). 7 It was intended to prevent Treasury officials from “speculating in the public funds.” See 1 Annals of Cong. 611 (1789) (statement of the sponsor, Rep. Aedanus Burke); see also Treasurer of the United States—Philippine Land Purchase Bonds, 6 We recognize that some agencies of the government do not insist that incoming officials achieve immediate compliance with provisions that forbid them from holding or trading in particular kinds of property. On the other hand, the Treasury Department has consistently taken the view, both under 31 U.S.C. § 329 and under the statute on the Comptroller and Deputy Comptroller of the Currency, 12 U.S.C. § 11 (2000), that these statutory bars apply immediately to incoming officials upon their taking the oaths of office. 7 As originally enacted, the provision stated that officials at the Treasury Department could not “be concerned in the purchase or disposal of any public securities of any State, or of the United States.” 1 Stat. at 67. This language remained in the statute until 1982, when the current language was substituted “to eliminate unnecessary words and for consistency in the revised title” 31. 31 U.S.C. § 329 note. The 1982 amendment was “not [to] be construed as making a substantive change in the law[] replaced.” Pub. L. No. 97-258, § 4(a), 96 Stat. 884, 1067 (1982). 90 Divestiture of Stock and Purchase of Bonds by Incoming Secretary of the Treasury 25 Op. Att’y Gen. 98, 99 (1903) (“The obvious purpose of [the] law, as shown throughout the section, is to prohibit personal interest in such bond issues and certain other affairs and business, and private emolument or gain in the transaction of any business in the Treasury Department.”). Perhaps one motive for the provision was a concern that officials in the Treasury would buy state bonds whose value would be increased if the United States (as it later did) assumed the debts incurred by the states in the Revolutionary War. Ideas about assumption were circulating even before the creation of the Treasury Department, see Stanley Elkins & Eric McKitrick, The Age of Federalism 112–13, 117–21 (1993); Ron Chernow, Alexander Hamilton 225 (2004); and the scope of the prohibition, which reaches trading in bonds but not the mere holding of them, suggests a focus on the use of inside information. See also William Maclay, The Journal of William Maclay, United States Senator from Pennsylvania 1789–1791, at 173–74 (Frederick Ungar Publishing 1965) (1890) (protesting against “a system of speculation for . . . engrossing certificates” of public debt). In any event, if an incoming Treasury Secretary completes his transactions in government bonds before he takes the oath or enters on the duties of his office, he cannot “speculat[e] in the public funds.” He can have no opportunity to take any official action as Secretary, or use any nonpublic information, to gain any advantage in the trade. 8 III. It follows, therefore, that if the Director of OGE issues a certificate of divestiture upon the President’s signing of Mr. Paulson’s commission, Mr. Paulson will be able to sell his Goldman Sachs stock and buy government bonds pursuant to that certificate, provided he completes these transactions before he takes the oath of office or enters on his duties as Secretary of the Treasury. STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel 8 An OGE regulation, which addresses the use of a certificate of divestiture, includes, as an example, the following: The Secretary of Treasury sells certain stock after receiving a Certificate of Divestiture and is considering reinvesting the proceeds from the sale into U.S. Treasury securities. However, because the Secretary of Treasury is prohibited by 31 U.S.C. 329 from being involved in buying obligations of the United States Government, the Secretary cannot reinvest the proceeds in such securities. However, she may invest the proceeds in a diversified mutual fund. 5 C.F.R. § 2634.1006(a), ex. 2 (2006) (citation omitted). By its terms, this example covers “[t]he Secretary of Treasury” but does not specify when an incoming official assumes that office. 91

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Application of the Emoluments Clause to a Member of the FBI Director’s Advisory Board A member of the FBI Director’s Advisory Board does not hold an “Office of Profit or Trust” under the Emoluments Clause of the Constitution. June 15, 2007 MEMORANDUM OPINION FOR THE GENERAL COUNSEL FEDERAL BUREAU OF INVESTIGATION You have asked whether a member of the Federal Bureau of Investigation (“FBI”) Director’s Advisory Board (the “Board”) holds an “Office of Profit or Trust” under the Emoluments Clause of the Constitution. See U.S. Const. art. I, § 9, cl. 8. We conclude that he does not. I. The Board is charged with advising the Director of the FBI (“Director”) on how the FBI can more effectively exploit and apply science and technology to improve its operations, particularly its priorities of preventing terrorist attacks, countering foreign intelligence operations, combating cyber-based attacks, and strengthening the FBI’s collaboration with other federal law enforcement agencies. See FBI Press Release, FBI Director Renames and Announces Additions to Advisory Board (Oct. 6, 2005) (available at http://www.fbi.gov/news/pressrel/press-releases/fbidirector-renames-and-announces-additions-to-advisory-board, last visited Aug. 11, 2014); see also Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, § 109, 117 Stat. 11, 67 (“[The Board] shall not be considered to be a Federal advisory committee for purposes of the Federal Advisory Committee Act.”). Board members serve, without terms, at the pleasure of the Director. The Board is scheduled to meet four times per year, unless the Director calls additional ad hoc meetings. Although Board members are entitled to travel reimbursements and are classified as special government employees, they receive no other compensation. See 18 U.S.C. § 202(a) (2000). The sole role of the Board is to advise the Director, who is free to adopt, modify, or ignore its recommendations. Board members have no decisional or enforcement authority, and they exercise no supervisory responsibilities over other persons or employees as a result of their positions on the Board. Board members cannot bind the United States or direct the expenditure of appropriated or nonappropriated funds. In addition, Board members do not represent or act on behalf of the Director or the FBI in any particular matter. Board members hold Top Secret security clearances and may receive access to classified information pursuant to their service on the Board, although they do not possess any authority 154 Application of the Emoluments Clause to a Member of the FBI Director’s Advisory Board to access, remove, disseminate, declassify, publish, modify, change, manipulate, originate, or otherwise regulate or oversee the government’s handling of classified information. Members of the Board sign nondisclosure agreements in which they agree not to disclose classified information they receive. You have indicated that several Board members wish to travel overseas at the invitation of foreign governments in connection with their non-FBI interests and wish to be reimbursed by those governments for their travel expenses. Travel reimbursements by foreign governments may constitute emoluments under the Emoluments Clause. 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 Chairman Stone’s Trip to Indonesia at 2 n.2 (Aug. 11, 1980).1 The question before us is whether membership on the Board is an “Office of Profit or Trust under [the United States]” within the meaning of the Emoluments Clause. We conclude that it is not. II. The Emoluments Clause provides, in relevant part, 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 (emphasis added). “[I]n order to qualify as an ‘Office of Profit or Trust under [the United States],’ a position must, first and foremost, be an ‘Office under the United States.’” Application of the Emoluments Clause to a Member of the President’s Council on Bioethics, 29 Op. O.L.C. 55, 56 (2005) (“2005 Opinion”) (second alteration in original). In the 2005 Opinion, we concluded that a member of the President’s Council on Bioethics, an advisory board, did not hold an “Office under the United States” and therefore was not subject to the Emoluments Clause. As we stated there: 1 Congress has already granted its consent under the Emoluments Clause for officials to receive reimbursement from foreign governments for certain foreign travel expenses. The Foreign Gifts and Decorations Act, 5 U.S.C. § 7342 (2000), allows employees, with the approval of their agencies, to receive payment of appropriate travel expenses for travel taking place entirely outside the United States. Id. § 7342(c)(1)(B)(ii). But that statute does not address what is often the most significant single expense incurred in foreign travel, the cost of the flight to and from the United States. We assume, for purposes of this opinion, that the travel reimbursement received by Board members constitutes compensation for services, and therefore is not prohibited under section 7342(b). See, e.g., Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157 (1982) (“It seems clear that [the Foreign Gifts and Decorations Act] only addresses itself to gratuities, rather than compensation for services actually performed”). 155 Opinions of the Office of Legal Counsel in Volume 31 The text of the Emoluments Clause suggests that an “Office of Profit or Trust under [the United States]” must be an “Office under the United States.” . . . [T]o the extent that the phrase “of Profit or Trust” is relevant, it may serve to narrow an “Office . . . under [the United States]” to those that are “of Profit or Trust,” or an “Office of Profit or Trust” may be synonymous with an “Office . . . under [the United States],” but it is clear that the words “of Profit or Trust” do not expand coverage of the Emoluments Clause beyond what would otherwise qualify as an “Office . . . under [the United States].” Id. at 56–57 (first ellipsis and first and second brackets added). The threshold question, therefore, in determining whether a member of the Board holds an “Office of Profit or Trust under [the United States]” is whether a position on the Board is an “Office under the United States.” In the 2005 Opinion, we concluded that a purely advisory position is not an “Office under the United States.” Our analysis emphasized that persons holding advisory positions of the sort at issue there did not exercise governmental authority. Id. at 63–64. After reviewing two centuries of caselaw, authoritative commentaries, and numerous opinions of this Office, we observed that “[i]nnumerable . . . authorities . . . make clear that an indispensable element of a public ‘office’ is the exercise of some portion of delegated sovereign authority.” Id. at 67. See generally Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 87 (2007) (“Appointments Clause”) (“As a general matter, . . . one could define delegated sovereign authority as power lawfully conferred by the Government to bind third parties, or the Government itself, for the public benefit. . . . [S]uch authority primarily involves the authority to administer, execute, or interpret the law.”). We therefore concluded: “To be an ‘office,’ a position must at least involve some exercise of governmental authority, and an advisory position does not.” 2005 Opinion, 29 Op. O.L.C. at 64; id. at 71 (“As the Supreme Court made clear in Buckley v. Valeo, 424 U.S. 1 (1976), . . . an ‘officer of the United States’ exercises ‘significant authority pursuant to the laws of the United States,’ id. at 126 (emphasis added).”); accord Appointments Clause, 31 Op. O.L.C. at 79, 86, 99–100. The only relevant distinction between the advisory position at issue in the 2005 Opinion and membership on the Board is that a Board member may receive access to classified information in connection with his official duties. 2 To conclude that 2 While the members of the President’s Committee on Bioethics—the subject of the 2005 Opinion—received modest compensation for their services, see 2005 Opinion, 29 Op. O.L.C. at 55, the members of the Board are not compensated. We have previously concluded, however, that while “an emolument is . . . a common characteristic of an office,” it “is not essential.” Appointments Clause, 31 Op. O.L.C. at 119. 156 Application of the Emoluments Clause to a Member of the FBI Director’s Advisory Board membership on the Board is an “Office of Profit or Trust” within the meaning of the Emoluments Clause, therefore, we would necessarily have to conclude that, by receiving access to classified information, Board members have received a delegation by legal authority of a portion of the sovereign power of the federal government. The mere provision of access to classified information, however, is not such a delegation. Board members are given access to classified information solely to help them perform their advisory function; they have no discretionary authority to access, remove, disseminate, declassify, publish, modify, change, manipulate, or originate classified information. They do not have supervisory or oversight authority for the government’s handling or regulation of classified information. Cf. 2005 Opinion, 29 Op. O.L.C. at 72–73 (discussing similar authority). Board members who receive such information do not thereby acquire “the right or power to make any . . . law, nor can they interpret or enforce any existing law,” 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States 604, 608 (1907), nor can they “hear and determine judicially questions submitted [to them],” id. at 607. Nor does their receipt of such information empower Board members to “bind the Government or do any act affecting the rights of a single individual citizen.” Id. at 610; accord Opinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822) (“The power thus delegated and possessed [by an officer], may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still it is a legal power, which may be rightfully exercised, and in its effects it will bind the rights of others . . . .”) (emphasis added). Rather, receipt of classified information only gives rise to a negative duty not to disclose that information to persons who may not lawfully have access to it. We do not understand the duty to safeguard classified information to constitute a portion of the sovereign power of the federal government. That duty is broadly analogous to the duty of any person entrusted with the due care of government property under his control, which—absent authority to alienate that property—has not traditionally been considered to constitute sovereign authority sufficient to render a position an “office.” See Appointments Clause, 31 Op. O.L.C. at 90 (collecting authorities). In addition, the Board members’ duty of nondisclosure originates not in the statute creating the Board and establishing its duties, but in such authorities as confidentiality agreements executed by the Board members, Exec. Order No. 13292 (Mar. 25, 2003), 3 C.F.R. 196 (2003 Comp.), and generally applicable statutes penalizing the unauthorized disclosure of classified information, see, e.g., 18 U.S.C. § 793(d), (f) (2000); id. § 798 (2000). See generally Freytag v. Comm’r, 501 U.S. 868, 881 (1991) (contrasting special trial judges, whose duties were “specified by statute,” with special masters, who were hired “on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute”); id. at 901 (opinion of Scalia, J.) (agreeing with this analysis); Floyd R. Mechem, A Treatise on the Law of Public 157 Opinions of the Office of Legal Counsel in Volume 31 Offices and Officers § 507, at 332 (1890) (“The authority of a public officer in any given case consists of those powers which are expressly conferred upon him by the act appointing him, or which are expressly annexed to the office by the law creating it or some other law referring to it, or which are attached to the office by common law as incidents to it.”). Although we do not consider that fact dispositive, see Appointments Clause, 31 Op. O.L.C. at 117–18, it tends to confirm that Board members’ duty of nondisclosure is simply ancillary to their advisory duties, which, as noted above, are not sufficient to render the position an “office” under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. It also tends to confirm that the Board members’ duty of nondisclosure is indistinguishable from the general duty that any employee or even contractor with access to such information would have, rather than constituting some special authority associated with service on the Board. Accordingly, we conclude that a member of the Board does not hold an “Office under the United States” by virtue of that position, and likewise does not hold an “Office of Profit or Trust [under the United States]” within the meaning of the Emoluments Clause. See 2005 Opinion, 29 Op. O.L.C. at 71 (“A position that carried with it no governmental authority (significant or otherwise) would not be an office for purposes of the Appointments Clause, and therefore . . . would not be an office under the Emoluments Clause . . . .”). We acknowledge that the 2005 Opinion, in concluding that members of the President’s Council on Bioethics were not “officers” for purposes of the Emoluments Clause, noted, among other factors, that members did not have access to classified information, 29 Op. O.L.C. at 55, and cited a handful of opinions that “suggested that individuals with access to sensitive, national security-related information held ‘Office[s] of Profit or Trust’ under the Emoluments Clause, without further analyzing the extent of governmental authority exercised by these federal employees.” Id. at 72; see also id. at 72 n.10 (collecting citations). In light of those opinions, we wrote, “it is at least arguable that the authority to control and safeguard classified information does amount to the exercise of governmental authority sufficient to render employment with the federal government a public ‘office.’” Id. at 72. One of those opinions involved a part-time staff consultant to the Nuclear Regulatory Commission. See Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96 (1986) (“1986 Opinion”). 3 In the 1986 Opinion, we concluded that such a staff consultant 3 The 2005 Opinion also cites a Letter for James A. Fitzgerald, Assistant General Counsel, Nuclear Regulatory Commission, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel (June 3, 1986). That is not, however, a separate opinion, but simply the unpublished version of the 1986 Opinion. 158 Application of the Emoluments Clause to a Member of the FBI Director’s Advisory Board could not, consistent with the Emoluments Clause, accept employment with a private domestic corporation to perform work on a contract with a foreign government. Id. at 96. In reaching that conclusion, we appeared to place heavy weight on the fact that the consultant might have access to sensitive or classified information: [The consultant] is highly valued for his abilities and . . . in the course of his employment, he may develop or have access to sensitive and important, perhaps classified information. Even without knowing more specifically the duties of his employment, these factors are a sufficient indication that the United States government has placed great trust in [him] and requires and expects his undivided loyalty. Therefore, we believe the Emoluments Clause applies to him. Id. at 99. In the 1986 Opinion, we did not consider whether access to classified information constitutes a delegation by legal authority of a portion of the sovereign power of the federal government. While we noted that “[p]rior opinions of this Office have assumed . . . that the persons covered by the Emoluments Clause were ‘officers of the United States,” id. at 98, we interpreted the Emoluments Clause as a “prophylactic provision” whose reach was not limited to “officers of the United States.” Id. Instead, we concluded that the relevant inquiry under the Emoluments Clause was “whether [the employee’s] part-time position at the NRC could be characterized as one of profit or trust under the United States—a position requiring undivided loyalty to the United States government.” Id. As we have since determined, however, a person who does not hold an office under the United States is not subject to the Emoluments Clause. See 2005 Opinion, 29 Op. O.L.C. at 56 (“[I]n order to qualify as an ‘Office of Profit or Trust under [the United States],’ a position must, first and foremost, be an ‘Office under the United States.’”) (second alteration in original). III. A sentence in our 2005 Opinion identifies United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1867), as supporting the proposition that “the authority to control and safeguard classified information does amount to the exercise of governmental authority sufficient to render employment with the federal government a public ‘office.’” 2005 Opinion, 29 Op. O.L.C. at 72. But, on a close reading of Hartwell, we find it consistent with our analysis above. In Hartwell, the Court held that a clerk in the office of an assistant treasurer of the United States was an “officer of the United States” for purposes of a federal embezzlement statute. 73 U.S. at 391– 93. In reaching that conclusion, the Court noted a number of factors, including that Hartwell was “charged with the safe-keeping of the public moneys of the United 159 Opinions of the Office of Legal Counsel in Volume 31 States.” Id. at 392. By analogy to Hartwell, “it could be argued that a federal government employee charged with safeguarding sensitive national securityrelated information would likewise be a public officer charged with the exercise of some governmental authority.” 2005 Opinion, 29 Op. O.L.C. at 72. We do not read Hartwell so broadly. The statute under which Hartwell was indicted applied to “all officers and other persons charged by this act or any other act with the safekeeping, transfer and disbursement of the public moneys.” 73 U.S. at 387 (emphasis and internal quotation marks omitted). The Court determined that Hartwell was both an “officer” and a “person charged with the safe-keeping of the public money within the meaning of the act.” Id. at 393 (emphasis and internal quotation marks omitted); see also id. (“Was the defendant an officer or person ‘charged with the safe-keeping of the public money’ within the meaning of the act? We think he was both.”). The fact that Hartwell was responsible for “the safekeeping of the public moneys of the United States,” id. at 392, was relevant, not because it made Hartwell an officer, but because it made him an “officer[] [or] other person[] charged by this act or any other act with the safe-keeping, transfer and disbursement of the public moneys.” Id. at 387 (emphasis and internal quotation marks omitted). He therefore was liable for criminal prosecution under the act irrespective of the fact that he was an officer. See id. at 390–91. That Hartwell was charged with the safekeeping of the public moneys of the United States does not appear to have been relevant to the Court’s analysis of whether he was also an officer. Rather, Hartwell’s status as an officer appears to have been based on the fact that his employment . . . was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe. Id. at 393. Hartwell therefore is not dispositive of whether being generally entrusted with due care of public funds is itself a delegation by legal authority of a portion of the sovereign power of the federal government, such that the recipient of such authority holds an “Office under the United States.” A fortiori, Hartwell does not determine whether receiving access to classified information constitutes such a delegation. IV. Because mere access to, or receipt of, classified information is not a delegation by legal authority of a portion of the sovereign power of the United States, a member of the Board does not hold an “Office under the United States” by virtue 160 Application of the Emoluments Clause to a Member of the FBI Director’s Advisory Board of that position and therefore does not hold an “Office of Profit or Trust [under the United States]” within the meaning of the Emoluments Clause. See 2005 Opinion, 29 Op. O.L.C. at 72. 4 To the extent the 1986 Opinion reached a contrary conclusion, the 2005 Opinion has substantially undermined the basis for that conclusion, and the 1986 Opinion is no longer authoritative. 5 JOHN P. ELWOOD Deputy Assistant Attorney General Office of Legal Counsel 4 The FBI may, of course, take foreign ties into account in determining the propriety of a person’s service on the Board and the appropriateness of granting security clearances. 5 The 2005 Opinion referred to two other opinions in which “we suggested that individuals with access to sensitive, national security-related information held ‘Office[s] of Profit or Trust’ under the Emoluments Clause.” 2005 Opinion, 29 Op. O.L.C. at 72; see id. at 72 n.10 (citing Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156 (1982), and Memorandum for James H. Thessin, Assistant Legal Adviser for Management, Department of State, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of the Emoluments Clause to a Civilian Aide to the Secretary of the Army (Aug. 29, 1988)). In both of those opinions, however, the individuals in question were regular full-time employees of the United States government, and those opinions therefore do not directly bear on the part-time advisory positions at issue here. 161

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Government Printing Office Involvement in Executive Branch Printing The Office o f Legal Counsel continues to adhere to the analysis and conclusions in its opinion dated May 31, 1996, regarding Government Printing Office involvement in executive branch printing. Ju ly 23, 1996 L e t t e r O p in io n f o r t h e G e n e r a l C o u n s e l G o v e r n m e n t P r in t in g O f f ic e This letter responds to your request for reconsideration o f the opinion issued by this office on May 31, 1996 regarding Government Printing Office (“ GPO” ) involvement in executive branch printing. See Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating, 20 Op. O.L.C. 214 (1996) (the “ May 31, 1996 memorandum” ). In that opinion, we concluded that, to the extent 44 U.S.C. §501 & note require all executive branch printing and duplicating to be procured by or through the GPO, the statute violates constitu­ tional principles of separation of powers. We further found that the provision in subsection (2) of 44 U.S.C. §501 note authorizing the Public Printer to certify exceptions to the general rule of printing by or through the GPO is unconstitu­ tional. In preparing the memorandum, we gave the issues our complete consider­ ation. We continue to adhere to the analysis and conclusions set forth in that memorandum. Specifically, you contend the May 31, 1996 memorandum represents an unwar­ ranted departure from the principle previously embraced by this office, as set forth in a footnote of an opinion issued on September 13, 1993. See General Services Adm inistration Printing Operations, 17 Op. O.L.C. 54 (1993) (the “ September 13, 1993 memorandum” ). W e note, as an initial matter, that the September 13, 1993 memorandum focused on whether the Joint Committee on Printing (“ JCP” ) has the authority to restrict printing functions of the General Services Administra­ tion (“ G SA ” ), and whether then-recent legislation had any effect on GSA’s au­ thority to engage in printing. The issue central to the May 31, 1996 memo­ randum — the constitutionality of Congress’s mandate that the executive branch use the GPO for all its printing and duplicating w ork— was addressed only in passing in a footnote of the September 13, 1993 memorandum. Under separation of powers doctrine, Congress may not vest executive functions in a person or entity subject to congressional control. See, e.g.. Metropolitan Washington A irports Auth. v. Citizens fo r the Abatement o f Aircraft Noise, Inc., 501 U.S. 252 (1991); Bowsher v. Synar, 478 U.S. 714 (1986). This principle was further clarified subsequent to issuance of the September 13, 1993 memorandum in F ederal Election Comm’n v. NRA Political Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993) (striking down the ex officio, non-voting participation by congressional 282 Government Printing Office Involvement in Executive Branch Printing agents in the Federal Election Commission on grounds that the “ mere presence of agents of Congress on an entity with executive powers offends the Constitu­ tion” ), cert, dismissed, 513 U.S. 88 (1994). As we concluded in the May 31, 1996 memorandum, the GPO is subject to congressional control through the JCP. Your letter identifies as constitutionally significant (1) the fact that the Public Printer is appointed, and subject to removal at will, by the President; and (2) the absence of JCP veto authority over GPO actions. The President’s appointment and removal authority demonstrates only that the executive branch also exercises a degree of control over the GPO and Public Printer. This fact does not ameliorate the constitutional problem that occurs as a result of the congressional control that is exerted over the same entity and official. Similarly, the absence o f JCP veto authority in no way diminishes the control Congress exercises through other statu­ tory mechanisms. You further contend that, because the GPO cannot refuse executive branch print­ ing orders nor modify the contents of any printed material, congressional control over its functions does not violate separation of powers principles. As set forth in detail in the May 31, 1996 memorandum, we disagree that the G PO ’s functions are so limited in nature that congressional control over such functions holds no constitutional significance. Indeed, as we noted in the May 31, 1996 memo­ randum, we doubt that the Constitution permits Congress to control functions out­ side the legislative sphere even where such aggrandizement is de minimis. But we need not resolve that issue at this time because the GPO functions cannot be characterized as merely ministerial. The GPO controls the timing and produc­ tion of all printing work for the executive branch. See 44 U.S.C. §501 & note. The Public Printer also determines “ the form and style in which the printing or binding ordered by a department is executed, and the material and the size of type used.” 44 U.S.C. § 1105. Thus, the GPO’s functions are essential to the dis­ charge of all executive functions that require printing work. Accordingly, to the extent footnote 2 of the September 13, 1993 memorandum is at variance with current jurisprudence and the analysis and conclusions set forth in the May 31, 1996 memorandum, it no longer represents the views o f this office. CHRISTOPHER SCHROEDER Acting Assistant A ttorney General Office o f Legal Counsel 283

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Transactions Between the Federal Financing Bank and the Department of the Treasury T h is o p inion rev iew s a possible Federal F inancing B ank sale o f loan assets to the Civil S ervice R etire­ m en t and D isab ility F u n d and other possible related transactions betw een the FFB an d the D epart­ m en t o f the T reasu ry , an d concludes th a t the contem plated transactions w ould be perm issible under ex istin g law . February 13, 1996 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l Depa r tm en t o f th e T rea su ry This memorandum responds to your request for advice concerning the legal issues raised by a possible Federal Financing Bank (“ FFB” or “ Bank” ) sale of loan assets to the Civil Service Retirement and Disability Fund (“ CSRDF” or “ Fund” ) and other related transactions between the FFB and the Department of the Treasury (“ Treasury” ). The FFB loan assets would be sold to the CSRDF in exchange for a portion of the United States debt obligations (“ public debt obli­ gations” ) Treasury has previously issued to the CSRDF pursuant to 5 U.S.C. § 8348 and chapter 31 of title 31, United States Code. You have requested specific advice as to: (1) the FFB’s authority to sell to the Fund loan assets evidencing indebtedness incurred by the United States Postal Service (“ USPS” ) and Tennessee Valley Authority (“ TVA” ); (2) the Treasury Secretary’s (“ Secretary” ) authority to invest Fund monies in obligations of the USPS and obligations of the TVA; (3) the FFB’s authority to accept, in exchange for the USPS and TVA indebtedness, payment in the form of public debt obligations; (4) whether Treasury may legally enter into a transaction with the FFB whereby Treasury would secure the public debt obligations from the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury; (5) whether the FFB may sell the public debt obligations to Treas­ ury and whether the FFB may accept as payment for the public debt obligations the cancellation by Treasury of FFB obligations of equivalent value held by Treasury; 64 Transactions Between the Federal Financing Bank and the Department o f the Treasury (6) the implications of the proposed transfer of public debt obliga­ tions to Treasury with respect to 31 U.S.C. §3101, the debt limit; and (7) whether the USPS and TVA obligations the FFB proposes to sell to the CSRDF are subject to the debt limit. For the reasons indicated below, we conclude that the transactions you con­ template would be permissible under existing law. We conclude that the Federal Financing Bank Act of 1973, Pub. L. No. 93-224, 87 Stat. 937 (codified as amended at 12 U.S.C. §§2281-2296) (“ FFB Act” ), empowers the FFB to sell obligations that were issued by “ federal agencies,” including obligations of the USPS and TVA. We also conclude that the Secretary is authorized to invest CSRDF monies in the USPS and TVA obligations the FFB intends to sell. In addition, we conclude that the FFB has the authority to receive payment for the USPS and TVA obligations in public debt obligations. Moreover, we conclude that Treasury has the authority to enter into a transaction with the FFB whereby Treasury would acquire the public debt obligations from the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. We also conclude that the FFB has the authority to accept the cancella­ tion of the FFB obligations as payment for the public debt obligations. In addition, we conclude that the transaction between Treasury and the FFB would result in Treasury’s acquiring the previously issued public debt obligations, thus freeing up debt issuance capacity under the debt limit and permitting the Secretary to issue additional public debt obligations to the public in a commensurate amount. Finally, we conclude that the USPS and TVA obligations the FFB proposes to sell to the CSRDF in exchange for the previously issued public debt obligations are not subject to the debt limit. I. Background Congress established the FFB in 1973 to “ assure coordination of [federal and federally assisted borrowing] programs with the overall economic and fiscal poli­ cies of the Government, to reduce the costs of Federal and federally assisted bor­ rowings from the public, and to assure that such borrowings are financed in a manner least disruptive of private financial markets and institutions.” 12 U.S.C. §2281. In order to further these purposes, the FFB is authorized to purchase the obligations of federal agencies. Id. § 2285(a).1 As part of its regular financing activities, the FFB acquired as loan assets certain obligations of the USPS and TVA. Under the proposed transactions, the FFB would sell those loan assets to 'T h e FFB Act also provides that “ [a]ny [f]ederaJ agency which is authorized to issue, sell, or guarantee any obligation is authorized to issue or sell such obligations directly to the B ank." Id. 65 Opinions of the Office o f Legal Counsel in Volume 20 the CSRDF in exchange for public debt obligations of equivalent value that are currently being held by that government-managed trust fund. Treasury would then enter into a transaction with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. This series of trans­ actions would result in Treasury’s acquiring the public debt obligations that had been previously held by the CSRDF and the CSRDF’s holding the USPS and TVA obligations that had been previously held by the FFB. Your office believes that such a series of transactions would create debt issuance capacity under the debt limit in an amount equal to the public debt obligations that would be transferred to Treasury from the CSRDF. In addition, your office believes it has sufficient legal authority to undertake all the transactions described above. Moreover, your office holds the view that the USPS and TVA obligations that would be used to replace the public debt obligations previously held by the CSRDF would not count against the debt limit. II. Legal Discussion A. The FFB has the authority to sell the USPS and TVA obligations it holds as loan assets. We believe the FFB has the authority to sell the USPS and TVA obligations it currently holds as loan assets. Section 6 of the FFB Act authorizes the FFB to “ make commitments to purchase and sell, and to purchase and sell on terms and conditions determined by the Bank, any obligation which is issued, sold, or guaranteed by a [f]ederal agency.” 12 U.S.C. § 2285(a); see also Consolidated Aluminum Corp. v. TVA , 462 F. Supp. 464, 469 (M.D. Tenn. 1978) (“ The Federal Financing Bank may resell in the public markets any bonds of federal agencies which it holds.” ). The USPS and TVA obligations the FFB contemplates selling to the CSRDF are “ obligations” as that term is defined in the FFB Act. The FFB Act defines “ obligation” as “ any note, bond, debenture, or other evidence of indebtedness.” 12 U.S.C. §2282(2). According to your office, the USPS obligations the FFB intends to sell are indebtedness in the form of notes issued by the USPS under 39 U.S.C. §2005. Your office has also informed us that the TVA obligations the FFB intends to sell are indebtedness in the form of bonds issued by the TVA under 16 U.S.C. §831n-4. Accordingly, the USPS and TVA obligations the FFB contemplates selling qualify as “ obligations” within the terms of the FFB Act. Both the USPS and the TVA satisfy the FFB A ct’s defmition of “ [f]ederal agency.” The FFB Act defines the term “ federal agency” as “ an executive de­ partment, an independent [f]ederal establishment, or a corporation or other entity established by the Congress which is owned in whole or in part by the United 66 Transactions Between the Federal Financing Bank and the Department o f the Treasury States.” 12 U.S.C. §2282(1). Section 201 of title 39, United States Code, the statutory provision establishing the USPS, provides that the USPS is “ an inde­ pendent establishment of the executive branch of the Government of the United States.” The TVA, for its part, was created by Congress as a “ body corporate,” 16 U.S.C. §831, and its board of directors is “ appointed by the President, by and with the advice and consent of the Senate.” Id. §831a. The TVA has also been described by federal courts as “ an agency of the Federal Government,” Ashwander v. TVA, 297 U.S. 288, 315 (1936), “ an instrumentality of the United States,” Tennessee Elec. Pow er Co. v. TVA, 306 U.S. 118, 134 (1939) and “ a wholly owned corporate agency and instrumentality of the United States.” United States ex rel. TVA v. An Easement And Right-Of-Way, 246 F. Supp. 263, 269 (W.D. Ky. 1965), a ffd , 375 F.2d 120 (6th Cir. 1967).2 In sum, since the loan assets the FFB contemplates selling are “ obligations” that were “ issued” by enti­ ties that qualify as “ federal agencies” under the FFB Act, the FFB has the author­ ity to sell them. B. The loan assets the FFB contemplates selling to the CSRDF are suitable investments for that government-managed trust fund. The legality of the proposed transactions will also depend on whether the USPS and TVA obligations the FFB intends to sell are suitable investments for the CSRDF. We conclude that they are. The statutes authorizing the USPS and TVA obligations in question both provide that obligations issued thereunder “ shall” : be lawful investments and may be accepted as security for all fidu­ ciary, trust, and public funds, the investment or deposit of which shall be under the authority or control of any officer or agency of the [United States]. 39 U.S.C. §2005(d)(3) (emphasis added); 16 U.S.C. §831n-4(d) (emphasis added). Congress incorporated this boilerplate trust fund investment eligibility lan­ guage3 in the statute authorizing the USPS to issue the obligations the FFB in­ tends to sell in the Postal Reorganization Act, Pub. L. No. 91-375, sec. 2, § 2005(d)(3), 84 Stat. 719, 740 (1970), several years after the initial enactment of the CSRDF’s statutory investment provisions, which occurred in 1926. See Act 2This Office has previously opined that “ [sjeveral government corporations, such as the Tennessee Valley Author­ ity . . . were intended to be ‘[f]ederai agencies’ within the scope o f [section 2282’s] corporation coverage clause.” Authority o f the Federal Financing Bank to Provide Loans to the Resolution Trust Corporation, 14 Op. O.L.C. 20, 22(1990). 3 Congress has included this or similar language in several other statutes authorizing federal or congressionally created entities to borrow. See, e.g., 12 U.S.C. §1435 (obligations issued by the Federal Home Loan Banks); 15 U.S.C. § 7 13 a-4 (bonds, notes, o r debentures issued by the Commodity Credit Corporation); 12 U.S.C. § 1723c (obli­ gations of the Federal National Mortgage Association); 12 U.S.C. § 2288(d) (obligations issued by the FFB). 67 Opinions o f the O ffice o f Legal Counsel m Volume 20 of July 3, 1926, ch. 801, §11, 44 Stat. 904, 910-11.4 The language was similarly included in the statute authorizing the TVA obligations the FFB intends to sell when that statute was enacted into law in 1959. See Act of Aug. 6, 1959, Pub. L. No. 86-137, sec. 1, §15d(d), 73 Stat. 280, 283. Although the CSRDF statute contains investment provisions delineating the types of obligations the Secretary is authorized to purchase on behalf of the CSRDF, these provisions essentially mirror boilerplate provisions contained in statutes governing the investments of other government-managed trust funds.5 Moreover, although the CSRDF statute’s investment provisions have been amended from time to time since they were ini­ tially enacted,6 our review of the amendments reveals no expressed intention on the part of Congress to exempt the CSRDF from the effect of trust fund investment eligibility provisions such as those included in the relevant USPS and TVA stat­ utes. Accordingly, we conclude that CSRDF monies may be invested in the USPS and TVA obligations the FFB intends to sell in addition to the obligations specifi­ cally delineated in 5 U.S.C. §8348.7 4 Section 11, which appears to have been th e first provision specifically delineating the types of obligations in which C SR D F m onies could be invested, provided in relevant part: The Secretary o f the Treasury shall invest from time to time, in interest-bearing securities of the United States o r Federal farm-loan bonds, such portions o f the “ civil-service retirement and disability fund” as in his judgm ent may not be immediately required for the payment o f annuities, refunds, and allowances as herein provided. 44 Stat. at 910-11. 5 The C SR D F statute states: The Secretary shall immediately invest in interest-beanng securities o f the United States such currently available portions o f the Fund as are not immediately required for payments from the Fund. The income derived from these investments constitutes a part o f the Fund. 5 U.S.C. § 8348(c). The statute further provides that the Secretary may invest CSRDF monies in public debt obliga­ tions which carry interest rates determined by the Secretary based on a formula set forth in the statute. See id. § 8348(d). In addition, the C SR D F statute authorizes the Secretary to “ purchase other interest-bearing obligations of the U nited States, or obligations guaranteed as to both principal and interest by the United States, on original issue or at the market price only if he determines that the purchases are in the public interest.” Id. § 8348(e). Lan­ guage authorizing such investments is commonly found in the statutes setting forth investment criteria for govern­ ment-m anaged trust funds. See, e.g., 42 U.S.C. § 401(d) (Social Security Trust Funds); 42 U.S.C. § 1104(b) (Unem­ ployment Trust Fund); 20 U.S.C. § 2009(b) (H arry S. Truman Memorial Scholarship Trust Fund); 20 U.S.C. § 5202(b) (Eisenhow er Exchange Fellowship Program T rust Fund). 6 The m ost notable changes in the CSRDF statu te’s investment provisions occurred in 1956, when Congress first expressly authorized the Secretary to purchase on behalf o f the CSRDF public debt obligations that carry interest rates determ ined by the Secretary based on a statutory formula, see Civil Service Retirement Act Amendments of 1956, ch. 804, sec. 401, § 17(d), 70 Stat. 736, 7 5 9 -6 0 , and in 1961, when Congress required the Secretary to invest Fund monies in such public debt obligations unless he determines that it is in the public interest to invest the monies in other interest-bearing obligations of the U nited States. See Act o f Oct. 4, 1961, Pub. L. No. 87-350, sec. 1(a), § 17(d), 75 Stat. 770, 770. The current wording o f the C SR D F statute’s investment provisions is essentially the same as it w as in 1961. See 5 U.S.C. §8348(c)-(e). 7 The C SR D F statute's investment provisions do not prohibit the investment of CSRDF monies in the relevant USPS and TVA obligations. G eneral rules o f statutory construction dictate that, if possible, statutes on the same subject m atter should be construed in harmony with one another. See 2B Norman J. Singer, Sutherland Statutory Construction §51.02, at 122 (5th ed. 1992); see also Watt v. Alaska, 451 U.S. 259, 267 (1981). If that cannot be accomplished, “ [i]t is an elementary tenet o f statutory construction that ‘[w]here there is no clear intention other­ wise, a specific statute will not be controlled o r nullified by a general o n e / ” Guidry v. Sheet Metal Workers Nat’I Pension Fund , 493 U.S. 365, 375 (1990) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974)). Due to the boilerplate nature o f the C SRD F statute's investm ent provisions, we believe we are not here confronted with the task o f reconciling a specific statute against a general one, but are, instead, confronted with the task o f reconciling tw o general statutes. Moreover, even if we w ere to accept the notion that the CSRDF statute’s investment provisions are more specific, principles o f statutory construction require that those provisions be construed in harmony with 68 Transactions Between the Federal Financing Bank and the Department o f the Treasury Our conclusion concerning the relationship between the general trust fund in­ vestment eligibility language contained in the USPS and TVA statutes and the CSRDF is consistent with established federal case law, the longstanding practice and understanding of the Treasury and Justice Departments, and a 1985 Comp­ troller General opinion. In M anchester Band o f Pomo Indians, Inc. v. United States, 363 F. Supp. 1238, 1244—45 (N.D. Cal. 1973), a federal district court deter­ mined that trust fund investment eligibility language resembling that which is con­ tained in the USPS and TVA statutes mentioned above made obligations issued under statutes containing that language just as eligible for investment by govern­ ment-managed trust funds benefiting American Indians as investments specifically mentioned in the trust fund statutes themselves. The court expressly cited as eligi­ ble for investment by “ all [g]ovemment managed trust funds” obligations issued pursuant to 16 U.S.C. §831n-4, the provision of the United States Code under which the TVA obligations the FFB intends to sell were issued. M anchester Band, 363 F. Supp. at 1244. The court also found that its conclusion concerning the effect of the relevant trust fund investment eligibility language was “ in accord with the intent of Congress.” Id. at 1245. In 1966, this Office opined that obligations of the federal land banks and the banks for cooperatives are eligible investments for all government-managed trust funds, where the statutes authorizing the issuance of such obligations contained language similar to that contained in the relevant USPS and TVA statutes. See Memorandum for Fred B. Smith, General Counsel, Department of the Treasury, from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel (Oct. 7, 1966).8 In concluding that the specific trust fund investment eligibility language at issue was sufficient to authorize investment by all government-man­ aged trust funds, this Office stated that statutory language essentially the same as that contained in the relevant USPS and TVA statutes “ presents no problems of construction and plainly permits investments of the various Government trust funds in the affected securities whether or not the statutes creating the trusts them­ selves do so.” Id. at 2 .9 Similarly, in a 1934 opinion, Attorney General Homer Cummings advised that, even though the specific trust fund statute at issue did not expressly authorize it, government-managed postal savings funds could be in­ the trust fund investment eligibility language contained in the relevant USPS and TVA statutes. Because the CSRDF statute’s investment provisions do not purport to supersede other statutes establishing that obligations issued thereunder are eligible investments for government-managed trust funds and the relevant USPS and TVA statutes dem­ onstrate Congress’s intention that obligations issued thereunder be eligible investm ent for all government-managed trust funds, the better interpretation is that the relevant USPS and TVA statutes have the effect of expanding the universe o f authorized CSRDF investments. 8 The pertinent trust fund investment eligibility language pertaining to obligations o f the federal land banks and the banks for cooperatives provided that obligations issued by those entities " 's h a ll be a lawful investment for all fiduciary and trust funds, and may be accepted as security for al! public deposits.’ ” Id. at 1 (quoting section 27 o f the Federal Farm Loan Act, ch. 245, 39 Stat. 360, 380 (1916), and section 1 of the Act o f August 23, 1954, ch. 834, 68 Stat. 770, 771). 9 The statutes to which this Office referred provided that the obligations issued thereunder “ shall be lawful invest­ ments, and may be accepted as security, for all fiduciary, trust, and public funds the investment or deposit o f which shall be under the authority or control o f the United States or any officer or officers thereof.” Id. at 2 & n.3. 69 Opinions o f the Office o f Legal Counsel in Volume 20 vested in bonds issued under the Federal Farm Mortgage Corporation Act on ac­ count of trust fund investment eligibility language contained in that act which was similar to that contained in the relevant USPS and TVA statutes. Investment o f P o sta l Savings Funds in B onds o f F ederal Farm M ortgage Corporation, 37 Op. Att’y Gen. 479, 480 (1934).10 It has been Treasury’s longstanding practice to invest monies contained in govemment-managed trust funds, including the CSRDF, in public debt obligations or other obligations that have been authorized by Congress as legal investments for all government-managed trust funds. See Temporary Increase in D ebt Ceiling: H earings Before the House Comm, on W ays and M eans, 90th Cong. 52 (1967) (statement of Hon. Henry H. Fowler, Secretary of the Treasury) (“ 1967 Hear­ ings” ). 11 During the 1985 debt limit crisis, Secretary of the Treasury James Baker in­ vested CSRDF monies in obligations issued by the FFB pursuant to 12 U.S.C. § 2288(a), which are not public debt obligations. That action was the subject of a congressional hearing at which a Comptroller General opinion was presented. See F ederal Financing Bank and the D eb t Ceiling: Hearing Before the Subcomm. on Econom ic Stabilization of the House Comm, on Banking, Finance and Urban Affairs, 99th Cong. 28-34 (1985) (“ Federal Financing Bank and the D ebt Ceil­ in g” ). In concluding that the investment and related transactions met all applicable legal requirements, the Comptroller General opinion stated that “ 12 U.S.C. § 2288(d) provides that the [FFB’s] obligations ‘shall be lawful investments, and may be accepted as security for all fiduciary, trust, and public funds, the invest­ ment of which shall be under the authority or control of the United States.’ ” Memorandum for the Honorable John J. LaFalce, Chairman, Subcommittee on Economic Stabilization, House Committee on Banking, Finance and Urban Af­ fairs, from Milton J. Socolar, Comptroller General of the United States, B-138524, at 2 (Comp. Gen. 1985) (“ Comp. Gen. Op.” ), reprinted in Federal Financing Bank an d the D ebt Ceiling at 32. C. The FFB is authorized to receive payment for the loan assets it intends to seU to the CSRDF in public debt obligations. In analyzing the proposed transactions, we must also consider whether it is per­ missible for the FFB to receive payment in the form of public debt obligations 10The pertinent tnist fund investment eligibility language provided as follows: “ ‘Such bonds . . . may be accepted as security, for all fiduciary, trust, and public funds the investment or deposit o f which shall be under the authority o r control o f the U nited States o r any officer o r officers thereof.’ ” Id. (quoting Federal Farm Mortgage Corporation A ct, ch. 7, § 4(a), 48 Stat. 344, 345 (1934)). 11 In testim ony before the House Ways and M eans Committee, Secretary Fow ler stated that, in practice. Treasury had refrained from investing monies contained in government-managed trust funds in participation certificates issued by the Export-Im port Bank because, unlike the statute authorizing the issuance o f Federal National Mortgage Associa­ tion participation certificates, the statute authorizing the issuance o f Export-Import Bank participation certificates did not contain a provision making them generally eligible for investment by government-managed tnist funds. Id.-, see also id. at 179-80. 70 Transactions Between the Federal Financing Bank and the Department o f the Treasury for the USPS and TVA obligations it intends to sell. We conclude that the FFB is authorized to accept public debt obligations as a form of payment. As stated above, the FFB Act authorizes the FFB to sell obligations issued by federal agen­ cies “ on terms and conditions determined by the Bank.” 12 U.S.C. §2285(a). We believe this broadly worded statutory authority allows the FFB reasonably to negotiate and determine the form of compensation to be received upon such a sale.12 Accordingly, no significant legal issues appear to be raised by the FFB’s plan to receive public debt obligations in exchange for the USPS and TVA obliga­ tions it intends to sell to the CSRDF. In his 1985 opinion, the Comptroller General apparently concluded that no sig­ nificant legal issues were raised by the FFB’s acceptance of public debt obliga­ tions in exchange for the sale of its own obligations to the CSRDF. See Comp. Gen. Op. at 2, reprinted in Federal Financing Bank and the D ebt Ceiling at 32. In view of the fact that we have found nothing in the FFB Act prohibiting the FFB’s acceptance of public debt obligations in exchange for the loan assets it intends to sell, and in light of the Comptroller General’s apparent view in 1985 that such activity did not raise legal issues, we see no reason why, under current conditions, the FFB should not be able to accept public debt obligations as com­ pensation for the USPS and TVA obligations it intends to sell. D. Treasury has the authority to enter into a transaction with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. We must also consider whether Treasury has the authority to enter into a trans­ action with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obliga­ tions of equivalent value held by Treasury. We conclude that Treasury has the authority to enter into such a transaction. Treasury has the authority to redeem or purchase public debt obligations prior to maturity. Section 3111 of title 31, United States Code, states in pertinent part: An obligation may be issued under this chapter to buy, redeem, or refund, at or before maturity, outstanding bonds, notes, certifi­ cates of indebtedness, Treasury bills, or savings certificates of the United States Government. Under regulations of the Secretary of the Treasury, money received from the sale of an obligation and 12 As noted above, the FFB Act also grants the FFB the authority to purchase obligations issued by federal agencies. See 12 U.S.C. §2285(a). Since the public debt obligations the FFB intends to receive in exchange for the USPS and TVA obligations were issued by Treasury, a “ federal agency’* under the FFB Act, it would appear that the FFB has the authority to purchase them from the CSRDF. 71 Opinions of the O ffice o f Legal Counsel in Volume 20 other money in the general fund of the Treasury may be used in making the purchases, redemptions, or refunds. 31 U.S.C. §3111. Treasury issued the public debt obligations currently being held by the CSRDF pursuant to 5 U.S.C. §8348 and chapter 31 of title 31, United States Code. See 5 U.S.C. § 8348(d) (“ The purposes for which obligations of the United States may be issued under chapter 31 of title 31 are extended to authorize the issuance at par of public-debt obligations for purchase by the Fund.” ). All forms of public debt obligations covered by 31 U.S.C. §3111 are authorized to be issued under chapter 31 of title 31, United States Code. See 31 U.S.C. §§3102-3105. Accord­ ingly, although the CSRDF statute imposes greater limits on the Secretary’s discre­ tion to fashion terms and conditions of public debt obligations issued to the CSRDF than the statute setting forth the procedures for issuing public debt obliga­ tions in general, com pare 5 U.S.C. § 8348(d) with 31 U.S.C. §3121, the public debt obligations currently being held by the CSRDF are no less subject to the terms of § 3111 than public debt obligations held by the general public. Whether a public debt obligation held by the CSRDF is a “ bond,” “ note,” or “ certificate of indebtedness” for purposes of §3111 depends, therefore, on the instrument’s term of maturity, which was determined upon its issuance, and not on its status as an investment of a government-managed trust fund. Cf. 31 U.S.C. § 3102(a) (specifying that bonds authorized to be issued under that section may be issued either “ to the public” or “ to Government accounts.” ). Your office has informed us that, based on this analysis, the public debt obligations the FFB plans to acquire from the CSRDF are all covered by the provisions of 31 U.S.C. §3111. As fashioned, §3111 does not expressly authorize Treasury to finance the re­ demption prior to maturity of previously issued public debt obligations with all possible instruments of value under its control. However, it is reasonable to inter­ pret §3111 as not imposing strict limitations on the manner in which Treasury may redeem public debt obligations, but rather as merely providing express author­ ity for the use by Treasury of two methods for raising the funds needed to effect such redemptions. A contrary interpretation of §3111 would produce the illogical result of barring Treasury from using other means at its disposal that, depending on the circumstances, might be less costly to the government or more fiscally and financially prudent than the methods expressly contemplated under the statute. Accordingly, we conclude that § 3111 impliedly grants Treasury the authority to use the FFB obligations to finance its purchase of the public debt obligations. Our conclusion that Treasury has implied authority under 31 U.S.C. §3111 to use a portion of its FFB obligation holdings to purchase prior to maturity the public debt obligations at issue is bolstered by the statutory authority granted to the Secretary pursuant to 31 U.S.C. §324 and 12 U.S.C. § 2288(b). Section 324 of title 31, United States Code, provides in relevant part: 72 Transactions Between the Federal Financing Bank and the Department o f the Treasury (a) The Secretary of the Treasury may — (1) dispose of obligations — (A) acquired by the Secretary for the United States Govern­ ment . . . . (b) The Secretary may dispose or extend the maturity of obligations under subsection (a) of this section in the way, in amounts, a t prices (for cash, obligations, property, or a combination o f cash, obliga­ tions, o r property), and on conditions the Secretary considers advis­ able and in the public interest. 31 U.S.C. §324 (emphasis added). Treasury acquired the FFB obligations it cur­ rently holds pursuant to 12 U.S.C. § 2288(b). That statute authorizes the FFB to “ issue its obligations to the Secretary” and authorizes the Secretary to purchase any such obligations.13 Accordingly, the FFB obligations currently being held by Treasury are “ obligations . . . acquired by the Secretary for the United States Government,” as those terms are used in 31 U.S.C. §324. Subsection (b) of §324 grants the Secretary broad authority to dispose of the FFB obligations he holds. We believe that authority includes the authority to use them as currency in acquir­ ing the public debt obligations. In addition to general authority to dispose of “ obligations . . . acquired by the Secretary for the United States Government” under §324, the Secretary has specific authority to dispose of the FFB obligations he holds. Section 2288(b) of title 12, United States Code, provides that “ [t]he Secretary . . . may sell, upon such terms and conditions and a t such price or prices as he shall determine, any of the obligations acquired by him under this subsection.” 12 U.S.C. § 2288(b) (emphasis added). This broadly worded authority also provides support for the conclusion that the Secretary may dispose of the FFB obligations he holds in a manner that allows him to acquire the public debt obligations, as it appears to allow the Secretary reasonably to determine the terms and conditions of such a disposal. We believe our conclusion that Treasury has the authority to use the FFB obliga­ tions it currently holds to purchase the public debt obligations it has previously issued to the CSRDF is again consistent with the 1985 Comptroller General opin­ ion. In that opinion, the Comptroller General did not question Treasury’s authority, 13 Ln order to enable the FFB to support its financing activities, the FFB Act provides that, in addition to issuing up to $15 billion worth o f its debt obligations to the public, 4"the [FFB] is . . . authorized to issue its obligations to the Secretary o f the T rea su ry /’ 12 U.S.C. § 2288(b), see also H.R. Rep. No. 92-1478, at 5 (1972) (“ The Bank’s activities would be financed, in general, by . . . Bank obligations issued to the Secretary o f the Treasury.” ). The same provision o f the FFB Act that authorizes the FFB to issue its obligations to Treasury also authorizes Treasury to purchase and agree to purchase such obligations. 12 U.S.C. § 2288(b). No express limitation is placed on the amount of its ow n obligations that the FFB may issue to Treasury. Treasury currently holds approximately $67 billion worth o f these obligations. 73 Opinions o f the O ffice o f Legal Counsel in Volume 20 exercised in a similar manner, to purchase from the FFB prior to maturity the public debt obligations it had previously issued to the CSRDF. See Comp. Gen. Op. at 2, reprinted in Federal Financing Bank and the D ebt Ceiling at 32. Based on the authorities granted to the Secretary under 31 U.S.C. §§3111 and 324, and 12 U.S.C. § 2288(b), and the conclusions of the 1985 Comptroller Gen­ eral opinion, we conclude that Treasury would have the authority to purchase from the FFB prior to maturity the public debt obligations it has previously issued to the CSRDF pursuant to the transaction described above. E. The FFB has the authority to sell the public debt obligations to Treasury and to accept the cancellation by Treasury of FFB obligations of equivalent value as payment for the public debt obligations. Treasury’s ability to complete the proposed transactions will also depend on whether the FFB has the authority to sell the public debt obligations and accept the cancellation by Treasury of FFB obligations of equivalent value as payment for the public debt obligations. We conclude that the FFB has such authority. As stated above, section 6 of the FFB Act grants the FFB the authority to sell obligations issued by federal agencies. 12 U.S.C. § 2285(a). The public debt obli­ gations the FFB intends to sell to Treasury are “ obligations” within the terms of the FFB Act, as they are represented in the form of notes, bonds, debentures, or other evidence of indebtedness. Id. §2282(2). The public debt obligations also were issued by the Department o f the Treasury, a “ federal agency” as that term is defined in the FFB Act. See id. §2282(1). In sum, the FFB Act grants the FFB the authority to sell the public debt obligations to Treasury. Moreover, as stated above, the FFB Act authorizes the FFB to sell obligations issued by federal agencies “ on terms and conditions determined by the Bank.” Id. § 2285(a). This broadly worded statutory authority allows the FFB reasonably to negotiate and determine the form of compensation to be received upon such a sale. Accordingly, the FFB may, consistent with this authority, require and accept the cancellation of a portion of its own indebtedness held by Treasury as payment for the public debt obligations.14 14 The purchase authority provided to the F F B under section 6 o f the FFB Act also authorizes the FFB to accept the cancellation o f a portion o f its own obligations held by Treasury as payment for the public debt obligations. By accepting the cancellation o f the FFB obligations as payment for the public debt obligations, the FFB would be effectively purchasing such obligations. B ecause the FFB obligations are “ obligations” that were issued by the FFB, a “ federal agency” under the FFB Act, see 12 U.S.C. §§2282(1), 2283, the FFB has the authority to purchase them in the m anner discussed above. 74 Transactions Between the Federal Financing Bank and the Department o f the Treasury F. Transfer of the relevant public debt obligations to Treasury would reduce the amount of outstanding debt subject to limit by the amount of public debt obligations transferred. In our analysis, we must also consider the effect on the debt limit of the pro­ posed transfer of public debt obligations from the CSRDF to Treasury. We con­ clude that the transfer of these obligations to Treasury would effectively cancel them, reducing the amount of outstanding debt subject to limit and thus creating room under the debt limit for additional public borrowing. The relevant provision of the debt limit statute, 31 U.S.C. § 3 101(b), provides: The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaran­ teed by the United States Government (except guaranteed obliga­ tions held by the Secretary of the Treasury) may not be more than $4,900,000,000,000, outstanding at one time, subject to changes pe­ riodically made in that amount as provided by law through the con­ gressional budget process described in Rule XLIX of the Rules of the House of Representatives or otherwise. Quite simply, if transferred to Treasury, the public debt obligations in question would no longer be “ outstanding” within the terms of the debt limit statute. Ac­ cordingly, the amount of outstanding debt subject to limit would be reduced by the amount of such public debt obligations. See The Secretary o f the Treasury’s Authority With Respect to the Civil Service Retirement and D isability Fund, 19 Op. O.L.C. 286, 291 n.9 (1995); see also Comp. Gen. Op. at 2, reprinted in Fed­ eral Financing Bank and the D ebt Ceiling at 32 (Comptroller General opining that “ when the [FFB] prepaid $5 billion of its debt with Treasury’s own obliga­ tions, Treasury’s outstanding debt was reduced by $5 billion. Therefore, Treasury was able to borrow an additional $5 billion from the public.” ). The borrowing capacity freed up by the transaction could be used to support additional Treasury borrowing up to the debt limit, if, as we indicate below, the loan assets the FFB intends to sell to the CSRDF as a replacement for the public debt obligations at issue are not themselves subject to the debt limit. G. The USPS and TVA obligations the FFB intends to sell to the CSRDF in exchange for the transferred public debt obligations are not themselves subject to the debt limit. In order to ensure that the series of transactions contemplated by Treasury would allow it legally to issue additional public debt obligations to the public in an amount less than or equal to the amount of public debt obligations secured from 75 Opinions o f the O ffice o f Legal Counsel in Volume 20 the CSRDF through the FFB’s sale of the loan assets, we must consider whether the USPS and TVA obligations that would replace the transferred public debt obligations as CSRDF investments are not themselves subject to the debt limit. Based on the express terms and the legislative history of the relevant USPS and TVA borrowing statutes, we conclude that they are not. As its express terms suggest, the debt limit applies to debt issued directly by Treasury pursuant to chapter 31 of title 31 of the United States Code. It also applies to direct borrowing by certain other federal agencies and corporations which is guaranteed as to principal and interest by the United States. See H.R. Rep. No. 79-246, at 2-3 (1945); S. Rep. No. 79-106, at 2 (1945).15 As indicated by his 1985 opinion, the Comptroller General holds the view that the phrase “ obli­ gations whose principal and interest is guaranteed by the United States Govern­ ment” applies to the direct obligations of federal issuers other than Treasury if the statutes authorizing such issuers to borrow expressly provide for such guar­ antee or Congress has indicated its desire to provide the guarantee in the relevant legislative history. See Comp. Gen. Op. at 2-3, reprinted in Federal Financing Bank and the D e b t Ceiling at 32—33 . The USPS and TVA obligations the FFB intends to sell are not subject to the debt limit. Obligations of the USPS and TVA are not issued by Treasury pursuant to chapter 31 of title 31 of the United States Code. Therefore, in order for the obligations the FFB intends to sell to be subject to the debt limit, they must be “ obligations whose principal and interest are guaranteed by the United States Government.” The statute authorizing the issuance of USPS obligations provides that such obligations shall “ not be obligations of, nor shall payment of the prin­ cipal thereof or interest thereon be guaranteed by, the Government of the United States, except as provided in section 2006(c) of this title.” 39 U.S.C. § 2005(d)(5). Section 2006(c) provides, in turn, that obligations issued by the USPS shall be guaranteed as to principal and interest by the United States, i f and to the extent that— (1) the [USPS] requests the Secretary . . . to pledge the full faith and credit of the Government of the United States for the payment of principal and interest thereon; and 15 See also Second Liberty Bond Aci, as Amended—Participation Certificates Issued by Federal National Mortgage Association, 42 Op. A tt’y Gen. 341, 342 (1967) (“ [B]y the act o f April 3, 1945, c. 51, 59 Stat. 47, Congress brought the borrowings o f certain agencies o th e r than the Treasury within the overall debt limitation. . . . The [relevant] Com m ittee reports . . . reveal that [the 1945 debt limit] amendment was adopted to embrace the bor­ rowings o f each o f eight agencies, named in the reports, whose governing statutes provided that their obligations were fully and unconditionally guaranteed as to principal and interest by the United States. . . . From this brief history, it is clear that [the debt limit] is concerned with debt that arises from borrowing, and with nothing else.” ); 1967 Hearings at 40 (Secretary o f the Treasury Henry H. Fowler testifying that “ the history of [the 1945 act amending the statutory debt limit], which first brought so-called guaranteed obligations w ithin the statutory debt limit, confirmed that Congress had in mind only certain obligations of certain agencies. The com m ittee report named each Government agency then being affected. And there were cited the respective statutes authorizing the issuance o f the so-called obligations.” ). 76 Transactions Between the Federal Financing Bank and the Department o f the Treasury (2) the Secretary, in his discretion, determines that it would be in the public interest to do so. Id. § 2006(c) (emphasis added). The legislative history of the statutory provisions discussed above provides: Obligations sold to the public would not be guaranteed by the United States and would not be within the debt ceiling unless the Postal Service requests the Secretary of the Treasury to pledge the full faith and credit of the United States and the Secretary deter­ mines that it would be in the public interest to do so. H.R. Rep. No. 91-1104, at 10 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3659. Your office has informed us that the USPS obligations the FFB contemplates sell­ ing were not issued under the special conditions set forth in § 2006(c), but were, instead, issued pursuant to §2005. Based on this representation, we conclude that such obligations are not subject to the debt limit. Similarly, the statutory provision authorizing the issuance of the TVA obliga­ tions the FFB intends to sell to the CSRDF, 16 U.S.C. §831n-4,16 provides that obligations issued thereunder “ shall not be obligations of, nor shall payment of the principal thereof or interest thereon be guaranteed by, the United States.” 16 U.S.C. §831n-4(b). Accordingly, the TVA obligations the FFB intends to sell to the CSRDF are also not subject to the debt limit. RICHARD L. SHIFFRIN Deputy Assistant A ttorney General Office o f Legal Counsel 16Section 831n—4{a) o f title 16 currently authorizes the TVA to issue up to $30 billion in debt obligations “ to assist in financing its power program and to refund such [indebtedness].*' 77

Write a legal research memo on the following topic.

Transactions Between the Federal Financing Bank and the Department of the Treasury T h is o p inion rev iew s a possible Federal F inancing B ank sale o f loan assets to the Civil S ervice R etire­ m en t and D isab ility F u n d and other possible related transactions betw een the FFB an d the D epart­ m en t o f the T reasu ry , an d concludes th a t the contem plated transactions w ould be perm issible under ex istin g law . February 13, 1996 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l Depa r tm en t o f th e T rea su ry This memorandum responds to your request for advice concerning the legal issues raised by a possible Federal Financing Bank (“ FFB” or “ Bank” ) sale of loan assets to the Civil Service Retirement and Disability Fund (“ CSRDF” or “ Fund” ) and other related transactions between the FFB and the Department of the Treasury (“ Treasury” ). The FFB loan assets would be sold to the CSRDF in exchange for a portion of the United States debt obligations (“ public debt obli­ gations” ) Treasury has previously issued to the CSRDF pursuant to 5 U.S.C. § 8348 and chapter 31 of title 31, United States Code. You have requested specific advice as to: (1) the FFB’s authority to sell to the Fund loan assets evidencing indebtedness incurred by the United States Postal Service (“ USPS” ) and Tennessee Valley Authority (“ TVA” ); (2) the Treasury Secretary’s (“ Secretary” ) authority to invest Fund monies in obligations of the USPS and obligations of the TVA; (3) the FFB’s authority to accept, in exchange for the USPS and TVA indebtedness, payment in the form of public debt obligations; (4) whether Treasury may legally enter into a transaction with the FFB whereby Treasury would secure the public debt obligations from the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury; (5) whether the FFB may sell the public debt obligations to Treas­ ury and whether the FFB may accept as payment for the public debt obligations the cancellation by Treasury of FFB obligations of equivalent value held by Treasury; 64 Transactions Between the Federal Financing Bank and the Department o f the Treasury (6) the implications of the proposed transfer of public debt obliga­ tions to Treasury with respect to 31 U.S.C. §3101, the debt limit; and (7) whether the USPS and TVA obligations the FFB proposes to sell to the CSRDF are subject to the debt limit. For the reasons indicated below, we conclude that the transactions you con­ template would be permissible under existing law. We conclude that the Federal Financing Bank Act of 1973, Pub. L. No. 93-224, 87 Stat. 937 (codified as amended at 12 U.S.C. §§2281-2296) (“ FFB Act” ), empowers the FFB to sell obligations that were issued by “ federal agencies,” including obligations of the USPS and TVA. We also conclude that the Secretary is authorized to invest CSRDF monies in the USPS and TVA obligations the FFB intends to sell. In addition, we conclude that the FFB has the authority to receive payment for the USPS and TVA obligations in public debt obligations. Moreover, we conclude that Treasury has the authority to enter into a transaction with the FFB whereby Treasury would acquire the public debt obligations from the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. We also conclude that the FFB has the authority to accept the cancella­ tion of the FFB obligations as payment for the public debt obligations. In addition, we conclude that the transaction between Treasury and the FFB would result in Treasury’s acquiring the previously issued public debt obligations, thus freeing up debt issuance capacity under the debt limit and permitting the Secretary to issue additional public debt obligations to the public in a commensurate amount. Finally, we conclude that the USPS and TVA obligations the FFB proposes to sell to the CSRDF in exchange for the previously issued public debt obligations are not subject to the debt limit. I. Background Congress established the FFB in 1973 to “ assure coordination of [federal and federally assisted borrowing] programs with the overall economic and fiscal poli­ cies of the Government, to reduce the costs of Federal and federally assisted bor­ rowings from the public, and to assure that such borrowings are financed in a manner least disruptive of private financial markets and institutions.” 12 U.S.C. §2281. In order to further these purposes, the FFB is authorized to purchase the obligations of federal agencies. Id. § 2285(a).1 As part of its regular financing activities, the FFB acquired as loan assets certain obligations of the USPS and TVA. Under the proposed transactions, the FFB would sell those loan assets to 'T h e FFB Act also provides that “ [a]ny [f]ederaJ agency which is authorized to issue, sell, or guarantee any obligation is authorized to issue or sell such obligations directly to the B ank." Id. 65 Opinions of the Office o f Legal Counsel in Volume 20 the CSRDF in exchange for public debt obligations of equivalent value that are currently being held by that government-managed trust fund. Treasury would then enter into a transaction with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. This series of trans­ actions would result in Treasury’s acquiring the public debt obligations that had been previously held by the CSRDF and the CSRDF’s holding the USPS and TVA obligations that had been previously held by the FFB. Your office believes that such a series of transactions would create debt issuance capacity under the debt limit in an amount equal to the public debt obligations that would be transferred to Treasury from the CSRDF. In addition, your office believes it has sufficient legal authority to undertake all the transactions described above. Moreover, your office holds the view that the USPS and TVA obligations that would be used to replace the public debt obligations previously held by the CSRDF would not count against the debt limit. II. Legal Discussion A. The FFB has the authority to sell the USPS and TVA obligations it holds as loan assets. We believe the FFB has the authority to sell the USPS and TVA obligations it currently holds as loan assets. Section 6 of the FFB Act authorizes the FFB to “ make commitments to purchase and sell, and to purchase and sell on terms and conditions determined by the Bank, any obligation which is issued, sold, or guaranteed by a [f]ederal agency.” 12 U.S.C. § 2285(a); see also Consolidated Aluminum Corp. v. TVA , 462 F. Supp. 464, 469 (M.D. Tenn. 1978) (“ The Federal Financing Bank may resell in the public markets any bonds of federal agencies which it holds.” ). The USPS and TVA obligations the FFB contemplates selling to the CSRDF are “ obligations” as that term is defined in the FFB Act. The FFB Act defines “ obligation” as “ any note, bond, debenture, or other evidence of indebtedness.” 12 U.S.C. §2282(2). According to your office, the USPS obligations the FFB intends to sell are indebtedness in the form of notes issued by the USPS under 39 U.S.C. §2005. Your office has also informed us that the TVA obligations the FFB intends to sell are indebtedness in the form of bonds issued by the TVA under 16 U.S.C. §831n-4. Accordingly, the USPS and TVA obligations the FFB contemplates selling qualify as “ obligations” within the terms of the FFB Act. Both the USPS and the TVA satisfy the FFB A ct’s defmition of “ [f]ederal agency.” The FFB Act defines the term “ federal agency” as “ an executive de­ partment, an independent [f]ederal establishment, or a corporation or other entity established by the Congress which is owned in whole or in part by the United 66 Transactions Between the Federal Financing Bank and the Department o f the Treasury States.” 12 U.S.C. §2282(1). Section 201 of title 39, United States Code, the statutory provision establishing the USPS, provides that the USPS is “ an inde­ pendent establishment of the executive branch of the Government of the United States.” The TVA, for its part, was created by Congress as a “ body corporate,” 16 U.S.C. §831, and its board of directors is “ appointed by the President, by and with the advice and consent of the Senate.” Id. §831a. The TVA has also been described by federal courts as “ an agency of the Federal Government,” Ashwander v. TVA, 297 U.S. 288, 315 (1936), “ an instrumentality of the United States,” Tennessee Elec. Pow er Co. v. TVA, 306 U.S. 118, 134 (1939) and “ a wholly owned corporate agency and instrumentality of the United States.” United States ex rel. TVA v. An Easement And Right-Of-Way, 246 F. Supp. 263, 269 (W.D. Ky. 1965), a ffd , 375 F.2d 120 (6th Cir. 1967).2 In sum, since the loan assets the FFB contemplates selling are “ obligations” that were “ issued” by enti­ ties that qualify as “ federal agencies” under the FFB Act, the FFB has the author­ ity to sell them. B. The loan assets the FFB contemplates selling to the CSRDF are suitable investments for that government-managed trust fund. The legality of the proposed transactions will also depend on whether the USPS and TVA obligations the FFB intends to sell are suitable investments for the CSRDF. We conclude that they are. The statutes authorizing the USPS and TVA obligations in question both provide that obligations issued thereunder “ shall” : be lawful investments and may be accepted as security for all fidu­ ciary, trust, and public funds, the investment or deposit of which shall be under the authority or control of any officer or agency of the [United States]. 39 U.S.C. §2005(d)(3) (emphasis added); 16 U.S.C. §831n-4(d) (emphasis added). Congress incorporated this boilerplate trust fund investment eligibility lan­ guage3 in the statute authorizing the USPS to issue the obligations the FFB in­ tends to sell in the Postal Reorganization Act, Pub. L. No. 91-375, sec. 2, § 2005(d)(3), 84 Stat. 719, 740 (1970), several years after the initial enactment of the CSRDF’s statutory investment provisions, which occurred in 1926. See Act 2This Office has previously opined that “ [sjeveral government corporations, such as the Tennessee Valley Author­ ity . . . were intended to be ‘[f]ederai agencies’ within the scope o f [section 2282’s] corporation coverage clause.” Authority o f the Federal Financing Bank to Provide Loans to the Resolution Trust Corporation, 14 Op. O.L.C. 20, 22(1990). 3 Congress has included this or similar language in several other statutes authorizing federal or congressionally created entities to borrow. See, e.g., 12 U.S.C. §1435 (obligations issued by the Federal Home Loan Banks); 15 U.S.C. § 7 13 a-4 (bonds, notes, o r debentures issued by the Commodity Credit Corporation); 12 U.S.C. § 1723c (obli­ gations of the Federal National Mortgage Association); 12 U.S.C. § 2288(d) (obligations issued by the FFB). 67 Opinions o f the O ffice o f Legal Counsel m Volume 20 of July 3, 1926, ch. 801, §11, 44 Stat. 904, 910-11.4 The language was similarly included in the statute authorizing the TVA obligations the FFB intends to sell when that statute was enacted into law in 1959. See Act of Aug. 6, 1959, Pub. L. No. 86-137, sec. 1, §15d(d), 73 Stat. 280, 283. Although the CSRDF statute contains investment provisions delineating the types of obligations the Secretary is authorized to purchase on behalf of the CSRDF, these provisions essentially mirror boilerplate provisions contained in statutes governing the investments of other government-managed trust funds.5 Moreover, although the CSRDF statute’s investment provisions have been amended from time to time since they were ini­ tially enacted,6 our review of the amendments reveals no expressed intention on the part of Congress to exempt the CSRDF from the effect of trust fund investment eligibility provisions such as those included in the relevant USPS and TVA stat­ utes. Accordingly, we conclude that CSRDF monies may be invested in the USPS and TVA obligations the FFB intends to sell in addition to the obligations specifi­ cally delineated in 5 U.S.C. §8348.7 4 Section 11, which appears to have been th e first provision specifically delineating the types of obligations in which C SR D F m onies could be invested, provided in relevant part: The Secretary o f the Treasury shall invest from time to time, in interest-bearing securities of the United States o r Federal farm-loan bonds, such portions o f the “ civil-service retirement and disability fund” as in his judgm ent may not be immediately required for the payment o f annuities, refunds, and allowances as herein provided. 44 Stat. at 910-11. 5 The C SR D F statute states: The Secretary shall immediately invest in interest-beanng securities o f the United States such currently available portions o f the Fund as are not immediately required for payments from the Fund. The income derived from these investments constitutes a part o f the Fund. 5 U.S.C. § 8348(c). The statute further provides that the Secretary may invest CSRDF monies in public debt obliga­ tions which carry interest rates determined by the Secretary based on a formula set forth in the statute. See id. § 8348(d). In addition, the C SR D F statute authorizes the Secretary to “ purchase other interest-bearing obligations of the U nited States, or obligations guaranteed as to both principal and interest by the United States, on original issue or at the market price only if he determines that the purchases are in the public interest.” Id. § 8348(e). Lan­ guage authorizing such investments is commonly found in the statutes setting forth investment criteria for govern­ ment-m anaged trust funds. See, e.g., 42 U.S.C. § 401(d) (Social Security Trust Funds); 42 U.S.C. § 1104(b) (Unem­ ployment Trust Fund); 20 U.S.C. § 2009(b) (H arry S. Truman Memorial Scholarship Trust Fund); 20 U.S.C. § 5202(b) (Eisenhow er Exchange Fellowship Program T rust Fund). 6 The m ost notable changes in the CSRDF statu te’s investment provisions occurred in 1956, when Congress first expressly authorized the Secretary to purchase on behalf o f the CSRDF public debt obligations that carry interest rates determ ined by the Secretary based on a statutory formula, see Civil Service Retirement Act Amendments of 1956, ch. 804, sec. 401, § 17(d), 70 Stat. 736, 7 5 9 -6 0 , and in 1961, when Congress required the Secretary to invest Fund monies in such public debt obligations unless he determines that it is in the public interest to invest the monies in other interest-bearing obligations of the U nited States. See Act o f Oct. 4, 1961, Pub. L. No. 87-350, sec. 1(a), § 17(d), 75 Stat. 770, 770. The current wording o f the C SR D F statute’s investment provisions is essentially the same as it w as in 1961. See 5 U.S.C. §8348(c)-(e). 7 The C SR D F statute's investment provisions do not prohibit the investment of CSRDF monies in the relevant USPS and TVA obligations. G eneral rules o f statutory construction dictate that, if possible, statutes on the same subject m atter should be construed in harmony with one another. See 2B Norman J. Singer, Sutherland Statutory Construction §51.02, at 122 (5th ed. 1992); see also Watt v. Alaska, 451 U.S. 259, 267 (1981). If that cannot be accomplished, “ [i]t is an elementary tenet o f statutory construction that ‘[w]here there is no clear intention other­ wise, a specific statute will not be controlled o r nullified by a general o n e / ” Guidry v. Sheet Metal Workers Nat’I Pension Fund , 493 U.S. 365, 375 (1990) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974)). Due to the boilerplate nature o f the C SRD F statute's investm ent provisions, we believe we are not here confronted with the task o f reconciling a specific statute against a general one, but are, instead, confronted with the task o f reconciling tw o general statutes. Moreover, even if we w ere to accept the notion that the CSRDF statute’s investment provisions are more specific, principles o f statutory construction require that those provisions be construed in harmony with 68 Transactions Between the Federal Financing Bank and the Department o f the Treasury Our conclusion concerning the relationship between the general trust fund in­ vestment eligibility language contained in the USPS and TVA statutes and the CSRDF is consistent with established federal case law, the longstanding practice and understanding of the Treasury and Justice Departments, and a 1985 Comp­ troller General opinion. In M anchester Band o f Pomo Indians, Inc. v. United States, 363 F. Supp. 1238, 1244—45 (N.D. Cal. 1973), a federal district court deter­ mined that trust fund investment eligibility language resembling that which is con­ tained in the USPS and TVA statutes mentioned above made obligations issued under statutes containing that language just as eligible for investment by govern­ ment-managed trust funds benefiting American Indians as investments specifically mentioned in the trust fund statutes themselves. The court expressly cited as eligi­ ble for investment by “ all [g]ovemment managed trust funds” obligations issued pursuant to 16 U.S.C. §831n-4, the provision of the United States Code under which the TVA obligations the FFB intends to sell were issued. M anchester Band, 363 F. Supp. at 1244. The court also found that its conclusion concerning the effect of the relevant trust fund investment eligibility language was “ in accord with the intent of Congress.” Id. at 1245. In 1966, this Office opined that obligations of the federal land banks and the banks for cooperatives are eligible investments for all government-managed trust funds, where the statutes authorizing the issuance of such obligations contained language similar to that contained in the relevant USPS and TVA statutes. See Memorandum for Fred B. Smith, General Counsel, Department of the Treasury, from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel (Oct. 7, 1966).8 In concluding that the specific trust fund investment eligibility language at issue was sufficient to authorize investment by all government-man­ aged trust funds, this Office stated that statutory language essentially the same as that contained in the relevant USPS and TVA statutes “ presents no problems of construction and plainly permits investments of the various Government trust funds in the affected securities whether or not the statutes creating the trusts them­ selves do so.” Id. at 2 .9 Similarly, in a 1934 opinion, Attorney General Homer Cummings advised that, even though the specific trust fund statute at issue did not expressly authorize it, government-managed postal savings funds could be in­ the trust fund investment eligibility language contained in the relevant USPS and TVA statutes. Because the CSRDF statute’s investment provisions do not purport to supersede other statutes establishing that obligations issued thereunder are eligible investments for government-managed trust funds and the relevant USPS and TVA statutes dem­ onstrate Congress’s intention that obligations issued thereunder be eligible investm ent for all government-managed trust funds, the better interpretation is that the relevant USPS and TVA statutes have the effect of expanding the universe o f authorized CSRDF investments. 8 The pertinent trust fund investment eligibility language pertaining to obligations o f the federal land banks and the banks for cooperatives provided that obligations issued by those entities " 's h a ll be a lawful investment for all fiduciary and trust funds, and may be accepted as security for al! public deposits.’ ” Id. at 1 (quoting section 27 o f the Federal Farm Loan Act, ch. 245, 39 Stat. 360, 380 (1916), and section 1 of the Act o f August 23, 1954, ch. 834, 68 Stat. 770, 771). 9 The statutes to which this Office referred provided that the obligations issued thereunder “ shall be lawful invest­ ments, and may be accepted as security, for all fiduciary, trust, and public funds the investment or deposit o f which shall be under the authority or control o f the United States or any officer or officers thereof.” Id. at 2 & n.3. 69 Opinions o f the Office o f Legal Counsel in Volume 20 vested in bonds issued under the Federal Farm Mortgage Corporation Act on ac­ count of trust fund investment eligibility language contained in that act which was similar to that contained in the relevant USPS and TVA statutes. Investment o f P o sta l Savings Funds in B onds o f F ederal Farm M ortgage Corporation, 37 Op. Att’y Gen. 479, 480 (1934).10 It has been Treasury’s longstanding practice to invest monies contained in govemment-managed trust funds, including the CSRDF, in public debt obligations or other obligations that have been authorized by Congress as legal investments for all government-managed trust funds. See Temporary Increase in D ebt Ceiling: H earings Before the House Comm, on W ays and M eans, 90th Cong. 52 (1967) (statement of Hon. Henry H. Fowler, Secretary of the Treasury) (“ 1967 Hear­ ings” ). 11 During the 1985 debt limit crisis, Secretary of the Treasury James Baker in­ vested CSRDF monies in obligations issued by the FFB pursuant to 12 U.S.C. § 2288(a), which are not public debt obligations. That action was the subject of a congressional hearing at which a Comptroller General opinion was presented. See F ederal Financing Bank and the D eb t Ceiling: Hearing Before the Subcomm. on Econom ic Stabilization of the House Comm, on Banking, Finance and Urban Affairs, 99th Cong. 28-34 (1985) (“ Federal Financing Bank and the D ebt Ceil­ in g” ). In concluding that the investment and related transactions met all applicable legal requirements, the Comptroller General opinion stated that “ 12 U.S.C. § 2288(d) provides that the [FFB’s] obligations ‘shall be lawful investments, and may be accepted as security for all fiduciary, trust, and public funds, the invest­ ment of which shall be under the authority or control of the United States.’ ” Memorandum for the Honorable John J. LaFalce, Chairman, Subcommittee on Economic Stabilization, House Committee on Banking, Finance and Urban Af­ fairs, from Milton J. Socolar, Comptroller General of the United States, B-138524, at 2 (Comp. Gen. 1985) (“ Comp. Gen. Op.” ), reprinted in Federal Financing Bank an d the D ebt Ceiling at 32. C. The FFB is authorized to receive payment for the loan assets it intends to seU to the CSRDF in public debt obligations. In analyzing the proposed transactions, we must also consider whether it is per­ missible for the FFB to receive payment in the form of public debt obligations 10The pertinent tnist fund investment eligibility language provided as follows: “ ‘Such bonds . . . may be accepted as security, for all fiduciary, trust, and public funds the investment or deposit o f which shall be under the authority o r control o f the U nited States o r any officer o r officers thereof.’ ” Id. (quoting Federal Farm Mortgage Corporation A ct, ch. 7, § 4(a), 48 Stat. 344, 345 (1934)). 11 In testim ony before the House Ways and M eans Committee, Secretary Fow ler stated that, in practice. Treasury had refrained from investing monies contained in government-managed trust funds in participation certificates issued by the Export-Im port Bank because, unlike the statute authorizing the issuance o f Federal National Mortgage Associa­ tion participation certificates, the statute authorizing the issuance o f Export-Import Bank participation certificates did not contain a provision making them generally eligible for investment by government-managed tnist funds. Id.-, see also id. at 179-80. 70 Transactions Between the Federal Financing Bank and the Department o f the Treasury for the USPS and TVA obligations it intends to sell. We conclude that the FFB is authorized to accept public debt obligations as a form of payment. As stated above, the FFB Act authorizes the FFB to sell obligations issued by federal agen­ cies “ on terms and conditions determined by the Bank.” 12 U.S.C. §2285(a). We believe this broadly worded statutory authority allows the FFB reasonably to negotiate and determine the form of compensation to be received upon such a sale.12 Accordingly, no significant legal issues appear to be raised by the FFB’s plan to receive public debt obligations in exchange for the USPS and TVA obliga­ tions it intends to sell to the CSRDF. In his 1985 opinion, the Comptroller General apparently concluded that no sig­ nificant legal issues were raised by the FFB’s acceptance of public debt obliga­ tions in exchange for the sale of its own obligations to the CSRDF. See Comp. Gen. Op. at 2, reprinted in Federal Financing Bank and the D ebt Ceiling at 32. In view of the fact that we have found nothing in the FFB Act prohibiting the FFB’s acceptance of public debt obligations in exchange for the loan assets it intends to sell, and in light of the Comptroller General’s apparent view in 1985 that such activity did not raise legal issues, we see no reason why, under current conditions, the FFB should not be able to accept public debt obligations as com­ pensation for the USPS and TVA obligations it intends to sell. D. Treasury has the authority to enter into a transaction with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. We must also consider whether Treasury has the authority to enter into a trans­ action with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obliga­ tions of equivalent value held by Treasury. We conclude that Treasury has the authority to enter into such a transaction. Treasury has the authority to redeem or purchase public debt obligations prior to maturity. Section 3111 of title 31, United States Code, states in pertinent part: An obligation may be issued under this chapter to buy, redeem, or refund, at or before maturity, outstanding bonds, notes, certifi­ cates of indebtedness, Treasury bills, or savings certificates of the United States Government. Under regulations of the Secretary of the Treasury, money received from the sale of an obligation and 12 As noted above, the FFB Act also grants the FFB the authority to purchase obligations issued by federal agencies. See 12 U.S.C. §2285(a). Since the public debt obligations the FFB intends to receive in exchange for the USPS and TVA obligations were issued by Treasury, a “ federal agency’* under the FFB Act, it would appear that the FFB has the authority to purchase them from the CSRDF. 71 Opinions of the O ffice o f Legal Counsel in Volume 20 other money in the general fund of the Treasury may be used in making the purchases, redemptions, or refunds. 31 U.S.C. §3111. Treasury issued the public debt obligations currently being held by the CSRDF pursuant to 5 U.S.C. §8348 and chapter 31 of title 31, United States Code. See 5 U.S.C. § 8348(d) (“ The purposes for which obligations of the United States may be issued under chapter 31 of title 31 are extended to authorize the issuance at par of public-debt obligations for purchase by the Fund.” ). All forms of public debt obligations covered by 31 U.S.C. §3111 are authorized to be issued under chapter 31 of title 31, United States Code. See 31 U.S.C. §§3102-3105. Accord­ ingly, although the CSRDF statute imposes greater limits on the Secretary’s discre­ tion to fashion terms and conditions of public debt obligations issued to the CSRDF than the statute setting forth the procedures for issuing public debt obliga­ tions in general, com pare 5 U.S.C. § 8348(d) with 31 U.S.C. §3121, the public debt obligations currently being held by the CSRDF are no less subject to the terms of § 3111 than public debt obligations held by the general public. Whether a public debt obligation held by the CSRDF is a “ bond,” “ note,” or “ certificate of indebtedness” for purposes of §3111 depends, therefore, on the instrument’s term of maturity, which was determined upon its issuance, and not on its status as an investment of a government-managed trust fund. Cf. 31 U.S.C. § 3102(a) (specifying that bonds authorized to be issued under that section may be issued either “ to the public” or “ to Government accounts.” ). Your office has informed us that, based on this analysis, the public debt obligations the FFB plans to acquire from the CSRDF are all covered by the provisions of 31 U.S.C. §3111. As fashioned, §3111 does not expressly authorize Treasury to finance the re­ demption prior to maturity of previously issued public debt obligations with all possible instruments of value under its control. However, it is reasonable to inter­ pret §3111 as not imposing strict limitations on the manner in which Treasury may redeem public debt obligations, but rather as merely providing express author­ ity for the use by Treasury of two methods for raising the funds needed to effect such redemptions. A contrary interpretation of §3111 would produce the illogical result of barring Treasury from using other means at its disposal that, depending on the circumstances, might be less costly to the government or more fiscally and financially prudent than the methods expressly contemplated under the statute. Accordingly, we conclude that § 3111 impliedly grants Treasury the authority to use the FFB obligations to finance its purchase of the public debt obligations. Our conclusion that Treasury has implied authority under 31 U.S.C. §3111 to use a portion of its FFB obligation holdings to purchase prior to maturity the public debt obligations at issue is bolstered by the statutory authority granted to the Secretary pursuant to 31 U.S.C. §324 and 12 U.S.C. § 2288(b). Section 324 of title 31, United States Code, provides in relevant part: 72 Transactions Between the Federal Financing Bank and the Department o f the Treasury (a) The Secretary of the Treasury may — (1) dispose of obligations — (A) acquired by the Secretary for the United States Govern­ ment . . . . (b) The Secretary may dispose or extend the maturity of obligations under subsection (a) of this section in the way, in amounts, a t prices (for cash, obligations, property, or a combination o f cash, obliga­ tions, o r property), and on conditions the Secretary considers advis­ able and in the public interest. 31 U.S.C. §324 (emphasis added). Treasury acquired the FFB obligations it cur­ rently holds pursuant to 12 U.S.C. § 2288(b). That statute authorizes the FFB to “ issue its obligations to the Secretary” and authorizes the Secretary to purchase any such obligations.13 Accordingly, the FFB obligations currently being held by Treasury are “ obligations . . . acquired by the Secretary for the United States Government,” as those terms are used in 31 U.S.C. §324. Subsection (b) of §324 grants the Secretary broad authority to dispose of the FFB obligations he holds. We believe that authority includes the authority to use them as currency in acquir­ ing the public debt obligations. In addition to general authority to dispose of “ obligations . . . acquired by the Secretary for the United States Government” under §324, the Secretary has specific authority to dispose of the FFB obligations he holds. Section 2288(b) of title 12, United States Code, provides that “ [t]he Secretary . . . may sell, upon such terms and conditions and a t such price or prices as he shall determine, any of the obligations acquired by him under this subsection.” 12 U.S.C. § 2288(b) (emphasis added). This broadly worded authority also provides support for the conclusion that the Secretary may dispose of the FFB obligations he holds in a manner that allows him to acquire the public debt obligations, as it appears to allow the Secretary reasonably to determine the terms and conditions of such a disposal. We believe our conclusion that Treasury has the authority to use the FFB obliga­ tions it currently holds to purchase the public debt obligations it has previously issued to the CSRDF is again consistent with the 1985 Comptroller General opin­ ion. In that opinion, the Comptroller General did not question Treasury’s authority, 13 Ln order to enable the FFB to support its financing activities, the FFB Act provides that, in addition to issuing up to $15 billion worth o f its debt obligations to the public, 4"the [FFB] is . . . authorized to issue its obligations to the Secretary o f the T rea su ry /’ 12 U.S.C. § 2288(b), see also H.R. Rep. No. 92-1478, at 5 (1972) (“ The Bank’s activities would be financed, in general, by . . . Bank obligations issued to the Secretary o f the Treasury.” ). The same provision o f the FFB Act that authorizes the FFB to issue its obligations to Treasury also authorizes Treasury to purchase and agree to purchase such obligations. 12 U.S.C. § 2288(b). No express limitation is placed on the amount of its ow n obligations that the FFB may issue to Treasury. Treasury currently holds approximately $67 billion worth o f these obligations. 73 Opinions o f the O ffice o f Legal Counsel in Volume 20 exercised in a similar manner, to purchase from the FFB prior to maturity the public debt obligations it had previously issued to the CSRDF. See Comp. Gen. Op. at 2, reprinted in Federal Financing Bank and the D ebt Ceiling at 32. Based on the authorities granted to the Secretary under 31 U.S.C. §§3111 and 324, and 12 U.S.C. § 2288(b), and the conclusions of the 1985 Comptroller Gen­ eral opinion, we conclude that Treasury would have the authority to purchase from the FFB prior to maturity the public debt obligations it has previously issued to the CSRDF pursuant to the transaction described above. E. The FFB has the authority to sell the public debt obligations to Treasury and to accept the cancellation by Treasury of FFB obligations of equivalent value as payment for the public debt obligations. Treasury’s ability to complete the proposed transactions will also depend on whether the FFB has the authority to sell the public debt obligations and accept the cancellation by Treasury of FFB obligations of equivalent value as payment for the public debt obligations. We conclude that the FFB has such authority. As stated above, section 6 of the FFB Act grants the FFB the authority to sell obligations issued by federal agencies. 12 U.S.C. § 2285(a). The public debt obli­ gations the FFB intends to sell to Treasury are “ obligations” within the terms of the FFB Act, as they are represented in the form of notes, bonds, debentures, or other evidence of indebtedness. Id. §2282(2). The public debt obligations also were issued by the Department o f the Treasury, a “ federal agency” as that term is defined in the FFB Act. See id. §2282(1). In sum, the FFB Act grants the FFB the authority to sell the public debt obligations to Treasury. Moreover, as stated above, the FFB Act authorizes the FFB to sell obligations issued by federal agencies “ on terms and conditions determined by the Bank.” Id. § 2285(a). This broadly worded statutory authority allows the FFB reasonably to negotiate and determine the form of compensation to be received upon such a sale. Accordingly, the FFB may, consistent with this authority, require and accept the cancellation of a portion of its own indebtedness held by Treasury as payment for the public debt obligations.14 14 The purchase authority provided to the F F B under section 6 o f the FFB Act also authorizes the FFB to accept the cancellation o f a portion o f its own obligations held by Treasury as payment for the public debt obligations. By accepting the cancellation o f the FFB obligations as payment for the public debt obligations, the FFB would be effectively purchasing such obligations. B ecause the FFB obligations are “ obligations” that were issued by the FFB, a “ federal agency” under the FFB Act, see 12 U.S.C. §§2282(1), 2283, the FFB has the authority to purchase them in the m anner discussed above. 74 Transactions Between the Federal Financing Bank and the Department o f the Treasury F. Transfer of the relevant public debt obligations to Treasury would reduce the amount of outstanding debt subject to limit by the amount of public debt obligations transferred. In our analysis, we must also consider the effect on the debt limit of the pro­ posed transfer of public debt obligations from the CSRDF to Treasury. We con­ clude that the transfer of these obligations to Treasury would effectively cancel them, reducing the amount of outstanding debt subject to limit and thus creating room under the debt limit for additional public borrowing. The relevant provision of the debt limit statute, 31 U.S.C. § 3 101(b), provides: The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaran­ teed by the United States Government (except guaranteed obliga­ tions held by the Secretary of the Treasury) may not be more than $4,900,000,000,000, outstanding at one time, subject to changes pe­ riodically made in that amount as provided by law through the con­ gressional budget process described in Rule XLIX of the Rules of the House of Representatives or otherwise. Quite simply, if transferred to Treasury, the public debt obligations in question would no longer be “ outstanding” within the terms of the debt limit statute. Ac­ cordingly, the amount of outstanding debt subject to limit would be reduced by the amount of such public debt obligations. See The Secretary o f the Treasury’s Authority With Respect to the Civil Service Retirement and D isability Fund, 19 Op. O.L.C. 286, 291 n.9 (1995); see also Comp. Gen. Op. at 2, reprinted in Fed­ eral Financing Bank and the D ebt Ceiling at 32 (Comptroller General opining that “ when the [FFB] prepaid $5 billion of its debt with Treasury’s own obliga­ tions, Treasury’s outstanding debt was reduced by $5 billion. Therefore, Treasury was able to borrow an additional $5 billion from the public.” ). The borrowing capacity freed up by the transaction could be used to support additional Treasury borrowing up to the debt limit, if, as we indicate below, the loan assets the FFB intends to sell to the CSRDF as a replacement for the public debt obligations at issue are not themselves subject to the debt limit. G. The USPS and TVA obligations the FFB intends to sell to the CSRDF in exchange for the transferred public debt obligations are not themselves subject to the debt limit. In order to ensure that the series of transactions contemplated by Treasury would allow it legally to issue additional public debt obligations to the public in an amount less than or equal to the amount of public debt obligations secured from 75 Opinions o f the O ffice o f Legal Counsel in Volume 20 the CSRDF through the FFB’s sale of the loan assets, we must consider whether the USPS and TVA obligations that would replace the transferred public debt obligations as CSRDF investments are not themselves subject to the debt limit. Based on the express terms and the legislative history of the relevant USPS and TVA borrowing statutes, we conclude that they are not. As its express terms suggest, the debt limit applies to debt issued directly by Treasury pursuant to chapter 31 of title 31 of the United States Code. It also applies to direct borrowing by certain other federal agencies and corporations which is guaranteed as to principal and interest by the United States. See H.R. Rep. No. 79-246, at 2-3 (1945); S. Rep. No. 79-106, at 2 (1945).15 As indicated by his 1985 opinion, the Comptroller General holds the view that the phrase “ obli­ gations whose principal and interest is guaranteed by the United States Govern­ ment” applies to the direct obligations of federal issuers other than Treasury if the statutes authorizing such issuers to borrow expressly provide for such guar­ antee or Congress has indicated its desire to provide the guarantee in the relevant legislative history. See Comp. Gen. Op. at 2-3, reprinted in Federal Financing Bank and the D e b t Ceiling at 32—33 . The USPS and TVA obligations the FFB intends to sell are not subject to the debt limit. Obligations of the USPS and TVA are not issued by Treasury pursuant to chapter 31 of title 31 of the United States Code. Therefore, in order for the obligations the FFB intends to sell to be subject to the debt limit, they must be “ obligations whose principal and interest are guaranteed by the United States Government.” The statute authorizing the issuance of USPS obligations provides that such obligations shall “ not be obligations of, nor shall payment of the prin­ cipal thereof or interest thereon be guaranteed by, the Government of the United States, except as provided in section 2006(c) of this title.” 39 U.S.C. § 2005(d)(5). Section 2006(c) provides, in turn, that obligations issued by the USPS shall be guaranteed as to principal and interest by the United States, i f and to the extent that— (1) the [USPS] requests the Secretary . . . to pledge the full faith and credit of the Government of the United States for the payment of principal and interest thereon; and 15 See also Second Liberty Bond Aci, as Amended—Participation Certificates Issued by Federal National Mortgage Association, 42 Op. A tt’y Gen. 341, 342 (1967) (“ [B]y the act o f April 3, 1945, c. 51, 59 Stat. 47, Congress brought the borrowings o f certain agencies o th e r than the Treasury within the overall debt limitation. . . . The [relevant] Com m ittee reports . . . reveal that [the 1945 debt limit] amendment was adopted to embrace the bor­ rowings o f each o f eight agencies, named in the reports, whose governing statutes provided that their obligations were fully and unconditionally guaranteed as to principal and interest by the United States. . . . From this brief history, it is clear that [the debt limit] is concerned with debt that arises from borrowing, and with nothing else.” ); 1967 Hearings at 40 (Secretary o f the Treasury Henry H. Fowler testifying that “ the history of [the 1945 act amending the statutory debt limit], which first brought so-called guaranteed obligations w ithin the statutory debt limit, confirmed that Congress had in mind only certain obligations of certain agencies. The com m ittee report named each Government agency then being affected. And there were cited the respective statutes authorizing the issuance o f the so-called obligations.” ). 76 Transactions Between the Federal Financing Bank and the Department o f the Treasury (2) the Secretary, in his discretion, determines that it would be in the public interest to do so. Id. § 2006(c) (emphasis added). The legislative history of the statutory provisions discussed above provides: Obligations sold to the public would not be guaranteed by the United States and would not be within the debt ceiling unless the Postal Service requests the Secretary of the Treasury to pledge the full faith and credit of the United States and the Secretary deter­ mines that it would be in the public interest to do so. H.R. Rep. No. 91-1104, at 10 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3659. Your office has informed us that the USPS obligations the FFB contemplates sell­ ing were not issued under the special conditions set forth in § 2006(c), but were, instead, issued pursuant to §2005. Based on this representation, we conclude that such obligations are not subject to the debt limit. Similarly, the statutory provision authorizing the issuance of the TVA obliga­ tions the FFB intends to sell to the CSRDF, 16 U.S.C. §831n-4,16 provides that obligations issued thereunder “ shall not be obligations of, nor shall payment of the principal thereof or interest thereon be guaranteed by, the United States.” 16 U.S.C. §831n-4(b). Accordingly, the TVA obligations the FFB intends to sell to the CSRDF are also not subject to the debt limit. RICHARD L. SHIFFRIN Deputy Assistant A ttorney General Office o f Legal Counsel 16Section 831n—4{a) o f title 16 currently authorizes the TVA to issue up to $30 billion in debt obligations “ to assist in financing its power program and to refund such [indebtedness].*' 77

Write a legal research memo on the following topic.

Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 Under 18 U.S.C. § 208, a nonprofit organization does not have a “financial interest” in a particular matter solely by virtue of the fact that the organization spends money to advocate a position on the policy at issue in the matter. January 11, 2006 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF GOVERNMENT ETHICS The primary criminal statute dealing with financial conflicts of interest, 18 U.S.C. § 208 (2000), prohibits a federal employee from participating in certain governmental matters if he or she is an officer or director of an organization that has a “financial interest” in the “particular matter.” You have asked whether a nonprofit organization has a financial interest in a particular matter solely by virtue of the fact that the organization spends money to advocate a position on the policy at issue in the matter. 1 We conclude that a nonprofit organization does not have such a “financial interest” merely because it spends money on advocacy. I. Section 208(a) forbids an officer or employee in his official capacity from participating “personally and substantially” in (among other things) any “particular matter in which, to his knowledge, . . . [an] organization in which he is serving as officer [or] director . . . has a financial interest.” If the organization has a “financial interest,” a federal employee serving on the board of the organization must recuse himself from any involvement in that particular matter, unless he can take advantage of a waiver or exemption issued under 18 U.S.C. § 208(b). Your question concerns employees who serve on the boards of nonprofit organizations that engage in advocacy with respect to particular matters pending before the employees’ agencies. The question recently has arisen in two contexts. In the first context, an official is considering service on the board of the Senior Executives Association (“SEA”). SEA describes itself as “a nonprofit professional association that promotes ethical and dynamic public service by fostering an outstanding career executive corps, advocates the interests of career federal executives (both active and retired), and provides information and services to SEA members.” See Senior Executives Association, About SEA, http://seniorexecs.org 1 Letter for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from Marilyn L. Glynn, Acting Director, Office of Government Ethics (Sept. 20, 2004) (“OGE Letter”). 64 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 (last visited June 2, 2005). In “advocat[ing] the interests of career federal executives,” id., “SEA has taken and continues to take and advance positions” on certain issues involving the pay of federal employees in the senior executive service, Letter for Marilyn L. Glynn, Acting Director, Office of Government Ethics (“OGE”), from William L. Bransford, General Counsel, SEA, Re: Membership on a Professional Association’s Board by an Executive Branch Official at 1 (Aug. 9, 2004) (“SEA Letter”). The official contemplating service on the SEA board already serves on “his Department’s Executive Resources Board, which has, among other functions, responsibility for formulating or contributing to the formulation of the Department’s recommendation” to the Office of Personnel Management (“OPM”) regarding the senior executive service pay system. SEA Letter at 1. If, therefore, the official joins the SEA board, and if SEA has a “financial interest” in a matter involving senior executive pay (e.g., the establishment of a new system of pay), the official (absent a waiver) would have a criminal conflict of interest if he participated in the Executive Resources Board’s consideration of the issue. In the second context, employees of the National Oceanic and Atmospheric Administration (“NOAA”) are serving in their private capacities as Councilors of the American Meteorological Society (“AMS”). Letter for Marilyn L. Glynn, Acting Director, Office of Government Ethics, from Barbara S. Fredericks, Assistant General Counsel for Administration, Department of Commerce, Re: Request for Guidance on the Application of 18 U.S.C. § 208 (Sept. 10, 2004) (“Commerce Letter”). “AMS is a . . . nonprofit organization that promotes the development and dissemination of information and education on atmospheric and related oceanic sciences.” Id. at 1. A Councilor of AMS “serv[es] on the governing body of the organization, which is the equivalent to service as a member of a board of directors,” and, therefore, we assume (without deciding) that a Councilor would be a “director” or “officer” within the meaning of section 208(a). AMS issues “policy statements . . . on issues in which NOAA has an interest, such as meteorological drought, atmospheric ozone, and hurricane research and forecasting.” Id. The NOAA employees serving as Councilors of AMS “likely will participate in [the] consideration of these issues on a policy level in the course of performing their official duties at NOAA.” Id. at 1–2. Once again, absent a waiver, they would be disqualified under the criminal conflict of interest statute from such participation if AMS has a financial interest in these matters. 2 2 In analyzing these issues, we have obtained the views of the Department of the Interior, the Department of Agriculture, the Department of Health and Human Services, the Environmental Protection Agency, the National Science Foundation, and the National Aeronautics and Space Administration, in addition to the views of OGE and the Department of Commerce. See Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Sue Ellen Wooldridge, Solicitor, Department of the Interior, Re: Financial Interests Under 18 U.S.C. § 208 (Mar. 65 Opinions in the Office of Legal Counsel in Volume 30 II. We conclude that nonprofit organizations such as SEA and AMS do not have a financial interest in a particular matter solely by virtue of spending money to advocate a position on the policy under consideration in that matter. 3 A. Section 208(a), in essentially its present form, was enacted in 1962 as part of a general revision of criminal laws on conflicts of interest. Pub. L. No. 87-849, 76 Stat. 1119, 1124 (1962). The earlier version of the law provided criminal penalties for any federal official who was “directly or indirectly interested in the pecuniary profits or contracts of any corporation, joint-stock company, or association, or of any firm or partnership or other business entity,” and who was “employed or act[ed] as an officer or agent of the United States for the transaction of business with such business entity.” 18 U.S.C. § 434 (1958). The revision of 1962 extended the reach of the statute in several respects. Nevertheless, the current text of section 208(a), under the most natural interpretation, indicates that the prohibition does not apply to the policy interest that a nonprofit organization has in a government decision. Section 208(a) provides that, absent a waiver under section 208(b), whoever, being an officer or employee of the executive branch of the United States Government, . . . participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, 10, 2005); Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Nancy S. Bryson, General Counsel, Department of Agriculture, Re: Advocacy of Non-Profit Organizations and 18 U.S.C. 208(a) (Mar. 16, 2005); Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Ann R. Klee, General Counsel, Environmental Protection Agency (Mar. 16, 2005); Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Lawrence Rudolph, General Counsel, and Charles S. Brown, Assistant General Counsel and Designated Agency Ethics Official, National Science Foundation (Mar. 16, 2005); Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from R. Andrew Falcon, Acting Associate General Counsel for General Law, With the approval of Michael C. Wholley, General Counsel, National Aeronautics and Space Administration (Mar. 22, 2005); Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Edgar M. Swindell, Associate General Counsel for Ethics and Designated Agency Ethics Official, Department of Health and Human Services (May 19, 2005). 3 We do not address here the interest that a for-profit entity, owing a duty to promote the financial interests of its owners, might have in a matter on which it engages in advocacy on behalf of itself or its clients or that might arise if an entity (whether for-profit or nonprofit) receives, or expects to receive, payment specifically for its advocacy. Thus, the possible interest of a lobbying firm or law firm is beyond the scope of this opinion. 66 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, . . . [or] [an] organization in which he is serving as officer, director, trustee, general partner or employee, . . . has a financial interest[,] has committed a crime punishable by fine and imprisonment. 18 U.S.C. § 208(a). A disqualifying interest under the statute, therefore, is a “financial interest” “in” a “particular matter.” See Ethics Issues Raised by the Retention and Use of Flight Privileges by FAA Employees, 28 Op. O.L.C. 237, 239 (2004) (“FAA Opinion”). As ordinarily understood, the interests that AMS and SEA as organizations have in the matters you describe are policy interests in the questions being addressed by the government, not financial interests in the resolution of those questions. An “interest” in the sense of a “conflict of interest” is an “advantage or profit of a financial nature.” Black’s Law Dictionary 828 (8th ed. 2004). For example, an individual has an interest “[i]n a suit or action” when he has “[a] relation to the matter in controversy, or to the issue of the suit, in the nature of a prospective gain or loss, which actually does, or presumably might, create a bias or prejudice in the mind inclining the person to favor one side or the other.” 33 C.J. Interest 262 (1924) (footnotes omitted). And an interest is a financial one when it is pecuniary—when it “pertain[s] to monetary receipts and expenditures.” Random House Dictionary of the English Language 719 (2d ed. 1987) (emphasis added). However, AMS and SEA care about these matters, and spend money to advocate in favor of their preferred outcome, because they support or oppose certain policies, not because the policies at issue will have a financial or pecuniary impact on AMS and SEA as organizations. An organization that has no financial reason to prefer one outcome over another would not commonly be referred to as having a “financial interest” in the particular matter. OGE’s regulatory interpretation of section 208 reinforces this view. OGE’s regulations interpret the words “financial interest” “in” “a particular matter” to require a link between a governmental matter and a pecuniary gain or loss to the employee or specified entity. A disqualifying financial interest is “the potential for gain or loss to the employee, or other person specified in section 208, as a result of governmental action on the particular matter.” 5 C.F.R. § 2640.103(b) (2005). 4 See FAA Opinion, 28 Op. O.L.C. at 239–40; OGE, Letter to Designated Agency Ethics Official, Informal Advisory Ltr. 85x10, 1985 WL 57309, at *2 (July 15). Thus, for example, section 208 does not require an employee of the Department of Interior who owns transportation bonds issued by the State of Minnesota to recuse himself 4 Our Office concurred in OGE’s regulatory definition. See 61 Fed. Reg. 66,830, 66,830 (Dec. 18, 1996); 28 C.F.R. § 0.25(i) (2004). 67 Opinions in the Office of Legal Counsel in Volume 30 from all matters involving the State of Minnesota, only matters that hold the potential for pecuniary gain or loss to the employee. See 5 C.F.R. § 2640.103(b) (example 1). This Office’s opinions have drawn a distinction between a “financial interest” and interests that do not involve a pecuniary gain or loss from the resolution of a question. For example, a 1970 opinion by then-Assistant Attorney General Rehnquist distinguished between the policy interest that an association representing coal producers had in various Federal Power Commission natural gas proceedings—“an interest of a non-financial kind in the outcome of . . . [the] proceedings” that implicated the coal association’s “major purpose”—and a financial interest in those proceedings, which the coal association did not have. Memorandum for John W. Dean, III, Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Commissioner Carl E. Bagge’s Continued Service as Commissioner of the Federal Power Commission Until February 1, 1971 at 4 (Dec. 10, 1970) (“Rehnquist Opinion”). Against this interpretive backdrop, we cannot conclude that SEA or AMS has a financial interest in the particular matters that are the focus of advocacy by the organizations, as opposed to a mere policy interest in the questions being addressed by the government. The organizations’ advocacy expenditures do not constitute a gain or a loss. They do not arise from the pursuit of any financial or economic interests, but only from the pursuit of certain policy goals. 5 Nor is there any other apparent basis on which to conclude that either organization has a financial interest. In particular, while SEA’s members may reap a gain or suffer a loss as a result of a new pay system, the potential for a gain or loss to SEA members as individuals does not disqualify SEA as an organization. Furthermore, whether or not a federal employee’s interest in his own federal compensation generally constitutes a disqualifying financial interest under section 208, OGE has issued an exemption, in most circumstances, for the “financial interest aris[ing] from Federal Government . . . salary or benefits.” See 5 C.F.R. § 2640.203(d) (2005).6 5 This conclusion is bolstered by the several examples in OGE’s regulations of situations where a “financial interest” might arise, none of which resembles expenses for mere advocacy. The regulation states that a “disqualifying financial interest might arise from ownership of certain financial instruments or investments such as stock, bonds, mutual funds, or real estate,” or “might derive from a salary, indebtedness, job offer, or any similar interest.” 5 C.F.R. § 2640.103(b) (2005). OGE’s regulations also provide illustrations that give other examples of “financial interests,” such as land ownership, the “volume and profitability of [a] doctor’s private practice,” and a grant of funds, id. §§ 2635.402(b)(2) (example 1), 2640.103(b) (examples 2, 3), and none of these interests, too, resembles a mere expenditure on advocacy. See also Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 Harv. L. Rev. 1113, 1133 (1963) (a research grant to a nonprofit organization is a “financial interest”). 6 In issuing this exemption, OGE noted the “somewhat differing interpretations” of section 208 that have been advanced regarding a federal employee’s interest in his own compensation. See 60 Fed. Reg. 44,706, 44,707 (Aug. 28, 1995). 68 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 Because an SEA member may participate in matters involving the pay system for senior executives (so long as he does not make determinations that individually or specially affect his own salary and benefits, or determinations that individually or specially affect the salary and benefits of another person specified in section 208, see 5 C.F.R. § 2640.203(d)), we cannot say that SEA has a financial interest by virtue of its members’ interests. Any other financial consequences for SEA or AMS that may flow from these matters are speculative. If OPM reached a decision regarding pay for senior executives that accorded with SEA’s proposals and arguments, the possibility that SEA had influenced that outcome might attract potential members to join SEA, thus possibly increasing its resources, but OPM’s rejection of the proposals and arguments might have the same effect, since potential members who agree with SEA’s position might then believe that they should do more to support an organization advancing that position. In either case, SEA might gain members. Conversely, while the failure of SEA’s position might lead some members to drop their membership, success might also lead some members to believe that the main purpose of their membership had been achieved and that they could leave the organization. In either case, SEA might lose members. Or perhaps the success or failure of SEA’s positions would have no effect at all on membership. The same reasoning could be applied to AMS’s advocacy of scientific or research-related policies that government agencies might adopt or reject. 7 7 We previously considered somewhat similar issues in the Rehnquist Opinion. There, a commissioner of the Federal Power Commission (“FPC”) had accepted future employment with the National Coal Association (“NCA”), a trade association of coal producers. NCA “engage[d] in typical trade association activity—lobbying, research, gathering of statistical data.” Id. at 1. The Rehnquist Opinion stated that the Commissioner has not accepted a position with a coal producer, but with NCA, which neither markets nor produces coal. It is the financial interest of NCA which determines disqualification under section 208. Certainly NCA has an interest of a non-financial kind in the outcome of various FPC natural gas proceedings: the outcome of these proceedings may have an impact on coal production, and the stimulation of such production is NCA’s major purpose. We do not believe, however, that NCA’s interest in any given rate or certification proceeding can fairly be characterized as a “financial interest,” within the meaning of section 208. Id. at 4. The Rehnquist Opinion went on to consider the argument that NCA would have a “financial interest” in gas proceedings because “NCA’s assessments against members are based upon their coal production, and NCA’s total income will therefore vary as coal production varies.” Id. at 5. It concluded, however, “that this relationship is too tenuous and speculative to be regarded as a ‘financial interest’ of the type prohibited by section 208.” Id. Even if the Commissioner were going to work for a coal producer, “the impact of any particular natural gas proceedings on the coal producer would vary from case to case, and would depend on the competitive relationships between the producers involved,” and “[t]he interest of NCA in such proceedings is even more remote.” Lower gas rates might mean lower coal prices rather than greater coal production, and in any event there would be no “necessary correlation between natural gas rates in a particular area and the total membership production upon which NCA’s income rests.” Id. (emphasis in original). There, as here, any effect on the financial 69 Opinions in the Office of Legal Counsel in Volume 30 The Executive Branch has long taken the position, however, that an employee or other person covered by section 208 has a financial interest in a particular matter only when government action in the particular matter will have a “direct and predictable effect” on the employee’s financial interest. See, e.g., 5 C.F.R. § 2640.103(a) (2005); Advisory Committees—Food and Drug Administration— Conflicts of Interest (18 U.S.C. § 208), 2 Op. O.L.C. 151, 155 (1978). A 1963 memorandum from the President to the heads of the executive departments and agencies, issued just a few months after section 208 took effect, stated that a special government employee “should in general be disqualified from participating as such in a matter of any type the outcome of which will have a direct and predictable effect upon the financial interests covered by the section.” Memorandum to the Heads of Executive Departments and Agencies from the President, 28 Fed. Reg. 4539, 4543 (May 7, 1963) (emphasis added). This same interpretation was incorporated in the Federal Personnel Manual shortly thereafter. See id. ch. 735, app. C, at 4 (1988 ed.; added 1965). The direct-and-predictable effect test also finds support in the traditional legal understanding of what it means to have an “interest” in a proceeding. For example, a financial interest in a proceeding for purposes of judicial disqualification traditionally has required a proximate link between the proceeding and the financial interest. “[A] judge is disqualified,” one court explained, “in any litigation where he has any certain, definable, pecuniary, or proprietary interest which will be directly affected by the judgment that may be rendered.” In re Honolulu Consol. Oil Co., 243 F. 348, 352 (9th Cir. 1917) (emphasis added). “The term ‘interested in the case’ means a direct interest in the case or matter to be adjudicated so that the result must, necessarily, affect his personal or pecuniary loss or gain.” Ex parte Largent, 162 S.W.2d 419, 426 (Tex. Crim. App. 1942) (emphasis added); see also Goodspeed v. Great W. Power Co. of Cal., 65 P.2d 1342, 1345 (Cal. Dist. Ct. App. 1937) (“It means an interest direct, proximate, inherent in the instant event.”) (emphasis added). 8 Thus, while it has been suggested that the direct-and-predictable effect test is a gloss on the statutory text, the test reflects a fair construction of the statute’s terms in light of their established meaning at the time Congress enacted section 208. 9 interests of an organization’s members would not necessarily affect the finances of the organization itself. 8 In Part II.B.1, we further discuss both the traditional understanding of “interest,” as it bears on judicial disqualification and other matters relating to litigation, and the application in those contexts of a test similar to the “direct and predictable” effect test. 9 OGE relies “on what appears to be a plain reading of 18 U.S.C. § 208.” “In cases where an outside organization stipulates that it is spending money to advocate its interests before the Government,” OGE explains, “it is difficult to conclude that the organization does not have a financial interest that would be affected directly and predictably by the Government matter.” OGE Letter at 3. Furthermore, in OGE’s “‘long-standing view,’” “the outcome of a ‘particular matter,’ such as a rulemaking proceeding 70 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 OGE’s regulations define a “direct effect” as “a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest.” 5 C.F.R. § 2635.402(b)(1)(i) (2005). While “[a]n effect may be direct even though it does not occur immediately,” it is not direct “if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter.” Id. A matter will have a “predictable effect,” according to OGE’s regulations, if “there is a real, as opposed to a speculative possibility that the matter will affect the financial interest,” id. § 2635.402(b)(1)(ii), though the regulations do not require that “the magnitude of the gain or loss” be known or that the dollar amount be substantial, id. Here, we do not believe that a nonprofit organization’s expenditure of money to advocate a policy position establishes that the government’s action will have a “direct effect” on a financial interest of the organization. B. Two other considerations support the conclusion that organizations do not have a financial interest in a matter simply because they expend money on advocacy. First, no pecuniary gain or loss to the organization will flow from a particular action or outcome in the matters, rather than from the process by which the government considers the matters. Second, neither organization at issue here falls within the class of persons upon which these matters are focused, even though such a connection is typical where an organization has a financial interest. These two considerations, while not essential to an analysis under section 208 or dispositive of the issues under that provision, offer additional support for our conclusion. 1. The significance of whether financial consequences will flow from a particular action or outcome in the matter is reflected in the 1963 presidential memorandum that gave rise to the direct-and-predictable effect test. The presidential memorandum references matters “the outcome of which will have a direct and predictable effect upon the financial interests covered by the section.” 28 Fed. Reg. at 4543 (emphasis added); see also Federal Personnel Manual ch. 735, app. C, at 4. affecting the members of an industry, ‘can have a direct and predictable effect on the financial interests of an industry trade association’ because it prompts the association ‘to expend resources to undertake a lobbying effort.’” Id. (quoting OGE, Letter to an Alternate Designated Agency Ethics Official, Informal Advisory Ltr. 98x2, 1987 WL 1007766, at *2 (Mar. 5). For the reasons set out above, we cannot agree that these expenditures alone constitute a “financial interest” of the organization or association. 71 Opinions in the Office of Legal Counsel in Volume 30 Several of our opinions have described the test in terms of the outcome. For example, the Rehnquist Opinion concluded that a trade association representing coal producers had “an interest of a non-financial kind in the outcome of various [Federal Power Commission] natural gas proceedings” because “the outcome of these proceedings may have an impact on coal production, and the stimulation of such production is [the National Coal Association’s] major purpose,” but that the interest in these proceedings did not qualify as a financial interest. Id. at 4 (emphases added). A 1976 opinion issued by this Office explained that “we have taken the position in the past that a Federal employee does not have a ‘financial interest’ in a particular matter coming before him unless there is a reasonable possibility that the resolution of the particular matter would have a ‘direct and predictable effect’ on an organization in which he owns an interest or holds or is seeking a position.” Memorandum for Kenneth A. Lazarus from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Proposed Appointment of Chairman of the President’s Committee on Science and Technology at 3 (July 12, 1976) (emphasis added). A 1977 opinion determined whether an employee had a financial interest in a matter involving real property by asking whether the employee had “a financial interest in the outcome of the quiet title action.” Conflict of Interest—Litigation Involving a Corporation Owned by Government Attorney, 1 Op. O.L.C. 7, 7 (1977) (emphasis added). And an opinion issued two years later concluded that an Assistant Secretary of Agriculture was unlikely to have a financial interest in matters involving the union that employed her husband, but explained that, “if a situation did arise in which the outcome of a matter might have a direct and predictable effect on his income from the union or on any other personal financial interest, then [the Assistant Secretary] would have to refrain from participating in it.” Conflict of Interest—Financial Interest (18 U.S.C. § 208)—Husband and Wife, 3 Op. O.L.C. 236, 238 (1979) (emphasis added). Similarly, OGE’s regulations define “financial interest” as “the potential for gain or loss to the employee, or other person specified in section 208, as a result of governmental action on the particular matter,” 5 C.F.R. § 2640.103(b) (emphasis added), and describe the necessary “direct effect” as “a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest,” id. § 2640.103(a)(3)(i) (emphasis added). See FAA Opinion at 240; OGE, Informal Advisory Letter 85x10, 1985 WL 57309, at *2. In each of the examples of a disqualifying financial interest described in the regulations, the employee stood to gain or lose depending on the outcome of the matter or some particular action to be taken. For instance, an employee’s ownership of transportation bonds issued by the State of Minnesota does not create a disqualifying interest in Minnesota’s application for wildlife funds because “approval or disapproval of the grant”—i.e., the outcome of the particular matter—“will not in any way affect the current value of the bonds or have a direct and predictable effect on the State’s ability or willingness to honor its obligation to 72 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 pay the bonds when they mature.” 5 C.F.R. § 2640.103(b) (example 1) (emphasis added). A focus on particular actions or outcomes, moreover, reflects the traditional legal understanding of the terms “interest in a matter,” “interest in a proceeding,” and similar terms (e.g., “interest in a case” or “interest in an action”), which provided the background against which Congress legislated when it enacted section 208 in 1962. See Morissette v. United States, 342 U.S. 246, 263 (1952). In particular, the law governing the analogous issue of mandatory judicial recusal historically focused on whether the judge or similar officer had an interest in the case or proceeding, which was understood to mean “a financial . . . interest that could be affected by the outcome of the case.” Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.20, at 148–49 (3d ed. 2000) (emphasis added). It required “a definite, material, financial stake in the direct outcome of the particular case.” Goodspeed, 65 P.2d at 1345; see also Worth v. Benton Cnty. Cir. Ct., 89 S.W.3d 891, 896 (Ark. 2002) (“[T]o be a disqualifying interest, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit.”); Williams v. Viswanathan, 65 S.W.3d 685, 689–90 (Tex. App. 2001) (citing cases dating back more than a century to support this rule). 10 The same meaning attached in other contexts, as well. For example, an “interest in the matter” for purposes of a statutory right to intervene was traditionally understood to mean an interest “in the matter in litigation and of such a direct and 10 Congress enacted the first judicial disqualification statute in 1792. That statute, which remained in effect in substantially the same form until 1974, required that “in all suits and actions in any district court of the United States, in which it shall appear that the judge of such court is, any ways, concerned in interest, or has been of counsel for either party, it shall be the duty of such judge” to disqualify himself. Act of May 8, 1792, ch. 36, § 11, 1 Stat. 275, 278–79; see also Act of Mar. 3, 1911, ch. 231, § 21, 36 Stat. 1087, 1090 (amending the statute to include as additional grounds for disqualification bias or prejudice, which, unlike pecuniary interest, was not a recognized ground for disqualification at common law); Act of June 25, 1948, ch. 646, § 455, 62 Stat. 907, 908 (extending the statute to justices and appellate court judges; rephrasing as “any case in which he has a substantial interest”). These words were interpreted by reference to English common law, see Spencer v. Lapsley, 61 U.S. (20 How.) 264 (1857), and were understood to refer to a direct pecuniary interest in the outcome of the matter. See, e.g., In re Honolulu Consol. Oil Co., 243 F. 348, 353 (9th Cir. 1917) (a judge is disqualified under section 455 where he is “concerned in interest in the result of th[e] suit”); In re Grand Jury Investigation, 486 F.2d 1013, 1016 (3d Cir. 1973) (judge not substantially interested in a case because, among other reasons, he did not have “a special interest in the outcome of th[e] case”). The judicial disqualification statute was rewritten in 1974 to reflect the new Canon 3C of the Model Code of Judicial Conduct adopted in 1972. Under the new statute (still codified at 28 U.S.C. § 455 (2000)), a judge must disqualify himself if, among other reasons, “[h]e knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy [for example, in an in rem proceeding] or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” Id. § 455(b)(4) (emphasis added). “Financial interest” as used in section 455 is a term of art that means, with certain exceptions, “ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.” Id. § 455(d)(4). 73 Opinions in the Office of Legal Counsel in Volume 30 immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” Bernheimer v. Bernheimer, 196 P.2d 813, 814 (Cal. Dist. Ct. App. 1948). A potential appellant was “interested in a suit” if it had “a direct and substantial interest in the outcome.” People ex rel. Poage v. Walsh, 174 N.E. 881, 882 (Ill. 1931). And a disqualifying interest for purposes of determining a witness’s interest in an adjudication of a will was “a legal or pecuniary interest in the outcome of the suit.” Fortner v. McCorkle, 50 S.E.2d 250, 252 (Ga. Ct. App. 1948). “[T]he test” was “whether the witness will gain or lose by the direct legal operation and effect of the judgment.” State v. Robbins, 213 P.2d 310, 315 (Wash. 1950). 11 The Supreme Court’s opinion in Tumey v. Ohio illustrates well the historical distinction between the financial consequences flowing from a proceeding and the financial consequences flowing from the outcome of a proceeding. In Tumey, the Court held that it violated due process for a mayor to preside over a case in mayor’s court where the mayor would receive payment for his services only if he convicted the defendant—i.e., where the mayor had a “direct pecuniary interest in the outcome” of the case. 273 U.S. 510, 535 (1927). In determining what constituted “due process of law,” the Court examined the common law of judicial disqualification, and found “no cases at common law” whereby “inferior judicial officers were dependant upon the conviction of the defendant for receiving their compensation.” Id. at 524. However, there were cases at common law where a judge would have a pecuniary stake in the case that did not depend on the outcome of the case, for example where a judge received daily wages collected from the parties regardless of the outcome. Id. at 524–25. A direct pecuniary interest in the outcome of the case, by contrast, was disqualifying at common law, and thus could not be regarded as due process of law. Id. at 526, 531. See also In re Murchison, 349 U.S. 133, 136 (1955) (“no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome”) (emphasis added). Section 208 was enacted against the background of this traditional understanding of what it means to have an interest in a matter. Even if an expenditure on advocacy could constitute a “financial interest” in a particular proceeding, it would be, at most, a financial interest in the process by which the matter is considered 11 See also, e.g., Spencer v. Wilsey, 71 N.E.2d 804, 809 (Ill. App. Ct. 1947) (“The interest which will render a witness incompetent [under a ‘dead man’s statute’] must be such an interest in the judgment or decree that a pecuniary gain or loss will come to him directly as the immediate result of the judgment or decree.”); Weber v. City of Cheyenne, 97 P.2d 667, 669 (Wyo. 1940) (“‘Interest,’ within the meaning of this rule [for determining real party in interest], means material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest.”); cf. Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 173 (1957) (“interested party” for purposes of statutory right to be heard in an agency proceeding was “a legal right or interest that will be injuriously affected by the order,” i.e., the action to be taken in or outcome of the proceeding). 74 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 rather than in the outcome of the proceeding. The absence of any pecuniary interest by SEA or AMS in a particular decision, action, or outcome in the matters at issue reinforces the conclusion that section 208 does not apply to their expenditures on advocacy. One might argue that placing weight on the decision or outcome at issue is inconsistent with the examples of particular matters specifically enumerated in section 208(a). The statute refers to “a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter.” Although it is true that some of the matters specified can be intermediate steps in a larger proceeding, that does not contradict our conclusion that it is the potential outcome that typically will determine whether section 208 can be invoked. The statute covers even “particular matters” that may be terminated before all the possible steps in a process have occurred, but all of the steps, if they occur, typically make up a single “particular matter.” See United States v. Jewell, 827 F.2d 586, 587–88 (9th Cir. 1987). The view that intermediate steps would be separate “particular matters” would undercut our understanding of the term “particular matter” for purposes of related statutes. For example, 18 U.S.C. § 207 (2000 & Supp. II 2002) imposes a permanent post-employment ban on representing a party in a “particular matter” in which an individual participated as a government employee. Were a charge and a criminal trial different particular matters, an employee who prepared the charge against a company could, after leaving the government, defend the company at the trial of that charge without violating section 207, on the theory that the charge and the trial were not the same particular matter. The term “particular matter” has not been construed to compel such a surprising and unwarranted result. See 5 C.F.R. § 2637.201(c)(4) (2005) (“The same particular matter may continue in another form or in part.”); id. (example 2) (an application for a wiretap and the prosecution of a person overheard during the wiretap are part of the same particular matter). Our reading of these words, moreover, makes good sense: Section 208 specifically enumerates charges, accusations, and arrests in order to give examples of matters that are “particular” in the sense of being focused on specific individuals or entities or a discrete and identifiable class of individuals and entities, not to suggest that various intermediate steps in an overall proceeding constitute discrete particular matters. 12 12 It is possible to have a financial interest in an intermediate step in a matter without having an interest in the final outcome. For example, a person who has a contractual right to a fee if the government initiates a rulemaking would have a financial interest in that intermediate step, without regard to the outcome. Because the intermediate step would be part of a larger matter, however, such a person would have an interest in that entire, larger matter. 75 Opinions in the Office of Legal Counsel in Volume 30 2. Typically, moreover, a person or entity that has a financial interest in a matter will be within the category of persons or entities on which the “particular matter” is focused. Although we do not conclude that this fact must be present if section 208 is to apply, its absence with respect to SEA and AMS is further confirmation of our conclusion that section 208 does not apply here. A “particular matter” includes “only matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons.” 5 C.F.R. § 2640.103(a)(1); see also Memorandum for C. Boyden Gray, Counsel to the President, from J. Michael Luttig, Acting Assistant Attorney General, Office of Legal Counsel, Re: Applicability of 18 U.S.C. § 208 to General Policy Deliberations, Decisions, and Actions Relating to Iraq’s Recent Invasion of Kuwait at 3 (Aug. 8, 1990) (same). The term encompasses matters that involve specific parties, such as a government enforcement action against a specific organization, as well as matters of general applicability that are narrowly focused on the interests of a discrete industry, such as the meat packing industry or the trucking industry. See 5 C.F.R. § 2640.103(a)(1) (example 3); id. § 2635.402(b)(3) (example 2). The definition of “particular matter” provides a useful tool in analyzing the difficult question of what qualifies as a direct and predictable effect of a decision or outcome in a matter. OGE’s regulations explain that, [i]f a particular matter involves a specific party or parties, generally the matter will at most only have a direct and predictable effect . . . on a financial interest of the employee in or with a party, such as the employee’s interest by virtue of owning stock. There may, however, be some situations in which, under the above standards, a particular matter will have a direct and predictable effect on an employee’s financial interests in or with a nonparty. For example, if a party is a corporation, a particular matter may also have a direct and predictable effect on an employee’s financial interests through ownership of stock in an affiliate, parent, or subsidiary of that party. Similarly, the disposition of a protest against the award of a contract to a particular company may also have a direct and predictable effect on an employee’s financial interest in another company listed as a subcontractor in the proposal of one of the competing offerors. Id. § 2635.402(b)(1) note (emphasis added). Logic dictates that the same principle operates even when a particular matter is not limited to specific parties, but extends to a discrete and identifiable class of persons. In most circumstances, the outcome of a particular matter will not have a direct and predictable effect on a 76 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 nonprofit organization outside of the discrete and identifiable class of persons or entities upon which the proceeding is focused. In view of this guidance, it stretches section 208 beyond its limit to conclude that SEA and AMS have financial interests in particular matters that are simply the focus of their advocacy. If an organization were to spend money to issue a press release containing its views on a lawsuit to which it was not a party, we could not say, consistent with this guidance, that it would have a financial interest in the case. The parties to the case might have a financial interest; others whose financial interests would be affected by a particular decision or outcome in the case might have a financial interest; but the rest of the public at large, including non-profit organizations that have policy interests in the case, would not have a financial interest simply by virtue of expressing a view about the case, even if such an organization expends resources to express that view. The same reasoning applies here. The executive pay matter in which SEA has an advocacy interest is not directed at nonprofit organizations like SEA; it is focused on federal employees in the Senior Executive Service. Nor are the science policies described in Commerce’s letter focused on regulation of nonprofit organizations like AMS. III. A. Nor does this Office’s FAA Opinion compel us to conclude that section 208 applies here. The FAA Opinion, to be sure, describes a “financial interest” as “an interest ‘pertaining to monetary receipts and expenditures,’” 28 Op. O.L.C. at 239 (citation omitted), and the nonprofit organizations here are making monetary expenditures for advocacy. That opinion also states that “one has a financial interest in a governmental matter only when the particular matter can affect one’s finances—i.e., one’s monetary receipts and expenditures.” Id. at 240. The FAA Opinion correctly stated that a required expenditure can give rise to a financial interest. But, in that opinion, it was the outcome of a particular matter that we suggested could give rise to a financial interest in the matter, under circumstances that would surely qualify as a “loss” to the employee (being forced to pay for air travel previously provided free of charge). Specifically, we suggested that an FAA employee who had flight privileges with an airline would have a financial interest in a matter that could result in an airline’s losing its ability to fly. Indeed, one might argue that the FAA Opinion construed the words “financial interest” too broadly. Under one possible definition of “financial interest,” a monetary expenditure alone would never qualify because a financial interest is a “property interest,” such as an equity stake in something. See Black’s Law Dictionary 828 (8th ed. 2004) (second definition of “interest,” defining the word to mean “[a] legal share in something; all or part of a legal or equitable claim to or 77 Opinions in the Office of Legal Counsel in Volume 30 right in property <right, title, and interest>”); The American Heritage Dictionary of the English Language 912 (4th ed. 2000) (an “interest” is, among other things, “[a] right, claim, or legal share: an interest in the new company”). We do not believe, however, that the statute uses “interest” exclusively in this sense of the word. Section 208(a) requires a “financial interest” “in” a “matter,” as opposed to a “financial interest” in property or a party, and one does not typically refer to a “legal share” in a matter. Compare 18 U.S.C. § 208(a) (requiring a determination whether an employee has a financial interest in a matter) with 18 U.S.C. § 434 (1958) (section 208(a)’s predecessor, requiring a determination whether an employee has an “interest[] in the pecuniary profits or contracts of any corporation . . . or other business entity”). Nor would the narrower definition cover some seemingly obvious examples of a financial interest, such as the interest of a defendant in a potential judgment against him in a tort action. We believe, instead, that section 208(a) incorporates a broader understanding of “interest”—a concern based upon the potential for pecuniary gain or loss. 5 C.F.R. § 2640.103(b). An interest in a matter, then, is “[a] relation to the matter in controversy . . . in the nature of a prospective gain or loss, which actually does, or presumably might, create a bias or prejudice in the mind inclining the person to favor one side or the other.” 33 C.J. Interest 262 (1924) (footnotes omitted). Whatever the precise formulation (which we need not resolve here), an expenditure, just like a stock or a bond, can give rise to an interest in a matter, but, as noted, only if a particular action or outcome in the matter holds the potential for a financial gain or a loss to the organization. Only then will the organization have a sufficient financial reason for wanting a particular result in the matter. 13 13 For the difference between the two definitions of “interest,” one involving a share in property and the other a relation giving rise to prospective gain or loss, see Restatement (First) of Property § 5 (1936) (in effect when section 208 was enacted) (“Note on the Use of the Word Interest in the Restatement: Throughout all the Restatements the word ‘interest’ is used to denote one of three things: a legal relation, a human desire, and return for the use of money. When the word is used in the last sense the context clearly indicates the meaning. With this exception throughout all the Restatements, except the restatement of Torts, ‘interest’ is used as defined in this Section; that is, as a word denoting a legal relation or relations. In restating the law of Torts it has been found necessary to use the word ‘interest’ to denote any human desire. (See Restatement of Torts § 1). The two different meanings of the word correspond to existing differences in common and legal usage. When it is said that ‘A has sold his interest in Blackacre,’ the word is used as it is used in this and other Restatements except the Restatement of Torts; when it is said that ‘A has an interest in being free from bodily harm’ the word is used as it is used throughout the Restatement of the Law of Torts.”); 33 C.J. Interest 261–62 (1924) (“As applied to property. The chief use of the term ‘interest’ seems to be to designate some right attached to property which either cannot, or need not, be defined with precision. It means such a right in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings . . . . In a suit or action. A relation to the matter in controversy, or to the issue of the suit, in the nature of a prospective gain or loss, which actually does, or presumably might, create a bias or prejudice in the mind inclining the person to favor one side or the other; such relation to the matter in issue as creates a liability to pecuniary loss or gain from the event of a suit; the benefit which a person 78 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 Neither is our conclusion inconsistent with the general understanding that an organization has a financial interest in a matter when it formally intervenes to assert the financial interests of its members. The Rehnquist Opinion stated that “[i]f a pending proceeding [before the FPC] involved intervention by NCA as in [Natural Gas Pipeline Co. of Am., 33 F.P.C. 545 (1965)], or [Great Lakes Gas Transmission Co., 37 F.P.C. 1070 (1967)], participation by [the Commissioner] in the Commission’s consideration and decision would obviously be ruled out.” Rehnquist Opinion at 4 n.3. Earlier, the Rehnquist Opinion described the financial interest of coal producers in natural gas rates and then cited the two FPC proceedings as support for the proposition that “[t]he interest of coal producers in natural gas rate and certification proceedings has in past years (though not recently) been manifested by their direct intervention, through NCA, in such proceedings.” Id. at 4. The Rehnquist Opinion thus treated such formal intervention as a means by which the members of the outside organization asserted their financial interests, with the outside organization standing in the shoes of the members. In these circumstances, the outside organization, as the surrogate for its members, could well be found to have a “financial interest” in the proceeding, and a government employee to whom section 208(a) imputes the financial interest of the outside organization would therefore have to recuse himself. This understanding of formal intervention, however, has no application in the present context. According to Commerce’s letter, AMS does not intervene in governmental proceedings involving science policy; it merely issues policy statements. Even if AMS were to intervene in some sufficiently formal manner, AMS’s members are not financially interested. They have only a policy interest in the questions being addressed by the government, not a financial or pecuniary interest in the resolution of those questions. AMS, therefore, would not be representing the financial interests of its members. SEA, by contrast, submitted comments in the informal rulemaking involving the establishment of a new pay system for senior executives, and SEA resembles a typical trade association in that it advocates on behalf of the financial interests of its members. However, we need not decide whether SEA’s submitting comments in an informal rulemaking constitutes a sufficiently formal intervention to impute the financial interests of its members to SEA, because, as we explained above, SEA’s members themselves do not have a disqualifying financial interest in matters regarding the pay system for senior executives. A federal employee’s interest in his own federal compensation has in the matter about to be decided and which is in issue between the parties.”) (footnotes omitted); Persky v. Greever, 202 S.W.2d 303, 306 (Tex. Civ. App. 1947) (“The word ‘interest’ has more than one meaning, depending upon the manner of its use and the context of the sentence, phrase of grouped words, or subject matter under consideration. An interest may well be said to exist in an action which creates or determines a liability or pecuniary loss or gain, depending upon the result of a trial in court.”). 79 Opinions in the Office of Legal Counsel in Volume 30 generally does not constitute a disqualifying financial interest under section 208, because OGE has issued an exemption, over a wide range of circumstances, for the “financial interest aris[ing] from Federal Government . . . salary or benefits”—the sort of financial interest that SEA might assert on behalf of its members. 5 C.F.R. § 2640.203(d). Given that an SEA member may participate in matters involving the pay system for senior executives (so long as he does not make determinations that individually or specially affect his own salary and benefits, or determinations that individually or specially affect the salary and benefits of another person specified in section 208, 5 C.F.R. § 2640.203(d)), we cannot say that SEA itself would have a disqualifying financial interest merely by virtue of representing its members’ interests. B. Concluding that section 208 encompasses a nonprofit organization’s expenditures on advocacy would have untoward consequences. If expenditures on advocacy alone gave rise to a financial interest that implicates section 208(a), the statute would disqualify an employee whenever an organization in which the employee is a director makes any expenditure, even a minimal one, with respect to an issue that might come before him in his official capacity. 14 If, for example, an organization had a meeting to consider whether to take a position on the issue and spent some small amount of money—indeed, perhaps if two salaried employees of the organization, during the time for which the organization pays them, briefly discussed the possibility of taking a position, or if the organization did nothing more than issue a press release—a federal employee who serves on the organization’s board would be disqualified from his agency’s work on that issue (at least absent a waiver). By logic, the same principle, moreover, would apply to spending on advocacy by individual federal employees, as well as organizational spending. Were an employee to purchase a bumper sticker or yard sign expressing an opinion on a policy at issue in a governmental matter, that employee might have a financial interest in the matter under such reasoning. It seems unlikely that Congress intended for this criminal conflict-of-interest statute to reach so far. What led to the regulation of financial interests was the economic temptation to put a finger on the scale that exists when an employee has a financial reason to prefer a particular outcome. But when a government actor has no financial temptation, however slight, to prefer one outcome over another, the financial justification for requiring recusal disappears. And, while there are many potential non-financial reasons for requiring a government actor to recuse 14 The statute would apply, however, only if the employee had knowledge of the organization’s financial interest. 18 U.S.C. § 208(a) (covering particular matters “in which, to [the employee’s] knowledge . . . [an] organization in which he is serving as . . . director . . . has a financial interest”). 80 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 himself—bias, prejudice, social relationship with the parties, etc.—section 208 singles out only financial interests. “The simplest reason,” explained the influential Bar Association Report that led to the enactment of section 208, “is that it is better to control whatever fraction of improper behavior is attributable to economic motives than to control none. The second reason is that regulatory schemes have to be administered. Restrictions on outside economic affiliations can be written with reasonable particularity and enforced with moderate predictability.” Association of the Bar of the City of New York, Conflict of Interest and Federal Service 17 (1960). Both reasons suggest that section 208 does not reach the advocacy expenditures at issue here. At any rate, even if section 208 were ambiguous with respect to the question presented, because section 208 is a penal statute, the law requires that it receive a strict construction. United States v. Chem. Found., Inc., 272 U.S. 1, 18 (1926) (interpreting section 208’s predecessor). This rule is “not merely a convenient maxim of statutory construction,” but “is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited,” Dunn v. United States, 442 U.S. 100, 112 (1979), and in the separation of powers principle that “‘legislatures and not courts should define criminal activity,’” Ratzlaf v. United States, 510 U.S. 135, 148–49 (1994) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)). And the rule surely applies here, where construing the words “financial interest in a particular matter” to include mere policy-motivated expenditures on advocacy would expand the criminal conflict of interest law beyond its traditional application. Accordingly, we conclude that SEA and AMS do not have financial interests in the matters you have described. IV. Although section 208(a) may not apply in these circumstances, government employees are under a separate duty to “avoid any actions creating the appearance that they are violating the law or . . . ethical standards.” 5 C.F.R. § 2635.101(b)(14) (2005) (emphasis added); see Exec. Order No. 12674, § 101(n) (Apr. 12, 1989), 3 C.F.R. 215 (1989 Comp.), as amended by Exec. Order No. 12731 (Oct. 17, 1990), 3 C.F.R. 306 (1990 Comp.); see also 5 C.F.R. § 2635.502 (2005). Among the relevant ethical standards is an obligation to “act impartially and not give preferential treatment to any private organization or individual,” 5 C.F.R. § 2635.101(b)(8), and a prohibition against an employee’s use of “his public office . . . for the private gain of . . . persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member,” id. § 2635.702. Citing the predecessor version of these provisions, Exec. Order No. 11222, § 201(c) (May 8, 1965), 3 C.F.R. 130, 131 (1965 Supp.), the Rehnquist 81 Opinions in the Office of Legal Counsel in Volume 30 Opinion observed that “[w]hile [the Commissioner] in our judgment cannot be viewed as having the type of financial interest covered by 18 U.S.C. 208, the fact remains that NCA does have a direct non-financial interest in any matters affecting coal in its competitive fight with natural gas” and that “even assuming all good faith on [the Commissioner’s] part, his participation in the direct regulation of the chief competitor of NCA’s members is likely to suggest an inference of preferential treatment or loss of independence which could be difficult to dispel.” Id. at 6–7. Here, too, when an outside organization on whose board a government employee serves is actively advocating a position, particularly where it devotes a large portion of its budget to such advocacy, the employee’s official participation in his agency’s work on the same issue may “suggest an inference of preferential treatment or loss of independence” giving rise to an appearance of partiality for purposes of the ethical rules. As we wrote in the FAA Opinion, OGE takes the view that it “‘is not in a position to decide for an agency whether a reasonable person would question the impartiality of [an] employee’s participation in a particular matter,’” FAA Opinion, 28 Op. O.L.C. at 244–45 (quoting OGE, Letter to an Agency Ethics Advisor, Informal Advisory Ltr. 00x4, 2000 WL 33407281, at *3 (Apr. 11)), and “[t]he same generally holds for this Office; the question of an appearance problem is best left to the employee and the agency based on the facts of a particular case,” id. at 245. Nevertheless, we note that, on the facts presented to us, there is a substantial question whether it would create the appearance of a conflict for an agency employee who is a director of SEA to participate in an official capacity in deciding on recommendations for the agency’s senior executive pay system. SEA apparently is engaged in a broad and active campaign involving communications directly to the agencies of the federal government, in which SEA advances positions about the system for senior executive pay. For example, when OPM issued a notice of proposed rulemaking to prescribe the standards for senior executive pay, 69 Fed. Reg. 45,536 (July 29, 2004), SEA filed a set of comments in response. See Comments of the Senior Executives Association on the Proposed Rule Regarding “Senior Executive Service Pay and Performance Awards and Aggregate Limitation on Pay” (undated). SEA lists its “Current Objectives” on its website, and advocacy about the new senior executive pay system used to be the first objective on the list, see Senior Executives Association, http://seniorexecs.org (last visited June 2, 2005), and remains one of the objectives, see id. (last visited Jan. 11, 2006). 15 At the same time, the Executive Resources Board on which the 15 To the extent that SEA represents its members’ interests in the pay system, a director’s official role in the matter might not raise an appearance problem, because the regulatory exemption for an employee’s actions affecting his own pay or benefits “constitute[s] a determination that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of agency programs or operations.” 5 C.F.R. § 2635.501 note (2005). But, apart 82 Financial Interests of Nonprofit Organizations for Purposes of 18 U.S.C. § 208 employee has served in his official capacity makes recommendations regarding the senior executive pay system. SEA Letter at 1. If an outside organization in which an employee is a director has been advocating its views directly to the federal government on a matter that the organization has identified as especially significant, there is a significantly heightened risk that the employee, by taking a personal and substantial role in the same matter, will at least appear less than independent in his judgments for purposes of 5 C.F.R. § 2635.101(b), and that risk, along with other factors such as the importance of the particular employee’s role in the government’s deliberations, calls for serious consideration by the employee’s agency. 16 STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel from this representation of its members’ financial interests, SEA as an organization has a substantial policy interest in the SES pay system that raises a separate concern about the appearance of an SEA director’s taking part in such agency deliberations. 16 In contrast, AMS appears in some instances only to have issued public statements about matters identified in the Commerce Letter, rather than directly communicating with federal agencies. See Commerce Letter at 2 n.2. 83

Write a legal research memo on the following topic.

Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073 An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which m akes it a federal offense to travel interstate to avoid a state felony prosecution, among other things, may be “prosecuted” only in the federal judicial district in which the original state crim e was com m itted, or from which he fled, and “only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated.” Under Rule 40 of the FedeAl Rules o f Criminal Procedure, an individual who is charged with a federal offense in one district and is apprehended in another may be brought back before the court in which the federal charges are pending against him. A court’s duty to order removal under Rule 40 is not dependent upon a subsequent federal prosecution. The Departm ent o f Justice has interpreted the term “prosecution” in the Fugitive Felon Act to include all steps in the federal criminal process after a fugitive has been taken into federal custody, including removal to the district in which the federal charges against him are pending, pursuant to Rule 40. The Department has also determined that the formal approval required by 18 U.S.C. § 1073 may not be given if the federal prosecution is not to be subsequently pursued. Although nothing in the legislative history o f the Fugitive Felon Act or relevant case law mandates this interpretation, it is not clear whether a court would require formal written approval before issuing a Rule 40 removal order. Federal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant’s claim that he was constitutionally entitled to extradition under state law. However, the Fugitive Felon Act was not intended to supplant state extradition procedures, and federal removal procedures should not be used to accomplish a Fugitive Felon Act defendant’s return for prosecution or other appropriate disposition by the State. The policy considerations involved in m aking such a determination underscore the wisdom o f the D epartm ent’s requirem ent for formal approval for Rule 40 removal o f Fugitive Felon Act defendants. The cost o f transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40 may be paid out o f funds appropriated for the authorized activities of the United States M arshal. All or part of the cost of transportation may voluntarily be borne by the State seeking the fugitive’s return, although any monies received from a State must be deposited into the general fund of the Treasury. March 21, 1983 M em orandum E x e c u t iv e O f f ic e O p in io n for for th e D ir e c t o r , U n it e d S t a t e s A t t o r n e y s This memorandum responds to your request for our opinion whether a fugitive apprehended by federal authorities under the Fugitive Felon Act, 18 75 U.S.C. § 1073, may be removed to the jurisdiction from which he fled, pursu­ ant to Rule 40 o f the Federal Rules of Criminal Procedure, if the sole purpose of removal is to return the fugitive to the custody of authorities in the State from which he fled. In the event federal removal is permissible in this situation, you wish to know the permissible source of funds to pay its costs. Your request derives from an exchange of correspondence between the United States Attorney for the Eastern District of Pennsylvania and the Assis­ tant Attorney General, Criminal Division. In 1982, the United States Attorney for the Eastern District of Pennsylvania wrote to the Criminal Division request­ ing reconsideration o f the policy set forth in § 9-69.450 of the United States Attorneys Manual (Manual). T hat section provides that “removal proceedings under Rule 40” shall not be instituted in § 1073 cases without the written approval o f the Assistant Attorney General, Criminal Division.1 The United States Attorney stated that “the present Department policy which prohibits routine federal removal of [§ 1073] defendants is inconsistent with the D epartm ent’s emphasis on federal-state law enforcement cooperation, and inhibits effective law enforcement.” The Criminal Division’s position is that the Departm ent’s policy of requiring written approval before removal in § 1073 cases is mandated by § 1073 itself. Furthermore, such approval may not be given where the government does not intend to pursue a federal prosecution under that statute. This latter position, as more fully developed in discussions with Criminal Division staff, is based not only upon an interpretation of the federal government’s authority under the Fugitive Felon Act, as amended in 1961, but also upon a concern that a federal defendant removed under Rule 40 for the sole purpose o f facilitating a state prosecution could claim some constitutional or statutory entitlement to be processed under state laws govern­ ing interstate rendition.2 We have examined the legislative history of § 1073 and its judicial and administrative interpretations in the half century since its original enactment. Although we find no basis on which to disagree with the Criminal Division’s position with respect to its policy of requiring written approval for removal in § 1073 cases, we do not believe the situations in which such approval may be given are limited to those in which a decision has been made to pursue a federal prosecution under that statute. For reasons more fully discussed below, we believe the federal government’s broad authority under § 1073 to assist local ' T he reference in § 9 -6 9 .4 5 0 to “removal proceedings under Rule 40” does not appear to reflect the 1979 am endm ents to R ule 40 o f the Federal R ules o f Criminal Procedure. See Pub. L. No. 9 6 -4 2 , 93 Stat. 326 (1979). T he 1979 am endm ents abolished th e “w arrant o f rem oval” by which a federal court previously directed return o f a d efendant arrested in “a distant d istrict,” i.e., on a w arrant issued in another State at a place 100 m iles o r m ore from the place o f a rre st. Although a w arrant of rem oval is no longer required under R ule 40 in o rd er to accom plish the transfer o f prisoners in federal custody from one district to another, the term “rem oval" is used throughout this m em orandum to indicate the ju d ic ia l procedure w hereby a federal defend an t is returned to the jurisdiction o f th e court in w hich the federal charges against him are pending. 2 A s w e understand it, the Crim inal D ivision’s position is based upon its interpretation o f federal authority un d e r § 1073, and not upon som e independent lim itation upon a court’s authority under Rule 40 to order rem oval if federal charges are not to be pursued. 76 law enforcement agencies in the apprehension of fugitive felons or witnesses permits it to return a fugitive to the jurisdiction from which he fled for prosecution or other appropriate disposition by the State. Furthermore, a defen­ dant subject to removal under Rule 40 has no federal constitutional or statutory right to be extradited under state law. Federal removal should, however, be sought only in those situations where existing interstate rendition procedures cannot be relied upon to bring a fugitive to justice. Finally, the cost of transporting a federal § 1073 defendant pursuant to a federal court order under Rule 40 may be paid from funds appropriated for the authorized activities of the United States Marshal responsible for carrying out the court’s order. Although all or part of this cost may be reimbursed by the State seeking the fugitive’s return, any monies received from the State must be deposited directly into the general fund of the Treasury. I. Section 1073, Rule 40, and Current Departmental Practice in Fugitive Cases A. Section 1073 Section 1073 of Title 18, the so-called Fugitive Felon Act, makes it a federal offense to travel interstate for the purpose of avoiding a state felony prosecu­ tion, or custody or confinement after conviction, or to avoid giving testimony in a state criminal prosecution or investigation.3 Under the venue provisions of § 1073, an individual charged with a violation may be “prosecuted” only in the federal judicial district in which the original state crime was committed, or from which he fled, and “only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated.” 3 Section 1073 provides in full as follows: § 1073. Flight to avoid prosecution o r giving testim ony W hoever moves o r travels in interstate or foreign com m erce with intent either (1) to avoid prosecution, or custody o r confinem ent after conviction, under the laws o f the place from which he flees, for a cnm e, o r an attem pt to com m it a crime, punishable by death or which is a felony under the laws o f the place from w hich the fugitive flees, o r which, in the case o f New Jersey, is a high m isdem eanor under the law s o f said State, o r (2) to avoid giving testim ony in any criminal proceedings in such place in which the com m ission o f an offense punishable by death or which is a felony under the law s o f such place, or which in the case o f New Jersey, is a high m isdem eanor under the laws o f said State, is charged, o r (3) to avoid service of, or contem pt proceedings for alleged disobedience of, lawful process requiring attendance and the giving o f testim ony or the production o f docum entary evidence before an agency o f a State em pow ered by the law o f such State to conduct investigations o f alleged crim inal activities, shall be fined not more then $5,000 o r imprisoned not more than five years, or both. V iolations o f this section may be prosecuted only in the Federal judicial district in which the original cnm e w as alleged to have been com m itted, or in w hich the person was held in custody or confinem ent, or in w hich an avoidance o f service o f process o r a contem pt referred to in clause (3) o f the first paragraph o f this section is alleged to have been com m itted, and only upon formal approval in writing by the A ttorney General or an A ssistant Attorney General o f the United States, which function o f approving prosecutions may not be delegated. 77 The Fugitive Felon Act has been sustained against constitutional challenge as a valid exercise of Congress’ power to regulate interstate commerce, U.S. Const, art. I, § 8, cl. 3. See, e.g.. United States v. Bando, 244 F.2d 833 (2d Cir. 1957); B arker v. United States, 178 F.2d 803 (5th Cir. 1949); Hemans v. U nited States, 163 F.2d 228 (6th Cir.), cert, denied, 332 U.S. 801 (1947); U nited States v. Brandenburg, 144 F.2d 656 (2d Cir. 1944); Simmons v. Zerbst, 18 F. Supp. 929 (N.D. Ga. 1939). The “general purpose of the Act was to assist in the enforcement o f state law s,” United States v. Brandenburg, 144 F.2d at 659, and its enforcement has been held not to violate the rights of the States under the Tenth Amendment. See United States v. Miller, 17 F. Supp. 65, 68 (W.D. Ky. 1936); Lupino v. U nited States, 185 F. Supp. 363, 368 (D. Minn. 1960). In Miller, the district court explained that [Congress] may make a crime the use of interstate commerce by a fleeing criminal in order to aid the states in the apprehension of the guilty and make certain, swift, and sure the punishment of those who commit crim es against the states. If such power be not lodged in the Congress, then the unity o f our people to deal with crime is destroyed and the states crippled in punishing those who violate their laws and flee to another state. 17 F. Supp. at 68. The venue provisions of § 1073 have been interpreted consistently with this general purpose o f assisting state law enforcement: [T]he primary purposes of the venue section o f § 1073 [are] to return the felon to the state where the original flight occurred in order to assist state officials in combating organized crime there, and to vindicate the federal interest in punishing acts committed in the judicial district where the original flight took place. United States v. Thurman, 687 F.2d 11, 13 (3d Cir. 1982). B. Rule 40 Rule 40 of the Federal Rules of Criminal Procedure (“Commitment to Another District”) describes the process whereby a person who is charged with a federal offense in one district, and is apprehended in another, may be brought back before the court in which the federal charges are pending against him. Rule 40(a) provides that “if a person is arrested in a district other than that in which the offense is alleged to have been committed, he shall be taken before the nearest available federal m agistrate.” Preliminary proceedings are held before the magistrate to determine that the apprehended fugitive is the indi­ vidual named in the arrest warrant. If no indictment has been returned against him in the district where the warrant was issued, the magistrate must also determine that there is probable cause that he committed the crime for which he 78 is to be “held to answer in the district court in which the prosecution is pending.”4 Rule 40 does not explicitly provide for a federal prisoner’s transportation to the jurisdiction in which the charges against him are pending. If a defendant is admitted to bail, or released on his own recognizance, he is expected to present himself in the proper court at the proper time. If the magistrate has not approved the prisoner’s release, however, he remains in the custody of the U.S. Marshal, who is responsible for seeing that the magistrate’s removal order is carried out by transporting the defendant to the court in which the charges against him are pending. See 28 U.S.C. § 567; 28 C.F.R. § 0.1 ll(j). The procedural protections embodied in Rule 40 are not constitutionally required, but were developed as a matter of sound judicial policy. Unlike extradition, which involves a demand of one sovereign upon another, and implicates “the protection owed by a sovereign to those within its territory,” United States ex rel. Kassin v. Mulligan, 295 U.S. at 396, 400 (1935), the process by which a federal defendant is returned for trial theoretically involves only a physical transfer from one judicial district to another within a single sovereign’s territory. See United States v. Godwin, 97 F. Supp. 252, 255 (W.D. Ark.), a jfd , 191 F.2d 932 (5th Cir. 1951) (“the several judicial districts are not foreign to each other . . . but are simply convenient subdivisions . . . of one sovereign, the United States”). The purpose of Rule 40 is “to afford defendants reasonable protection, to safeguard them against improvident removal to a distant point for trial and to curb a defendant’s opportunity for delay and obstruction of prosecution.” United States v. McCord, 695 F.2d 823, 826 (5th Cir.), cert, denied, 460 U.S. 1073 (1983). See also Notes of the Advisory Committee on the 1945 Rules, 18 U.S.C. app. (1976).5 4 Rule 40(a) provides in full as follows: (a) A ppearance Before Federal M agistrate If a person is arrested in a district other than that in which the offense is alleged to have been com m itted, he shall be taken without unnecessary delay before the nearest available federal m agistrate. Preliminary proceedings concerning the defendant shall be conducted in accordance with Rules 5 and 5 1, except that if no prelim inary exam ination is held because an indictm ent has been returned o r an inform ation filed o r because the defendant elects to have the prelim inary exam ination conducted in the d istn ct in which the prosecution is pending, the person shall be held to answ er upon a finding that he is the person named in the indictment, inform ation or warrant. If the defendant is held to answ er, he shall be held to answ er in the district court in which the prosecution is pending, provided that a w arrant is issued in that district if the arrest was made w ithout a w arrant, upon production o f the w arrant or a certified copy thereof. s A federal c o u rt's authonty and duty to effectuate a federal prisoner’s com m itm ent to the d istnct in which federal charges against him are pending was first set forth m § 33 o f the Judiciary Act o f 1789. That section provided that “it shall be the duty o f the judge o f the district where the delinquent is im pnsoned, seasonably to issue, and o f the M arshal o f the sam e district to execute a w arrant for the rem oval of the o ffe n d e r,. .. to the district in w hich the trial is to be had.” 1 Stat. 73, 91 (1789). This provision was later codified virtually unchanged in § 1014 o f the R evised Statutes, and brought forward as § 591 o f Title 18 o f the U nited States Code (1940). It was repealed in 1948, three years after the Suprem e C ourt’s prom ulgation o f Rule 40. In the early years o f the Republic, it was the frequent practice for many district courts to issue a w arrant o f rem oval at the sam e time they issued a w arrant o f arrest. Upon his apprehension, the defendant was im m ediately returned to the district which had issued the w arrant, and was thus effectively deprived o f any hearing on the question o f his rem oval. This practice was disapproved as a m atter o f judicial policy in such cases as United Continued 79 Ordinarily, a court has no discretion to refuse to order removal, provided the requisite showing of identity and probable cause has been made. A removal order is not appealable. See G allow ay v. U nited States, 302 F.2d 457 (10th Cir. 1962). Neither the sufficiency of the charges nor the constitutionality of the statute on which those charges are based can be raised in a removal hearing, though these may o f course be challenged in the district court in which the charges are pending. See United States v. Winston, 267 F. Supp. 555 (S.D.N.Y. 1967); Wright v. Cartier, 10 F.R.D. 21 (D. Mass. 1950).6 A district court’s authority and responsibility under Rule 40 and its statutory predecessors has never been held to depend upon the likelihood of subsequent federal prosecution. There is, for example, no requirement that an indictment be returned in the court to which removal is sought. See Fetters v. United States, 283 U.S. 638 (1931); Greene v. Henkel, 183 U.S. 249 (1902). This is evident on the face of the Rule, which requires that the government prosecutor establish probable cause only if no indictment has been returned or information filed in the district to which removal is sought. A court’s duty to order removal is thus not conditioned upon the government prosecutor’s declared willingness to seek an indictment and proceed to trial. C. D epartm ental Enforcement P olicy in § 1073 Cases The Departm ent’s policy on enforcement o f § 1073 is set forth in the United States Attorneys Manual at §§ 9-69.400 et seq. As stated in the Manual, that 3 (. . . continued) States v. Shepard, 27 F. C as. 1056 (E.D. M ich. 1870) (No. 16,273); U nited States v. Jacobi, 26 F. Cas. 564 (W .D . T enn. 1871) (N o. 15,460); and U nited States v. Yarborough, 122 F. 293 (W.D. Va. 1903). In these early cases, the courts recognized the im portance o f ensuring against m istaken identity or the absence of probable cause before o rdering a defendant transported w hat m ight be hundreds o f m iles for trial. At the same tim e, how ever, they w ere unw illing to allo w a defendant to force a trial on the merits at the removal stage, at best d elaying h is return and potentially frustrating prosecution entirely. In prom ulgating R ule 40 in 1945, the Suprem e C o u rt sought to strike a balance betw een these tw o concerns. See generally Holtzoff, Rem oval o f D efendants in F ederal C rim inal Procedure, 4 F.R.D . 455 (1945); 8B M oore's Federal Practice *2 40.04 at 4 0 -2 4 (1 9 8 0 ). As o rig in ally prom ulgated in 1945, R ule 40 distinguished betw een persons taken into federal custody in a “nearby d istric t” {i.e., on a w arrant issued in the sam e State o r w ithin 100 miles) and persons arrested in a “d istan t d istric t.” Persons in the latter category could be returned for prosecution only upon the issuance o f a “w arran t o f rem oval” by a district judge. N o w arrant o f rem oval was necessary to return a person arrested in a “nearby d istrict,” w ho, like a state prisoner transported acro ss the S tate for trial, was “transported by virtue o f the process un d er w hich he was arrested.” See N otes o f the A dvisory C om m ittee on the 1945 Rules, Rule 40(a), 18 U .S.C . app. (1976). The 1979 am endm ents to R ule 40 abolished the “w arrant o f rem oval” and elim in ated the d istin ctio n betw een the p rocedures applicable to arrest in “distant” and “ nearby” districts. The N otes o f the A dvisory Com m ittee on th e 1979 am endm ents to the R ules explained that the preliminary proceedings previously applicable under R ule 40(a) to persons arrested in a “nearby” district were “adequate to protect the rig h ts o f an arrestee w herever he m ight be arrested,” and w ould henceforth apply in all cases o f com m itm ent to a n o th er d istrict. See Rule 40(a), 18 U .S.C. app. (1980). 6 W e a re aw are o f tw o cases in which a district court declined to order removal on grounds that “special facts w ere disclosed that seem ed to make questionable the propriety o f rem oval.” United States v. Johnson, 63 F. Supp. 615, 616 (D. Or. 1945); U nited States v. Parker, 14 F.R.D. 146 (D.D.C. 1953). In Johnson, the d istrict c o u rt in O regon refused to order the d efen d an t's rem oval to the D istrict o f C olum bia, declining to give the latter ju risd ic tio n 's criminal child support statute “extraterritorial application.” In Parker, the court refused to o rder rem oval in a situation suggesting governm ent harassm ent o f the defendant. 80 policy is grounded in the theory that “the primary purpose of the [Fugitive Felon] Act is to permit the Federal Government to assist in the location and apprehension of fugitives from State justice.” Accordingly, federal § 1073 charges are rarely pursued beyond the point of a fugitive’s apprehension by federal law enforcement authorities.7 Ordinarily, after the federal § 1073 pris­ oner has been taken before the nearest available federal magistrate pursuant to Rule 40(a), he is turned over to authorities in the State of arrest for extradition to the State from which he fled.8 Occasionally, however, a federal § 1073 prosecution will be pursued. In such a case, once preliminary proceedings under Rule 40 have been completed (or waived), the magistrate is requested to issue an order under Rule 40(a) directing that the apprehended fugitive be committed to the jurisdiction o f the federal court in which the § 1073 charges are pending against him. It is this latter court which, under the venue provisions of § 1073, has jurisdiction over the federal criminal case. Section 9-69.450 o f the Manual restates the statutory requirement that § 1073 “prosecutions” may be “initiated” only upon the written approval o f the Attorney General or an Assistant Attorney General: The 1961 amendment to the Act incorporated existing adminis­ trative practice by requiring approval by the Attorney General or Assistant Attorney General, in writing, before initiation of prosecution for unlawful flight to avoid prosecution, or custody or confinement after conviction, or to avoid giving testimony. Accordingly, under no circumstances should an indictment un­ der the Act be sought nor an information be filed nor should removal proceedings under Rule 40, F. R. Crim. P., be instituted without the written approval of the Assistant Attorney General, Criminal Division. Section 9-29.450, as interpreted by the Criminal Division, incorporates two legal conclusions: (1) The statutory term “prosecution” in the final paragraph 7 W e understand from the C rim inal D ivision that there have been only tw o or three federal § 1073 prosecutions since 1961. 8 U nder Rule 40(a) it is the m agistrate’s responsibility to conduct prelim inary proceedings to determ ine that the defendant is the person nam ed in the federal arrest w arrant, and that there is probable cause to believe that a violation o f § 1073 was com m itted. See supra note 5. The fugitive “should remain in Federal custody o r on bail or other conditions o f release only so long as is necessary to permit his com m itm ent to the authorities in the State where apprehended.” See § 9-69.430. Asylum state authorities are generally w illing to take custody o f the fugitive, and the m agistrate is willing to approve release from federal custody with this understanding. T he dem anding State may already have begun the extradition process by the time custody has shifted. The U nited States A ttorney in the district where the federal com plaint was filed then moves for its dism issal, and there is no further federal involvement. See § 9 -6 9 .4 3 1 ; see also 8B M oore's Federal Practice, 1 4 0 .0 4 a t 4 0 2 3 (1 9 8 0 ). The process o f extradition is not always a sm ooth one. The M anual notes the possibility that the dem anding State w ill be unw illing to extradite, or that extradition will be attem pted but fail. See § 9-69.431. T he same section also m entions the possible difficulties associated w ith the return o f fugitive w itnesses, to w hom State extradition procedures do not apply. In addition, State courts may release the fugitive on low bail before the extradition process can be com pleted, providing a new occasion for interstate flight and federal involvem ent under § 1073. 81 o f § 1073 for which written approval is required includes all steps in the federal crim inal process after a fugitive has been taken into federal custody, including removal to the district in which the federal charges against him are pending; and (2) such approval may not lawfully be given if the federal prosecution under § 1073 is not to be subsequently pursued. Accordingly, the Criminal D ivision’s position on the questions hereinafter considered is that § 1073 itself precludes removal of a defendant in a § 1073 case unless there has been a formal departmental decision, approved in writing by the Assistant Attorney General, to indict and bring to trial on the federal charges. The text of § 1073 affords no clear guidance on the scope to be given the statutory term “prosecution,” o r more generally on the permissibility of using federal removal procedures to secure the return of § 1073 defendants in aid of a state prosecution. Accordingly, we must review the legislative history of § 1073 to determ ine whether the Criminal Division’s position on these issues, as described above, is correct. M. LegisDative Hnstory of § 1®73 A. The 1934 A ct The Fugitive Felon Act, Pub. L. No. 73-233,48 Stat. 782 (1934), was one of a series of thirteen major crime bills proposed by the Roosevelt Administration and passed by Congress in 1934. As originally enacted, the Act made it a federal offense to travel interstate to avoid prosecution for certain specified state felonies, or to avoid giving testimony in certain state criminal proceed­ ings. The Act originated in a series of hearings on organized crime held in 1933 in different parts o f the country by a subcommittee of the Senate Committee on Commerce. Investigation o f So-C alled “Rackets": Hearings Pursuant to S. Res. 74, 73d Cong., 2d Sess. (1933) (1933 Senate Hearings). The hearings explored the difficulties which state law enforcement agencies were experienc­ ing in dealing with interstate crime. One of the frequently mentioned problems was the complicated and inefficient process o f state extradition. See, e.g., 1933 Senate Hearings at 177 (statement of Hon. William M ’Kay Stillman, Judge of the Criminal Court in Detroit); 210 (statement o f John P. Smith, Chief of Police o f Detroit, M ichigan); 293 (statement of H.D. Harper, Chief of Police of Colorado Springs, Colorado). During the course o f the hearings, Harry S. Toy, the Prosecuting Attorney of W ayne County, Michigan, introduced into the hearing record a legislative proposal which would make interstate flight a federal crime. 1933 Senate Hearings at 198. Mr. Toy was particularly concerned with the problem of fugitive witnesses, to whom m ost state extradition procedures did not apply.9 Senator Copeland, who chaired the subcommittee, questioned Mr. Toy closely 9 Id 1934, only ten States had enacted statu tes providing fo r the interstate rendition o f witnesses in crim inal proceedings. S ee C om m issioner’s Prefatory N ote to 1936 R evision o f U niform Act to Secure the Attendance o f W itnesses from W ithout the State in C rim inal Proceedings, 11 U.L.A. 2 (1974). 82 about the possibility whether, under the legislation he had proposed, “a witness brought back by the Federal court might then be turned over to the State court for such action as it proposes.” Id. at 199. He was concerned that Mr. Toy’s proposed legislation would be held unconstitutional because it would “evade the extradition clause of the Constitution to bring this man back into the jurisdiction o f the Federal court,” only to “serve the papers upon him for action in the State court.” Id. at 204.10 Senator Vandenburg disagreed on the constitu­ tionality of the proposed legislation. Significantly, however, both Senators believed that the legislation would permit federal return of a fugitive felon or witness for state prosecution. On January 11, 1934, Senator Copeland introduced Mr. Toy’s proposed legislation, with certain changes in its venue provisions." In his floor state­ ment, he again expressed his reservations about the constitutionality of a bill which would permit the “circumvention” of state extradition procedures: [Senator Vandenburg] thinks he sees in this an opportunity to help the State courts . . . . He hopes that a witness to a crime against the State law may, by the operation of this proposed law, be brought back by the United States district court, and then, when the witness is returned and within the jurisdiction of the State court, that he may be turned over to the State court for the benefit of the State authorities in carrying on the prosecution. Of course, I do not think that can be done . . . . 78 Cong. Rec. 453 (1934). The Attorney General, in comments on the bill prepared for the House Committee on the Judiciary, appeared to explain that the bill would assist the States in providing an alternative to extradition to secure the return of fugitives: This bill will not prevent the States from obtaining extradition of roving criminals but the complicated process of extradition has proved to be very inefficient. . . . By an amendment in the Senate this bill was clarified to assure that the defendant shall be tried only where the ‘original crime is alleged to have been committed. H.R. Rep. No. 1458, 73d Cong., 2d Sess. 1-2 (1934). The “amendment in the Senate” to which the Attorney General referred was an addition to the bill’s venue provisions made on the floor of the Senate. Senator Steiwer had expressed concern about whether the venue provisions in 10 It is not c le ar w hether Senator Copeland* s constitutional concern related to possible rights o f States under the Extradition C lause, o r to the possible right o f an individual to be extradited, or to both. C harles F. Boots, Legislative C ounsel to the Senate, who also com m ented for the record on the constitutionality o f M r. T o y 's draft legislation, was concerned that “such procedure could well be challenged as w ithholding from the defendant the rig h t to a speedy trial on the Federal charge.” 1933 Senate H earings at 200-03. 11 The venue provisions in M r. Toy’s bill w ould have perm itted federal prosecution in any federal district “from, through, o r into w hich any person shall flee.” 1933 Senate H earings at 1989. The analogous provisions o f S. 2253 lim ited venue to the “Federal ju dicial district in which the cn m e was com m itted.” 83 the bill as originally introduced could be construed to require trial on the federal charges in the district where the fugitive was apprehended. Senator Copeland agreed to a clarifying amendment, explaining that the bill’s purpose, at least in the case o f fugitive witnesses, was to facilitate state prosecutions by securing their return to the jurisdiction from which they had fled: O f course the State could make it a felony for a witness to flee the jurisdiction of the court, but the State would have no power to bring the witness back. In this case, however, if he is an important witness to a murder, or to a gang operation, and flees to another State, he becomes guilty of a felony, and may be brought back by the d istrict court o r by the Federal G overn­ ment. So there can be no doubt that in apprehending criminals and in bringing them to book this is an important bill, and one which should be passed. 78 Cong. Rec. 5736 (1934) (emphasis added). Senator Steiwer responded that “I think the purpose just explained by the Senator is a very proper purpose,” and that “I agree thoroughly that the accused ought to go back to the State from which he flees . . . .” Id. at 5936-39. The foregoing legislative history indicates that the sponsors of the 1934 Act expected that it could be used to assist state authorities by securing the return of fugitives. Although existing state rendition procedures might have been avail­ able to obtain the return of fugitives from another State’s criminal justice system, those procedures were often “inefficient,” and in any event did not always apply to fugitive witnesses. To be sure, there was disagreement among the sponsors o f the bill as to how far federal law enforcement agencies could constitutionally go in “assisting” the States in this regard, if state extradition procedures were otherwise available. But there seems little doubt that its sponsors intended the bill which passed in 1934 to authorize federal removal to the extent constitutionally permissible.12 B. The 1961 Am endm ents to § 1073 In 1961 the Kennedy administration proposed amendments to the Fugitive Felon Act which brought within its scope all felonies or offenses punishable under state law by more than one year in prison.13 See Pub. L. No. 87-368, 75 Stat. 795 (1961). The purpose o f the amendments was to “permit the Federal government to give greater aid and assistance to the States.” The Attorney G e n e ra l’s P rogram to Curb O rganized Crim e and Racketeering: Hearings 12 T here is no suggestion in the legislative history o f the 1934 A ct that C ongress considered the scope o f a federal c o u rt's authority and obligation to o rd e r a federal p riso n e r's com m itm ent to another district under then-ex istin g law. In 1934, federal removal w as governed by the provisions o f 18 U.S.C. § 591, which made it the “d u ty " o f a federal court to execute a w arrant for a p riso n e r's removal “to the distn c t where the trial is to be h ad ." See 18 U .S.C . § 591 (1934) 13 A s originally enacted, the Fugitive Felon A ct applied only to specifically enum erated crim es. See S. Rep. No. 586, 87th C ong., 1st Sess. 2 (1961). 84 Before the Senate Comm, on the Judiciary, 87th Cong., 1st Sess. 15 (1961) (1961 Senate Hearings) (testimony of Attorney General Kennedy). See also Legislation Relating to O rganized Crime: Hearings Before a Subcomm. o f the House Comm, on the Judiciary, 87th Cong., 1st Sess. 42 (1961) (1961 House Hearings) (the purpose of the amendments is “to help and assist the States”). The legislative history of the 1961 amendments reflects Congress’ expecta­ tion that the law, as amended, would “provide either for Federal trials of the persons apprehended or their return to the p ro p er State jurisdiction f o r p ro s­ ecution or other appropriate State a c t i o n H.R. Rep. No. 827, 87th Cong., 1st Sess. at 2 (1961) (1961 House Report) (emphasis added). See also id. at 7 (expressing concern that, should the category of covered state crimes be expanded, “State officials would ask for Federal help in seeking the return of every one of these fugitives, especially since the request would relieve the State of costs”) (minority views of Rep. Libonati). Both the House and Senate Reports referred with approval to the Justice Department’s then-existing enforcement policy. They also noted that “the Department of Justice does not anticipate that its established practice under existing law will be altered by the proposed broadening of the Fugitive Felon Act.” S. Rep. No. 586, 87th Cong., 1st Sess. 2 (1961). See also 1961 House Report at 2. Inter alia, that policy “require[d] the approval of an appropriate Assistant Attorney General before an indictment or a Federal removal proceed­ ing may be instituted.” See Letter from Deputy Attorney General Byron R. White (Aug. 23, 1961), reprinted in 107 Cong. Rec. 15757 (1961) (House); id. at 19240 (Senate).14 During the debates on the bill in the House, there were several unsuccessful attempts to write certain aspects of the Department’s practice into the law itself. The consensus of the House members, however, was it would unneces­ sarily hamper federal law enforcement efforts to attempt to legislate the details of what was regarded as a successful experiment in federal-state cooperation. Thus, for example, the House rejected an amendment which would have limited the issuance of a federal complaint under the statute to situations in 14 It would appear that, at least prior to 1961, the D epartm ent interpreted the Fugitive Felon Act to permit the use o f federal removal procedures to secure the return o f a fugitive for state prosecution: H aving once apprehended a fugitive defendant or witness the Department has solved the first problem for the local prosecutor who can then follow the well- established rendition procedure. Should this fa il fo r a variety o f reasons the w ay is still open to remove the fu g itiv e under Federal process a n d return him to the jurisd ictio n where the original crim e was committed. There the fe d e ra l governm ent could turn him over to state authorities o r try him under the Fugitive Felon law, o r both. From the debates in C ongress it is evident that upperm ost in the minds o f some Senators was the thought that the Act would operate to secure the return o f the fugitive felon or w itness. The venue provision alone makes that plain and it w as agreed that such return was a proper purpose. M emorandum from M.H. H elter, Head, Common Crim es Unit to F.X. W alker, C hief, General C rim es Section (June 21, 1951) (em phasis added). See also M em orandum from Theron Caudle, A ssistant A ttorney G eneral, C rim inal D ivision to S.A. A ndretta, A dm inistrative A ssistant to the Attorney G eneral, re: “ Expenses of Transporting Pnsoners under Fugitive Felon Act w ho are Turned over to State A uthorities fo r Prosecution” (Apr. 4, 1947). In U nited States ex rel. M ills v. Reing, 191 F.2d 297, 300 (3d Cir. 1951), the court referred to the governm ent's concession during argum ent that “ there have been cases where [§ 1073 defendants] have been rem oved to the federal district o f indictm ent and then surrendered forthw ith to state custody.” 85 which a state prosecution had already been commenced. 107 Cong. Rec. at 15767-71 (1961). On the other hand, Congressman Libonati was successful in adding to the venue provisions o f the statute a requirement that violations of the Act could be prosecuted only upon the formal written approval of the Attorney General or Assistant Attorney General. S ee 107 Cong. Rec. 15767 (1961). The amend­ ment by which this was effected was not the subject o f any extended discussion on the floor, but appears to have been responsive to the desires o f several House members to give a statutory framework to existing Justice Department enforcement policy. During the House debates, several Congressman referred specifically to the use o f federal removal procedures in § 1073 cases. Acknowledging that most fugitives apprehended under § 1073 were returned through state extradition procedures, they appear to have assumed that federal removal procedures had been, and could continue to be, used to bring back fugitives for prosecution by state authorities. For example, Rep. Corman stated: It appears from the committee report and the letter of the Department that the Fugitive Felon Act is used primarily as an expeditious means of apprehending fleeing criminals to be re­ turned to the scene o f their alleged crime for prosecution. It further seems apparent that in those instances when this mission is accomplished and State authorities do prosecute that the Federal Government refrains from prosecution. I see no vio­ lence to justice under such procedure. 107 Cong. Rec. at 15771 (1961). See also id. at 15761 (objecting to the use of § 1073 to bring back fugitive witnesses to States which had not yet adopted interstate rendition procedures for securing the return of witnesses) (remarks of Rep. Whitener). In the Senate, there was some concern expressed that States would attempt to use the federal removal process to secure the return of fugitives in cases raising civil rights issues, where extradition was not likely to succeed. See id. at 19242 (referring to alleged “misapplication” of the Act “in cases involving civil rights matters”) (remarks of Sen. Keating). In summary, the legislative history of the 1961 amendments to § 1073 indicates no intention on the part o f Congress to remove any part of the authority given federal law enforcement agencies under the 1934 Act. And, although Congress expressed its approval of the existing Department o f Justice policies on enforcement of the Act, it resisted most proposals to write those policies into the statute itself. The sole statutory limitation placed on federal enforcement activities by the 1961 amendments was the requirement of formal Department of Justice approval for “prosecution” of a violation. There is no indication in the legislative history o f the 1961 amendments that Congress considered the potential applicability of this requirement to different phases of a prosecution. Nor is there any evidence that Congress intended to limit the 86 Department’s discretionary authority to approve removal to those cases in which a federal indictment would subsequently be sought. III. Judicial Precedents Relating to Federal Removal of a § 1073 Defendant in Aid of a State Prosecution Although several courts have referred in dictum to the government’s author­ ity to return a § 1073 defendant in aid of a state prosecution, only two cases have directly considered and ruled upon the availability of federal removal procedures for this purpose.15 In Wright v. Cartier, 10 F.R.D. 21 (D. Mass. 1950), an escapee from a Georgia prison was arrested in Massachusetts on a federal § 1073 warrant issued by the district court in Georgia. He was brought before a federal commissioner in Massachusetts, his identity was determined and probable cause found, and he was “ordered returned to the State of Georgia.” 10 F.R.D. at 22. The defendant filed a writ of habeas corpus, charging that § 1073 was unconstitutional, “not because of its express provi­ sions or purpose, but because of its mode of operation with regard to him.” Id. Specifically, he charged that: the federal authorities never prosecute under the federal statute, but simply turn over the fugitive to the state authorities for prosecution under the state statute with the violation of which he is charged. Petitioner contends that for members of the Negro race this results in a deprivation of the opportunity at an extradi­ tion hearing to allege that the fugitive will not be given a fair trial in the state seeking extradition and to petition exercise of executive clemency in the state of refuge to prevent his return for trial. Id. at 22-23. The court refused to rule on the statute’s constitutionality in the context of a habeas proceeding, however, stating that “if this petitioner makes demand upon the United States Court in Georgia for his prosecution so that he may there test the constitutionality of the Fugitive Felon Act, the Court will be open to him.” Id. at 23. In United States v. Love , 425 F. Supp. 1248 (S.D.N.Y. 1977), a fugitive from a North Carolina murder charge, arrested in New York on a federal § 1073 warrant, attempted to avoid being turned over to New York authorities by invoking removal procedures himself under Rule 40. The federal magistrate 15 See U nited States v. Thurman, 687 F.2d at 13 (one o f “the prim ary purposes of the venue section of § 1073 is to return the felon to the state where the original flight occurred in order to assist state officials in com batting organized crim e there”); U nited States v. McCarthy, 249 F. Supp. 199, 203 (E.D .N.Y . 1966) (“the 1961 am endm ent did not dim inish the pow er o f the federal governm ent to return the fugitive felon for state prosecution”); Hemans v. U nited States, 163 F.2d at 240 ( “if Congress regarded it as a duty to aid the states in bringing back to their local jurisdictions fugitives from justice, o r essential w itnesses, that pow er exists” ); U nited States v. Miller, 17 F. Supp. at 67 (“The right o f extradition guaranteed to the states by the federal governm ent becom es too slow as a vehicle for swift punishm ent o f crim inals, and oftentim es any punishm ent at all.”) 87 refused to issue the warrant, and directed the federal authorities to release the fugitive to New York authorities for extradition. On review of the magistrate’s order, Judge M acMahon held that removal under Rule 40 is inappropriate in this case, for it would result in the circumvention of valid state extradition laws as well as unnecessary and extraordinary expense to the government in the transportation of prisoners throughout the country. 425 F. Supp. at 1250. Judge M acM ahon’s holding appears to be based on his reading o f the 1961 amendments to § 1073, which added to the statute the requirem ent of written Department of Justice approval for any § 1073 prosecu­ tion. He noted that Congress had been “aware” of existing departmental en­ forcement practices when it amended § 1073 in 1961, and had “reinforced” them by writing into the statute itself the requirement of written approval. 425 F. Supp. at 1249. Notwithstanding some dicta that suggest a somewhat broader holding,16 the Love opinion holds no more than that it would be “inappropriate” for a court to order removal in a § 1073 case except in accordance with established Depart­ ment o f Justice policies.17 Because in Love the federal defendant himself had sought to invoke Rule 40, apparently without the support of any federal official, the removal order would not be issued.18 No court has directly ruled upon whether the requirement o f formal written approval added to § 1073 in 1961 extends to removal as well as to subsequent stages in a federal prosecu­ 16 Judge M acM ahon’s reference to a d efen d an t’s “right to form al extradition proceedings,” 425 F. Supp. at 1250, is discussed in Part IV below. 17 Judge M acM ahon did not invoke the p rin cip le that a court may in its discretion refuse to order removal under R ule 40 w henever “ special facts w e re disclosed that seemed to m ake questionable the propriety of rem o v al.” U nited States v. Johnson, 63 F. Supp. at 616. See supra note 6. However, his use o f the term “inappropriate” suggests that he regarded h is refusal to o rd er removal as an exercise o f discretion rather than required by law. 18 This reading o f the Love opinion is co n sisten t w ith Judge M acM ahon’s citation o f Wright v. C artier and M oore ’s F ed era l P ractice. 425 F. Supp. a t 1249. At the cited page in M oore *s, the W right case is relied upon as authority fo r the follow ing proposition: If the fugitive is w illing to waive a rem oval hearing, o r the governm ent has sufficient evidence a v ailab le to prove probable cause, th e fugitive may presum ably be returned to the dem anding state by w ay o f rem oval under Rule 4 0 , rather than by w ay o f extradition. 8B M o o r e ’s F ederal P r a c tic e ^ 40.04 at 4 0 - 2 3 (1980). In one recent case, a defendant convicted under § 1073 sought u n successfully to invoke the Love c a s e in support o f his argum ent that his rem oval under Rule 40 had violated h is co nstitutional right to formal ex trad itio n under state law. U nited States v. M cC ord, 695 F.2d 823, 826 (5th C ir. 1983). H e urged an interpretation o f § 1073, and o f Judge M acM ahon’s holding in Love, which w ould p reclude Rule 4 0 rem oval in any § 1073 case, because the “underlying offense” is a state not a federal offense. The court o f appeals rejected this in terpretation o f § 1073, pointing out that the “underlying offense” is a federal one, and that R ule 40 removal is accordingly “ the appropriate procedure” for returning a federal § 1073 d efen d an t to the jurisdiction from w hich he fled. The court o f appeals contrasted M cC ord’s case, in w hich “th e Federal G overnm ent sought a n d intended to prosecute the defendant for violation o f § 1073,” with the situation in L o ve, in w hich the governm ent did not seek removal but “ merely sought to aid the state in obtaining custody o f one o f its prisoners.” The court in M cC ord did not have before it, and accordingly did not address, the issue w h eth er Rule 40 rem o v al may be available at the request o f the Federal G overnment, w here th e federal § 1073 charges are not to be pursued upon the defendant’s return to the State from which he fled. tion. It has, however, been interpreted by at least two courts not to extend to the issuance of a federal § 1073 complaint or warrant o f arrest. See United States v. Diaz, 351 F. Supp. 1050 (D. Conn. 1972); United States v. M cCarthy, 249 F. Supp. 199 (E.D.N.Y. 1966). Although neither case required the court to rule on the applicability of the requirement to federal removal, both courts remarked on that issue in dictum. In D iaz , Judge Newman rejected a construction of the statutory term “prosecution” which would have extended the requirement of written approval to “every step of the criminal process including the issuance of an arrest warrant.” 351 F. Supp. at 1051. He suggested, however, that the requirement of written approval might extend beyond formal indictment to “the preliminary step of a removal proceeding.” Id. at 1052. In M cCarthy, Judge Mishler took a different view of the 1961 amendment: It is clear that the amendment was intended to aid local law enforcement agencies apprehend fugitive felons through federal agencies [sic] and return them to the State jurisdiction for pros­ ecution there. Implicit in the language of the report is the inten­ tion that federal prosecution for the offense was of secondary consideration. The choice of federal prosecution was therefore withdrawn from the United States District Attorney and lodged with the Attorney General. The 1961 amendment d id not dim in­ ish the p o w er o f the fed era l government to return the fugitive felon fo r state prosecution. 249 F. Supp. at 203 (emphasis added). In summary, while judicial precedent confirms our conclusion that the availability of removal in § 1073 cases does not depend as a matter of law upon whether a federal indictment will subsequently be sought, it is less clear whether a court will require formal written Justice Department approval before issuing a removal order. IV. The Extradition Clause of the Constitution Having concluded that federal removal in aid of a state prosecution is authorized by the Fugitive Felon Act, we turn to the Criminal Division’s concern that such removal might be inconsistent with some federal constitu­ tional or statutory right of a fugitive to extradition under state law. We also discuss what federal constitutional or statutory rights, if any, the States them­ selves may have in connection with federal removal of a § 1073 defendant. A. Rights o f a § 1073 Defendant With R egard to Extradition The Supreme Court has consistently interpreted the Extradition Clause of the United States Constitution, U.S. Const, art. IV, § 2, cl. 2, to confer no rights on individuals. Its sole purpose is to benefit the States. See, e.g., M ichigan v. 89 Doran, 439 U.S. 282, 287 (1978); Biddinger v. Commissioner o f Police o f New York, 245 U.S. 128 (1917).19 And, the procedural safeguards provided to individuals in state extradition statutes have been held by the Supreme Court to be inapplicable to persons charged with a federal crime who are otherwise properly subject to removal under Rule 40. See United States ex rel. Kassin v. M ulligan, 295 U.S. 396 (1935); United States ex rel. Hughes v. Gault, 271 U.S. 142 (1926); U nited States v. Guy, 456 F.2d 1157 (8th Cir. 1972). Federal removal under Rule 40 or its statutory predecessors has been held proper in several § 1073 cases, in the face of a defendant’s claim that he was constitutionally entitled to be processed under state extradition laws. See, e.g., U nited States v. McCord, 695 F.2d at 826 (Rule 40 removal appropriate because “underlying offense” a federal one); Lupino v. United States, 185 F. Supp. at 368 (“Congress, not the states, has established the punishable offense, and it is, therefore, federal, not state, arresting and removal process which is relevant.”); U nited States v. Miller, 17 F. Supp. at 68 (federal removal of a § 1073 defendant does not “interfere[] with the right of extradition of a crimi­ nal from a state to which he has fled to one where the crime was committed.”). There is dictum in the court’s opinion in United States v. Love, 425 F. Supp. at 1250, which suggests that a federal § 1073 defendant, returned to the custody of state authorities under federal process, may have some “right to formal extradition,” deprivation of which could be raised by him in the context of his state prosecution. The court did not, however, indicate what the source of that right might be. It is possible that under the laws of some States, a defendant could claim an entitlement to be brought within the jurisdiction of its courts in a particular manner. Cf. Ker v. Illinois, 119 U.S. 436,444 (1886). We have not examined that issue, and express no opinion on it.20 However, an individual has no “right to formal extradition” under the federal Constitution or under any federal statute o f which we are aware.21 B. Rights and Obligations o f the States in Connection with Extradition Although a § 1073 defendant can claim no entitlement to be extradited deriving from the Extradition Clause of the Constitution, the rights and obliga­ tions o f the States themselves under that provision must be recognized when­ 19 T he E xtradition C lause provides: A Person charged in any State w ith Treason, Felony, o r other Crim e, who shall flee from Justice, and be found in an o th er State, sh all on Demand o f the executive A uthority o f the State from w hich he fled, be delivered up, to b e removed to the State having Jurisdiction o f the Crime. 20 Perhaps the dem anding State’s requirem ents in this regard w ould therefore be a valid consideration for the D epartm ent in determ ining whether to give approval under § 1073 for removal in any particular case. 21 T he U niform C rim inal Extradition A ct has been adopted by a majority o f the States, but has no independent force as federal law. Where applicable, its due process protections can be enforced by suits under the Fourteenth A m endm ent. See C uyler v. Adams, 449 U.S. 433 (1981). By their terms, however, the protections in the U niform Criminal Extradition Act apply only to a person arrested on a w arrant signed by the G overnor o f the asylum State. See §§ 7, 10. 90 ever federal removal is proposed in any § 1073 case. It is all the more important to do so whenever federal removal is intended simply to facilitate a state prosecution. The Extradition Clause imposes upon the executive authority of each State an obligation, on the demand of another State, to “deliver up” a fugitive from that other State’s justice. See supra note 19. The right given a State to demand is an “absolute” one, and implies a “correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled.” Kentucky v. Dennison , 65 U.S. (24 How.) 66, 103 (1861). “The duty of the Governor of the State where the fugitive was found is, in such cases, merely ministerial, without the right to exercise either executive or judicial discretion.” Id. at 104. However, the Clause and its federal implementing statute, 18 U.S.C. §3182, have been characterized as merely “declaratory of a moral duty,” because neither pro­ vides “any means to compel the execution o f this duty.” Id. at 107. See also Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 370 (1872). Accordingly, the federal courts have no power to compel authorities in one State to surrender a fugitive to those of another. See also South Dakota v. Brown, 20 Cal. 3d. 765, 772, 576 P.2d 473 (1978) (state courts have no power under state extradition laws to “control executive discretion in extradition matters.”).22 Even if, under existing law, a State’s duty under the Extradition Clause cannot be enforced directly by a federal court, it does not follow that the Extradition Clause gives States an affirmative right to refuse or delay extradi­ tion. Indeed, the history of the Extradition Clause itself suggests that any such claimed right would be inconsistent with the Framers’ intention “to preserve harmony between States, and order and law within their respective borders.” See Kentucky v. Dennison, 65 U.S. at 101-03. Accordingly, the Extradition Clause gives a State no basis for resisting otherwise constitutional federal efforts to assist another in obtaining custody of a fugitive who has sought refuge within its borders. Cf. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842). The Fugitive Felon Act, with its provisions for apprehending and returning fugitives who have fled from one State to another, cannot therefore be challenged as an unconstitutional intrusion on some hypothetical “right” of one State to give asylum to another’s fugitives, or otherwise control the process of extradition.23 In fact, far from an intrusion, this statute provides, in effect, a federal means of enforcing the mandatory duty imposed upon States by the 22 In K entucky v. Dennison, the Supreme C ourt held that a federal court could not issue a w rit o f m andam us to com pel the G overnor o f O hio to surrender a fugitive indicted in K entucky for assisting a slave to escape: “the Federal G overnm ent, under the C onstitution, has no pow er to im pose on a State officer, as such, any duty w hatever, and com pel him to perform it.” 65 U.S. at 107. D issenting in South Dakota v. Brown, Justice M osk observed that “ [t]here is serious question w hether the rigid federalism o f Dennison w ould be followed today when a constitutional issue is involved.” 20 C al. 3d at 781 n. 1 (citing Brown v. Board o f Education, 349 U.S. 294 (1955) and Green v. County School Bd., 391 U.S. 430 (1968)). 23 In any event, we think it unlikely (hat a court would perm it a defendant to rely upon any right belonging to the asylum State as a defense to prosecution in the dem anding State. See United States v M iller, 17 F. Supp. a t 68. 91 Extradition Clause.24 This is not to say that the Fugitive Felon Act was intended to provide a routine substitute for state extradition procedures. The legislative history of the 1934 Act and its 1961 amendments makes clear that Congress did not intend the Act to supplant state extradition procedures. Congress was concerned not only with the possible federal intrusion in an area historically left to the States, but also with the financial burden which frequent use o f federal removal procedures would place on the Federal Government. Thus, Congress appears to have contemplated that federal removal procedures would be used only in those rare situations where interstate rendition proce­ dures would not be effective in bringing the fugitive to justice. The statute’s intended deference to state extradition procedures requires that federal removal be used very sparingly in § 1073 cases. Accordingly, federal removal o f a § 1073 defendant should not be sought routinely, or when state extradition procedures are determined to be adequate to accomplish the defendant’s return for prosecution or other appropriate disposition by the demanding State. The important policy considerations involved in making such a determination simply underscore the wisdom of requiring formal departmen­ tal approval o f any request for removal in a § 1073 case. Factors to be consid­ ered in making this determination could include whether the extradition pro­ cess will be likely to deliver the defendant to the demanding State in a timely fashion; whether the interest o f the demanding State in obtaining return of the fugitive is sufficiently strong to warrant using federal resources for this pur­ pose; and whether the federal interest in the particular case is sufficiently strong to overcome whatever interest the asylum State may have in implement­ ing its own extradition procedures. In a case in which extradition has been refused, the Department should consider whatever findings the asylum State’s Governor has made which caused him to make such a refusal. V. Payment off Expenses off Traumsportiinig Deffemdainits Umdler § 1®73 The United States Marshal has the authority and responsibility to execute a federal court order directing that a prisoner in federal custody be transported to another district. 28 U.S.C. § 567; 28 C.F.R. § 0.1 l l j. Appropriated funds are available for this purpose. See Pub. L. No. 96-68, Title II, 93 Stat. 416, 420 (1979). These funds are available for the court ordered transportation of § 1073 24 If the integrity o f an asylum State’s extradition procedures w ere guaranteed by the Extradition C lause, we doubt th at the venue provisions o f § 1073 co u ld have w ithstood constitutional challenge. Those provisions in effect require circum vention o f state extradition procedures insofar as they lead, sooner or later, to the fu gitiv e’s retu rn by federal process to the custody o f authorities in the State from which he fled. W hether the g ov ern m en t w ins o r loses its § 1073 prosecution, the defendant is subsequently made to answ er in state court fo r the state crim e. S ee U nited States v. M iller, 17 F. Supp. at 68. We see no reason why this constitutional issue w o u ld d epend upon w hether a federal prosecution preceded the fugitive’s being turned over to state auth o rities. The federal interest would ap p ear to be as great, and that interest would appear to be equally served, an d perhaps in a fairer w ay to defendants, w hen the federal governm ent chooses to decline prosecu­ tion for w hat is essentially a derivative crim e, in deference to the dem anding State’s disposition of the fugitiv e u n d e r state law. 92 prisoners to the same extent that they are available for the transportation of other federal prisoners. The State seeking the return of the § 1073 defendant could voluntarily reimburse the United States for expenses incurred by the U.S. Marshal in connection with transportation in this situation. See United States v. Bumison, 339 U.S. 87, 90 (1950).25 However, the Marshal could not recoup his own expense from any such reimbursement, because an agency may not augment its appropriations without specific statutory authority. See 49 Comp. Gen. 572 (1970); 5 Comp. Gen. 289 (1925). See generally General Accounting Office, Principles o f Federal Appropriations Law, ch. 5, subpart C (1982). With a few exceptions apparently not applicable here, any money an agency receives for the use of the United States from a source outside the agency must be deposited in full into the general fund of the Treasury. See 31 U.S.C. § 3302b (formerly 31 U.S.C. § 484). See also 46 Comp. Gen. 31 (1966). Once money has been deposited into the general fund, there must be an appropriation to permit its expenditure. See 3 Comp. Gen. 599,600 (1923). The Marshal is not authorized to accept gifts of money for his own use, nor is he otherwise authorized to accept reimbursement for expenses incurred in carrying out his authorized functions. Thus, any funds received from a State for the interdistrict transporta­ tion of prisoners would therefore have to be deposited in the general fund o f the Treasury.26 Conclusion A federal § 1073 defendant may in appropriate circumstances be removed by federal process to the jurisdiction from which he fled in aid of a state prosecu­ tion. Accordingly, a prosecutor may seek removal, and a court may order it, even if the government does not intend to pursue the federal charges against the defendant once he has been returned. On the other hand, because § 1073 is not intended to supplant state law procedures for interstate rendition, removal 25 W e have not studied w hether the State could be required to reim burse the United States for expenses incurred by the Marsha) in this situation, as a condition o f the D epartm ent’s willingness to request rem oval, and express no view s on that issue. We note, how ever, that the authority to charge a fee for services contained in 31 U.S.C. § 9701 (form erly 31 U.S.C. § 483a), the so-called “user fee statute," has been held inapplicable to state and local governm ents and agencies thereof. See Beaver, Bountiful, Enterprise v. Andrus, 637 F.2d 749 (10th Cir. 1980). The Intergovernm ental C ooperation Act o f 1968 provided a m echanism whereby governm ental agencies can recover the cost o f certain “specialized or technical services'* provided to State and local entities. See 42 U .S.C. §§ 4222, 4223 (1976). These provisions w ere am ended and reenacted in 1982 as part o f T itle 31. See 31 U.S.C. § 6505. Services may be provided, how ever, only if “prescribed by the President.” Id. § 6505(b). 26 Although the M arshal may not accept cash reim bursem ent without im plicating the rule against augm en­ tation o f appropriations, it is possible that all o r part o f the personnel costs o f transporting federal § 1073 prisoners could be defrayed by deputizing state Ipw enforcem ent officers to assist the M arshal in carrying out this function. Under 28 C.F.R . § 0.112, the D irector o f the U.S. M arshals Service is authorized to m ake such deputations “w henever the needs o f the U.S. M arshals Service so require.” See also 28 U.S.C. § 569(b) (conferring authority on U.S. M arshals to “com m and all necessary assistance to execute their duties” ). A lthough 31 U.S.C. § 665(b) prohibits the acceptance o f voluntary services for the U nited States, this provision has been construed not to prohibit the acceptance o f services that are truly “gratuitous,” i.e., for w hich no federal com pensation is expected. See 54 Comp. Gen. 560 (1975). 93 should not be sought in such circumstances unless it is clear that state proce­ dures are inadequate to the task of returning the fugitive. Although it is unclear whether § 1073’s requirement of formal written Department o f Justice approval applies in connection with such removal, it is possible that a court would not be willing to issue a Rule 40 order unless such approval had been given. Accordingly, we believe the Criminal Division’s policy of requiring departmental approval o f all requests to remove represents the safer course. Finally, funds appropriated for the authorized activities of the U.S. Marshal may be used to pay the cost o f transporting a § 1073 defendant pursuant to a federal court order under Rule 40. All or part of the cost of transportation may voluntarily be borne by the State seeking the fugitive’s return, although any monies received from a State must be deposited into the general fund of the Treasury. Ra lph W . T a rr Deputy A ssistant Attorney G eneral Office o f Legal Counsel 94

Write a legal research memo on the following topic.

(Slip Opinion) Congressional Oversight of the White House Congressional oversight of the White House is subject to greater constitutional limitations than oversight of the departments and agencies of the Executive Branch, in light of the White House staff’s important role in advising and assisting the President in the discharge of his constitutional responsibilities, the need to ensure the independence of the Presidency, and the heightened confidentiality interests in White House communications. January 8, 2021 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT This memorandum opinion summarizes the principles and practices governing congressional oversight of the White House. The White House, as we use the term here, refers to those components within the Executive Office of the President (“EOP”), such as the White House Office and the National Security Council, whose principal function is to advise and assist the President in the discharge of the duties of his office. All three branches of government have recognized that the White House has a role and status distinct from the executive branch departments and agencies, and this Office has long recognized those distinctions to be critical to the development of principles and practices for congressional oversight addressed to the White House. The Constitution vests all of “[t]he executive Power” in the President and charges him alone with the responsibility to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. In carrying out that charge, the President necessarily depends on “the assistance of subordinates,” Myers v. United States, 272 U.S. 52, 117 (1926), most of whom are his appointed officials in the executive departments and agencies. Yet the size and complexity of modern federal administration have required the establishment of the White House as an organizational apparatus to directly support the President in the discharge of his responsibilities. White House personnel work in close proximity to the President and advise and assist him in the development of presidential policy, in supervising and guiding the affairs of the executive branch departments and agencies, and in communicating with Congress, the American public, and foreign governments. 1 45 Op. O.L.C. __ (Jan. 8, 2021) The White House’s important role in advising and assisting the President has special significance for congressional oversight. Each House of Congress has, as an adjunct to its legislative power, the constitutional authority to obtain information, a power typically carried out through its committees. But this investigative authority, often referred to as “oversight” authority, is subject to limitations. A congressional information request “is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress.’” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (quoting Watkins v. United States, 354 U.S. 178, 187 (1957)). Consequently, the Executive Branch must scrutinize the asserted legislative purpose underlying a congressional request by examining the objective fit between that purpose and the information sought. Because Congress may conduct oversight investigations only with respect to “‘subject[s] on which legislation could be had,’” id. (quoting Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 506 (1975)), Congress may not conduct such investigations for the purpose of reviewing the discharge of functions exclusively entrusted to the President by the Constitution. See, e.g., Assertion of Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. 1, 2 (1999) (Reno, Att’y Gen.) (“Clemency Decision”). 1 It follows that the activities of White House advisers are less likely than the activities of the departments’ and agencies’ staffs to involve matters within Congress’s oversight authority. Even when Congress operates within the appropriate scope of its oversight authority, the Constitution places additional separation of powers constraints on inquiries directed at the White House. The Supreme Court This memorandum addresses Congress’s authority to investigate in furtherance of its power to legislate. See McGrain v. Daugherty, 273 U.S. 135, 175 (1927). We do not consider Congress’s parallel authority to obtain the information necessary to the discharge of its other powers, such as the House’s power to impeach, although we have recognized that similar principles apply in those areas. See, e.g., Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *3 (Nov. 1, 2019) (recognizing “that a congressional committee must likewise make a showing of need that is sufficient to overcome [executive] privilege in connection with an impeachment inquiry”); Letter for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3, 2019) (recognizing that the immunity of certain presidential advisers from compelled congressional testimony “applies in an impeachment inquiry just as it applies in a legislative oversight inquiry”). 1 2 Congressional Oversight of the White House has recognized the importance of “the Executive Branch’s interests in maintaining the autonomy of [the Presidency] and safeguarding the confidentiality of its communications.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 385 (2004). These concerns are particularly acute with respect to White House advisers. Congressional oversight directed at the White House must be conducted in a way that protects the ability of the White House to function effectively in advising and assisting the President as he carries out his responsibilities under the Constitution. Congressional inquiries are also constrained by the heightened confidentiality interests in White House communications. See id. At the core of those interests is the presidential communications component of executive privilege, which covers many White House communications involving presidential decision-making. Congressional inquiries directed to the White House must take account of the presumptive application of executive privilege to White House communications, as well as the President’s interests in autonomy and independence. Even when the White House may have relevant information, these separation of powers and privilege concerns weigh in favor of Congress seeking available information first from the departments and agencies before proceeding with White House requests. 2 This memorandum proceeds in four Parts. Part I describes the development of the White House as an organization and its central role in advising and assisting the President. Part II discusses the scope of congressional oversight authority and the limits on that authority as it applies to matters related to the discharge of the President’s constitutional functions. Part III explains that when Congress directs its oversight requests to the White House, the constitutionally mandated “accommodation process” should take into account the limitations imposed on those requests by separation of powers principles and the heightened executive privilege interests attending the communications of the White House. 2 Although this memorandum addresses the EOP components whose principal function is to advise and assist the President, many of the principles discussed here would apply as well to so-called “dual hat” presidential advisers in other components who “exercise substantial independent authority or perform other functions in addition to advising the President.” In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). To the extent that Congress directs oversight efforts at activities implicating the advising “hat” of those officials, many of the same principles governing oversight would apply. 3 45 Op. O.L.C. __ (Jan. 8, 2021) Finally, Part IV assesses the mechanisms for enforcing congressional subpoenas and discusses legal issues commonly raised by congressional subpoenas directed to White House staff. Historically, Congress has had no shortage of ways to use its powers to press executive branch officials to negotiate and to comply with appropriate informational demands. Although congressional committees have recently sued to enforce several subpoenas against executive officials, those lawsuits lack a foundation in our Nation’s history and fall outside the constitutional and statutory jurisdiction of the federal courts. Congress and the Executive Branch have traditionally worked out their disputes through negotiation and compromise, and the Department of Justice believes that those time-tested methods are the appropriate means for resolving disputes over congressional information requests, no matter whether directed at the White House or the departments and agencies within the Executive Branch. I. Historical Background Article II of the Constitution establishes a unitary Executive Branch headed by the President, and it assigns to him an array of important functions, including responsibility for the Nation’s foreign relations, military affairs, and law enforcement. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (“The entire ‘executive Power’ belongs to the President alone.”); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 550–51 (1977) (Rehnquist, J., dissenting) (“[T]he President is made the sole repository of the executive powers of the United States, and the powers entrusted to him as well as the duties imposed upon him are awesome indeed.”). It is no surprise that, in a “world of extraordinary administrative complexity and near-incalculable presidential responsibilities,” Presidents have consistently and increasingly turned to the “assistance of close aides” in the White House to carry out their duties. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2273 (2001). The White House’s modern organizational form traces to the EOP’s creation in 1939 as “an institutional response to needs felt by every occupant of the Oval Office . . . . [T]hese were, and remain, needs for advice and assistance.” Harold C. Relyea, The Executive Office Concept, in The Executive Office of the President: A Historical, Biographical, and Bibliographical Guide 4 (Harold C. Relyea ed., 1997). As one leading scholar 4 Congressional Oversight of the White House put it a decade after its establishment, “[t]he creation of the Executive Office of the President was a milestone in the history of the Presidency.” George A. Graham, The Presidency and the Executive Office of the President, 12 J. Pol. 599, 603 (1950); see also Wayne Coy, Federal Executive Reorganization Re-examined: Basic Problems, 40 Am. Pol. Sci. Rev. 1124, 1131–32 (1946) (“[T]he largest step toward enabling the President to ‘take care’ of the effective operation of the administrative system occurred in 1939, with the establishment of the Executive Office of the President.”). Long before the EOP’s establishment, Presidents received confidential advice and assistance from individuals other than department and agency heads. President Jackson sought help from a group of informal advisers known as the “Kitchen Cabinet,” which “performed most of the functions of a modern staff, serving his personal and political needs.” Richard B. Latner, The Kitchen Cabinet and Andrew Jackson’s Advisory System, 65 J. Am. Hist. 367, 379 (1978). Historians have characterized this group of informal advisers “as an early prototype of the President’s White House staff, a group of personal aides providing the President with a variety of services.” Id. at 378; see also id. (noting that Jackson’s informal advisers shared his “perspective in overseeing the general direction of his administration, instead of the more limited perspective of department heads”). The tradition of Jackson-style kitchen cabinets continued for nearly a century: “John Tyler had his ‘Virginia Schoolmasters’; Grover Cleveland maintained a ‘Fishing Cabinet’; Teddy Roosevelt sported the ‘Tennis Cabinet’; Warren Harding encouraged a ‘Poker Cabinet’; [and] Herbert Hoover instituted a ‘Medicine Ball Cabinet.’” Relyea, The Executive Office Concept at 43. During the 1920s, Congress considered several proposals to more formally establish the “administrative machinery” needed “to enable the President to discharge his managerial duties.” Edward H. Hobbs, An Historical Review of Plans for Presidential Staffing, 21 L. & Contemp. Probs. 663, 670 (1956). Although these initial proposals were not adopted, the advent of the New Deal spurred lasting action. As the administrative state dramatically expanded, President Franklin D. Roosevelt realized that he needed more staff to enable him to carry out his mounting responsibilities. In early 1936, he established a three-member committee charged with “investigat[ing] and report[ing]” upon “the organization for the perfor5 45 Op. O.L.C. __ (Jan. 8, 2021) mance of the duties imposed upon the President in exercising the executive power vested in him by the Constitution of the United States.” President’s Committee on Administrative Management, Administrative Management in the Government of the United States 2 (1937) (“Brownlow Report”). The President’s Committee on Administrative Management, more commonly known as the Brownlow Committee after its chair, “surveyed the landscape immediately after the spate of New Deal reforms, [and] found a President who although ‘now ha[ving] popular responsibility’ for the ‘direction and control of all departments and agencies of the Executive Branch . . . [was] not equipped with adequate legal authority or administrative machinery to enable him to exercise it.’” Kagan, Presidential Administration, 114 Harv. L. Rev. at 2275. The Brownlow Committee “drafted a blueprint for an administrative staff agency, which [it] labeled the Executive Office.” Hobbs, Plans for Presidential Staffing, 21 L. & Contemp. Probs. at 674. The Committee’s final report recommended that Congress “[e]xpand the White House staff so that the President may have a sufficient group of able assistants in his own office to keep him in closer and easier touch with the widespread affairs of administration and to make a speedier clearance of the knowledge needed for executive decision.” Brownlow Report at 46. Stressing the urgent need for reform, the Committee included in its report a warning: “The President needs help. His immediate staff assistance is entirely inadequate.” Id. at 5. 3 President Roosevelt strongly endorsed the Committee’s recommendations. He stated that “[t]he plain fact is that the present organization and equipment of the Executive Branch of the Government defeat the Constitutional intent that there be a single responsible Chief Executive to coordinate and manage the departments and activities in accordance with the laws enacted by the Congress.” A Recommendation for Legislation to Reorganize the Executive Branch of the Government (Jan. 12, 1937), 5 Pub. Papers of Pres. Franklin D. Roosevelt 668, 670 (1938). Louis Brownlow later recounted that the EOP’s mission as contemplated by his Committee was to ensure that the President could “control the policies of his departments, while leaving to the head of each department the decisions which are peculiar to its activity and the work incidental thereto.” Louis Brownlow, The Executive Office of the President: A General View, 1 Pub. Admin. Rev. 101, 104 (1941). 3 6 Congressional Oversight of the White House Congress authorized President Roosevelt to establish the EOP under the Reorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561; soon thereafter, he issued Reorganization Plan No. 1, which became effective in July 1939, 4 Fed. Reg. 2727, 53 Stat. 1423. President Roosevelt implemented the reorganization plan by executive order, organizing the EOP into five divisions, each charged with a distinct mission. Notably, the White House Office would “serve the President in an intimate capacity in the performance of the many detailed activities incident to his immediate office.” Exec. Order No. 8248, 4 Fed. Reg. 3864, 3864 (Sept. 8, 1939). The Order provided that presidential assistants would hold “no authority over anyone in any department or agency” and should “[i]n no event . . . be interposed between the President and the head of any department or agency.” Id. EOP officials soon came to take a leading role in developing and coordinating policy recommendations for the President. Within its first decade, the EOP expanded to include entities specifically created for those purposes. The Council of Economic Advisers, for example, was established in the EOP in 1946 to “analyze and interpret economic developments” and “formulate and recommend national economic policy to promote full employment, production, and purchasing power under free competitive enterprise.” Employment Act of 1946, Pub. L. No. 79-304, § 4(a), 60 Stat. 23, 24. A year later, the National Security Council was created to “advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.” National Security Act of 1947, Pub. L. No. 80-253, § 101(a), 61 Stat. 495, 496. 4 By the end of the Truman Administration, the EOP had grown to eleven principal units. Harold C. Relyea, Cong. Research Serv., 98-606 GOV, The Executive Office of the President: An Historical Overview 9 (updated Nov. 26, 2008). As the White House developed as an organization, all three branches of government recognized that it should be viewed differently from the departments and agencies of the Executive Branch. With respect to congressional oversight specifically, in the 1970s Assistant Attorneys General 4 The National Security Council formally became an EOP component upon the adoption of Reorganization Plan No. 4 of 1949, 63 Stat. 1067. 7 45 Op. O.L.C. __ (Jan. 8, 2021) William Rehnquist and Antonin Scalia, among others, recognized that the President’s immediate White House advisers must be treated differently from officials of the departments and agencies when Congress seeks their testimony. See Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff ” (Feb. 5, 1971); Letter for Phillip E. Areeda, Counsel to the President, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept. 25, 1974); see also infra Part IV.B. Congress and the federal courts similarly recognized the need to treat the President’s inner circle of advisers differently under other federal laws. “Article II not only gives the President the ability to consult with his advisers confidentially, but also, as a corollary, it gives him the flexibility to organize his advisers and seek advice from them as he wishes.” Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C. Cir. 1993). Thus, although the Freedom of Information Act (“FOIA”) by its terms applies to the EOP, 5 U.S.C. § 552(f )(1), the Supreme Court held that Congress did not include “‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.’” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Rep. 93-1380, at 15 (1974) (Conf. Rep.)). Federal courts have accordingly limited FOIA to exclude various EOP components, making this determination by considering “how close operationally the [component] is to the President, what the nature of its delegation from the President is, and whether it has a self-contained structure.” Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993); see also, e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013) (holding that Secret Service logs of visitors to such advise-andassist EOP offices are not “agency records” for purposes of FOIA). Congress similarly recognized that the President should have plenary discretion when it comes to hiring, paying, and organizing certain White House staff. In 1978, Congress authorized the President “to appoint and fix the pay of employees in the White House Office without regard to any other provision of law.” Pub. L. No. 95-570, 92 Stat. 2445, 2445 (codified at 3 U.S.C. § 105(a)). As this Office later observed, that statute “reflect[s] Congress’s judgment that the President should have complete discretion 8 Congressional Oversight of the White House in hiring staff with whom he interacts on a continuing basis.” Applicability of the Presidential Records Act to the White House Usher’s Office, 31 Op. O.L.C. 194, 197 (2007). As in the FOIA context, Congress thus viewed the advise-and-assist components of the White House as not only different from the departments and agencies, but also different from the other components of the EOP. See Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 223 (D.C. Cir. 2009). Congress has continued to recognize that distinction up to the present day. See, e.g., Presidential and Federal Records Act Amendments of 2014, Pub. L. No. 113-187, § 2(e), 128 Stat. 2003, 2006–07 (codified at 44 U.S.C. § 2209) (prohibiting “the immediate staff of the President” and any “unit or individual of the Executive Office of the President whose function is to advise and assist the President” from sending presidential records using nonofficial electronic message accounts). The White House continues to play a unique role in the Executive Branch, providing the President with close and confidential advice and assistance on a daily basis. The White House acts as the President’s primary information-gathering and policy-development arm, and serves as “something of a central nervous system of the executive branch. . . . [It] is a ‘force multiplier.’ Without it, the President would be greatly weakened in his struggle to instantiate his preferences within the executive branch.” Saikrishna B. Prakash, Fragmented Features of the Constitution’s Unitary Executive, 45 Willamette L. Rev. 701, 714, 716 (2009). This memorandum opinion’s remaining Parts explain how the White House’s special status affects congressional oversight. II. Scope of Congressional Oversight Authority Although “Congress has no enumerated constitutional power to conduct investigations or issue subpoenas,” each House has implied authority to secure the information “needed” to legislate. Mazars, 140 S. Ct. at 2031 (internal quotation marks omitted); McGrain v. Daugherty, 273 U.S. 135, 160–61 (1927). Each House may “make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively.” McGrain, 273 U.S. at 161; see also Scope of Congressional Oversight and Investigative Power with Respect to the Executive Branch, 9 Op. O.L.C. 60, 60 (1985) (“Scope of Congressional Oversight ”) (“It is 9 45 Op. O.L.C. __ (Jan. 8, 2021) beyond dispute that Congress may conduct investigations in order to obtain facts pertinent to possible legislation and in order to evaluate the effectiveness of current laws.”). The House and Senate typically exercise their investigative functions through delegations to committees, each of which has jurisdiction over identified legislative subjects and agencies. The investigative authority of each committee is bounded by its subject matter jurisdiction, as identified by the rules and resolutions of the relevant congressional chamber. Congress’s authority to investigate in furtherance of its power to legislate has come to be known as its “oversight” authority, but that shorthand term does not imply a general authority to review the actions of the Executive Branch. Congress may direct the departments and agencies through the enactment of appropriate legislation, but the Constitution does not otherwise confer on Congress or its committees an authority to “oversee” or direct the Executive Branch in the conduct of its assigned duties and responsibilities under Article II. Rather, because Congress enjoys an implied power of investigation that “is ‘justified solely as an adjunct to the legislative process,’ it is subject to several limitations.” Mazars, 140 S. Ct. at 2031 (quoting Watkins, 354 U.S. at 197). Two of these limitations have particular significance for congressional oversight of the White House. First, because a congressional oversight request “is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress,’” it “must serve a ‘valid legislative purpose.’” Id. (quoting Watkins, 354 U.S. at 187; Quinn v. United States, 349 U.S. 155, 161 (1955)). Second, and relatedly, the scope of oversight authority is limited to subjects “on which legislation could be had,” McGrain, 273 U.S. at 177, and therefore Congress “cannot inquire into matters which are within the exclusive province of one of the other branches of the Government,” Barenblatt v. United States, 360 U.S. 109, 112 (1959), including any function committed exclusively to the President by the Constitution. 5 5 Congressional oversight authority may encompass inquiries into the Executive Branch’s use of appropriated funds with respect to statutory programs as well as inquiries relevant to future appropriations. However, as Barenblatt makes clear, the fact that the President or the federal courts may rely upon appropriated funds to carry out their activities does not mean that everything they do falls within the scope of the oversight authority. Otherwise, no matter would fall within the “exclusive province of one of the other branches of the Government.” Barenblatt, 360 U.S. at 112. Rather, “[s]ince Congress may 10 Congressional Oversight of the White House A. Legitimate Legislative Purpose Congress may conduct investigations only for legitimate legislative purposes. This Office has long counseled that “a threshold inquiry that should be made [by the Executive] upon receipt of any congressional request for information is whether the request is supported by any legitimate legislative purpose.” Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 74 (1986) (“Independent Counsel Act Requests”). As Assistant Attorney General William Barr explained, the Executive Branch need only assess its “interest in keeping [requested] information confidential” after “it is established that Congress has a legitimate legislative purpose for its oversight inquiry” in the first place. Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154 (1989) (“Congressional Requests”); see also Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f ), 43 Op. O.L.C. __, at *21 (June 13, 2019) (“President’s Tax Returns”) (reiterating this position). Because Congress may obtain information only where it will advance a legitimate legislative purpose, the other branches of government must review congressional information requests to ensure that they are not motivated by an illegitimate purpose. As the Supreme Court recently explained in Trump v. Mazars: Congress has no “‘general’ power to inquire into private affairs and compel disclosures,” [McGrain, 273 U.S.] at 173–174, and “there is no congressional power to expose for the sake of exposure,” Watkins, 354 U.S. at 200. “Investigations conducted solely for the per- only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the [Executive’s] exclusive province[.]” Id. at 111–12 (emphasis added). Therefore, the limits placed on Congress when conducting oversight pursuant to its general legislative power also apply to oversight conducted pursuant to its appropriations authority. While Congress may, pursuant to its appropriations authority, review manpower statistics and other non-substantive data regarding the resources that Presidents historically invest in areas of exclusive executive authority, Congress lacks the authority to inquire into the Executive’s substantive decision-making in these areas. 11 45 Op. O.L.C. __ (Jan. 8, 2021) sonal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. at 187. 140 S. Ct. at 2032; see also Branzburg v. Hayes, 408 U.S. 665, 699 –700 (1972) (a legislative committee “abuse[s] its proper function” when it exposes for the sake of exposure). Without these limits, the Court cautioned, “Congress could ‘exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense[.]” Mazars, 140 S. Ct. at 2034 (quoting The Federalist No. 71, at 484 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)). 6 Although courts, in reviewing subpoenas directed at private parties, have traditionally deferred to Congress’s perceptions of its need for the information being sought, see, e.g., Barenblatt, 360 U.S. at 132, the Supreme Court in Mazars suggested that such a deferential approach does not extend to congressional subpoenas directed at the President’s personal information because of the separation of powers principles at stake in any such request, see 140 S. Ct. at 2031; see also id. at 2034–36. In such cases, a court must “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose”; “[t]he more detailed and substantial the evidence of Congress’s legislative purpose, the better.” Id. at 2036. Moreover, “unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation,” it will be “impossible to conclude that a subpoena is designed to advance a valid legislative purpose.” Id. (internal quotation marks omitted); see also Watkins, 354 U.S. at 201, 205–06 (reversing a contempt charge due to, among other things, a “vague” and “broad” committee charter that rendered it “impossible . . . to ascertain whether any legislative purpose justifie[d] the disclosures sought and, if so, the importance of that information to the Congress in furtherance of its legislative function”). 6 In the course of its oversight activities, Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Watkins, 354 U.S. at 200 n.33. It may not, however, conduct oversight solely for the purpose of making information public. The Supreme Court has made clear that Congress “may only investigate into those areas in which it may potentially legislate or appropriate,” Barenblatt, 360 U.S. at 111, and transmitting information “to inform the public . . . is not a part of the legislative function,” Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979). 12 Congressional Oversight of the White House The Supreme Court’s review in Mazars of a House committee’s pursuit of the President’s financial information was consistent with how the Executive Branch has reviewed similar requests from Congress directed at the Executive Branch. Although the Executive Branch should seek to accommodate legitimate requests for information concerning the departments and agencies, this Office has advised that such accommodation may not be required where congressional committees’ requests appear to fall outside their delegated legislative jurisdiction or lack a legitimate legislative purpose. For instance, shortly before the Mazars decision, we concluded, based on reasoning similar to Mazars, that a request from the House Ways and Means Committee to the Department of the Treasury for the President’s tax returns was not supported by a legitimate legislative purpose. President’s Tax Returns, 43 Op. O.L.C. __, at *3. Although the committee sought records similar to those at issue in Mazars, the Chairman proffered a different reason for the request, claiming that the committee sought to evaluate the Internal Revenue Service’s practice of auditing Presidents’ tax returns. Id. at *2, *26–27. We advised that executive branch officials were not obliged simply to accept the committee’s proffered legislative purpose at face value, but instead must “examine the objective fit between that purpose and the information sought, as well as any other evidence that may bear upon the Committee’s true objective.” Id. at *17; see also id. at *20 (noting the Executive Branch’s obligation to “confirm[] the legitimacy of an investigative request,” especially “when deferring to the request would effectively surrender the Executive’s obligations to a Member of Congress”). In that case, the Chairman and other House leaders had made numerous public statements suggesting that the request was aimed at publicly exposing the President’s tax returns, so “[n]o one could reasonably believe that the Committee [sought] six years of President Trump’s tax returns because of a newly discovered interest in legislating on the presidential-audit process.” Id. at *16–17. We also stressed that the institutional reasons that have sometimes led courts to defer to Congress’s stated legislative purpose in cases involving private parties do not apply to the Executive Branch, “which operates as a politically accountable check on the Legislative Branch.” Id. at *25. We concluded that the Chairman’s stated legislative purpose for his request for the President’s 13 45 Op. O.L.C. __ (Jan. 8, 2021) tax returns “blink[ed] reality” and was “pretextual,” id. at *16, and therefore was not legitimate. This Office similarly questioned the legislative purpose underlying three House committees’ joint request for documents related to American foreign and defense policy with respect to Ukraine. There, the three committees had announced an investigation into the impeachment of the President, even though the full House had not delegated any such investigative jurisdiction to any of them. House Committees’ Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *47–49 (Jan. 19, 2020) (“Authority to Investigate for Impeachment ”). In view of this basic legal defect in the requests, see id., the committees supplemented them by claiming that they fell within their “oversight and legislative jurisdiction.” Id. at *8, *47 (internal quotation marks omitted). We concluded that this attempt to justify the request did not establish a legitimate legislative purpose, even though some of the requested materials might well have fallen within the oversight jurisdiction of one or more of the committees. The committee chairs had “made clear” in their official correspondence “that the committees were interested in the requested materials to support an investigation into the potential impeachment of the President, not to uncover information necessary for potential legislation within their respective areas of legislative jurisdiction.” Id. at *48. We explained that “[t]he Executive Branch need not presume that [a legislative] purpose exists or accept a makeweight assertion of legislative jurisdiction.” Id. at *47 (internal quotation marks omitted). We thus found that the committee chairmen were “seeking to do precisely what they said— compel the production of information to further an impeachment inquiry.” Id. at *48. The inquiry therefore was made not to advance a legitimate legislative purpose, but instead to further an impeachment investigation that had not been authorized at the time the subpoenas were issued. Id. at *48–49. We also emphasized the importance of committee jurisdiction, noting that “[a] congressional committee’s ‘right to exact testimony and to call for the production of documents’ is limited by the ‘controlling charter’ the committee has received from the House.” Id. at *2 (quoting United States v. Rumely, 345 U.S. 41, 44 (1953)); see also id. at *18–19 (discussing the committee jurisdiction requirement in the oversight and impeachment contexts); Watkins, 354 U.S. at 206 (“Plainly [the House’s] committees 14 Congressional Oversight of the White House are restricted to the missions delegated to them . . . . No witness can be compelled to make disclosures on matters outside that area.”). We think that the separation of powers principles described in Mazars and our recent opinions guide the appropriate approach to congressional oversight requests directed at the White House, which inherently raise separation of powers concerns. “[I]n assessing whether a subpoena directed” at the White House “is related to, and in furtherance of, a legitimate task of Congress,” the White House “must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.” Mazars, 140 S. Ct. at 2035 (internal quotation marks omitted). Although Mazars addressed a subpoena that sought the President’s personal financial information, there is no reason to think that a lesser standard would apply to oversight requests directed at the White House and its staff—requests that bear even more closely upon interests of confidentiality and the autonomy of the Executive Branch. The Court made clear that “congressional subpoenas for the President’s information unavoidably pit the political branches against one another,” id. at 2034, and therefore, all such requests necessarily raise separation of powers concerns. See also id. at 2030 (describing certain congressional requests for official documents as seeking “the President’s information”). And the case for closely scrutinizing such requests is even stronger where it is not, as in Mazars, a court that is evaluating the request, but instead the Executive Branch during the constitutionally required accommodation process—one purpose of which is to provide a process for the Executive Branch to check an implied investigative power that otherwise has limited counterweights. See President’s Tax Returns, 43 Op. O.L.C. __, at *25– 26; see also infra Part III.C (discussing the accommodation process). In such instances, we have advised that Congress may be expected to clearly articulate its legislative purpose, and the Executive Branch may independently review the proffered purpose. In considering a committee’s legislative purpose, the White House should “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” Mazars, 140 S. Ct. at 2036. “The more detailed and substantial the evidence of Congress’s legislative purpose, the better.” Id. The White House may fairly expect that the committee will provide a statement that “adequately identifies its aims and explains why the Presi15 45 Op. O.L.C. __ (Jan. 8, 2021) dent’s information will advance its consideration of the possible legislation.” Id. In reviewing such a statement, the White House may take into account all relevant facts and circumstances in ensuring that the congressional request serves a legitimate legislative purpose within the appropriate authority of the requesting committee. B. Exclusive Executive Functions Because congressional requests for information must “concern[] a subject on which legislation could be had,” U.S. Servicemen’s Fund, 421 U.S. at 506 (internal quotation marks omitted), Congress may not conduct oversight of the President’s discharge of his exclusive constitutional authority. “Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government.” Barenblatt, 360 U.S. at 111−12; see also Scope of Congressional Oversight, 9 Op. O.L.C. at 62 (congressional oversight authority does not extend to “functions fall[ing] within the Executive’s exclusive domain”). Congressional requests to the White House often run into this limitation to the extent they are directed at the President’s exercise of his constitutional, rather than statutory, authorities. This Office has observed that “[t]he Constitution assigns a variety of powers exclusively to the President” and “Congress may not intrude upon the President’s exercise of [those] exclusive powers.” Letter for Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, from Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Inspector General for the Executive Office of the President at 3 (July 24, 1996) (advising that proposed legislation to establish an inspector general for the EOP raised serious constitutional concerns). As we explained, “where the President is exercising, or has exercised, exclusive constitutional authority, Congress is wholly without authority to impose [disclosure] requirements on the President or the President’s advisors.” Id. Because Congress may not legislate with respect to the President’s discharge of his exclusive constitutional functions, it similarly may not seek information from White House staff concerning the decision-making process in connection with the President’s performance of those functions in particular matters. 16 Congressional Oversight of the White House Attorney General Janet Reno drew this line in advising President Clinton with respect to a congressional subpoena seeking predecisional documents relating to a grant of clemency. The President’s clemency decision, which is rooted in the pardon power, is a quintessential example of an exclusive executive power. See Schick v. Reed, 419 U.S. 256, 266 (1974) (the pardon power “flows from the Constitution . . . and . . . cannot be modified, abridged, or diminished by the Congress”). Attorney General Reno advised that Congress lacked the authority to subpoena the documents in question, because “[t]he granting of clemency pursuant to the pardon power is unquestionably an exclusive province of the executive branch,” and thus “[a] compelling argument can be made . . . that Congress has no authority whatsoever to review a President’s clemency decision.” Clemency Decision, 23 Op. O.L.C. at 2. 7 Consistent with this conclusion, she explained, “it appears that Congress’ oversight authority does not extend to the process employed in connection with a particular clemency decision, to the materials generated or the discussions that took place as part of that process, or to the advice or views the President received in connection with a clemency decision.” Id. at 3–4. 8 In 2007, Acting Attorney General Paul Clement cited the President’s exclusive constitutional powers in advising President Bush regarding an assertion of executive privilege with respect to internal White House communications concerning the possible exercise of the President’s 7 As a formal matter, the President asserted executive privilege in declining to provide the subpoenaed documents, which related to the deliberations over the President’s grant of clemency to sixteen members of the FALN terrorist group. Letter for Dan Burton, Chairman, Committee on Government Reform, U.S. House of Representatives, from Cheryl Mills, Deputy Counsel to the President at 1 (Sept. 16, 1999) (relying on the “vital public interest in assuring that the President receives candid advice from his advisors”). But the White House Counsel’s Office also raised the jurisdictional issue in objecting to the subpoena, stating that “[p]ursuant to the Constitution and the separation of powers doctrine, the President’s authority to grant clemency is not subject to legislative oversight.” Id. 8 This position also served as the basis for the Justice Department’s refusal the next year to answer certain questions posed by the House Judiciary Committee regarding a pending clemency petition. See Letter for Henry J. Hyde, Chairman, Committee on Judiciary, U.S. House of Representatives, from Robert Raben, Assistant Attorney General, Office of Legislative Affairs at 2 (June 21, 2000) (“[B]ecause Congress cannot legislate regarding the process by which the Department assists the President on clemency matters, Congress’ oversight authority does not extend to that process.”). 17 45 Op. O.L.C. __ (Jan. 8, 2021) exclusive authority to nominate and to dismiss U.S. Attorneys: “[T]here is reason to question whether Congress has oversight authority to investigate deliberations by White House officials concerning proposals to dismiss and replace U.S. Attorneys, because such deliberations necessarily relate to the potential exercise by the President of an authority assigned to him alone.” Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys, 31 Op. O.L.C. 1, 3 (2007). As Acting Attorney General Clement explained: The Senate has the authority to approve or reject the appointment of officers whose appointment by law requires the advice and consent of the Senate (which has been the case for U.S. Attorneys since the founding of the Republic), but it is for the President to decide whom to nominate to such positions and whether to remove such officers once appointed. Though the President traditionally consults with members of Congress about the selection of potential U.S. Attorney nominees as a matter of courtesy or in an effort to secure their confirmation, that does not confer upon Congress authority to inquire into the deliberations of the President with respect to the exercise of his power to remove or nominate a U.S. Attorney. Id. This principle limiting the scope of Congress’s oversight authority is consistent with the Supreme Court’s refusal to tolerate legislation that intrudes on the President’s exclusive constitutional powers and duties. Where the Constitution’s text commits a power to the President exclusively, courts “refuse[] to tolerate any intrusion by the Legislative Branch.” Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J., concurring in the judgment, joined by Rehnquist, C.J., and O’Connor, J.); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165–66 (1803) (“By the constitution of the United States, the President is invested with certain important 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.”). The President’s exclusive powers include the powers to pardon, to sign or veto legislation, to nominate and appoint officers of the United States, and to remove officers and other officials. See Schick, 419 U.S. at 266; INS v. Chadha, 462 U.S. 919, 946–48, 957–59 (1983) (holding the legisla18 Congressional Oversight of the White House tive veto an unconstitutional interference with President’s duties pursuant to the Presentment Clause); Buckley v. Valeo, 424 U.S. 1, 138–39 (1976) (per curiam) (“Congress’ power under [the Necessary and Proper] Clause is inevitably bounded by the express language of [the Appointments Clause],” and consequently Congress cannot provide for the appointment of “‘Officers of the United States’” except through a procedure that “comports with” the Appointments Clause); Myers, 272 U.S. at 161 (“The authority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments” does not “enable[] Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be . . . to infringe the constitutional principle of the separation of governmental powers.”). Thus, while Congress may request information pertaining to the broad range of matters about which it may legislate, that authority does not extend to authorities exclusively vested in the President, including the work that the White House staff does in advising and assisting the President in connection with the execution of those constitutional authorities. The President’s exclusive authorities also include his powers in the area of diplomacy and national defense, although in many cases those powers closely abut areas in which Congress may legislate. The Constitution entrusts the President with the “‘vast share of responsibility for the conduct of our foreign relations.’” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring)). And that responsibility includes the “exclusive authority to conduct diplomacy on behalf of the United States.” Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, at *11 (Sept. 22, 2020) (internal quotation marks omitted); see also Prohibition of Spending for Engagement of the Office of Science and Technology Policy with China, 35 Op. O.L.C. 116, 121 (2011) (recognizing the President’s “exclusive authority to determine the time, scope, and objectives of international negotiations” (internal quotation marks omitted)). The President’s authority as Commander in Chief and Chief Executive also includes broad authority over the deployment and control of the military in protecting American persons and interests abroad. See, e.g., Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61–62 (1941) 19 45 Op. O.L.C. __ (Jan. 8, 2021) (Jackson, Att’y Gen.); Placing of United States Armed Forces Under United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 185 (1996) (“It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces.”); Relation of the President to the Executive Departments, 7 Op. Att’y Gen. 453, 465 (1855) (Cushing, Att’y Gen.) (because the President “alone” is the “supreme commander-in-chief,” Congress cannot “authorize or create any military officer not subordinate to the President”). The Executive Branch has consistently asserted the President’s exclusive authority in these areas, and the Supreme Court has endorsed those principles. 9 At the same time, Congress also has overlapping authority to legislate in matters touching upon foreign affairs and the national defense. Congress “clearly possesses significant Article I powers in the area of foreign affairs, including with respect to questions of war and neutrality, commerce and trade with other nations, foreign aid, and immigration.” Legislation Prohibiting Spending for Delegations to U.N. Agencies Chaired by Countries That Support International Terrorism, 33 Op. O.L.C. 221, 225– 26 (2009). Congress established and is responsible for funding the Department of State and the Department of Defense—two departments that the President relies upon in the discharge of his constitutional powers— and Congress also has express legislative authority under Article I, Section 8, with respect to foreign trade; the raising, supporting, and regulation of the armed forces; and the declaration of war, among other powers. Congress’s legislative authority in these areas provides a basis for seeking information in connection with these areas, and such oversight requests may sometimes reach the White House. 9 See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (“[J]udicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate[.]”); Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982) (conducting foreign relations and ensuring the Nation’s defense are “central Presidential domains” (internal quotation marks omitted)); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring in judgment, joined by Wayne, Swayne, and Miller, JJ.) (Congress has no authority to “interfere[] with the command of the forces and the conduct of campaigns” because “[t]hat power and duty belong to the President as commander-in-chief”); In re Hennen, 38 U.S. (13 Pet.) 230, 235 (1839) (“As the executive magistrate of the country, [the President] is the only functionary intrusted with the foreign relations of the nation.”). 20 Congressional Oversight of the White House We have previously advised on these areas of exclusive and overlapping authority in connection with congressional oversight requests related to the protection of classified information. The Supreme Court has explained that the President may “classify and control access to information bearing on national security and . . . determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information[.]” Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988). This exclusive power primarily derives from his constitutional authority as “‘Commander in Chief of the Army and Navy of the United States,’” id. (quoting U.S. Const. art. II, § 2, cl. 1), and “exists quite apart from any explicit congressional grant,” id. Although Congress does not “entirely lack[] authority to legislate in a manner that touches upon disclosure of classified information,” it cannot intrude—through legislation or oversight—upon the President’s control over national security information. Security Clearance Adjudications by the DOJ Access Review Committee, 35 Op. O.L.C. 86, 95–96 (2011); see The Department of Defense’s Authority to Conduct Background Investigations for Its Personnel, 42 Op. O.L.C. __, at *9 (Feb. 7, 2018) (“while Congress is not entirely disabled from participating in the system for protecting classified information, Congress may not impair the President’s control over national security information”). In summary, because Congress’s oversight authority extends only to those subjects “on which legislation could be had,” McGrain, 273 U.S. at 177, the Executive Branch may properly review an oversight request directed at the White House to evaluate whether the request is directed at the discharge of an exclusive constitutional authority of the President or instead concerns a subject about which Congress may legislate. III. Constitutional Limits on Congressional Oversight of the White House Even when a congressional inquiry advances a legitimate legislative purpose, the separation of powers imposes other constraints on oversight of the White House. The accommodation process requires that “each branch . . . take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.” United States v. Am. 21 45 Op. O.L.C. __ (Jan. 8, 2021) Tel. & Tel. Co. (“AT&T ”), 567 F.2d 121, 127 (D.C. Cir. 1977). As discussed below, the President’s strong interests in the independence and autonomy of his office, as well as the confidentiality of his communications, justify corresponding restrictions on oversight of the White House. Congressional requests for information from the White House are constrained by “the Executive Branch’s interests in maintaining the autonomy of [the] office [of the President] and safeguarding the confidentiality of its communications.” Cheney, 542 U.S. at 385. In addition, oversight directed at the White House implicates heightened executive branch confidentiality interests, which are particularly strong with respect to White House communications. Accordingly, when oversight involves the White House, congressional committees and the White House must work to respect these constraints while accommodating the committees’ legitimate information needs. These considerations mean that oversight requests directed to the White House are typically the exception, rather than the norm. Congress should generally seek information from the departments and agencies first before turning to the White House, and oversight requests to the White House must be tailored to accommodate the President’s need for autonomy and confidentiality. A. Separation of Powers Principles The President is the head of a co-equal branch of government. Congress and the President thus “have an ongoing institutional relationship as the ‘opposite and rival’ political branches established by the Constitution.” Mazars, 140 S. Ct. at 2033–34 (quoting The Federalist No. 51, at 349 (James Madison)). Consequently, congressional requests for information directed at the President and the White House are not “run-of-the-mill legislative effort[s]” and “differ markedly from” congressional requests directed toward others. Id. at 2034. The “significant separation of powers issues” raised by such requests “necessarily inform[]” the scope of and manner in which Congress may request such information. Id. at 2026, 2033. If Congress could freely demand the President’s information, it would “‘exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.” Id. at 2034 (quoting The Federalist No. 71, at 484). In the same way that the President must respect Congress’s institutional prerogatives, Congress 22 Congressional Oversight of the White House too must conduct oversight mindful of the independence and autonomy of the office of the President. Although the Supreme Court’s opinion in Mazars discussed these principles in the context of congressional requests for the President’s personal information, these separation of powers concerns also apply to requests for information from White House advisers, who assist the President “on a daily basis in the formulation of executive policy and resolution of matters affecting the military, foreign affairs, and national security and other aspects of his discharge of his constitutional responsibilities.” Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. __, at *5 (May 20, 2019) (“Immunity of the Former Counsel ”) (internal quotation marks omitted). The Supreme Court recognized as much in Cheney, which addressed the special consideration owed to the White House in connection with demands for information made in a civil action. The Court held that the Judicial Branch must treat civil discovery requests directed at the President’s senior advisers differently from discovery matters involving other executive branch personnel: This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who . . . give advice and make recommendations to the President. The Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives. . . . [S]pecial considerations control when the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. This Court has held, on more than one occasion, that “[t]he high respect that is owed to the office of the Chief Executive . . . is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery,” and that the Executive’s “constitutional responsibilities and status [are] factors counseling judicial deference and restraint” in the conduct of litigation against it. 542 U.S. at 385 (citations omitted). While the purposes of congressional oversight and civil discovery are distinct, both involve requests from outside the Executive Branch. Just as separation of powers principles require the Judicial Branch to adjust the “timing and scope of discovery” 23 45 Op. O.L.C. __ (Jan. 8, 2021) directed at presidential advisers in civil litigation, congressional committees and White House personnel also must tailor the timing and scope of their oversight accommodations in ways that respect the President’s interests in autonomy and confidentiality. In Cheney, the Supreme Court reviewed the D.C. Circuit’s denial of the Vice President’s petition for a writ of mandamus vacating certain discovery orders issued by a district court. The plaintiffs had sued the Vice President and others alleging that the President’s National Energy Policy Development Group had not complied with the disclosure requirements of the Federal Advisory Committee Act, 5 U.S.C. app. §§ 1–15. The district court ordered the plaintiffs to “submit a proposed discovery plan” for the court’s approval. Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F. Supp. 2d 20, 56 (D.D.C. 2002). Under the Federal Rules of Civil Procedure, a litigant “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Pursuant to this broad standard governing civil discovery, the plaintiffs in Cheney proposed a wide-ranging discovery plan, which called for the production of all documents and information concerning communications between individual National Energy Policy Development Group members outside the context of group meetings, between members and agency personnel, and between members and non-governmental individuals. The plaintiffs tried to use discovery to uncover confidential information concerning the deliberations of the President’s closest advisers. The Government objected to the plan to the extent that it sought documents from the Vice President and White House officials and argued, among other things, “that in order to protect the separation of powers, the President should not be forced to consider the [executive] privilege question in response to unnecessarily broad or otherwise improper discovery.” See In re Cheney, 334 F.3d 1096, 1105 (D.C. Cir. 2003) (internal quotation marks omitted). The district court nonetheless approved the discovery plan and directed that the Vice President and White House officials either “fully comply with” the discovery requests, “file detailed and precise objections to particular requests,” or “identify and explain their invocations of privilege with particularity.” Id. at 1000 (internal quotation marks omitted). The Vice President petitioned the D.C. Circuit for a writ of mandamus vacating the discovery orders on the ground that the broad requests violated the 24 Congressional Oversight of the White House separation of powers by unduly interfering with the President’s constitutional prerogatives, but the D.C. Circuit denied the petition. See id. at 1109. The Supreme Court reversed and remanded for the D.C. Circuit to consider whether the discovery orders “constituted an unwarranted impairment of another branch in the performance of its constitutional duties.” Cheney, 542 U.S. at 390. In so holding, the Court rejected the lower courts’ view that executive branch interests could have been adequately protected by “invoking executive privilege and filing objections to the discovery orders with ‘detailed precision.’” Id. at 377 (quoting In re Cheney, 334 F.3d at 1105). The Court explained that “special considerations control” when White House staff and other high-level officials are the subject of civil discovery requests, and that separation of powers concerns might necessitate narrowing or denying requests for information directed to such officials before there should arise any need to consider invoking executive privilege. See id. at 385, 390. Because the information “requests [were] directed to the Vice President and other senior Government officials who served on the [Group] to give advice and make recommendations to the President,” the broad discovery orders threatened to impinge on the Executive’s “interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications.” Id. at 385. Therefore, the D.C. Circuit was obliged to consider whether allowing the requests to go forward would be “an unwarranted impairment” of the Executive Branch’s discharge of its constitutional responsibilities. Id. at 390. The Court’s reasoning in Cheney, which instructs courts to consider the President’s interests in autonomy and confidentiality when fashioning orders authorizing civil discovery directed at the White House, applies with at least equal force to congressional oversight requests for information from the White House. Both congressional oversight and civil litigation often concern wide-ranging information requests that involve the production of documents and the taking of testimony. Just as civil litigation against the “Vice President and other senior Government officials who . . . give advice and make recommendations to the President” does not entail “a routine discovery dispute,” neither may congressional oversight of the White House be viewed as comparable to routine oversight of executive branch agencies. Cf. Immunity of the Former Counsel, 25 45 Op. O.L.C. __ (Jan. 8, 2021) 43 Op. O.L.C. __, at *4 (“[T]he President’s immediate advisers are constitutionally distinct from the heads of executive departments and agencies.”). In both situations, far-reaching inquiries threaten presidential autonomy and confidentiality. Thus, the separation of powers concerns recognized in Cheney support significant limitations on the timing and scope of congressional oversight inquiries directed to the White House. If anything, the concerns underlying the Court’s decision in Cheney apply with even greater force to congressional inquiries. Congress is the President’s constitutional “rival” in a manner distinct from the Judiciary. Mazars, 140 S. Ct. at 2033 (internal quotation marks omitted). When Congress conducts oversight, a neutral decision-maker is not readily available to appropriately balance each party’s interests. And unlike the courts’ express authority to order discovery, Congress’s subpoena power is an implied adjunct to its legislative powers that is justified as “an essential and appropriate auxiliary to the legislative function.” Id. at 2031 (quoting McGrain, 273 U.S. 174); cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 559 (2012) (opinion of Roberts, C.J.) (implied powers under the Necessary and Proper Clause are “incidental” and cannot be “great substantive and independent powers” (internal quotation marks omitted)). A plaintiff in a civil action, moreover, may well have a greater need for documents and other information than a congressional committee conducting oversight. Congressional oversight gathers information so that Congress may “exercise its legislative function advisedly and effectively,” McGrain, 273 U.S. at 161; see also Mazars, 140 S. Ct. at 2031–32, while the purpose of civil discovery is to disclose “the basic issues and facts” to “the fullest practicable extent,” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). As the D.C. Circuit thus has recognized, “legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability[] than on precise reconstruction of past events.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en banc). “[E]fforts to craft legislation involve predictive policy judgments that are not hampered in quite the same way when every scrap of potentially relevant evidence is not available [to Congress].” Mazars, 140 S. Ct. at 2036 (alterations and internal quotation marks omitted). Furthermore, because Congress may not conduct oversight of the President’s exclusive constitutional functions, legitimate congressional over26 Congressional Oversight of the White House sight inquiries will almost always pertain to executive branch implementation of statutory programs. But the departments and agencies, not the White House, principally administer such programs, and thus it is generally unnecessary for congressional committees to request information directly from the White House unless they are unable to obtain the information from agencies. As Mazars determined with respect to the President’s personal information, to avoid unnecessary confrontation between the branches, “Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs.” Id. at 2035–36. That reasoning also applies to congressional requests for White House information. Because congressional oversight needs generally may be satisfied through requests to the departments and agencies, requests for information about programs administered outside the White House should be directed there in the first instance. Mazars and Cheney are the latest in a line of judicial precedent recognizing the separation of powers concerns underlying litigation or related requests directed at the President. But the Supreme Court has long recognized that safeguarding presidential autonomy and confidentiality is critical to honoring the separation of powers. See Cheney, 542 U.S. at 385. This principle was first articulated in United States v. Burr, where Chief Justice John Marshall, sitting at trial as a Circuit Justice, stated that “[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual.” 25 F. Cas. 187, 192 (C.C. Va. 1807) (No. 14,694). In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Court held that a sitting or former President is absolutely immune from civil actions for damages arising from his official acts. Underlying this bright-line rule is the rationale that “[b]ecause of the singular importance of the President’s duties, diversion of his energies . . . would raise unique risks to the effective functioning of government.” Id. at 751. 10 The PresiThe Supreme Court has held that presidential aides are generally treated differently from the President for purposes of immunity in civil litigation, receiving qualified immunity rather than absolute immunity. Harlow, 457 U.S. at 809. But see id. at 812 & n.19 (acknowledging that “[f ]or aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest”). Yet that distinction is entirely consistent with Cheney’s holding that “special considerations” apply to civil discovery requests directed to White House officials and others who “give advice 10 27 45 Op. O.L.C. __ (Jan. 8, 2021) dent’s energies may be inappropriately diverted by congressional oversight just as they may be by private litigation. See Immunity of the Former Counsel, 43 Op. O.L.C. __, at *5 (explaining that permitting congressional committees to compel the President’s immediate advisers to testify would allow the committees to “harass those advisers in an effort to influence their conduct, retaliate for actions the committee disliked, or embarrass and weaken the President for partisan gain” and would force the advisers “to divert time and attention from their duties to the President” (internal quotation marks omitted)). In the oversight context, the President’s interest in the White House’s autonomy may be compromised not only by congressional inquiries that distract personnel and drain critical resources, but also by the potential “chilling effect” such demands would have on the interactions between the President and his advisers. See Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the President, 43 Op. O.L.C. __, at *2 (July 12, 2019) (“Congressional questioning of the President’s senior advisers would . . . undermine the independence and candor of executive branch deliberations.”). Intrusive congressional oversight of the White House’s interaction with departments and agencies may cause White House staff members to conform their information-gathering and policy-formulation processes to the demands of Congress instead of the needs of the President. Yet the President needs his staff to provide him with frank and candid judgments to “accomplish[] [his] constitutionally assigned functions.” Nixon v. Adm’r of Gen. Servs., 433 U.S. at 443. There is little doubt that intrusive oversight inquiries could chill and otherwise undermine these kinds of White House staff activities. See Scope of Congressional Oversight, 9 Op. O.L.C. at 62 (“Congress’ power of inquiry must not be permitted to negate the President’s constitutional and make recommendations to the President.” 542 U.S. at 385. As we have explained in declining to apply Harlow to narrow the traditional constraints governing the congressional testimony of senior presidential advisers, “the prospect of compelled congressional testimony raises separation of powers concerns that are not present in a civil damages lawsuit brought by a private party.” Immunity of the Former Counsel, 43 Op. O.L.C. __, at *13. Compelled congressional testimony “threatens to subject presidential advisers to coercion and harassment, create a heightened impression of presidential subordination to Congress, and cause public disclosure of confidential presidential communications in a way that the careful development of evidence through a judicially monitored [proceeding] does not.” Id. (internal quotation marks omitted). 28 Congressional Oversight of the White House responsibility for managing and controlling affairs committed to the Executive Branch.”). Closely related to the President’s interest in securing the White House’s autonomy is his interest in “safeguarding the confidentiality of its communications.” Cheney, 542 U.S. at 385. The Supreme Court has made clear that the President’s interest in the confidentiality of his decisionmaking is a central component of the constitutional separation of powers. In United States v. Nixon, the Court stressed that “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” 418 U.S. 683, 708 (1974). Although Nixon concerned a judicial demand for documents protected by executive privilege, this Office has long expressed the view that “[the] reasons for the constitutional privilege have at least as much force when it is Congress, instead of a court, that is seeking information.” Congressional Requests, 13 Op. O.L.C. at 156. Indeed, “the prospect that predecisional deliberative communications will be disclosed to Congress is, if anything, more likely to chill internal debate among executive branch advisers than the possibility of disclosure to the judicial branch.” Memorandum for Janet Reno, Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Demands to Interview Prosecutors and Review Deliberative Documents in Closed Cases at 14–15 (Nov. 23, 1993). 11 Because many White House 11 As this Office has explained more fully: When the Supreme Court held that the need for presidential communications in the criminal trial of President Nixon’s close aides outweighed the constitutional privilege, an important premise of its decision was that it did not believe that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. By contrast, congressional requests for executive branch deliberative information are anything but infrequent. Moreover, compared to a criminal prosecution, a congressional investigation is usually sweeping; its issues are seldom narrowly defined, and the inquiry is not restricted by the rules of evidence. Finally, when Congress is investigating, it is by its own account often in an adversarial position to the executive branch and initiating action to override judgments made by the executive branch. This increases the likelihood that candid advice from executive branch advisers will be taken out of context or misconstrued. Congressional Requests, 13 Op. O.L.C. at 156–57 (internal quotation marks and citations omitted). 29 45 Op. O.L.C. __ (Jan. 8, 2021) staff members enjoy extensive access to the President, play important roles in developing presidential policy, and often serve as the President’s alter ego, the President’s interest in the confidentiality of White House activities must be afforded considerable weight in assessing the legitimacy of an exercise of Congress’s oversight functions. B. Executive Privilege and White House Information The heightened executive privilege interests that apply to White House communications provide an additional basis for distinguishing oversight inquiries directed at the White House from oversight of departments and agencies. Presidents have invoked executive privilege since the earliest days of the Republic, and the Supreme Court has recognized the privilege and held it to be an implied power under the Constitution. See Nixon, 418 U.S. at 705, 708; see also id. at 711 (“Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.”); Congressional Requests, 13 Op. O.L.C. at 154 (explaining that the existence of executive privilege is a “necessary corollary of the executive function vested in the President by Article II of the Constitution”). The Court has described the privilege as “deriv[ing] from the supremacy of each branch within its own assigned area of constitutional duties,” “fundamental to the operation of Government,” “and inextricably rooted in the separation of powers under the Constitution.” Nixon, 418 U.S. at 705, 708. The privilege “safeguards the public interest in candid, confidential deliberations within the Executive Branch,” and, as a result, “information subject to executive privilege deserves the greatest protection consistent with the fair administration of justice.” Mazars, 140 S. Ct. at 2032 (internal quotation marks omitted). There are at least five well-recognized, and sometimes overlapping, components of executive privilege: national security and foreign affairs, law enforcement, deliberative process, attorney-client communications and attorney work product, and presidential communications. See Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, at *8 & n.2 (May 23, 2019) (“Exclusion of Agency Counsel ”); Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White House Staff, 32 Op. O.L.C. 7, 8 (2008); Executive Privilege: The With30 Congressional Oversight of the White House holding of Information by the Executive: Hearing on S. 1125 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92nd Cong. 420 (1971) (statement of William Rehnquist, Assistant Attorney General, Office of Legal Counsel). Generally speaking, the national security and foreign affairs component provides absolute protection for materials the release of which would jeopardize sensitive diplomatic, national security, or military matters, including classified information and diplomatic communications. 12 Similarly, the law enforcement component of the privilege gives the Executive Branch a near-absolute right to withhold from Congress information that would compromise ongoing law enforcement activities. 13 Both of these components of executive privilege are deeply rooted in the Constitution and the Nation’s history. 12 See, e.g., Egan, 484 U.S. at 527 (explaining that the President’s “authority to classify and control access to information bearing on national security . . . flows primarily from th[e] constitutional investment of [the Commander in Chief] power in the President”); United States v. Reynolds, 345 U.S. 1, 10–11 (1953) (recognizing the national security component of the privilege in civil litigation involving military equipment); In re United States, 872 F.2d 472, 476 (D.C. Cir. 1989) (explaining that the privilege provides absolute protection for information the release of which would impair the Nation’s defense, disclose intelligence activities, or disrupt diplomatic relations with foreign governments); Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (explaining that “matters the revelation of which reasonably could be seen as a threat to the military or diplomatic interests of the nation . . . are absolutely privileged from disclosure in the courts”); Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92, 97 (1998) (“[S]ince the Washington Administration, Presidents and their senior advisers have repeatedly concluded that our constitutional system grants the executive branch authority to control the disposition of secret information.”); Memorandum for C. Boyden Gray, Counsel to the President, from J. Michael Luttig, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Congressional Access to Presidential Communications at 2–11 (Dec. 21, 1989) (explaining the absolute scope of the national security component in the context of congressional investigations); Memorandum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, and John R. Stevenson, Legal Adviser, Department of State, Re: The President’s Executive Privilege to Withhold Foreign Policy and National Security Information at 7 (Dec. 8, 1969) (“[N]ational security and foreign relations considerations have been considered the strongest possible basis upon which to invoke the privilege of the executive.”); see also Nixon, 418 U.S. at 706 (recognizing that executive privilege may be absolute “to protect military, diplomatic, or sensitive national security secrets”). 13 See Temporary Certification Under the President John F. Kennedy Assassination Records Collection Act of 1992, 41 Op. O.L.C. __ (Oct. 26, 2017); Investigative Authority of the General Accounting Office, 12 Op. O.L.C. 171, 177 (1988) (“With respect to open 31 45 Op. O.L.C. __ (Jan. 8, 2021) Congressional inquiries to the White House more often implicate the deliberative process, the attorney-client communications and attorney work product, and particularly the presidential communications components of executive privilege. These components are also deeply rooted, and they protect from disclosure internal communications and information concerning presidential and other executive branch decision-making. They are based on the principle that the effective operation of the Executive Branch depends on shielding deliberative communications and advice from disclosure. See Confidentiality of the Attorney General’s Communications in Counseling the President, 6 Op. O.L.C. 481, 484–97 (1982) (“Attorney General’s Communications”). The deliberative process component of executive privilege “safeguards the public interest in candid, confidential deliberations within the Executive Branch” and protects all executive branch documents that reflect advisory opinions, recommendations, and other deliberative communications generated during governmental decision-making. Mazars, 140 S. Ct. at 2032; see In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); see also Congressional Requests, 13 Op. O.L.C. at 156–57 & n.3 (explaining the applicability of this component in the context of congressional requests for information). The deliberative process component is premised on the fact that disclosing the “communications and the ingredients of the decisionmaking process” would inevitably cause “injury to the quality of agency decisions” by inhibiting “‘frank discussion of legal or policy law enforcement files, it has been the policy of the executive branch throughout our Nation’s history to protect these files from any breach of confidentiality, except in extraordinary circumstances.”); Independent Counsel Act Requests, 10 Op. O.L.C. at 75– 78 (explaining the Executive Branch’s authority to withhold open and closed law enforcement files from Congress); Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 117 (1984) (“Since the early part of the 19th century, Presidents have steadfastly protected the confidentiality and integrity of investigative files from untimely, inappropriate, or uncontrollable access by the other branches, particularly the legislature.”); Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31, 32–33 (1982) (same concerning law enforcement files of the Environmental Protection Agency); Position of the Executive Department Regarding Investigative Reports, 40 Op. Att’y Gen. 45, 47 (1941) (same concerning investigative files of the Federal Bureau of Investigation). 32 Congressional Oversight of the White House matters.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 151 (1975) (citation omitted). As the Supreme Court explained in Nixon: [There is a] valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. 418 U.S. at 705; see also Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (explaining that the deliberative process component “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them” (internal quotation marks and citation omitted)). The deliberative process component of executive privilege applies especially strongly when the deliberations in question are ongoing. See Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, at *10–11 (Jan. 17, 2020) (“Publication of Report on Imports”). But the deliberative process component has certain limits: It protects predecisional and deliberative materials and typically does not “shield documents that simply state or explain a decision the government has already made or protect material that is purely factual.” Sealed Case, 121 F.3d at 737. Agencies may withhold factual information only to the extent it is “so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” Id. The attorney-client communications and attorney work product component of executive privilege protects executive branch communications and documents that involve legal analysis, legal advice, and other attorney communications or work product. See Assertion of Executive Privilege Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 2, 3 (1996) (Reno, Att’y Gen.) (recognizing that “[e]xecutive privilege applies” to certain documents “because of their deliberative nature, and 33 45 Op. O.L.C. __ (Jan. 8, 2021) because they fall within the scope of the attorney-client privilege and the work-product doctrine”). Often, such communications will be protected by the deliberative process component in addition to the attorney-client and attorney work product component. Yet “‘the reasons for the constitutional privilege against the compelled disclosure of executive branch deliberations have special force when legal advice is involved,’” because “‘legal matters are likely to be among those on which high government officials most need, and should be encouraged to seek, objective, expert advice.’” Attorney General’s Communications, 6 Op. O.L.C. at 490 n.17 (citation omitted); see also Constitutionality of the OLC Reporting Act of 2008, 32 Op. O.L.C. 14, 17 (2008) (Mukasey, Att’y Gen.) (“[I]f executive branch officials are to execute their constitutional and statutory responsibilities, they must have access to candid and confidential legal advice and assistance.”). The presidential communications component of executive privilege, which is the most salient component for White House purposes, protects communications made in connection with presidential decision-making. See Nixon, 418 U.S. at 708 (explaining importance of presidential communications privilege in government operations); Sealed Case, 121 F.3d at 746 (explaining that the “presidential [communications] privilege affords greater protection against disclosure” than the deliberative process privilege); Memorandum for the Attorney General from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: The Constitutional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning the Gasoline Conservation Fee at 13 (Jan. 13, 1981) (“Executive Branch Deliberations”). Although the presidential communications component applies only to presidential decision-making, it is broader than the deliberative process component in terms of the types of communications that are protected. All presidential communications are “presumptively privileged” and protected from disclosure, including post-decisional exchanges and documents conveying purely factual information. Nixon, 418 U.S. at 708, 713–14 (explaining that a presumptive privilege applies to the President’s “conversations and correspondence”); see also Sealed Case, 121 F.3d at 745 (“[U]nlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative 34 Congressional Oversight of the White House ones.”). In addition, this component of executive privilege covers communications between the President and agencies concerning presidential decision-making, including communications concerning the exercise of statutory authority. See Publication of Report on Imports, 44 Op. O.L.C. __, at *7–9. The presidential communications component of executive privilege is not limited to exchanges directly involving the President. The Supreme Court emphasized in Nixon that the “President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions,” 418 U.S. at 708 (emphasis added), and explicitly described the privilege as protecting communications within the President’s “office,” id. at 712–13. We have consistently recognized that for the President to obtain full, frank, and complete advice, the presidential communications component must apply to deliberations among the President’s advisers and their staffs. See, e.g., Attorney General’s Communications, 6 Op. O.L.C. at 485–86 & n.11 (explaining that the presidential communications privilege protects the presidential “decisionmaking process” and, therefore, can apply to the work of presidential advisers). The D.C. Circuit agreed in 1997, when it held that “communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President.” Sealed Case, 121 F.3d at 751–52. In reaching this conclusion, the court, echoing the Supreme Court’s analysis in Nixon, warned that “[i]f presidential advisers must assume they will be held to account publicly for all approaches that were advanced, considered, but ultimately rejected, they will almost inevitably be inclined to avoid serious consideration of novel or controversial approaches to presidential problems.” Id. at 750. Excluding presidential advisers and their staffs from the presidential communications component would hinder the President’s “access to honest and informed advice” and limit his “ability to explore possible policy options.” Id. at 751. A narrower privilege would “impede . . . the presidency,” id., and diminish the quality of presidential decisions: Presidential advisers do not explore alternatives only in conversations with the President or pull their final advice to him out of thin air—if they do, their advice is not likely to be worth much. Rather, 35 45 Op. O.L.C. __ (Jan. 8, 2021) the most valuable advisers will investigate the factual context of a problem in detail, obtain input from all others with significant expertise in the area, and perform detailed analyses of several different policy options before coming to closure on a recommendation for the Chief Executive. The President himself must make decisions relying substantially, if not entirely, on the information and analysis supplied by advisers. Id. at 750. 14 Against this backdrop, communications within the White House and between White House staff and other EOP components that concern possible presidential decision-making will normally fall under the presidential communications component of executive privilege, and not just the deliberative process or attorney-client communications and attorney work product components that apply to all government agencies and that are most commonly implicated when congressional committees make oversight requests of executive agencies. See Executive Branch Deliberations at 12 (concluding that “‘presidential’ communications . . . presumably [include] discussions among the President’s aides and officials in the Executive Office of the President ” (emphasis added)). Consequently, a congressional request for internal White House communications and intraEOP communications will frequently implicate the presidential communications component of executive privilege. As a result, oversight directed at the White House will typically involve privilege interests that are, on the whole, considerably greater than those arising solely in the agency context, where other components are more commonly implicated. 14 In Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004), the D.C. Circuit in dictum construed Sealed Case’s use of the phrase “White House adviser” when describing the scope of the presidential communications privilege as restricting the privilege to the President’s “immediate advisers in the Office of the President” (a component of the EOP also called the White House Office). Id. at 1123; see id. at 1109 n.1, 1116–17, 1123–24. This assumption misinterprets Sealed Case. Its explicit holding that communications by “presidential advisers” and “their staff ” made “in the course of preparing advice for the President come under the presidential communications privilege” indicates that the privilege must encompass advisers in EOP entities outside the Office of the President whose primary function is to advise and assist the President. See 121 F.3d at 751–52. 36 Congressional Oversight of the White House C. The Accommodation Process for Oversight of the White House Given the President’s interests in autonomy and confidentiality, the accommodation process will often lead to a different balance when applied to the White House as compared to the departments and agencies. It is long-standing executive branch policy that upon receipt of an authorized oversight request that is in furtherance of a legitimate legislative purpose, departments and agencies should “comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.” Memorandum for Heads of Executive Departments and Agencies from Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information at 1 (Nov. 4, 1982) (“Reagan Memorandum”). The manner of that compliance is determined by the operation of the accommodation process mandated by the Constitution, recognized by the Judicial Branch, and practiced by the Executive and Legislative Branches. “Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege,” and “this tradition of accommodation” has remained “the primary means of resolving conflicts between the Branches.” Id. The Supreme Court has also recognized that disputes over congressional demands for executive documents ordinarily “have been hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive.’” Mazars, 140 S. Ct. at 2029 (quoting Executive Privilege—Secrecy in Government: Hearings on S. 2170, S. 2378, and S. 2420 Before the Subcomm. on Intergovernmental Relations of the S. Comm. on Gov’t Operations, 94th Cong. 87 (1975) (statement of Antonin Scalia, Assistant Attorney General, Office of Legal Counsel)). Since the Washington Administration, the Executive Branch has resisted congressional information demands that were overly burdensome or threatened to impair “the public good.” Id. at 2029–30 (internal quotation marks omitted). Executive branch resistance, in turn, has often been met by congressional pressure, which was then followed by subsequent negotiations between the branches. In most instances, Congress and the Executive Branch have reached a compromise in which Congress might, for example, narrow the scope of its request or better articulate its needs, and 37 45 Op. O.L.C. __ (Jan. 8, 2021) the Executive Branch might, for example, supply a subset of the requested documents, provide summaries of the information requested, or permit in camera review of particular documents. Id. This long-standing “tradition of negotiation and compromise” stands at the heart of the accommodation process. Id. at 2031. In AT&T, the D.C. Circuit discussed the constitutional foundations for the accommodation process. 567 F.2d 121. There, the Department of Justice sought to enjoin AT&T from complying with a congressional subpoena that the Executive Branch believed implicated highly classified information, the disclosure of which would be detrimental to national security. The D.C. Circuit declined to decide the case on the merits and instead mandated a “procedure giv[ing] promise of satisfying the substantial needs of both [branches].” Id. at 123. The court stated: The framers . . . expect[ed] that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. . . . [E]ach branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. Id. at 127. “[T]he resolution of conflict between the coordinate branches in these situations must be regarded as an opportunity for a constructive modus vivendi, which positively promotes the functioning of our system.” Id. at 130. In light of this history and precedent, both the Executive Branch and Congress have recognized their respective constitutional obligations to seek accommodation through good faith negotiations over their respective interests. See, e.g., Elizabeth B. Bazan & Morton Rosenberg, Cong. Research Serv., Congressional Oversight of Judges and Justices 10 (May 31, 2005) (“Although the accommodation process between Congress and the Executive Branch is conducted in a highly political atmosphere, the arguments made by each side are usually grounded in legal doctrine and rely heavily on their interpretations and past experiences. At times, the Executive Branch is able to persuade Congress that a particular request is insufficiently weighty[.]”); Congressional Requests, 13 Op. O.L.C. at 159 38 Congressional Oversight of the White House (“The process of accommodation requires that each branch explain to the other why it believes its needs to be legitimate. Without such an explanation, it may be difficult or impossible to assess the needs of one branch and relate them to those of the other.”); Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (Smith, Att’y Gen.) (“The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”). The accommodation process has usually proved successful in reconciling congressional informational needs with the Executive Branch’s interests, and so congressional committees rarely pursue citing executive branch officials for contempt of Congress to enforce their document and testimonial subpoenas, see infra Part IV.A, and Presidents rarely invoke executive privilege. Because the accommodation process is premised upon working out each branch’s needs and interests, the outcome of that process may differ when it comes to the White House. As explained in Part I, the White House functions separately from the departments and agencies and historically has been “a combined administrative, advisory, planning, and policy-formulating office serving the President in an intimate, indispensable capacity.” Clinton L. Rossiter, The Constitutional Significance of the Executive Office of the President, 43 Am. Pol. Sci. Rev. 1206, 1215 (1949). To a much greater degree than other parts of the Executive Branch, the White House serves to advise and assist the President, particularly in the discharge of his constitutional functions. Although there may be occasions when a congressional committee can appropriately seek information from the White House, particularly where the President is charged with the discharge of statutory functions, the separation of powers principles discussed above impose significant constraints on White House oversight, as reflected in long-standing practice. 15 The timing and 15 See, e.g., Letter for John W. Byrnes, House of Representatives, from Joseph Campbell, Comptroller General of the United States at 2 (Sept. 18, 1962) (“[W]e are certain you understand that [Comptroller General] investigations of White House activities are not subject to the same techniques as those conducted in the various departments and agencies. Files of the White House Office, with the exception of financial records, are normally not available to us. Also, White House personnel are not always available for interview. This has been the situation in all recent Administrations.”); see also Cong. Research 39 45 Op. O.L.C. __ (Jan. 8, 2021) scope of inquiries directed to the White House, and the accommodations offered by the White House, must be sensitive to the President’s interests in autonomy and confidentiality, as well as the heightened confidentiality interests in White House communications. They also must reflect the different balance of needs and interests that applies to oversight of the White House: Congressional needs are often more attenuated (because it is the departments and agencies that administer most statutory programs), and the Executive Branch’s institutional interests are greater (based on the President’s need for autonomy and the heightened confidentiality interests). As with all oversight requests, the White House may properly insist that a congressional committee articulate a legitimate legislative purpose for inquiries directed at the White House. See Barenblatt, 360 U.S. at 111–12; Watkins, 354 U.S. at 187. The committee’s legislative purpose should be “carefully assess[ed],” whether or not the information sought is likely to be protected by executive privilege. Mazars, 140 S. Ct. at 2035. The White House should independently “examine the objective fit between that purpose and the information sought, as well as any other evidence that may bear upon the Committee’s true objective.” President’s Tax Returns, 43 Op. O.L.C. __, at *17. If the legitimate purpose underlying the oversight request appears unclear, White House staff may request that the committee clarify that purpose. See id. at *26 (“The separation of powers would be dramatically impaired were the Executive required to . . . accept[] the legitimacy of any reason proffered by Congress, even in the face of clear evidence to the contrary.”). The White House must take care to ensure that the requests involve a legitimate legislative purpose Serv., RL31351, Presidential Advisers’ Testimony Before Congressional Committees: An Overview 21 (Dec. 15, 2014) (“Given the tradition of comity between the executive and legislative branches, Congress often elects not to request the appearance of presidential aides. When Congress has requested the appearance of such aides, Presidents and their aides have at times resisted, asserting the separation of powers doctrine and/or executive privilege.” (footnote omitted)); Louis Fisher, White House Aides Testifying Before Congress, 27 Presidential Stud. Q. 139, 151 (1997) (“The White House is usually insulated from congressional inquiry because of a long-standing comity that exists between Congress and the presidency. By and large, each branch concedes a certain amount of autonomy to the other. Only in clear cases of abuse and obvious bad faith will Congress insist that White House aides appear and give an account of their activities.”). 40 Congressional Oversight of the White House and do not intrude upon the exclusive constitutional prerogatives of the President. In addition, because any congressional inquiry must respect the “autonomy” of the President’s close advisers and “the confidentiality of [their] communications,” Cheney, 542 U.S. at 385, a congressional committee seeking information about a statutory program should generally be directed first to the agency that administers the program in question. See Mazars, 140 S. Ct. at 2035–36 (explaining that “[o]ccasion[s] for constitutional confrontation between the two branches should be avoided whenever possible” and that “Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs” (internal quotation marks omitted)). This practice of exhaustion is rooted in separation of powers principles and the practical realities of White House operations. It is crucial to the functioning of the Executive Branch that White House staff members be able to perform their functions independently and effectively in service of the President. Congressional efforts to conduct extensive and time-consuming oversight of the White House could seriously interfere with that mission. When information Congress seeks is available from an agency, there is no reason to subject the President’s advisers to potentially burdensome oversight requests, especially because aspects of their work are far more likely to implicate the presidential communications component of executive privilege. 16 Accordingly, when faced with a congressional request for information that reasonably could be acquired from a department or agency, White House staff often advise the relevant committee that it should pursue its request there. Only if the committee has exhausted the possibility of obtaining the necessary information elsewhere, and has determined that the necessary information may be obtained only from the White House, should the committee direct its inquiry to the White House. 16 Courts have credited these concerns in a series of cases discussing FOIA requests. The D.C. Circuit, for instance, has declined to allow FOIA requests for the President’s White House visitor logs—even though the logs were held by the Secret Service, which is housed within the Department of Homeland Security, rather than the White House— because such requests “could render FOIA a potentially serious congressional intrusion into the conduct of the President’s daily operations.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d at 226. 41 45 Op. O.L.C. __ (Jan. 8, 2021) When a committee’s request to the White House concerns statutory functions, is within the committee’s delegated oversight authority, and rests on a legitimate legislative purpose—and after the committee has attempted to seek such information from any relevant agencies—then the White House should consider how to accommodate the committee’s needs in a manner consistent with the interests of the Executive Branch. See AT&T, 567 F.2d at 127. An important feature of the accommodation process is the dialogue that takes place between the committee and the White House to ensure that information requests are not “unnecessarily broad.” Cheney, 542 U.S. at 390. Given the separation of powers principles at stake, these negotiations can help “narrow the scope of possible conflict between the branches,” and ensure that a request is “no broader than reasonably necessary to support Congress’s legislative objective.” Mazars, 140 S. Ct. at 2036. The accommodation process has several rules of the road. First, the White House may properly demand that Congress’s request be reasonably specific. “The specificity of [a committee’s] request ‘serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.’” Id. (quoting Cheney, 542 U.S. at 387). A committee should clearly explain the nature and scope of its request and provide the White House with an opportunity to seek further explanation if the White House believes that the request is vague or otherwise ambiguous. Second, the “burdens imposed by a congressional [request] should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas [or other requests] for institutional advantage.” Id. Finally, given the relatively small staff and resources available in the White House, the committee must afford the White House sufficient time to respond to its inquiry and flexibility in its manner and mode of response. In light of these considerations, the White House typically seeks to accommodate congressional requests by providing written responses or oral briefings on relevant activities or policies, supplemented sometimes by the production of specific non-privileged documents. The White House does not ordinarily undertake the burden of reviewing and producing e-mails and other documents, which generally will consist primarily of deliberative communications within the White House or between the 42 Congressional Oversight of the White House White House and other parts of the Executive Branch. Searching through and processing the thousands of presumptively privileged e-mails likely to be responsive to a single request undoubtedly would divert the relatively small White House staff from its important work for the President. Further, the practice of providing written responses and oral briefings instead of e-mails and other internal communications helps preserve the President’s ability to obtain full and frank advice from White House staff. This is critical to avoid chilling the candor of White House communications, since “[t]he President himself must make decisions relying substantially, if not entirely, on the information and analysis supplied by advisers.” Sealed Case, 121 F.3d at 750. Such responses and briefings, in lieu of documents, are generally sufficient to satisfy the legitimate information needs of congressional committees. As noted above, because the purpose of oversight is to enable Congress to “exercise its legislative function advisedly and effectively,” McGrain, 273 U.S. at 161, rarely do the “legislative judgments” informed by the oversight process depend on a “precise reconstruction of past events,” Senate Select Comm., 498 F.2d at 732; see Mazars, 140 S. Ct. at 2036; Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *10. Moreover, “‘Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular executive branch officials.’” Congressional Requests, 13 Op. O.L.C. at 159 (citation omitted). Although in appropriate circumstances agencies may offer the accommodation of access to deliberative materials (permitting them to be read but not copied, for example), such an accommodation would be quite unusual for internal White House and intra-EOP deliberative communications because of the President’s unique need for autonomy and heightened confidentiality interests. IV. Congressional Subpoenas to the White House We next turn to consider the procedures by which congressional committees may issue and seek to enforce subpoenas. Drawing on the constitutional principles discussed in the prior Parts, we outline some of the grounds on which the Executive Branch has commonly objected to the scope or enforceability of congressional subpoenas. 43 45 Op. O.L.C. __ (Jan. 8, 2021) A. Issuance and Enforcement of Subpoenas Congress’s subpoena power is inherent in its investigative authority. See Mazars, 140 S. Ct. at 2031; U.S. Servicemen’s Fund, 421 U.S. at 504 (observing that the issuance of subpoenas “has long been held to be a legitimate use by Congress of its power to investigate”); Independent Counsel Act Requests, 10 Op. O.L.C. at 81–82 (discussing congressional authority to issue subpoenas). Because the authority to issue subpoenas is an inherent constitutional power, Congress does not need statutory authorization to issue a subpoena, but any “exercise of subpoena power must be authorized by the relevant House.” Independent Counsel Act Requests, 10 Op. O.L.C. at 82 (citing Reed v. Cty. Comm’rs, 277 U.S. 376, 389 (1928); McGrain, 273 U.S. at 158); see also Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *19 (“a committee’s authority to compel the production of documents and testimony depends entirely upon the jurisdiction provided by the terms of the House’s delegation”). The Senate rules provide committees with the authority to subpoena witnesses, “correspondence, books, papers, and documents,” Senate Rule XXVI(1), and similarly the rules of the House of Representatives authorize committees to subpoena “witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as [they] consider[] necessary,” House Rule XI.2(m)(1)(B). The precise procedures for issuing a subpoena vary depending on the rules of the chamber and committee involved. See Michael L. Koempel, Cong. Research Serv., R44247, A Survey of House and Senate Committee Rules on Subpoenas 5– 16 (Jan. 29, 2018) (“Survey of Committee Rules”) (detailing House and Senate chamber and committee rules on subpoena procedures). In the House, subpoenas generally may be issued by a committee “only when authorized by the committee . . . , a majority being present,” but committees may delegate that power to “the chair of the committee under such rules and under such limitations as the committee may prescribe.” House Rule XI.2(m)(3)(A)(i); see also Survey of Committee Rules at 1 (“[m]ost House committees” have delegated subpoena power to their chairs). The Senate’s standing rules delegate to each committee responsibility for establishing subpoena procedures, and the procedures vary widely. See Senate Rule XXVI(2). 44 Congressional Oversight of the White House During Watergate and on several occasions more recently, congressional committees have turned to the federal courts seeking the enforcement of subpoenas against executive branch officials. This is a marked departure from long-standing practice: “Historically, disputes over congressional demands for presidential documents have not ended up in court.” Mazars, 140 S. Ct. at 2029; see Comm. on the Judiciary v. McGahn, 968 F.3d 755, 777 (D.C. Cir. 2020) (en banc) (noting that “there have been relatively few” such cases). The Supreme Court has recognized that “Congress and the Executive have nonetheless managed for over two centuries to resolve” privilege disputes without recourse to the Supreme Court. Mazars, 140 S. Ct. at 2031. And although Mazars arose in an unusual posture that made it justiciable—because the President in his personal capacity sought to require his accountants to comply with their confidentiality obligations—that case was the first such dispute to reach the Supreme Court. See id. (“we have never considered a dispute over a congressional subpoena for the President’s records”). In recent decades, the Department of Justice has maintained that a congressional suit to enforce a subpoena against the Executive Branch is not justiciable. 17 First, such a lawsuit typically alleges an abstract “type of institutional injury (the diminution of legislative power)” that does not constitute a “‘concrete and particularized’” legal injury as required for Article III standing—a doctrine that applies “especially rigorous[ly]” in separation of powers cases. Raines v. Byrd, 521 U.S. 811, 819–21 (1997) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Second, as noted above, such suits were nearly unprecedented as a historical matter, despite the history of oversight disputes between Congress and the ExecuAlthough a congressional committee may not seek judicial enforcement of a subpoena against the Executive Branch, there are some cases, such as Mazars, where a suit involving a congressional subpoena would be justiciable. The dispute there no doubt presented “significant separation of powers issues” and was in meaningful respects an inter-branch dispute, 140 S. Ct. at 2033–34, but as noted, it involved the President’s private right in his personal papers and the legal obligations owed to him by third parties that were the actual recipients of the subpoenas, see id. at 2027–28; see also Comm. on the Judiciary v. McGahn, 951 F.3d 510, 531 (D.C. Cir. 2020) (“we may adjudicate cases concerning congressional subpoenas if they implicate the rights of private parties”), vacated on reh’g en banc, 968 F.3d 755; United States v. Am. Tel. & Tel. Co., 551 F.2d 384, 390–91 (D.C. Cir. 1976) (holding that an executive branch suit to enjoin a third party from complying with a congressional subpoena was justiciable). 17 45 45 Op. O.L.C. __ (Jan. 8, 2021) tive Branch going back to the First Congress, and thus are not “‘traditionally thought to be capable of resolution through the judicial process.’” Id. at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)); see also Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008) (“history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider”). It was not until 1974—almost two centuries after the Constitution’s ratification—that a committee of Congress appears to have first brought a civil action attempting to compel executive branch compliance with a subpoena. See Senate Select Comm., 498 F.2d 725. In that case, a statute purported to give the District Court for the District of Columbia jurisdiction in “any civil action” brought by the Senate committee investigating the Watergate scandal to “enforce and secure a declaration concerning the validity of any subpoena.” Pub. L. No. 93-190, § (a), 87 Stat. 736, 736 (1973); see also Senate Select Comm., 498 F.2d at 727–28 (explaining the jurisdiction conferred by the special law). The court of appeals did not address whether the case was justiciable as a constitutional matter. No committee of Congress brought a subpoenaenforcement action again until 2008, when House committees began filing such suits with some regularity. 18 Earlier this year, a panel of the D.C. Circuit agreed with the Department and dismissed a congressional suit seeking enforcement of a subpoena to the former Counsel to the President. Comm. on the Judiciary v. McGahn, 951 F.3d 510 (D.C. Cir. 2020), vacated on reh’g en banc, 968 F.3d 755. The panel concluded that “separation-of-powers principles and historical practice” bar federal courts from exercising jurisdiction over committee suits “to enforce a congressional subpoena against the Executive Branch.” Id. at 522. The court reheard the case en banc and vacated that ruling, holding that congressional committees could assert informational injuries no less than private parties because the constitutional separation of powers erects no “structural barrier to judicial involvement in informational disputes between the elected branches.” McGahn, 968 18 See Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary v. Miers, No. 08-0409 (D.D.C. Mar. 10, 2008); Complaint, Comm. on Oversight & Gov’t Reform v. Holder, No. 12-1332 (D.D.C. Aug. 13, 2012); Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary v. McGahn, No. 19-2379 (D.D.C. Aug. 7, 2019); Complaint for Declaratory and Injunctive Relief, Comm. on Oversight & Reform v. Barr, No. 19-3557 (D.D.C. Nov. 26, 2019). 46 Congressional Oversight of the White House F.3d at 768. But see id. at 783–84 (Griffith, J., dissenting) (faulting the majority for “its neglect of the interbranch nature of this dispute”). On remand, however, the panel held that congressional committees nonetheless lack a cause of action to seek judicial enforcement of a subpoena in this context. McGahn, 973 F.3d 121 (D.C. Cir. 2020), reh’g en banc granted, No. 19-5331 (Oct. 15, 2020). As the panel recognized, even if congressional suits to enforce subpoenas to the Executive Branch were justiciable, they fall outside the statutory jurisdiction of the federal courts and are unsupported by any cause of action. Although committees have relied upon the federal-question statute, 28 U.S.C. § 1331, as a basis for subject-matter jurisdiction, a more specific statute governs jurisdiction over congressional subpoena-enforcement suits, id. § 1365(a). This latter statute provides jurisdiction only for Senate actions, and more importantly excludes all actions to enforce subpoenas against executive branch officials who raise “a governmental privilege.” Id.; see McGahn, 951 F.3d at 522 (“The obvious effect of section 1365(a)’s carve-out is to keep interbranch information disputes like this one out of court.”). Indeed, the carve-out sought to accommodate the Executive Branch’s view, expressed by then-Assistant Attorney General Scalia, that “the Supreme Court should not and would not undertake to adjudicate the validity of the assertion of executive privilege against the Congress.” Executive Privilege—Secrecy in Government: Hearings on S. 2170, S. 2378, and S. 2420 Before the Subcomm. on Intergovernmental Relations of the S. Comm. on Gov’t Operations, 94th Cong. 83 (1975) (statement of Assistant Attorney General Scalia); see also id. at 84 (“[T]he courts are precisely not the forum in which this issue should be resolved.”). Moreover, in addition to lacking a statutory basis for jurisdiction, House committees lack any cause of action to enforce their subpoenas. The statute that provides a cause of action to enforce Senate subpoenas, 2 U.S.C. § 288d, like section 1365(a), applies only to the Senate (and imposes various restrictions). That limitation (among other considerations) also makes clear, as the McGahn panel explained, that neither an implied cause of action under Article I of the Constitution nor an equitable cause of action is available to the House in this context. See 973 F.3d at 123–24; see also id. at 124–25 (applying Supreme Court and circuit precedent to reject the argument that the Declaratory Judgment Act, 28 47 45 Op. O.L.C. __ (Jan. 8, 2021) U.S.C. § 2201, provides a cause of action). As the Supreme Court has recognized, Congress’s authority “to compel production of evidence differs widely from authority to invoke judicial power for that purpose.” Reed, 277 U.S. at 389. In the 1980s, this Office opined that these civil suits do lie within the constitutional and statutory jurisdiction of the federal courts and are appropriate for judicial resolution. See Independent Counsel Act Requests, 10 Op. O.L.C. at 87–89; Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 137 (1984) (“Prosecution for Contempt of Congress”). 19 But those statements preceded significant decisions in which the Supreme Court clarified the requirements of Article III standing (most notably Raines v. Byrd ) and amendments to 28 U.S.C. § 1365(a) enacted in 1996 that confirm Congress’s intent to bar inter-branch informational disputes from federal court. See McGahn, 951 F.3d at 522 (discussing 1996 legislative history). In fact, the author of one such OLC opinion, Assistant Attorney General Theodore Olson, argued while later serving as Solicitor General that these developments in the law undermined the Department’s earlier view. See Defendant’s Memorandum of Points & Auths. in Reply to Plaintiff ’s Opposition to Motion to Dismiss, Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002) (No. 02-340), 2002 WL 32388026 (relying on Raines to argue that a suit brought by the Comptroller General against executive branch officials was nonjusticiable). This Office was consulted on that brief at the time, and we continue to think that these developments in the law support the Department’s current view that Congress may not properly seek to enforce its subpoenas in federal court against executive branch officials. Congress has increasingly turned to civil enforcement suits as an alternative to traditional efforts to compel executive branch officials to provide information that Congress has requested. Historically, Congress has had no shortage of ways to use its powers to press executive branch officials to negotiate and to comply with appropriate informational deThe Department of Justice even attempted to bring an analogous suit against the House in 1983. See United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) (dismissing, on prudential grounds, a suit seeking a declaratory judgment that the Administrator of the Environmental Protection Agency had lawfully withheld privileged documents from Congress). 19 48 Congressional Oversight of the White House mands. Congress has the power of the purse, see U.S. Const. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”), as well as the power to impeach and remove executive officers, see id. § 2, cl. 5; id. § 3, cls. 6–7, and the Senate’s consent is necessary for the appointments of many senior executive officers, see id. art. II, § 2, cl. 2. Congress also may press its case directly to the press and to the public at large. Those powers have frequently been deployed as a means of ensuring that the Executive Branch acts in accord with the “tradition of negotiation and compromise,” Mazars, 140 S. Ct. at 2031, that has led to the successful resolution of many oversight disputes. Congress also has other, more direct means of ensuring compliance with subpoenas. One theoretical option would be for the House or Senate to invoke its inherent contempt powers and instruct the Sergeant-at-Arms to arrest an individual cited for contempt. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821). However, Congress has not sought to arrest any person for contempt in more than 80 years, see Independent Counsel Act Requests, 10 Op. O.L.C. at 86, and has not sought to arrest an executive branch official in more than a century, see McGahn, 968 F.3d at 776. Any effort by Congress to arrest a White House official for noncompliance with a subpoena based upon a legitimate separation of powers objection would, besides raising serious practical concerns, likely be unconstitutional. See Immunity of the Former Counsel, 43 Op. O.L.C. __, at *20–21 (“The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of a presidential assertion of executive privilege. An attempt to exercise inherent contempt powers in such a circumstance would be without precedent and would immeasurably burden the President’s ability to assert the privilege and to carry out his constitutional functions.” (internal quotation marks omitted)). Congressional authority to arrest executive officials for actions properly taken to protect the prerogatives of the Executive Branch is the type of “great substantive and independent power[]” that the Constitution would not have left to mere implication. Nat’l Fed’n of Indep. Bus., 567 U.S. at 559 (opinion of Roberts, C.J.) (internal quotation marks omitted). To complement its inherent contempt power, Congress in the midnineteenth century enacted a criminal statute to prohibit defiance of a 49 45 Op. O.L.C. __ (Jan. 8, 2021) congressional subpoena. See 2 U.S.C. § 192. Under the statute, where a person who is summoned to give testimony or to produce papers and “willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry,” id., the President of the Senate or the Speaker of the House may refer to an “appropriate United States attorney” for prosecution an individual who refuses to comply with a subpoena. Id. § 194. Congress has invoked the criminal contempt statute against private parties and executive branch officials as well. We have long maintained, however, that the contempt statute does not apply to executive branch officials who resist congressional subpoenas in order to protect the prerogatives of the Executive Branch. See Prosecution for Contempt of Congress, 8 Op. O.L.C. at 129–42. Moreover, given that the prosecution authority is part of the executive power, Congress may only refer an individual to a United States Attorney for a contempt prosecution; the Department of Justice ultimately has the prosecutorial discretion to decide whether a person should be indicted and prosecuted. See Nixon, 418 U.S. at 693 (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Prosecution for Contempt of Congress, 8 Op. O.L.C. at 119–20 (Department of Justice controls whether any contempt prosecution will be brought). In response to criminal referrals for two White House officials in 2008, for instance, Attorney General Michael Mukasey notified the Speaker of the House that the Department of Justice would “not bring the congressional contempt citations before a grand jury or take any other action to prosecute,” because, in light of the President’s assertions of executive privilege, the “non-compliance by [the President’s Chief of Staff ] and [the former Counsel to the President] . . . did not constitute a crime.” Letter for Nancy Pelosi, Speaker of the House, from Michael B. Mukasey, Attorney General at 2 (Feb. 29, 2008); see also Prosecution for Contempt of Congress, 8 Op. O.L.C. at 128 (contempt statute does not override the Executive’s prosecutorial discretion); Prosecutorial Discretion Regarding Citations for Contempt of Congress, 38 Op. O.L.C. 1, 2–3 (2014) (same). Congressional committees have generally sought enforcement of subpoenas against noncompliant witnesses only with an authorization from the full House or Senate. See 2 U.S.C. § 288b(b) (requiring “adoption of a resolution by the Senate” to authorize a Senate subpoena-enforcement 50 Congressional Oversight of the White House suit); House Rule XI.2(m)(3)(C) (“Compliance with a subpoena issued by a [House] committee or subcommittee . . . may be enforced only as authorized or directed by the House.”); Cong. Research Serv., RL30548, Hearings in the U.S. Senate: A Guide for Preparation and Procedure 11 (Mar. 18, 2010) (“Compliance with a [Senate committee] subpoena can be enforced only at the direction of the Senate.”); Independent Counsel Act Requests, 10 Op. O.L.C. at 82–83 (discussing procedures for enforcing House subpoenas). 20 If the committee seeks to enforce the subpoena by holding the recipient in contempt, the committee (by a majority vote) must seek such approval by “report[ing] a resolution of contempt to the floor.” Louis Fisher, Cong. Research Serv., Congressional Investigations: Subpoenas and Contempt Power 7 (Apr. 2, 2003) (“Subpoenas and Contempt Power”); see also 2 U.S.C. § 194 (requiring, for a contempt of Congress prosecution, that noncompliance with a subpoena be reported to the House or Senate, or House or Senate leadership if Congress is not in session). The full House or Senate must then “vote in support of the contempt citation” before the contempt may be referred to the U.S. Attorney. Subpoenas and Contempt Power at 7; see also Wilson v. United States, 369 F.2d 198, 203 (D.C. Cir. 1966) (explaining that a chamberwide vote provides “a ‘check’ on hasty action by a committee” and avoids a situation where “the allegedly insulted committee . . . provide[s] the sole legislative determination whether to initiate proceedings to prosecute for contempt”). Committees of Congress have issued and likely will continue to issue subpoenas for documents and testimony to White House personnel. Less certain, however, is whether congressional entities have any authority to seek to compel compliance with such subpoenas in court. We believe that congressional suits to enforce subpoenas to executive branch officials fall outside the constitutional and statutory jurisdiction of the federal courts; Where recourse has been made to the courts, the House or Senate has typically authorized such an action by resolution. Todd Garvey, Cong. Research Serv., R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance 5 (Mar. 27, 2019); see, e.g., H.R. Res. 706, 112th Cong. (2012) (authorizing suit to enforce subpoena to Attorney General Holder). In the 116th Congress, however, the House broke from this practice by adopting a resolution enabling committees to file suit whenever authorized by the Bipartisan Legal Advisory Group, H.R. Res. 430 (2019), which comprises the House Speaker and majority and minority leaderships, House Rule II.8(b). 20 51 45 Op. O.L.C. __ (Jan. 8, 2021) the inherent contempt mechanism appears to have fallen into desuetude, and would present grave constitutional concerns if deployed against executive branch officials acting to protect the lawful prerogatives of the Executive; and the Executive Branch has discretion to refuse to bring a contempt of Congress criminal prosecution against one of its officials in such circumstances. B. Validity of Subpoenas Issued to the White House It is the Executive Branch’s settled policy to work to accommodate congressional requests for information in a manner consistent with the Executive’s constitutional and statutory obligations. Historically, however, congressional subpoenas to executive branch officials have raised a variety of separation of powers concerns. This section identifies and discusses a number of legal defects, several of which are discussed at greater length above, that have commonly arisen in subpoenas involving the White House. These limitations on Congress’s oversight powers are rooted in the separation of powers, and observing them serves to prevent Congress from “aggrandiz[ing] itself at the [Executive’s] expense.” Mazars, 140 S. Ct. at 2034. Lack of Oversight Authority or Legitimate Legislative Purpose. As we have discussed, all congressional oversight inquiries must be conducted in support of Congress’s legislative authority under Article I of the Constitution. See id. at 2031–32, 2035–36; McGrain, 273 U.S. at 177. A subpoena that seeks material or testimony on matters beyond Congress’s legislative authority, such as the exercise of a constitutional power vested exclusively in the Executive Branch, is beyond Congress’s oversight authority. See Barenblatt, 360 U.S. at 111–12. Infringement of Presidential Autonomy and Confidentiality. Congressional inquiries to the White House are constrained by “the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications.” Cheney, 542 U.S. at 385. In certain circumstances, compliance with a congressional subpoena directed at the White House may unduly impair the Executive’s “ability to discharge its constitutional responsibilities.” Id. at 382. For example, compliance with a subpoena that is excessively broad or intrusive might burden White House personnel to a degree that prevents them from effec52 Congressional Oversight of the White House tively advising and assisting the President in the performance of his constitutional duties. In that circumstance, it would be unconstitutional to enforce such an unduly broad subpoena. Of course, the accommodation process serves to ensure that congressional requests are tailored or narrowed so as to avoid infringement of presidential autonomy and confidentiality while satisfying Congress’s legitimate needs for relevant information. Immunity of White House Officials from Compelled Testimony. Relatedly, the White House has consistently resisted subpoenas that seek to compel the President’s immediate advisers to testify before congressional committees. The White House has declined to make many of the President’s immediate advisers available since the establishment of the EOP, and for almost 50 years, the Department of Justice has articulated this position as a legal immunity—that “the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee on matters related to their official duties.” Immunity of the Former Counsel, 43 Op. O.L.C. __, at *3 (internal quotation marks omitted). 21 As Assistant Attorney General Rehnquist explained: The President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis— should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee. Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff ” at 7 (Feb. 5, 1971); see also Immunity of the Former Counsel, 43 Op. O.L.C. __, at *7– 21 Although this Office has spoken of this protection from compelled congressional testimony in terms of “immunity,” it may equally be viewed as a limitation on the breadth of Congress’s implied power to compel testimony. Cf. New York v. United States, 505 U.S. 144, 159 (1992) (“it makes no difference whether one views” a federalism question as turning upon “the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution” or the scope of the “sovereignty retained by the States under the Tenth Amendment”). 53 45 Op. O.L.C. __ (Jan. 8, 2021) 11 (listing historical examples of immediate presidential advisers refusing to testify); Letter for Phillip E. Areeda, Counsel to the President, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, att. at 6 (Sept. 25, 1974) (“at least since the Truman Administration,” presidential advisers “have appeared before congressional committees only where the inquiry related to their own private affairs or where they had received Presidential permission”). Consequently, in addition to invoking executive privilege over particular questions, the President “can also direct them not even to appear before the committee.” Memorandum for Margaret McKenna, Deputy Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers app. at 7 (Aug. 11, 1977). For example, in 1981, Martin Anderson, President Reagan’s assistant for policy development, refused to appear before a House appropriations subcommittee responsible for funding his office. White House Counsel Fred F. Fielding explained that “[f ]rom the Administration of George Washington to the present day, it has been a central tenet of the doctrine of separation of powers among the three branches of the Federal Government that the President is not subject to questioning as to the manner in which he formulates Executive policy”; this principle “founded in practicality as well as tradition and law” “has also been applied to senior members of the President’s personal staff, who participate in the deliberative process through which such policies are developed.” Letter for Edward R. Roybal, Chairman, Subcommittee on Treasury, Postal Service, General Government, U.S. House of Representatives, from Fred F. Fielding, Counsel to the President (July 8, 1981), reprinted in H.R. Rep. No. 97-171, at 61 (1981). This testimonial immunity safeguards the constitutional separation of powers by protecting the independence and autonomy of the Presidency from congressional interference; it also “protects the Executive Branch’s strong interests in confidentiality as well as the President’s ability to obtain sound and candid advice.” Immunity of the Former Counsel, 43 Op. O.L.C. __, at *5; accord Immunity of the Director of the Office of Political Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C. 5, 7–9 (2014). Immediate advisers to the President remain immune from compelled testimony about their official duties in that capacity even after they leave the White House. See Immunity of the Former Counsel, 43 Op. O.L.C. __, 54 Congressional Oversight of the White House at *15–16 (explaining that “the risk to the separation of powers and to the President’s autonomy posed by a former adviser’s testimony on official matters continues after the conclusion of that adviser’s tenure”). In determining whether a person qualifies for this immunity, we have considered the day-to-day responsibilities of the adviser and the extent of his or her regular interaction with the President. Although most members of the White House staff do not qualify for immunity from compelled testimony, as a matter of policy the White House has generally opposed making any members of the White House staff available to testify, subject to the accommodation process. The Executive Branch’s position on immunity is well established by our precedent and practice, but the federal courts have looked less favorably on this position in the two cases in which the House sought to test it in court. The district courts to consider the question have held that senior presidential advisers do not, at least as a categorical matter, enjoy absolute immunity from compelled congressional testimony. See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 105–06 (D.D.C. 2008); Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 200–14 (D.D.C. 2019). But the first of those decisions was stayed pending appeal, Comm. on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) (per curiam), and then settled without enforcement of the subpoena, 2009 WL 3568649 (D.C. Cir. Oct. 14, 2009). The second decision remains under review in the D.C. Circuit. In the latter case, two judges sitting on the D.C. Circuit panel similarly expressed doubt about the existence of this absolute immunity. See McGahn, 951 F.3d at 538–42 (Henderson, J., concurring); id. at 558 (Rogers, J., dissenting). No precedential ruling has addressed the Executive Branch’s position, however, which for decades has governed the Executive Branch’s negotiations with congressional committees seeking the testimony of the President’s immediate advisers. Exclusion of Counsel from Depositions. Although historically Congress has sought to obtain testimony from executive branch officials by means of voluntary interviews and public hearings, committees in recent years have made increasing use of depositions. See, e.g., H.R. Res. 6, 116th Cong. § 103(a)(1) (2019) (authorizing committee chairs to “order the taking of depositions, including pursuant to subpoena, by a member or counsel of such committee”). And certain committees, based on the current House rules governing depositions, have attempted to bar executive 55 45 Op. O.L.C. __ (Jan. 8, 2021) branch witnesses from being accompanied by agency counsel at their depositions, allowing only private counsel. 165 Cong. Rec. H1216 (daily ed. Jan. 25, 2019) (“counsel for government agencies . . . may not attend”); see also, e.g., H. Comm. on Oversight & Reform Rule 15(e), 116th Cong. (2019) (counsel “for agencies under investigation . . . may not attend”). The Executive Branch has repeatedly resisted this practice and sought to maintain the “[l]ongstanding Executive Branch policy and practice” of agency counsel accompanying agency officials when they are questioned by Congress. Letter for Henry Waxman, Chairman, Committee on Oversight and Government Reform, U.S. House of Representatives, from Dinah Bear, General Counsel, Council on Environmental Quality at 2 (Mar. 12, 2007). This Office has advised that barring agency counsel from congressional depositions is unconstitutional because it “compromise[s] the President’s constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch’s communications with congressional entities.” Exclusion of Agency Counsel, 43 Op. O.L.C. __, at *2; see also 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) (noting that excluding agency counsel may raise “constitutional concerns” but reserving the question). This principle of course applies to depositions of White House officials. In Exclusion of Agency Counsel, for example, we advised that a subpoena issued by the House Committee on Oversight and Reform to the former head of the White House Personnel Security Office was invalid on this basis. See 43 Op. O.L.C. __, at *2, *6. Subpoenas requiring White House personnel to testify without agency counsel are therefore without legal effect and may not constitutionally be enforced, civilly or criminally, against their recipients. See id. at *13–14. Failure to Exhaust the Accommodation Process. The White House often has responded to congressional requests by insisting that committees engage in the accommodation process. See supra Part III.C. A congressional committee may not avoid its obligation to participate in this constitutionally mandated process by issuing or seeking to enforce a subpoena before the accommodation process has run its course. Thus, White House officials have often cited a committee’s failure to exhaust the accommodation process in objecting to a congressional subpoena. 56 Congressional Oversight of the White House The accommodation process encompasses the exhaustion principle that we have discussed above. The White House may object to a committee’s refusal to seek necessary information from the relevant executive branch departments and agencies before directing requests to the White House. See Mazars, 140 S. Ct. at 2035–36 (“Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective.”). Where a committee declines to honor its obligation to accommodate the legitimate needs of the White House, the committee may not lawfully begin the contempt process based upon good faith objections raised by White House officials. Assertion of Executive Privilege. An assertion of executive privilege authorized by the President is a well-established ground for resisting a congressional subpoena. See id. at 2032 (“recipients [of legislative subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as . . . governmental communications protected by executive privilege”). Executive privilege consists of several components, which vary in scope and the extent of protection from disclosure. See supra Part III.B. As relevant to the White House, a congressional committee may overcome an assertion of executive privilege based on the presidential communications component of the privilege only by “demonstrat[ing] that the information sought is ‘demonstrably critical to the responsible fulfillment of the Committee’s functions.’” Assertion of Executive Privilege for Documents Concerning Conduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6 (1996) (Reno, Att’y Gen.) (quoting Senate Select Comm., 498 F.2d at 731). White House officials have an obligation to minimize the disclosure of privileged information and to protect the President’s authority to determine when it would be in the public interest to provide such information as an accommodation. This is not to say that the Executive Branch must or should claim executive privilege as a prerequisite to asserting any confidentiality interests in connection with congressional oversight. A formal assertion of executive privilege is a last resort in the sense that it is typically only needed when the Executive Branch has already asserted its confidentiality interests, but the accommodation process has failed to produce a resolution and the relevant committee moves to initiate enforcement action by voting 57 45 Op. O.L.C. __ (Jan. 8, 2021) to recommend that the recipient of the subpoena be cited for contempt of Congress. 22 However, a formal assertion of privilege does not preclude the possibility of further negotiation and accommodation. Unreasonable Burden to Comply. White House officials also may decline to comply fully with the terms of a subpoena based on a concern that compliance would be unreasonably burdensome or impossible. Compared to the departments and agencies, White House components have small staffs who are primarily devoted to advising and assisting the President. Exempt from FOIA, these White House components do not have trained standing units devoted to document review and response work. Instead, these White House components need to divert staff from their work for the President to process congressional oversight requests. The White House is thus less likely than other parts of the Executive Branch to have the resources available to comply fully with subpoenas that are broad in scope and have urgent return dates. The federal courts’ rules of procedure for both civil and criminal cases relieve parties of the obligation to comply with a subpoena where the scope of the request and the return date make compliance unreasonably burdensome or impossible. See Fed. R. Civ. P. 45(d)(3)(A) (court “must quash or modify a subpoena that . . . fails to allow a reasonable time to comply”); Fed. R. Crim. P. 17(c)(2) (“court may quash or modify the subpoena if compliance would be unreasonable or oppressive”). Further, a party may not be held in contempt for noncompliance with a subpoena when compliance is an impossibility. See, e.g., In re Marc Rich & Co., 736 F.2d 864, 866 (2d Cir. 1984) (noting that the district court “made it perfectly clear that [a contemnor] simply had to produce appropriate affidavits attesting to the impossibility of compliance and the [contempt] judgment would be lifted”). Similar principles apply in the context of When this course of events moves too quickly to allow for an adequate executive privilege review, the President may make a “protective” assertion of executive privilege over a class of documents in order “to ensure [his] ability to make a final decision, after consultation with the Attorney General, as to which specific documents are deserving of a conclusive claim of executive privilege.” Protective Assertion of Executive Privilege Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 1, 1 (1996) (Reno, Att’y Gen.); accord Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43 Op. O.L.C. __ (May 8, 2019) (Barr, Att’y Gen.). 22 58 Congressional Oversight of the White House congressional subpoenas, particularly given that “Congress and the courts have similar subpoena powers.” Nixon v. Sirica, 487 F.2d 700, 731 (D.C. Cir. 1973) (en banc) (per curiam). ***** It has long been the Executive Branch’s policy to “comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.” Reagan Memorandum at 1. But the critical functions that White House staff members play when advising and assisting the President in the performance of his constitutional duties require that congressional oversight of the White House be conducted differently from oversight of the departments and agencies. The necessary approach has been described at length in this memorandum opinion, but the core principle is that congressional committees and the White House must work together to accommodate congressional needs for information about the Executive Branch’s discharge of statutory obligations in a manner that does not undermine the White House staff ’s ability to advise and assist the President. STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 59

Write a legal research memo on the following topic.

Constitutionality of Pending Bills Restricting the Withdrawal of Public Land for National Defense Pursuant to his constitutional powers as Commander in Chief, the President, particularly in time of war or national emergency, may have authority without the authorization of Congress to reserve and use public lands for the training and deployment of the armed forces of the United States for national defense purposes. If the above is true, any attempted restriction of this authority by Congress would be an unconstitutional invasion of the President’s authority as Commander in Chief. July 12, 1956 MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL This is in reply to your memorandum dated April 18, 1956, requesting my comments on H.R. 10,362, H.R. 10,366, H.R. 10,367, H.R. 10,371, H.R. 10,372, H.R. 10,377, H.R. 10,380, H.R. 10,384, H.R. 10,394, and H.R. 10,396 (all pending in the 84th Congress). The stated purpose of the bills is “[t]o provide that withdrawals or reservations of more than five thousand acres of public lands of the United States for certain [defense purposes] shall not become effective until approved by Act of Congress.” Sections 1 and 2 of H.R. 10,366, 10,367, 10,372, 10,377, 10,394 and 10,396 provide that on and after the enactment of the bill, notwithstanding any other provisions of law, no public land, water, or land and water area of the United States, including public lands in the Territory of Alaska, shall be (1) withdrawn from settlement, location, sale, or entry, in order that it may be used for defense purposes, or (2) reserved for such purposes, except by Act of Congress. Sections 1 and 2 of H.R. 10,362, 10,371, 10,380 and 10,384 differ from the aforementioned bills in that these latter bills provide that the provisions of the Act will not apply in time of war or in a national emergency declared by the President or by act of Congress. Article IV, Section 3, Clause 2 of the United States Constitution provides that “[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” However, from an early period in the history of the federal government, the President, without special authorization from Congress, has withdrawn public lands from private settlement and acquisition even though Congress had opened them to such occupancy. In the case of Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 381 (1867), which involved the reservation of public lands for military purposes, the Supreme Court of the United States noted that the authority of the President to reserve public lands from sale and set them apart for public uses had been recognized in numerous acts of Congress. The effect of H.R. 10,362 and the other captioned bills would be to restrict the President’s authority to withdraw, for defense purposes, public lands or waters, in 163 Supplemental Opinions of the Office of Legal Counsel in Volume 1 excess of five thousand acres, from private settlement, location, sale or entry. A question is presented whether such a restriction can be placed on the President by act of Congress. In the case of United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Supreme Court passed on the question whether the President could constitutionally exercise regulatory power over the public domain. In the Midwest Oil case the Congress had opened the public lands containing petroleum to occupation, exploration and purchase by citizens of the United States. Id. at 465. In 1909 it was discovered that large areas of that public lands in California contained oil, and extensive exploitation was undertaken by private parties. This exploitation was so rapid that the Secretary of the Interior advised the President that unless public lands containing petroleum were withdrawn from entry, settlement, and exploitation, the United States Navy would be forced to buy its oil from private parties exploiting former federal public lands. In the light of these facts, the President, without the express authorization of Congress, withdrew “in aid of proposed legislation” large areas of the public domain in California and Wyoming. Id. at 467. This authority was properly challenged in the courts. In passing on the matter, the Supreme Court noted that, though the Constitution gave Congress the power to dispose of and make all needful rules and regulations respecting the public lands, nevertheless, former presidents, without special authorization from Congress, had in a large number of cases, for a public use or purpose, withdrawn public lands from occupation and settlement by private parties. The Court further noted that this long-continued practice had never been repudiated by Congress; rather Congress had apparently recognized that the Executive was in an advantageous position to protect the public domain for public purposes and uses. The Court held that, while the Executive cannot by a course of action create a power, Congress by its long and continuous acquiescence in the exercise by the President of management over the public domain had given the President the implied power as Chief Executive to exercise administrative power over the public domain. Therefore, the Court held that, for a public use or purpose, the President had the power to withdraw the public lands in question from private settlement or occupation even though Congress may have previously opened the lands for such use. Cf. Sioux Tribe v. United States, 316 U.S. 317 (1942). The Supreme Court has also indicated in both the Midwest Oil case and Sioux Tribe case that, since Congress had the constitutional power to regulate the use of public lands, it could by express action limit or revoke this implied delegation of power to the President. And in fact, in the situation involved in the Midwest Oil case, Congress subsequently did curtail somewhat the President’s administrative powers over the public lands in question. See Pub. L. No. 61-303, 36 Stat. 847 (1910); Withdrawal of Public Lands, 40 Op. Att’y Gen. 73 (1941). In arguing the Midwest Oil case, one of the contentions of the government was that the President, as Commander in Chief, had the power to issue the order in question for the purpose of retaining and preserving a source of supply of fuel for 164 Constitutionality of Pending Bills Restricting the Withdrawal of Public Land the Navy. The Supreme Court, however, decided the case in favor of the federal government on different grounds. As pointed out above, H.R. 10,362 and the other captioned bills would restrict the President’s authority to use public lands for defense purposes. It is my opinion that the bills, especially those that do not contain a national emergency or war exception, present a serious constitutional question which the courts have never passed on in regard to the President’s powers as Commander in Chief. It is clear that the President’s powers as Commander in Chief cannot be intruded upon by Congress, just as the war powers of Congress cannot be intruded upon by the President. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866). However, the nature and extent of the President’s constitutional war powers are not clearly defined or specified in the Constitution. Article II, Section 2, Clause 1 of the Constitution simply provides: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States . . . . Clearly, the President is Commander in Chief both in time of peace and war. In reply to a request from the Senate for an opinion as to the powers of the President during a national emergency or state of war, Attorney General Murphy stated: You are aware, of course, that the Executive has powers not enumerated in the statutes—powers derived not from statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. In a measure this is true with respect to most of the powers of the Executive, both constitutional and statutory. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action. Request of the Senate for an Opinion as to the Powers of the President “In Emergency or State of War,” 39 Op. Att’y Gen. 343, 347–48 (1939). The courts have several times dealt with the President’s constitutional powers as Commander in Chief, but it is clear that in doing so they have not made a clear demarcation of the boundaries of said power. See Fleming v. Page, 50 U.S. (9 How.) 603, 614–15 (1850); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1867); 165 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Prize Cases, 67 U.S. (2 Black) 635, 668, 670 (1863); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the case of the bills in question, the issue is whether the Congress can restrict the President, as Commander in Chief, in the use of public lands of the United States for national defense purposes. As pointed out above, the courts have never passed on this precise question. In this regard it should be noted that no private rights are involved, since a person has no private rights in the public lands until he has made a legal entry upon the lands, and they cease to become part of the public domain. Reservation of Land for Public Uses, 17 Op. Att’y Gen. 160 (1881). The classic statement of the powers of the Commander in Chief is set forth in the case of Fleming v. Page, where it was said by Mr. Chief Justice Taney: As commander-in-chief, he [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. 50 U.S. at 615. As Commander in Chief it has been held that the President, during time of war, has powers of his own concerning the use of private property for national defense purposes. In the case of United States v. McFarland, 15 F.2d 823, 826 (4th Cir. 1926), it was stated that the President, as Commander in Chief, has the constitutional power in war time, in cases of immediate and pressing exigency, to appropriate private property to public uses in order to insure the success of a military operation, the government being bound to make just compensation thereafter. See also Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851); United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Roxford Knitting Co. v. Moore & Tierney, Inc., 265 F. 177, 179 (2d Cir. 1920). However, the Supreme Court has also held that the President, as Commander in Chief, cannot seize the property of private citizens in time of emergency, contrary to an act of Congress, to prevent interruption of the production of supplies for the armed forces. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The Attorney General has indicated that the President, as Commander in Chief, has broad constitutional powers to obtain military bases for the national defense. In Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att’y Gen. 484 (1940), Attorney General Jackson dealt with the question whether the President, pursuant to his powers to administer foreign relations and as Commander in Chief, could acquire by executive agreement, and without action by Congress, the right to obtain foreign naval and military bases for the armed forces of the United States. It was stated: One of these is the power of the Commander in Chief of the Army and Navy of the United States, which is conferred upon the Pres- 166 Constitutionality of Pending Bills Restricting the Withdrawal of Public Land ident by the Constitution but is not defined or limited. Happily, there has been little occasion in our history for the interpretation of the powers of the President as Commander in Chief of the Army and Navy. I do not find it necessary to rest upon that power alone to sustain the present proposal. But it will hardly be open to controversy that the vesting of such a function in the President also places upon him a responsibility to use all constitutional authority which he may possess to provide adequate bases and stations for the utilization of the naval and air weapons of the United States at their highest efficiency in our defense. It seems equally beyond doubt that present world conditions forbid him to risk any delay that is constitutionally avoidable. Id. at 486. In regard to the command, training, and deployment of the armed forces, the Attorney General has stated: 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. As pointed out by the texts just cited, this 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. Likewise of course the President may order the carrying out of maneuvers or training, or the preparation of fortifications, or the instruction of others in matters of defense, to accomplish the same objective of safety of the country. Indeed the President’s authority has long been recognized as extending to the dispatch of armed forces outside of the United States, either on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests. Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61– 62 (1941). In Fort Missoula Military Reservation, 19 Op. Att’y Gen. 370 (1889), the Attorney General was called on to construe an act of Congress which applied to the Territory of Oregon and provided that all reservations and withdrawals of public land for the purpose of establishing forts should be limited to 640 acres. The Attorney General did not pass on any constitutional problems that might have been involved since he found that the fort in question was located in Montana which, although once a part of the Oregon Territory, was not in his opinion covered by the Act. 167 Supplemental Opinions of the Office of Legal Counsel in Volume 1 In the light of the analysis set forth above, it appears that, pursuant to the constitutional powers as Commander in Chief, the President, particularly in time of war or national emergency, may have authority without the authorization of Congress to reserve and use the public domain for the training and deployment of the armed forces of the United States for national defense purposes. If the above is true, any attempted restriction of this authority by Congress would be an unconstitutional invasion of the President’s authority as Commander in Chief. I, therefore, recommend that the Department report that it is opposed to sections 1 and 2 of he captioned bills since the sections would impose an unwarranted restriction upon the President’s powers to use the public domain for national defense purposes, and for the additional reason that the bills, particularly H.R. 10,366 and similar bills, present a serious question regarding an unconstitutional restriction of the President’s powers as Commander in Chief.* Section 3, which in identical language is a part of all the captioned bills, prescribes the information which is to be contained in an application by an agency of the Department of Defense for a withdrawal or reservation of any public land, water, or land and water exceeding in the aggregate five thousand acres. Section 4 of the bills would provide that the head of each military department or agency owning or controlling any military installation or facility, whether created in whole or in part through withdrawal or reservation of the public lands, must require that all hunting, trapping, and fishing on said military installation or facility be in accordance with the laws of the state or territory where the installations or facility is located and be licensed by the state or territory. The section further provides for cooperation between the federal and state officials to carry out the above measures. Section 5 of the bills provides for certain amendments to the Federal Property and Administrative Service Act of 1949, Pub. L. No. 81-152, 63 Stat. 377. Section 6 of H.R. 10,362 and some of the other captioned bills provide as follows: All withdrawals and reservations of public land for the use of any agency of the Department of Defense, heretofore or hereafter made by the United States, shall be deemed made without prejudice to val- * Editor’s Note: Two years later, in the 85th Congress, a bill similar to these became enrolled. In a subsequent opinion for the Deputy Attorney General on the constitutionality of the enrolled bill, also collected in this volume (Constitutionality of Enrolled Bill Restricting the Withdrawal of Public Land for National Defense, 1 Op. O.L.C. Supp. 192 (Feb. 24, 1958)), the Office took a narrower view of the President’s preclusive authority as Commander in Chief. The Office observed that this 1956 opinion had failed to “refer to the majority per curiam opinion, in which Justice Reed concurred, that under Article IV, Section 3, Clause 2 of the Constitution the power of Congress over the public lands is ‘without limitation,’ Alabama v. Texas, 347 U.S. 272, 274 (1954) (per curiam), and the earlier decisions cited therein, including United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915).” 1 Op. O.L.C. Supp. at 194. 168 Constitutionality of Pending Bills Restricting the Withdrawal of Public Land id rights to the beneficial use of water originating in or flowing across such lands, theretofore or thereafter initiated under the laws of the States in which such lands are situated. This section has been omitted from H.R. 10,367 and H.R. 10,380. In language, the section is substantially identical to section 9 of S. 863, 84th Cong., 2d Sess., as amended, except that, in keeping with the more limited purpose of those bills, the words “for the use of any agency of the Department of Defense” have been added. It is believed that, if enacted, the section could completely destroy the value of any reservation for military purposes. The language employed is extremely broad and is capable of no other interpretation than that the water supply of any military installation, whenever established, can be appropriated completely by others at any future time. As it is not readily conceivable that any military installation can endure without some assured water supply, enactment of the section could preclude any further withdrawals or reservations of public lands for military purposes. It could also force the United States to purchase by way of eminent domain, in cases where reservations are presently being used for military purposes, rights which were not in existence when the lands were withdrawn or reserved for such purposes. Such grave objections can be eliminated, in the view of this Office, only by striking the words “heretofore or” and “or thereafter” from H.R. 10,362, and by striking the same words from the other bills of which section 6 is a part. For the foregoing reasons, it is recommended by this Office that the Department report that it is opposed to the enactment of sections 1, 2, and 6 of the captioned bills. This Office wishes to defer to any comments the Lands Division may make regarding sections 3, 4, and 5 of the bills. J. LEE RANKIN Assistant Attorney General Office of Legal Counsel 169

Write a legal research memo on the following topic.

September 6, 1978 78-50 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Freedom o f Information Act (5 U .S.C . § 552)— National Security Council— Agency Status Under FOIA You have asked whether the National Security Council (NSC) is an Agency for Freedom of Information Act, (FOIA) purposes. We conclude, in general, that it is. This opinion does not, however, address the questions (1) whether the National Security Council, although an Agency under FOIA for most purposes, might be considered not an Agency for other purposes,1 or (2) which records held by the Council are Agency records within the meaning of the Act.2 I. The Freedom of Information Act The Freedom of Information Act, 5 U.S.C. § 552 (1976), places certain duties, responsibilities, and obligations relating to public access to Government information on “ each agency” of the Government of the United States. For the purpose of the Act . . . the term “ agency” as defined in section 551(1) [of 5 U.S.C.] . . . includesanyexecutivedepartment, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government 'Cf., Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U .S . 168, 188 n. 25 (1975). In that case the Suprem e Court suggested that a Regional Renegotiation Board might be an “ agency” in some o f its work and not an ‘‘agen cy " in the rest o f its work. 2It follows from the conclusion that NSC is an A gency for FOIA purposes that records belonging to NSC are Agency records under FOIA, but NSC may hold records that belong to persons or entities that are not A gencies for FOIA purposes. In this connection, it is pertinent to note that the NSC staff views itself as not only perform ing the functions prescribed in the National Security Act o f 1947, 61 Stat. 495, but also serving as ‘‘the supporting staff to the President in the conduct of foreign affairs,” 40 F .R . 47746 (1975); 32 CFR § 2 1 0 2 .1(b)( 1976), and thus, as ‘‘an extension of the W hite House O ffice .” 197 (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. § 552(e).1 According to the definition of § 552(e), the term “ agency,” for FOIA purposes, includes establishments in the Executive Office of the President. The National Security Council (NSC) is an establishment,4 and it is within the Executive Office of the President.5 Thus, NSC is within the plain language of the above definition and were it not for the legislative history of the 1974 amendments it would have to be considered an Agency for FOIA purposes. The Senate version of the 1974 amendments expanded the APA definition of “ agency” only by adding to it the U.S. Postal Service, the Postal Rate Commission, and “ any other authority of the Government of the United States which is a corporation and which receives any appropriated funds.” The Senate report explained this expanded definition of “ agency” as follows: Section 3 expands on the definition of agency as provided in section 551(1) of title 5. That section defines “ agency” as “ each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress, the courts, or the governments of the possessions, territories, or the District of Columbia.” This definition has been broadly interpreted by the courts as including “ any administrative unit with substantial inde­ pendent authority in the exercise of specific functions,” which in one case was held to include the Office of Science and Technology. Soucie v. D avid, 448 F. (2d) 1067, 1073 (1971). Nonetheless, the U.S. Postal Service has taken the position that without specific inclusionary language, amendments to the FOIA “ would not apply to the Postal Service.” (H earings , vol. II at 323.) To assure FOIA application to the Postal Service and also to include publicly funded corporations established under the authority of the United States, like the National Railroad Passenger Corporation (45 U.S.C. § 541), section 3 incorporates an expanded definition of ’T his definition was added by the Freedom o f Inform ation Act A m endm ents of 1974, Pub. L. No. 93-502 § 3, 88 Stat. 1564. Prior to this am endm ent the FOIA definition o f ‘'agency” was exclusively that o f the A dm inistrative Procedure Act (A PA ), 5 U .S .C . 8 551(1). In relevant part § 551(1) defines "a g e n c y ” as . . . each authority o f the G overnm ent o f the U nited States, w hether or not it is within or subject to review by another agency. The am ended definition has been incorporated into the Privacy Act o f 1974. 5 U .S .C . § 552a(a)( I ) and the G overnm ent in the Sunshine A ct, 5 U .S .C . 8 5 5 2b(a)(l). 4T he term "estab lish m en t” is not defined in § 552(e) or elsew here in the FOIA or APA. H ow ever, the NSC must be considered an establishm ent because o f its 99-m em ber staff. (O f these, 69 are perm anent em ployees o f the NSC; 30 are detailed from other agencies.) The NSC and its staff are easily identifiable as a body separate from other entities w ithin the Executive Office o f the President. M oney is appropriated for it and it “ o w n s " its furniture, fixtures, and supplies. It pays its em ployees, keeps their adm inistrative records, and handles its personnel m atters. In short, it has a clear, independent adm inistrative status. ’T he NSC was created by the N ational Security Act o f 1947, 61 Stat. 495. It was transferred to the E xecutive Office o f the President by Reorganization Plan No. 4 o f 1949, 5 U .S .C . A pp., 14 F. R. 5227, 63 Stat. 1067. 198 agency to apply under the FOIA. (S. Rept. No. 93-854, 93d Cong., 2d sess. 33 (1974).] The House version of the amendments also contained an expanded definition of the term “ agency.” This definition was broader and more explicit than the Senate’s version and it prevailed in conference to become, with slight modification, 5 U.S.C. § 552(e). Its language relating to establishments within the Executive Office of the President was identical to that agreed upon in conference. The House report explains the meaning of that language by citing examples of “ functional entities” included within it: The term “ establishment in the Executive Office of the President,” as used in this amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar establish­ ments which have been or may in the future be created by Congress through statute or by Executive order. [H. Rept. No. 93-876, 93d Cong., 2d sess. 8 (1974)] [Emphasis added.] Speaking in more general terms the House report notes that the definition of “ agency” was expanded . . . to include those entities which might not be considered agencies under Section 551(1) of title 5, U.S. Code, but which perform governmental functions and control information of interest to the public. [Id.] The conference report, after explaining the differences between the Senate and House versions of the expanded definition of “ agency,” notes that “ The conference substitute follow s the House b ill.” H. Rept. No. 93-1200, 93d Cong., 2d sess. 14 (1974). [Emphasis added.] That report states that by the definition the conferees “ . . . intend[ed] to include within the definition of ‘agency’ those entities encompassed by 5 U.S.C. § 551 and other entities including. . . . ” 6 Id. The report reveals that “ expansion of the definition of ‘agency’ in this subsection is intended to broaden applicability of the Freedom of Information Act. . . . ” Id., at 15. In addition, the conference report deals specifically with the meaning of “ Executive Office of the President.” It states: With respect to the meaning of the term “ Executive Office of the President” the conferees intend the result reached in Soucie v. David, 448 F. (2d) 1067 (C.A.D.C. 1971). The term is not to be interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President. [Id.] A summary of the 1974 amendments and their history relating to the question whether Congress intended the NSC to be included in the FOIA definition of 'T h e list follow ing “ inclu d ing" does not include the NSC, or any other unit in Executive Office o f the President. T w o entities are included by name. These are the United States Postal Service and the Postal Rate C om m ission, both o f which were included by express language in the Senate version. 199 “ agency” is as follows: (1) The language of the law is broad enough to be viewed as an expression of congressional intent that all establishments within the Executive Office of the President, including the NSC, be treated as Agencies for FOIA purposes 7 (2) The Senate report (and the Senate version of the legislation) continued to cover all Government entities included in the APA definition as interpreted by the courts. The black letter rule, as expressed in the Senate report, is that “ any administrative unit with the substantial independent authority in the exercise of specific functions” should be viewed as an Agency under the FOIA. This language was explicitly linked to Soucie v. D avid , 448 F. (2d) 1067 (D.C. Cir. 1971), involving a unit within the Executive Office of the President. (3) The House report shows an unequivocal intention to include NSC in the FOIA definition of Agency. (4) The conference report, while stating generally that the intent of Congress in redefining “ agency” was to expand the definition in order to broaden the applicability of the FOIA, declares that the conference bill follows the House version and expresses the specific intent that, with respect to the Executive Office of the President, entities within the “ result reached” in Soucie v. D avid be included, but that those constituting the President’s personal staff or “ whose sole function is to advise and assist the President” be excluded. Thus, both the language of the Act and its explanation contained in the House report include, by literal application, the NSC as an Agency subject to the FOIA. The conference report, which states that the conferees followed the House version of the legislation, expresses the intent (as did the Senate report with respect to the term “ agency” as used in the APA) that— at least for entities in the Executive Office of the President— a functional approach be adopted. That is, an establishment within the Executive Office should not automatically be classified an Agency (nor automatically excluded), but should be treated as such only if it has the authority to function at least in part as an Agency. There is a very substantial risk that the NSC would be held to be an Agency on the basis of the unambiguous language of the Act and the House Report. Under conventional standards of statutory interpretation a court would be justified in so holding on these grounds alone. We believe, nevertheless, that to determine whether the NSC is included within the FOIA definition we must apply the conference report’s test and examine whether the NSC is invested with “ substantial independent authority in the exercise of specific functions.” 8 If it is either the President’s staff or a unit whose sole function is to advise and 7Although it is honored prim arily in the breach, " th e plain m eaning ru le " o f statutory construction in which legislative history is ignored still has some vitality. See. Ernst & Ernst v. Hochfelder, 425 U .S. 185, 201 (1976). Its application becom es m ore likely when the legislative history is m ore am biguous than the statutory language being construed. "W e view the reference to the “ result reach ed " in Soucie v. David as a reference to the interpretation o f that case in the Senate report. That is, entities within the Executive Office o f the President may be treated as A gencies for FOIA purposes if they have “ substantial independent authority in the exercise o f specific fu n ctio n s." An entity would not have substantial independent authority if it were either the P resident’s staff or a unit whose sole function is to advise and assist the President. 200 assist9 the President, it should not be viewed as having substantial independent authority. II. The National Security Council The National Security Council was created by the National Security Act of 1947, and together with its functions, records, property, personnel, and unexpended appropriations, allocations and other funds available or to be made available, was transferred to the Executive Office of the President by Reorganization Plan No. 4 of 1949, 5 U.S.C. App., 14 F. R. 5227, 63 Stat. 1067. As presently constituted, the statutory body consists of the President, the Vice President, and the Secretaries of State and Defense. It has a staff of 99 (69 permanent employees, 30 detailed from other departments) which, at present, is headed by a staff secretary.10 According to its statutory mandate [t]he function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving national security. [50 U.S.C. § 402(a)] The National Security Act also assigned to the NSC, under the heading “ additional functions, ” the following duties: In addition to performing such other functions as the President may direct, for the purpose of more effectively coordinating the policies and functions of the departments and agencies of the Government relating to the national security, it shall, subject to the direction of the President, be the duty of the Council— (1) to assess and appraise the objectives, commitments, and risks of the United States in relation to our actual and potential military power, in the interest of national security, for the purpose of making recommendations to the President in connection therewith; and (2) to consider policies on matters of common interest to the departments and agencies of the Government concerned with the 9W ithin the context o f the legislative history, w hich clearly expresses a general intent to expand the coverage of FO IA , “ assist’' must be read narrowly. W e do not believe that units w ithin the Executive Office can be view ed as "a s sis tin g ” the President, in the same sense that the word " a s s is t" is used in the conference report, when they perform substantive governm ental functions, even if the purpose o f their authority to perform such functions is to enable them to fulfill a prim ary role of assisting (or advising) the President. T o conclude otherwise would make a dead letter o f inclusion o f establishm ents within the Executive Office of the President within the definition o f an Agency for FOIA purposes, because the function o f all the units within the Executive O ffice, and those o f the Office itself is, in a broad sense, to assist the President. ,0Section 402(c) o f 50 U .S .C . directed that the NSC staff be headed by a Presidentially appointed Executive Secretary. T his position, which in past adm inistrations has often been filled by the President’s Assistant for National Security Affairs, is presently vacant. As a practical m atter, however, under current operating procedures the NSC staff works for the P resident’s Assistant for National Security A ffairs, in fact, if not in form. 201 national security, and to make recommendations to the President in connection therewith. [50 U.S.C. § 402(b)] The Council is further authorized to . . from time to time, make such recommendations and such other reports to the President as it deems appropri­ ate or as the President may require.” 50 U.S.C. § 402(d). The House report on the National Security Act comments that “ [t]his Council [the NSC] . . . gives us for the first time in our history a means for bringing together the responsible heads of Government charged with recommending and carrying out our foreign policies after making a careful appraisal of our domestic and military potentials.” H. Rept. No. 961, 80th Cong., 1st sess. 3 (1947). The Senate report characterizes the Council as “ [essentially . . . an advisory body to the President with respect to the integration of domestic, foreign, and military policies, so as to enable the military services and other departments and agencies of the Government to cooperate more effectively in matters involving the national security.” S. Rept. No. 239, 80th Cong., 1st sess. 10 (1947). The Senate committee that reported favorably on Reorganiza­ tion Plan No. 4 of 1949 stated flatly that “ [i]t [NSC] is an advisory body to the President and not one of the various agencies within the National Military Establishment.” S. Rept. No. 838, 81st Cong., 1st sess. 2 (1949). It also noted that ‘‘[t]he President as chairman controls NSC business . . . " i d . , and that NSC and the National Security Resources Board (NSRB) “ were made advisory agencies to the President by the National Security Act of 1947.” It is clear from the statutorily prescribed functions of the NSC, from the legislative history of the Act which created it, and from nearly contemporane­ ous congressional commentary that the Council’s intended function is to be primarily an advisory body to the President that would help him or her to plan the effective and efficient unitary utilization of those various Departments and Agencies of the Government that have responsibilities for the Nation’s security. The question is, however, whether NSC is vested with substantial independent authority in the exercise of specific functions or whether its sole function is to advise and assist the President. In addition to the establishment of the NSC, the National Security Act of 1947 created the Central Intelligence Agency (CIA). That Agency was “ established under the National Security Council,” 50 U.S.C. § 403(a), and is given certain duties “ under the direction of the National Security Council,” 50 U.S.C. § 403(d), including the duty “ to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.” 50 U.S.C. § 403(d)(5). The legislative history of the Act indicates that Congress intended the National Security Council to be the supervisory authority over the Central Intelligence Agency, by establishing the CIA “ under” the NSC and making it subject to the Council’s “ direction.” According to the Senate report: The Central Intelligence Agency provided for by Section 102 exists now as the Central Intelligence Group. The bill establishes the 202 agency under the National Security Council and assigns to that Council the supervisory authority and responsibility now exercised by the National Intelligence Authority created by Executive Order of the President and composed of the Secretaries of State, War, and Navy. [S. Rept. No. 239, supra, at 10] [Emphasis added.] The Executive order referred to in the Senate report was actually a Presidential directive. It provided, in pertinent part: To the Secretary of State, the Secretary of War, and the Secretary of the Navy. 1. It is my desire, and I hereby direct, that all Federal foreign intelligence activities be planned, developed and coordinated so as to assure the most effective accomplishment of the intelligence mission related to the national security. I hereby designate you, together with another person to be named by me as my personal representative, as the National Intelligence Authority to accomplish this purpose. 2. Within the limits of available appropriations, you shall each from time to time assign persons and facilities from your respective Departments, which person shall collectively form a Central Intelli­ gence Group and shall, under the direction o f a Director o f Central Intelligence, assist the National Intelligence Authority. The Director of Central Intelligence shall be designated by me, shall be responsible to the National Intelligence Authority, and shall sit as a nonvoting member thereof. 3. Subject to the existing law, and to the direction and control o f the National Intelligence Authority, the D irector o f Central Intelli­ gence shall: . . . .[Presidential directive of January 22, 1946, 3 CFR 1080 (1943-1948 compilation)] [Emphasis added.] In addition, the Senate report on Reorganization Plan No. 4 of 1949, while stating that NSC “ is an advisory body to the President,” recognized that “ [i]t also directs the Central Intelligence Agency which coordinates intelligence activities.” S. Rept. No. 838, supra, at 2, 4. The National Security Council, which is an administrative unit" and is an establishment within the Executive Office of the President, has explicit statutory authority to supervise and direct the Central Intelligence Agency. We believe that NSC’s legal authority over the CIA constitutes substantial independent authority in the exercise of at least one (very important) specific function. Therefore, NSC is not a unit whose sole function is to advise or assist the President. We have considered the possibility that NSC should be viewed as advisory only because the President, as a member, controls its actions and decisions. The argument runs that in all cases Council’s action must be viewed as Presidential action since the President will inevitably dominate in Council affairs. Thus, Council participation in national security matters is, at most, hortatory and not substantive. This argument fails for two reasons. 1'See footnote 4, supra. 203 The National Security Council was created by Congress as an entity distinct from the Presidency. It was transferred, still as a distinct entity, along with all of its functions to the Executive Office of the President by Executive Order No. 12036. As a legal matter, then, the independent authority which it possesses, it possesses as the National Security Council. To the extent that the Council’s authority is exercised by the President,12 it may reasonably be viewed as exercised by him in his capacity as Chairman of the NSC.13 Even if it were sound to say that NSC is capable of assuming an advisory role only (because of the President’s statutory membership), the Council would not escape Agency status for FOIA purposes. From administration to administra­ tion, Presidents, invoking the authority granted them by 50 U.S.C. § 402(b) to assign to the NSC “ such other functions as the President may direct,” have themselves vested NSC committees on which they have retained membership, with legal authority to perform specific, substantive functions. Current exam­ ples are the two NSC committees created by PD/NSC-2, the Policy Review Committee (PRC) and the Special Coordination Committee (SCC), both of which are empowered by Executive order to perform important, substantive, and far-reaching governmental functions relating to intelligence matters and both of which are legally permitted to act without Presidential participation. See Executive Order No. 12036 §§ 1-2 (PRC) and 1-3 (SCC), 43 F.R. 3674, 3675 (1978). The existence of such delegated power14 in these committees (and other similar NSC committees which existed in prior administrations, such as the 303 and 40 committees, the Committee on Foreign Intelligence (CFI), and the Operations Advisory Group (OAG), see Executive Order No. 11905 §§ 3b (CFI) and 3(c) (OAG), 41 F. R. 7703, 7707-7709 (1976)), prevent the NSC from being viewed as solely advisory and without legal authority to exercise specific governmental functions. Important, too, is the common understanding that the NSC is a body having functions, power, and authority of its own and is not simply an alter ego of the President. This understanding was expressed by the President himself in his statement accompanying the promulgation of Executive Order No. 12036. He said: The National Security Council and its two standing Committees—the Special Coordination Committee (SCC) and the Policy Review Committee (PRC)— will, short o f the President, provide the highest level of review and guidance for the policies and practices of the Intelligence Community. [ 14 Weekly Comp, of Pres. Doc. 214 (Jan. 30, 1978)] [Emphasis added.] i2N SC is subservient to the President as are all executive departm ents and agencies. T his, how ever, does not mean that it, or they, are without independent authority. l3U nder current practice Presidential decisions on national security m atters are prom ulgated by directives in a series entitled “ Presidential D irective (P D )/N S C .” See P D /N S C -I. l4T he fact that a O ovem m ent entity exercises only delegated pow ers does not prevent it from being treated as an A gency for FOIA purposes. Grumman Aircraft Engineering Corp. v. Renegotiation Board, 482 F. (2d) 710 (D .C . Cir. 1973), rev’d. on other grounds, 421 U .S . 168 (1975). 204 We conclude that there is a substantial risk that NSC could be held to be an Agency by a simple, literal application of the language of 5 U.S.C. § 552(c). In our opinion, the better approach is to examine whether NSC is within the exception from inclusion stated in the conference report. This requires examining whether NSC has substantial independent authority in the exercise of specific functions or whether it is simply an establishment in the Executive Office of the President whose sole function is to advise and assist the President. Since NSC is given statutory authority to supervise and direct the CIA and because of the NSC functions provided in Executive Order No. 12036, we conclude that it has independent legal authority to exercise specific functions and that, as a legal matter, it cannot be viewed as existing solely to advise and assist the President. It is not, therefore, within the exception of the conference report, and, being an establishment in the Executive Office of the President not within that exception, is an Agency for FOIA purposes.15 Jo hn M . H a rm o n Assistant Attorney General Office o f Legal Counsel l5There is not a great deal o f equity in the position that NSC is not an Agency for FOIA purposes. N SC, although reserving the question o f the applicability to it o f FO IA , has staff mem bers assigned to process FOIA requests in accordance with its published FOIA guidelines. See 40 F. R. 7316 (1975), 32 CFR § 2101 (1976). Further, due to the nature o f the w ork o f the NSC and its staff it is clear that valid exem ptions are available for the vast bulk o f the m aterial which constitutes NSC records. Y et, there may be records in the possession o f the NSC staff which are not sensitive or advisory in nature and which may be o f interest to the public, such as some fiscal records. W e have also considered w hether NSC could raise a valid constitutional claim to general immunity from the FOIA, and we believe this possibility is very w eak. Certain records o f the NSC could, if necessary, be protected by a claim o f executive privilege, but such a claim could not successfully be invoked to preclude Congress from opening to public view som e NSC adm inistra­ tive records and other nonsensitive records to which the claim could not reasonably attach. N or could it be shown on evidence now available that the A ct's im pact on NSC is so onerous that its ability to function in support o f the President will be im paired. 205

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August 14, 1978 78-45 MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL Veterans Preference Act (5 U .S.C . §§ 2108, 33093320)— Application to Attorney Positions In 1977 the Civil Service Commission undertook an evaluation of the employment procedures of the Department of Justice. It concluded that those procedures concerning Schedule A and B excepted-service position (see the Commission’s regulations, 5 CFR § 213.3101 et seq.) did not satisfy the requirements of the Veterans Preference Act of 1944, as amended, 5 U.S.C. §§ 2108, 3309-3320. The Commission’s Evaluation Manager informed the Department’s Director of Personnel that the Department is required to: . . . revise current internal procedures for processing Schedule A and B applications to include numerical ratings for best qualified [appli­ cants] and crediting veterans preference in order to fully comply with the requirements of [the Veterans Preference Act]. After some ambivalence by Commission officials whether to insist on this numerical rating system, we understand that they now do insist on its implementation. A number of other agencies have resisted the rating system, asserting that its adoption would effectively negate affirmative action efforts to hire women and minorities. We express no opinion as to how such a system would affect affirmative action efforts. The issue we do address is whether the Commission may require that attorneys be hired pursuant to such a system. For the reasons that follow we believe that the Commission does not have such authority. Section 3309, title 5, U.S. Code, the key provision concerning veterans’ preference, provides that: A preference eligible who receives a passing grade in an examination for entrance into the competitive service is entitled to additional points above his earned rating, as follows— (1) a preference eligible under section 2108(3)(C)-(G) of this title— 10 points; and (2) a preference eligible under section 2108(3)(A) of this title— 5 points. 179 Section 2108, title 5, defines a “ preference eligible” as an honorably discharged veteran who served in the Armed Forces under such conditions as are set forth in that section. The 10-point preference provided by § 3309(1) is directed to certain disabled veterans, and in some cases to their relatives or survivors. The 5-point preference is directed to certain nondisabled veterans. The problem arises because under 5 U.S.C. § 3320 preference eligibles must be selected for appointment in the excepted service in the same manner as are preference eligibles in the competitive service. Literal compliance with this provision is impossible because positions in the excepted service are not filled pursuant to civil service examination. Thus, in the excepted service there are no examination scores to which preference points may be added. In most instances the decision to examine for positions rests with the Commission. Section 3302, title 5, authorizes the President to except positions from the competitive service and Executive Order No. 10577, 3 CFR 218 (1954-1958 Compilation) delegated this authority to the Commission. See 5 CFR § 6.1. Therefore, the Commission may require examinations for most excepted-service positions simply by removing them from the excepted service. And, if the Commission could require that these positions be filled on the basis of examinations it appears that it could require a rating system, because the proposed rating system is actually a form of examination. See 2 discussion pp. 4-5, infra. Attorney positions are unique, however, in that the Commission is prohibited by statute from requiring that they be filled pursuant to examination. Thus, Commission authority to require a rating system for attorneys cannot be said to derive from its authority to require examinations. Congress in the Commis­ sion’s 1943 appropriation act, 57 Stat. 173, restricted the Commission’s authority over attorney hiring. That restriction provided that: No part of any appropriation in this Act shall be available for the salaries and expenses of the Board of Legal Examiners created in the Civil Service Commission by Executive Order Numbered 8743 of April 23, 1941. An identical restriction has, to this date, been included in each Commission appropriation:1 Thus, the Commission is barred from doing those things which previously fell under the authority of the Legal Examining Board. Subsection 'See, for exam ple, Pub. L. 94-363, 90 Stat. 968-69, which reads in pertinent part as follows: No part o f the appropriation herein made to the Civil Service Com m ission shall be available for the salaries and expenses o f the Legal Exam ining Unit o f the Com m ission established pursuant to Executive O rder 9358 o f July 1, 1943, or any successor unit o f like purpose. T he reference to the ‘‘Legal E xam ining Unit o f the C om m ission” rather than the Board o f Legal Exam iners w as occasioned by E xecutive O rder No. 9358, 3 CFR 256 (1943-1948 com pilation), which vested the pow er o f the Board in the C om m ission. Som e M em bers o f Congress had questioned w hether the Board should be continued absent specific legislation. Thus, Executive O rder No. 9358 transferred the B oard's authority to the Com m ission ‘‘[p]ending action by the Congress with respect to the continuance o f the B o ard .” The 1943 appropriation restriction and subsequent restrictions, o f course, barred further action by the Board. 180 3(d) of Executive Order No. 8743, 3 CFR 927-(1938-1943 compilation), set forth the functions of the Board as follows: The Board in consultation with the Civil Service Commission, shall determine the regulations and procedures under this section governing the recruitment and examination of applicants for attorney positions, and the selection, appointment, promotion, and transfer of attorneys in the classified service.2 Administering examinations was but one of the functions of the Board. It was also charged with establishing attorney selection procedures. The Commis­ sion’s proposed rating system constitutes an attorney selection procedure because attorneys would be selected on the basis of their ratings. Therefore, the appropriation restriction precludes the Commission from requiring the rating system it proposes for attorney applicants.3 Based on this, it may reasonably be argued that the Commission, in seeking to impose attorney selection proce­ dures, is acting contrary to Congress’ intent.4 The original debaters of the restriction did not fail to discern the implications of the appropriation restriction as it affects veterans’ preference. Senator Burton stated: . . . if we cut off all civil service examination, it seems to me that we then throw the whole matter open, do away with veterans’ prefer­ ence, and create a position which is not sound. [90 Cong. Rec. 2660 (1944)] 2Section 1 o f that Executive order placed m ost attorney positions in the classified service. ■’T his view is not altogether free from doubt. Senator M cK ellar, the sponsor o f the restrictive provision, indicated that “ [i]t m erely provides that no part o f the m oney herein appropriated shall be used for the purpose o f conducting such [civil service] exam inations.” 90 Cong. Rec. 2661. Accordingly, it can be fairly argued that only the exam ination of attorneys was proscribed by the restriction. But com pare the broader language o f Senator M cKellar at 90 Cong. Rec. 2660, stating that the Com m ission has no business in determ ining the “ relative qualifications” o f attorneys. See also Senator M cK ellar’s assertion that the Com m ission has no business in saying “ who shall be the lawyers o f this G o v ern m en t." Independent Offices Appropriation Bill fo r 1945: Hearing on H.R. 4070 before the Senate Subcommittee o f the Committee on Appropriation, 78th C o n g ., 2d sess., 343-44 (1944). Therefore, the C om m ission’s proposed rating system may be viewed as an exam ination and thus im proper for that reason. The rating system , like an exam ination, would purport to objectively m easure the abilities of attorneys and seek to gauge the “ relative qualifications” o f attorneys. As such it would be an “ exam in ation,” as Senator M cKellar used that term . Legal E xam ining Board "ex am in atio n s” were not limited to written tests; that term was construed to include oral interviews as well. To Create a Board o f Legal Examiners in the Civil Service Commission: Hearing on H.R. 1025 before the House Committee on the Civil Service, 78th C ong., 1st sess., 4 (1943) (Statem ent o f Solicitor General Fahy, an ex-officio m em ber of the Board). 4The Com m ission m ight argue that it is not im posing selection procedures, but that it is only requiring that agencies establish their own procedures. H ow ever, the C om m ission’s purported power o f approval o r rejection o f such procedures is tantam ount to Com m ission im position of selection procedures for attorneys. Congress, in considering the 1944 restriction, rejected any Com m ission role in determ ining the “ relative qualifications" o f law yers. 90 Cong. Rec. 2660 (rem arks o f Senator M cK ellar). The rating system , how ever, would result in the Com m ission doing just that. 181 And, again at 90 Cong. Rec. 2661, Senator Burton cautioned that the restriction: . . . would result in the return of lawyers to a patronage basis, making impossible the application to them of the veterans’ preference provisions already in the statutes. The only response to Senator Burton’s cautionary statement was the suggestion that a legal examining board for all attorney applicants be established in the Department of Justice. Senator McKellar, 90 Cong. Rec. 2661 (1944). This, however, has never been done. Thus, there is reason to doubt that the Commission may lawfully require an attorney rating system. As we mentioned above, 5 U.S.C. § 3320 requires that veterans’ preference apply in the excepted service in the same manner as in the competitive service. However, attorney positions are unlike most others in the excepted service in that the Commission cannot remove them from the excepted service. Additionally, the restrictive appropriation provision casts doubt on the Commission’s authority to require attomey-selection procedures.5 While the Commission’s authority to enforce veterans’ preference in attorney hiring may be dubious, the Department is bound to apply it in some fashion. In our opinion, it need not be applied through a numerical rating system; such a system for attorney hiring was considered and rejected as long ago as 1941. Thus, it was not viewed as essential to implementation of veterans’ preference. President Franklin D. Roosevelt, by Executive Order No. 8044, 3 CFR 456 (1938-1943 compilation) appointed a committee to study and make recommen­ dations on civil service procedures. In February 1941 that committee submit­ ted its report entitled Report o f the President’s Committee on Civil Service Improvement. H. Doc. 118, 77th Cong., 1st sess. (1941). The report stated two major views on attorney selection procedures— Plan A and Plan B. Plan A recommended that attorneys be evaluated only to determine whether they were qualified for Federal service. If so, they would not be given a rating, but rather, all qualified applicants would be considered equally eligible for employment. Plan B recommended, at least in the case of inexperienced attorneys, that they be examined and rated competitively. The authors of Plan A reasoned: [I]t seems to us highly unwise to force the unique problem of the attorney positions into any general pattern simply for the sake of uniformity. Wise administration of the civil service, as of other oganizations, may often indicate the need for flexibility and ad hoc adjustments, even at the cost of uniformity and symmetry. . . . . . . We therefore have considered and presented our recommenda­ tions on the assumption that the attorney positions present a unique 5A s further evidence that the C om m ission's authority to enforce the V eterans Preference Act in attorney hiring is unclear, the C om m ission until recently was o f the view that it had no authority to enforce that A ct in the excepted service at all. W e lim it our disagreem ent with Com m ission enforcem ent authority to attorney selection. 182 problem in the professional service, which must be solved individu­ ally rather than by application of a general formula. [H. Doc. 118, supra, at p. 32-33] As well as recommending against a rating system for attorneys, Plan A recommended against applying the competitive service procedure of certifying three applicants to the appointing officer. 5 U.S.C. § 3318. It was stated by those urging Plan A that: We feel that any mechanical ranking and certification would operate in an undesirably arbitrary manner, that the superior officer who is responsible for the appointee’s work should have more voice in his selection, and that no principle o f civil service or wise administration requires that there be an assumption o f absolute accuracy in rating the candidates all o f whom by definition are qualified to do legal work o f a high order. [Id., at 38] [Emphasis added.] President Roosevelt adopted Plan A in Executive Order No. 8743, 3 CFR 927 (1938-1943 compilation). That order directed the Commission to establish a register of eligibles from which attorney positions were to be filled. And, § 3(F) of the order directed that: . . . registers shall not be ranked according to the ratings received by the eligibles, except that persons entitled to veterans’ preference . . . shall be appropriately designated thereon. Thus, a rating system was not required. Preference eligibles, however, were designated on the register. Therefore, under Executive Order No. 8743, because no numerical ratings were used in the selection process, veterans’ preference was implemented only by considering it a positive factor in the employment decision. At the present, veterans’ preference is positively considered in Department employment decisions. If all other factors are equal, or even close, the preference eligible will normally be selected over the nonpreference eligible. The Department will soon adopt new procedures whereby applicants interviewed through the Department’s Honor Graduate Program for attorneys will be given scores based on nine employment factors. Five or ten veterans’ preference points, where applicable, will be added to these scores. Based on the scores, applicants will then be evaluated as best-qualified, qualified, or unqualified. All best qualified applicants will be eligible for Department employment. However, the scores received in the Honor Program rating system will not be considered in the final selection process. The Department will soon formalize its present policy and issue a directive requiring that the final attorney selection process consider veterans’ preference as a positive factor. Thus, in the Honor Program the veteran will twice benefit from the application of preference. This procedure has been proposed in the Honor Program on an experimental basis. We understand that if it proves to be an accurate indicator of desirable attorney applicants, the procedure may be expanded to other attorney hiring practices in the Department. Veterans’ preference will remain a positive factor 183 in hiring attorneys with or, without the proposed point system. We feel that this practice will give adequate effect to the Veterans Preference Act. We conclude that our practice reasonably gives effect to the Veterans Preference Act. In responding to the Commission’s request that we establish a numerical rating system, we question its authority to require such a system for attorneys. It would be appropriate to explain to the Commission our procedure of positively considering veterans’ preference and the new procedure to be used in the Honor Program. If the Commission is satisfied with this, the question of its enforcement authority may be mooted. John M . H arm on Assistant Attorney General Office o f Legal Counsel 184

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History of Appointments to the Supreme Court [T h e m e m o ra n d u m w h ic h fo llo w s , p r e p a r e d b y th e O ffic e o f L e g a l C o u n s e l a t th e re q u e s t o f th e A tto r n e y G e n e r a l, s u r v e y s f o u r g e n e r a l a s p e c ts o f th e p ro c e s s o f a p p o in tin g J u s tic e s o f th e S u p r e m e C o u r t: (1 ) th e q u a litie s P r e s id e n ts h a v e s o u g h t in S u p r e m e C o u r t n o m in e e s; (2 ) th e p ro c e s s o f r e c r u itin g a n d e v a lu a tin g p o te n tia l a p p o in te e s p r io r to n o m in a tio n ; (3 ) th e m a n n e r in w h ic h th e S e n a te fu lfills its re s p o n s ib ilitie s in th e a p p o in tm e n t p ro c e s s ; a n d (4 ) th e r e la tio n s h ip b e tw e e n th e '.'io c e s s o f c h o o s in g a c a n d id a te a n d a s u c c e s s fu l c a n d i d a te ’s e v e n tu a l p e r f o r m a n c e o n th e C 'u r t. T h e m e m o ­ ra n d u m p a y s s p e c ia l a tte n tio n to th e ro le s p la y e d in th e a p p o in tm e n t p r o c e s s b y th e A tto r n e y G e n e r a l a n d th e D e p a r tm e n t o f J u s tic e ] March 5, 1980 M EM ORANDUM FOR T H E ATTORNEY G E N ER A L I. Introduction Aspirants to the Supreme Court, unlike presidential, vice-presidential, and congressional candidates, are subject to no constitutional limitations regarding age, citizenship, or residency. No statute requires that Jus­ tices even be lawyers, although every nominee so far has met this criterion. Congress has considered bills to limit Supreme Court appoint­ ments either to persons under a particular age or to candidates with prior judicial experience; no such limitation has ever been enacted. The history of Supreme Court appointments is consequently a history of presidential discretion limited formally only by the Senate confirmation process, which also proceeds without direct constitutional guidance. In response to your request, this Office has surveyed some of the vast literature relevant to the history of Supreme Court appointments.1 We have addressed four general questions: What qualities have Presidents sought in Supreme Court nominees? How are potential appointees re­ cruited and evaluated prior to nomination? How does the Senate fulfill its responsibilities in the appointment process? Is there a predictable relationship between the process of choosing a candidate and a success­ ful candidate’s eventual performance on the Court? In surveying the history of nominations and appointments, we have paid special attention 1 Secondary sources are cited in footnotes by au th o r and page number; a bibliography indicating the full citation for each source is appended to this m em orandum . W e found the most useful general review o f the history o f Suprem e C ourt appointm ents to be H. A braham , Justices and Presidents: A PoliticalH isto ry o f A ppointm ents to the Suprem e C ourt (1974). 457 to the roles played in these processes by the Attorney General and the Department of Justice. No one formula for choosing the “best” Supreme Court Justice can be deduced from a historical survey. Who are the best candidates with respect to any particular vacancy will depend on a host of factors, including the President’s political philosophy, his perceptions of the role of the Court in American government, the crucial issues facing the nation at a given moment in history, and the Court’s changing institu­ tional needs. Neither can a Justice’s post-appointment performance be predicted with entire confidence based on his pre-appointment career. The uniqueness of the Court’s institutional role, the wide range of vital questions that the Justices adjudicate, and the need for each Justice to collaborate with eight others in reaching what often are controversial results, all necessarily affect any appointee’s eventual record in the decision of cases. The aim of this memorandum is consequently not to elaborate, in any definitive way, how a great Justice might now be chosen; its aim is to identify the range of issues of which the President at least ought to be aware in exercising his discretion, and which this Department should consider if it is to be helpful in the appointment process. II. The Presidents’ Criteria Under Article II, § 2, clause 2 of the Constitution, the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court. . . .” All but four Presidents—the exceptions so far including President Carter—have successfully nominated at least one Supreme Court Justice. Presidents have sometimes made their selection criteria explicit. George Washington, for example, insisted on support of the Constitution, distin­ guished Revolutionary service, active political involvement, prior judi­ cial experience, geographic “suitability,” and either a good general reputation or personal ties with the President himself.2 More often, the criteria have been tacit and ad hoc. It is possible, however, based on the history of, 104 successful Court appointments,3 to examine certain factors that have weighed to some degree in all nominations. A. A bility and Character President Herbert Hoover asserted that his Supreme Court ap­ pointees were “chosen solely on the basis of character and mental power,” 4 and every President, in explaining his nominations publicly, 2 A braham at 64. 3 T h e 104 successful appointm ents include three successful “ prom otions’* o f A ssociate Justices to the post o f C h ief Justice. T h e tola! num ber o f persons to have served so far in the C ourt is 101. A braham at 46-47. 4 T e g e r at 46. 458 has cited ability and character among his criteria for selection. Some minimum of each is thus a sine qua non for a successful appointment. The appropriate measure of “objective” merit, however, especially re­ garding judicial ability, may vary with the needs of the country and of the Court when a vacancy occurs. With respect to some appointments, the Court’s greatest need may be an exceptional intellectual leader, with or without extensive political or administrative experience. At other times, the Court may need a catalytic administrator or an effective advocate more than it needs a truly brilliant thinker. An ideal candi­ date, of course, would be both intellectually gifted and politically effective; the balance of these talents is likely, however, to vary even within the pool of the nation’s best candidates. Because the number of capable individuals is much greater inevitably than the number of places to be filled, few nominations have occurred in which a candidate’s outstanding ability alone appears to have de­ cided his nomination. There are, however, exceptions. Although Presi­ dent Hoover wanted a “non-controversial western Republican” to suc­ ceed Oliver Wendell Holmes,5 he was persuaded by a long list of labor and business leaders, scholars, and Senators that Chief Judge Benjamin N. Cardozo of the New York Court of Appeals was the only fit successor. The final straw breaking Hoover’s resistance appears to have been the emphatic endorsement of Senator William E. Borah of Idaho, the Republican chairman of the Foreign Relations Committee, who reportedly told Hoover, “Cardozo belongs as much to Idaho as to New York,” and “[g]eography should no more bar the judge than the pres­ ence of two Virginians—John Blair and Bushrod Washington—should have kept President Adams from naming John Marshall to be Chief Justice.” 6 When reminded that a Jewish Justice, Louis Brandeis, al­ ready sat on the Court, Borah said, “Anyone who raises the question of race [sic] is unfit to advise you concerning so important a matter.” 7 A similar chorus of support induced President Roosevelt to appoint Felix Frankfurter as Cardozo’s successor. Roosevelt, like Hoover, wanted a Westerner on the Court, although, had he found one to succeed Cardozo, Frankfurter—already a Roosevelt adviser—likely would have received a subsequent Roosevelt nomination. Not only is objective merit rarely the decisive criterion, but some of the nation’s greatest Justices were apparently chosen without obvious primary regard for their intellectual potential. Joseph Story, for exam­ ple, who probably ranks second only to John Marshall in his impact on American law, was the fourth nomination submitted by President Madison for the seat after two confirmed appointees (Levi Lincoln and John Quincy Adams) had declined the position and a third nominee had * A braham at 191. • A braham al 192. 7 A braham al 192. 459 been rejected by the Senate. In the end, it is uncertain what led Madison to Story, although it is known that Story’s uncle was a close friend of the President.8 Conversely, some candidates whose pre-appointment careers prom­ ised considerable success based on objective merit performed with little distinction once appointed. The clearest recent example is Charles Evan Whittaker, an outstanding commercial lawyer from Missouri, who had served briefly on both the U.S. District Court and Court of Appeals, and who had won the strong support of Attorney General Brownell. President Eisenhower appointed W hittaker to the Supreme Court in 1957; he resigned ^ years later with few significant Supreme Court opinions to his credit.9 To a President interested in demonstrated merit, prior judicial experi­ ence may appear a useful index. Fifty-eight of the 101 individuals to serve on the Supreme Court had served earlier on a state or on a lower federal tribunal. This asset, in this century, appears to have appealed more to Republican than to Democratic Presidents. Of the 23 individ­ uals with prior judicial experience appointed to the Supreme Court since 1900, only eight were appointed by Democrats, although, of the 44 persons named to the Court in this century, Democrats have named 18. The 43 persons to serve without prior judicial experience on the Supreme Court since its inception include John Marshall, Joseph Story, Roger Taney, Charles Evans Hughes, Louis Brandeis, Harlan Fiske Stone (when appointed Associate Justice), Felix Frankfurter, William Douglas, Robert Jackson, and Earl W arren—a list that clearly demon­ strates the absence of any necessary correlation between judicial experi­ ence and capacity for distinguished service. Presidents have not viewed judicial service as a prerequisite to nomi­ nation. However, all but one of the 101 persons to sit on the Court reached the Court after careers in politics or public service of some sort.10 Although a record of judicial service may be helpful in facilitat­ ing an assessment of a candidate’s performance as a legal thinker, Presidents appear historically to have been at least as concerned with a person’s demonstrated acquaintance with the nation’s needs and public processes, and sustained prior exposure to the pressures of public life. Some history of functioning in a pressurized environment may help assure that a nominee’s effectiveness and independence on the Court 8 A braham at 79-81. 9 A braham at 247-48. 10 T h e one exception is G eo rg e Shiras, Jr.. a P ittsburgh co rp o rate law yer appointed to the C ourt in 1892 by Benjamin H arrison. All five academ icians to reach the C ourt (four o f them appointed by F D R ) had considerable experience in public life in addition to their academ ic backgrounds. Fourteen A ttorneys G eneral have been nom inated to the C ourt. N ine w ere successfully appointed—Taney, C lifford, M oody, M cK enna, M cR eynolds, Stone, Jackson, M urphy and C lark. T w o w ere rejected by the Senate and tw o w ithdrew before confirm ation. O ne, Edw in M. Stanton, was confirm ed, but died before taking his seat. A braham at 52; Schm idhauser at 82-83. 460 will not be overcome by public criticism or the magnitude of the issues that the Court confronts. B. Political and L egal Philosophy Because intellect is rarely the sole determinant of a Supreme Court nomination, and because most Presidents have attached great impor­ tance to the Supreme Court’s role in legitimating particular policies or national goals, the acceptability of a candidate’s personal philosophy is often another sine qua non for nomination. As with “merit,” however, what constitutes an acceptable philosophy may depend on the times, on the President’s attitude towards the Court, and on a candidate’s fitness in other respects. For example, political considerations, such as reward­ ing partisan activity or defusing potential political opposition, may argue in favor of a particular nomination, although the appointing President could have identified a more personally compatible choice. In the case of Earl Warren, nominated by President Eisenhower for the Chief Justiceship in 1953, the President was likely impressed by Warren’s political and administrative experience and skill, his positions on particular issues (such as the 1937 Court-packing bill and the 1952 steel seizure case), and his campaign service both to Eisenhower and to Thomas E. Dewey before him. However, Warren was also obstructing the takeover of California Republican politics by more partisan leader­ ship, including Vice-President Nixon. Perhaps, had it not been for this last factor, Eisenhower would have turned to Governor Dewey or to Chief Justice Vanderbilt of the New Jersey Supreme Court for the vacant post.11 In any event, Eisenhower did not know W arren’s philos­ ophy well (he sent Attorney General Brownell to interview him before the nomination), and disagreed with the philosophy eventually mani­ fested in Warren’s decisions. At particular times in history, the importance of a single issue to the nation’s welfare or to a President’s program has seemed so great that a candidate’s position on that issue, rather than his philosophy as a whole, became the litmus test of his acceptability. Obvious examples include the cause of Unionism under Lincoln, the constitutionality of green­ backs as legal tender under Grant, and the legitimacy of extensive government regulation under Franklin Roosevelt. The single-issue test, however, hardly guarantees a particular justice’s pattern of thought. For example, the fervent antitrust position of Attorney General James Clark McReynolds undoubtedly recommended the idea of his nomina­ tion highly to President Wilson. However, once on the Court, McReynolds proved to be an unabashed conservative, and virtually all of his other positions were opposed to Wilsonian prpgressivism. 11 A braham at 235-37. 461 Consequently, those Presidents most deeply interested in appointing politically compatible Justices have focused neither on single-issue posi­ tions, nor on partisan identification, but on the overall pattern of a candidate’s values and opinions. As explained by Theodore Roosevelt to Senator Lodge, in a much-quoted 1906 letter discussing the potential appointment of Justice Lurton: “ [T]he nominal politics of the man has nothing to do with his actions on the bench. His real politics are all important.” 12 The clearest recent expression of this approach to the selection of Supreme Court justices was offered by Presidential candidate Nixon, in discussing what he would do to replace Chief Justice Warren: The President cannot and should not control the decisions of the Supreme Court. . . . There are two important things I would consider in selecting a replacement to the Court. First, since I believe in a strict interpretation of the Supreme Court’s role, I would appoint a man of similar philosophical persuasion. Second, recent Court decisions have tended to weaken the peace forces as against the criminal forces in this country. I would, therefore, want to select a man who was thoroughly experienced . . . in the criminal laws and its [sic] problems.13 Nixon said he wanted: strict constructionists who saw their duty as interpreting and not making law. They would see themselves as care­ takers of the Constitution and . . . not super-legislators with a free hand to impose their social and political view­ points on the American people.14 When they are measured against these standards, there is no reason to think that, on balance, Nixon would be disappointed with his ap­ pointees’ performances on the Court. The most obvious exception may be Justice Blackmun’s decision in the abortion cases, a decision no one could likely have anticipated.15 Chief Justice Burger also has written or joined in strong pro-integration decisions. One reason why a nominee’s performance may eventually surprise the President who appointed him is the potential confusion, in the recruitment process, between a candidate’s political and judicial phi­ losophies. Franklin Roosevelt, for example, wanted ardent New Deal supporters on the Court. One such clear supporter was Felix Frank­ 12 Schubert at 40. , 3 A shby at 366, (quoting Congressional Quarterly Almanac, 91st Cong., 1st Sess. (1969) at 130). 14 id.16 It should also be noted that N ixon's ability to appoint a personally com patible Justice w as most sharply curtailed by the time he nom inated Justice Blackmun, because the failure o f the H aynsw orth and C arsw ell nom inations m ade it politically necessary to locate a noncontroversia) m oderate. A braham at 9. 462 furter. The central theme, however, of Justice Frankfurter’s judicial philosophy proved to be judicial restraint. He believed that the consti­ tutional distribution of powers among the branches of the federal govenment and between the federal and state governments required the Court to avoid decisions that he deemed merely the imposition of its own value choices on political authorities who were constitutionally empowered to decide the same value questions differently. This defer­ ence to the elected branches enabled Frankfurter, as a Justice, fully to support the New Deal legislative program. However, Frankfurter’s record in interpreting the Bill of Rights would appear far less libertar­ ian than that of other FDR appointees, especially Douglas, Black, and Murphy, despite similar personal philosophies, because his judicial phi­ losophy was so much less expansive. In this vein, it should especially be noted that shorthand labels for candidates’ philosophies can be misleading. President Nixon advocated “strict constructionism,” but appointed at least one Justice, William Rehnquist, whose clear views of the constitutionally mandated distribu­ tion of powers, like most theories on the subject, is not compelled either by the language of the Constitution or by judicial precedent. For this reason, Rehnquist, though politically conservative, has been viewed by some as a judicial activist.16 Conversely, Hugo Black, generally considered one of the nation’s greatest liberal jurists, reached strongly libertarian results through “strict construction” of the First Amend­ ment. 17 A President should also recognize, if his aim is to affect the general direction of Court decisions, that his purpose can not always be best accomplished by an intellectually gifted person adhering unwaveringly to the President’s or to any other doctrinaire point of view .18 Critical to any Justice’s potential influence is his ability to function effectively in a collegial decisionmaking context. Because a Supreme Court Justice is wedded to his colleagues for life, a gift for diplomacy, including a willingness to compromise when necessary, will make his presence more tolerable and his eventual contributions more persuasive. The indicia of political acceptability cannot be viewed wholly apart from the criteria of ability. A record of public or civic service; a strong, confident, and tolerant personality; and a mature temperament joined with legal ability and intellect mark not only the gifted potential judge, but also the effective institutional advocate. 16 See generally Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 H arv. L. Rev. 293 (1976). 17 Rubin, Judicial Review in the United States, 40 La. L. Rev. 67, 77 (1979). 18 F o r a highly elaborate, m athem atically based theory for guiding Presidents in the selection of Justices w ho will influence C ourt dispositions, see S. T eger, Presidential Strategy fo r the Appointm ent o f Supreme Court Justices (1976) (unpublished U. o f R ochester Ph.D . thesis. L ibrary o f Congress). 463 C. E nhancing the R epresentativeness o f the C ou rt In narrowing the pool of potential nominees, Presidents have fre­ quently considered what category of individuals might enhance public perceptions of the “representativeness” of the Court. The primary measure of representativeness, as pursued by the Presidents, has been geographical. Although the Constitution does not require regional bal­ ance, a desire for it underlies, in part, the constitutional designation of the President to nominate Supreme Court Justices. It is recorded that, during the debate on this provision, James Madison urged the Constitu­ tional Convention, “The Executive magistrate would be considered as a national officer, acting for and equally sympathizing with every part of the United States.” 19 In a variety of constitutional provisions, the Framers clearly sought to avoid sectional domination of the Govern­ ment, and it might be argued that, in seeking geographical balance on the Court, a President is respecting a value implicit in our constitutional system. Geographic balance was most clearly a presidential consideration with respect to Supreme Court appointments through the late 19th century. In selecting the original members of the Court, George Wash­ ington chose representatives of New York, Pennsylvania, Massachu­ setts, Virginia, and South Carolina. As the country moved westward, each President, starting with Jefferson, began to seek seats first for Justices from states west of the Alleghenies, then from west of the Mississippi, and finally, with Lincoln’s appointment of Stephen J. Field of California, from the Far West. Andrew Jackson, who made seven nominations, tried scrupulously to have represented each circuit in the nation’s growing judicial system. The balance of Northerners and Southerners was also of obvious political significance, both before and after the Civil War. Part of President Hayes’ program of postreconstruction reconciliation was the appointment of a Southerner (although Northern-born), William Woods, to the Court in 1880. The symbolism was consummated in 1887 by President Cleveland’s appoint­ ment of Lucius Q. C. Lamar, the first “real” Southerner to reach the Court since 1853, and a former member of both the Confederate Army and the government of the Confederacy.20 In this century, although remaining of some concern, the emphasis on regionalism has been less obvious. Some Presidents have more or less disavowed its importance. Theodore Roosevelt wrote, “I have grown to feel, most emphatically, that the Supreme Court is a matter of too great importance to me to pay heed to where a man comes from.” 21 19 Pad o v er at 405. 20 A braham at 131. 21 A braham at 146. 464 Roosevelt appointed, within a 4-year period, two Justices from Massa­ chusetts, Oliver Wendell Holmes and William H. Moody. A similar “imbalance” occurred under Presidents Coolidge and Hoover, who appointed three New York Justices—Chief Justice Hughes and Associ­ ate Justices Stone and Cardozo. This imbalance, lasting 8 years, oc­ curred notwithstanding Hoover’s reluctance, before picking Cardozo, to choose another New Yorker for the Court. The Supreme Court currently includes two Minnesotans (both ap­ pointed by Nixon), and one Justice each from New Jersey, Ohio, Colorado, Maryland,22 Virginia, Arizona, and Illinois. The most recent New Englander to serve on the Court was Chief Justice Stone, who died in 1946. The most recent representative pf the Deep South was Hugo Black, who died in 1971, although in selecting Justice Powell to succeed Black, President Nixon emphasized Powell’s southern origins. Although not explicitly contemplated during the constitutional de­ bates, Presidents, for political reasons or otherwise, have also sought “balance” with respect to other criteria as well: partisan affiliation, religion, and, most recently, race. There continue to be strong pressures to appoint a woman Justice. It is arguable that such considerations as race, religion, ethnicity, or sex are offensive criteria in the choice of Justices, because they distract from the idea of simply choosing the “best” persons for the Court or from the constitutional grant of total discretion to the nominating President. It is also arguable, however, that diversity on the Court boosts public confidence in the legitimacy of the Court’s decisions. In addition, presidential concerns for diversity may properly affirm egali­ tarian ideals in the society at large and the value of diversity itself. As the record now stands, of the 101 people to serve on the Court, all have been men, 100 have been white, 95 have been of Anglo-Saxon descent, 95 have been native-born, and almost all have been Protes­ tant.23 Roger Taney, a Catholic and the first non-Protestant appointed, served from 1836 to 1864. Thereafter, one seat on the Court was held by a Catholic from 1894 to the present, except for a 7-year period between 1949 and 1956.24 Louis Brandeis, the first Jewish Justice, was appointed in 1916. At least one seat on the Court between 1916 and 1969 was held by a Justice who was Jewish.25 Thus, except for a pattern of regional diversity, the history of the Court reveals a largely homogeneous membership when measured according to the most obvi­ ous criteria of social background. 22 T hough appointed from N ew York, Justice M arshall w as b o m and started his legal c aree r in Baltimore. A shby at 320-26. 23 A braham at 53. 24 This g roup includes Justices E. D. W hite, M cK enna, Butler, M urphy, and Brennan. A braham at 56-57. 25 This group includes Justices C ardozo, Frankfurter, and G oldberg. A braham at 58. 465 D. O th er C riteria Ability, character, and philosophical or representative suitability hardly exhaust the list of criteria evident in the nominations made to the Court thus far. Age and health, of course, have played major parts. The appointment of a younger person to the Court may help assure a new Justice’s continued influence over a long period, or at least help assure the Court of the continued aid of a physically vigorous individ­ ual. In one case, perhaps, a President used old age as a criterion. William Howard Taft’s appointment in 1910 of the 66-year-old Edward D. White to be Chief Justice may have been motivated, in part, by Taft’s desire to assure the subsequent occurrence of a vacancy that he himself could assume after his Presidency.26 Other considerations in the choice of nominees may include friend­ ship, the rewarding of political partisanship or of particular public service, the effective elimination of a political opponent, placating po­ litical opposition or securing political support. None of these alone has likely secured the position of a Supreme Court Justice; however, each has been among the motivations underlying the selection of particular nominees from pools of otherwise qualified persons. The presence of ulterior motives in the nominating process or a close association between a nominee and the appointing President of course need not correlate with the candidate’s unsuitability on other grounds. Among the justices appointed by the Presidents of whom they were close personal or political allies are Roger Taney (Jackson), Stephen Field (Lincoln), Harlan Fiske Stone (Coolidge), and Felix Frankfurter (FDR), all of whom would have qualified under any set of criteria. However, although no clear formula exists for the selection of a great future Justice or one set formula to identify a fit nominee, the Presi­ dent’s thinking perhaps may usefully be guided by a set of general principles. With respect to criteria closely related to a person’s likely performance on the Court, some high degree of ability, character, health, and philosophical compatibility ought to be viewed as a set of threshold requirements. Having identified a pool of qualified finalists, the President could then—without undermining public confidence in his choice—consider other criteria, e.g., geographic suitability, background (sex, race), or rewarding public service, that might legitimately play a part in his ultimate selection. To the extent his criteria might be consid­ ered personal or political favoritism, he should be all the more careful that his choice be defensible when measured against other candidates and against criteria related to likely performance. Though no President can guarantee greatness in his appointees, he can likely avoid serious disappointment by soliciting a variety of suggestions for any vacancy, evaluating candidates across a wide range of criteria, and, in analyzing 26 A braham at 159. 466 his personal preferences, bearing in mind the Court’s needs and public perceptions of the Court.27 III. Identification and Evaluation of Nominees Because presidential acquaintance and selection criteria rarely limit the pool of eligible candidates for the Supreme Court to one, Presidents ordinarily rely to some degree on the assistance and advice of others in choosing their nominees. Analytically, such assistance may be viewed as coming in two stages: first, the identification of suitable candidates for the Court; second, the more exacting evaluation of the serious contenders. A. Identification o f Potential Nominees Potential sources of information concerning suitable candidates are almost endless. Solicited or unsolicited suggestions may come from the President’s advisers, both official and unofficial, as well as from Mem­ bers of Congress, sitting members of the judiciary, legal scholars, state bar representatives, concerned private citizens and candidates them­ selves. Some instances are known in which Congress pilayed a strong role, invited or otherwise, in the candidate identification process. In perhaps the most dramatic instance, Thomas Jefferson, in his search for a Supreme Court Justice to come from west of the Appalachians, asked each Member of Congress to suggest two names. He selected Thomas Todd of Kentucky, the one person named as first or second choice by every Member of Congress from the new Seventh Circuit, which com­ prised Kentucky, Ohio, and Tennessee. Later in the 19th century, Congress mounted notable, though uninvited campaigns for President Lincoln’s 1862 nomination of Samuel M iller28 and for President Grant’s 1869 nomination of Edwin M. Stanton.29 Although these are exceptional examples of congressional activism, suggestions by individ­ ual Members of Congress, particularly from the leadership, are un­ doubtedly common. Suggestions from sitting judges or Justices may also be expected. Indeed, in one case, the entire incumbent Supreme Court wrote to the President to urge the nomination of a particular candidate: John Camp­ bell of Alabama, who was nominated for the Court in 1853 by Presi­ 27 A President should also be aw are o f the extent to w hich an appointm ent may, as a m atter o f political fact, “change the law.'* T h e re are issues, such as federalism, affirm ative action, the death penalty, abortion rights, and school desegregation, on w hich law yers and political scientists perceive the current C ourt in flux. T h e balance o f C o u rt opinion on issues in these areas may be affected by a new Justice, although Presidents typically have not been successful in making new law through individual appointm ents. This is attributable not only to the unpredictability o f an individual's view s and behavior, discussed above, but also to the Justices' ordinary adherence to precedent, by w hich most Justices consider them selves guided, if not bound. 28 Schubert at 41-44. 20 A braham at 118. 467 dent Pierce.30 Chief Justices may more routinely offer their views on nominations. The most active campaigner among Chief Justices was likely William Howard Taft. Taft had appointed six men to the Court during his tenure as President, and appears to have been principally responsible for selecting three nominees, including himself as Chief Justice, for President Harding.31 More recently, Chief Justice Burger is known at least to have supported the nominations of Associate Justices Blackmun and Powell.32 Where Presidents have turned to Cabinet officers for advice, it is common for the Attorney General to play a major role both in suggest­ ing and in evaluating nominees. George Washington initiated the prac­ tice by asking Edmond Randolph to prepare a list of candidates for the bench.33 In recent decades, Attorneys General Cummings and Biddle (for FDR), Brownell (for Eisenhower), Robert Kennedy (for John Kennedy), Mitchell (for Nixon), and Levi (for Ford) all performed significant “screening” functions during the nominations process. How­ ever, just as no legal provision limits presidential criteria for candidate selection, there are no formal limitations or requirements binding the President to any particular system of identifying Supreme Court candi­ dates.34 B. Evaluation o f Nominees (Herein, the Roles o f the Departm ent o f Justice and o f the American Bar Association) Whoever is responsible for identifying plausible candidates, the func­ tion remains of evaluating the serious contenders according to the President’s criteria. In 1789, when the Judiciary Act established a federal bench comprising 19 judges, the evaluation process could rely with some success on the personal knowledge of the President and of his close advisers. Even for a nine-member Supreme Court, however, this is no longer a wholly satisfactory option. The far greater pool of available talent today and the intensity of public scrutiny to which nominees are currently subjected make it desirable to follow a more rigorous and dependable information-gathering process. A tradition is now well established of active Attorney General and Department of Justice participation in the process of evaluating Su­ preme Court nominees. The exact pattern of participation has varied with different Presidents. The Attorney General, with whatever De­ 30 A braham at 104. 31 A braham at 21, 155. 32 W oodw ard and A rm strong at 87, 160. 33 R ogers at 38. 34 F o r a time, in the early 19th century, the D epartm ent o f Stale w as assigned the function of offering the President recom m endations concerning all appointm ents. Even after A ttorney G eneral C ushing in 1853 reassumed the assignment for his office w ith respect to judicial appointm ents, A tto rn ey G eneral Bates, under Lincoln, was still able to com plain that the Secretary o f the T reasury had been instrum ental in making many appointm ents “w ithout any reference to legal and judicial qualifications." R ogers at 39. 468 partment assistance he seeks, may initiate a study of potential nominees. The Department also plays a special role in marshalling the recommen­ dations of private groups and individuals, most notably—since the Ei­ senhower Administration—of the American Bar Association (ABA) Standing Committee on Federal Judiciary (the ABA Committee). The practice of soliciting formal ABA views on Supreme Court nominations began with President Eisenhower’s 1956 nomination of Judge William J. Brennan, Jr. to replace Justice Minton. The President had assigned to Attorney General Brownell and the Department of Justice the task of recommending a nominee to meet four specific criteria: an exemplary personal and professional reputation for legal and community leadership; good health; relative youth; and ABA “recogni­ tion.” He also expressed a preference for giving most serious consider­ ation to the promotion of an outstanding lower court judge.35 Brownell, to whom Judge Brennan was strongly recommended by New jersey’s Chief Justice Vanderbilt, the New Jersey Bar Association, the American Judicature Society, and a host of other organizations,36 sub­ mitted Brennan’s name to the Federal Bureau of Investigation for a fullfield investigation and to the ABA Committee for its assessment of professional qualifications. The results of the ABA and FBI investiga­ tions were presented to the Attorney General for his consideration and eventual review with the President.37 FBI full-field checks on proposed nominees are routine. Since the Brennan appointment, however, the mode of ABA input has varied from nomination to nomination. Through the Johnson Administration, it was typical practice to afford the ABA a very brief investigation period prior to the announcement of a nomination. The resulting time pressure apparently made it difficult for the ABA to rely successfully, in its view, on any precise system of ranking nominees. For example, with Justice Goldberg’s nomination in 1962, the Committee decided to abandon any statement seeming to rank or quantify the nominee’s suitability, and instead offered the statement that the nominee was “highly acceptable from the point of view of professional qualifica­ tions.” 38 For undisclosed reasons, President Nixon abandoned the practice of consulting the ABA prior to announcing his nominees, a decision that, with respect to the President’s attempts to find a successor to Justice Fortas, seemingly contributed to controversial results both for the President and for the ABA. The ABA Committee, like the general public, learned of the Nixon nominations only from the President’s announcements. With the invitation of the Senate Judiciary Committee, 35 R ogers at 39-40; A braham at 235. 36 A braham at 245. 37 R ogers at 40. 38 Walsh at 556. 469 the ABA Committee first reviewed the qualifications of Judge Clement F. Haynsworth, Jr., the first Nixon nominee to the Fortas seat. The Committee unanimously found Haynsworth “highly qualified” for the post, a conclusion that it later ratified only 8-4 after public disclosures during the confirmation process indicated possible insensitivity on Judge Haynsworth’s part to financial conflicts of interest. When the Senate defeated the Haynsworth nomination, President Nixon, acting again on the recommendation of Attorney General Mitchell, nominated Judge G. Harrold Carswell, a former U.S. district judge in the Northern District of Florida who had recently been ap­ pointed to the U.S. Court of Appeals for the Fifth Circuit. Mitchell was reported to have said of Carswell, “He is almost too good to be true.” 39 Sensitized by the Haynsworth debate and apparently hoping to avoid dissent on the degree of a nominee’s suitability, the ABA Committee, in assessing Carswell’s background, reverted to a “qualified”/ “not qualified” system of evaluation, and reported Carswell “qualified.” When Carswell, during the confirmation process, was at­ tacked for mediocre judicial talent and hostility to civil rights, and ultimately defeated, the prestige o f the ABA also suffered, although ABA Committee Chairman Lawrence E. Walsh defended the Commit­ tee’s assessment in light of its investigation into Carswell’s performance on the Fifth Circuit.40 President Nixon again did not consult the ABA Committee before announcing his third nominee to the Fortas seat, Judge Harry A. Blackmun of the U.S. Court of Appeals for the Eighth Circuit. Chief Justice Burger supported Blackmun’s nomination, and the candidate was interviewed by Attorney General Mitchell and the Assistant A ttor­ neys General in charge of the Office of Legal Counsel and the Tax Division.41 The ABA Committee again conducted a post-announce­ ment evaluation. It adopted a “not qualified”/ “not opposed”/ “meets high standards of integrity, judicial temperament, and professional com­ petence” system of ranking, seeking to avoid the appearance of a plenary endorsement for a merely acceptable candidate and emphasiz­ ing the assertedly nonideological character of its endorsement for a highly qualified candidate.42 The ABA Committee turned in its most extensive report ever on a Supreme Court nominee for Judge Blackmun, finding that he met “high standards of integrity, judicial temperament, and professional competence.” 43 The Senate unani­ mously confirmed the Blackmun nomination on May 12, 1970. These events, however, did not conclude the Nixon Administration’s history o f difficulties with the ABA. In September, 1971, Justices Black 38 40 41 ■« « A braham at 6. W alsh at 556-57. W o o d w ard and A rm strong at 86. W alsh at 560. W alsh at 560. 470 and Harlan resigned, leaving the President the task of replacing two of the Court’s most highly esteemed members. Attorney General Mitchell had written in July, 1970, to ABA Committee Chairman Walsh that the Administration would henceforth submit lists of Supreme Court candi­ dates to the Committee for its evaluation prior to nomination, an announcement that won high acclaim in light of the ABA’s rigorous work on the Blackmun nomination.44 The President’s first suggested candidate was Rep. Richard H. Poff of Virginia, who received the Committee’s highest recommendation, but the President withdrew his name from consideration when the press reported his past anti-civil rights statements. The Administration’s next submission was a list of six names, includ­ ing California Court of Appeals Judge Mildred Lillie, Arkansas munici­ pal bond lawyer Herschel H. Friday, D.C. Superior Court Judge Sylvia Bacon, Sen. Robert C. Byrd of West Virginia, and Judges Charles Clark and Paul H. Roney of the U.S. Court of Appeals for the Fifth Circuit. The first two were the President’s top choices—Mr. Friday was a close friend of Attorney General Mitchell and had been recom­ mended by Chief Justice Burger and Justice Blackmun—and the Com­ mittee devoted almost all its investigative work to them.45 The A ttor­ ney General had recommended the submission of their names notwith­ standing reservations expressed by White House Counsel John Dean and Assistant Attorney General Rehnquist concerning their judicial experience and lack of constitutional law background.46 The results were a unanimous vote of “not qualified” for Judge Lillie and a 6-6 tie between “not qualified” and “not opposed” for Mr. Friday. News of the ABA actions reached the press within hours of its report to the Attorney General; the ABA urged the President to “add some people with stature” to his list.47 The Administration informed the ABA in a letter from the Attorney General to Chairman Walsh that it could no longer rely on the confidentiality of the Committee, and would return to its practice of submitting nominations directly to the Senate.48 According to two commentators, Attorney General Mitchell acted prior to the ABA Committee’s formal vote to solicit the acceptance by another candidate, former ABA president Lewis F. Powell, Jr., of his nomination to the Black seat.49 Mitchell and Deputy Attorney General Kleindienst recommended to the President his eventual nominee for the Harlan seat, Assistant Attorney General Rehnquist.50 Subsequent to the 44 A braham at 28. 45 A braham at 10, 46 W oodw ard and 47 A braham at 10. 49 A braham at 30. 49 W oodw ard and 50 W oodw ard and 29. A rm strong at 159. A rm strong at 160. A rm strong at 161. 471 President’s announcement of his choices, the ABA Committee voted unanimously that Powell met “high standards of integrity, judicial tem­ perament, and professional competence.” Eight members of the Com­ mittee voted the same endorsement of Rehnquist, with four voting “not opposed.” Powell was confirmed by the Senate almost immediately, and Rehnquist, within several weeks. In contrast to this stormy history, the Department of Justice and the ABA enjoyed a smooth relationship during the process of evaluating candidates in 1975 to succeed Justice William O. Douglas. President Ford and Attorney General Levi returned to the practice of submitting names to the Committee for its evaluation prior to nomination. On the day of Douglas’ retirement, Levi submitted a list of candidates to the ABA Committee.51 The Committee unanimously gave Levi’s first choice, Judge John Paul Stevens of Chicago, its highest rating. Judge Stevens was subsequently nominated and confirmed without difficulty. These events underscore significant questions of how best to make use of the assistance and resources of private parties in the evaluation of Supreme Court candidates and, at the same time, maintain the full scope of presidential discretion that the Constitution provides for the nomination of Supreme Court Justices. ABA assistance can undoubt­ edly be helpful in the evaluation of Supreme Court candidates, al­ though how best to accomplish its role has itself been a subject of long debate by the ABA Committee. The Committee describes its function as limited to an examination of “professional competence, judicial tem­ perament, and integrity,” 52 about which it is undoubtedly able to express an educated point of view. As time permits, the Committee’s investigation includes interviews with judges, scholars, lawyers, public officials, and other parties likely to have information regarding a nomi­ nee’s qualifications, plus a review of the nominee’s writings by teams of law school professors and practicing lawyers. The ABA Committee’s conclusions based on this kind of thorough study may be a useful guide to the President or his advisers in applying the President’s criteria during the nomination process. However, extensive ABA input, especially before nomination, may lead to criticism that an organization that is not responsible to any public political process is exercising undue influence in the presidential selection of nominees.53 The ABA Committee currently comprises 14 members—one member at-large and one practicing lawyer from each of the geographic areas covered by the 11 judicial circuits, except for the Fifth and Ninth, which areas—because of their size—have two mem­ bers each. There can be no assurance, however, that it fully represents the American public, or even the American bar, given that nearly half M A m erican Bar A ssociation at 2. 52 A m erican Bar A ssociation at 2. 53 A braham ait 23; G rossm an at 212-15; M urphy and P ritchett at 76-77; Schm idhauser at 28-33. 472 the lawyers in the United States do not belong to the ABA. Neither is there any government control over the exhaustiveness of its survey or the objectivity of its evaluation. Though consultation with the ABA prior to nomination may confer advantages in the evaluation process, it may risk the public’s perception that the selection process for the least politically accountable branch of government is itself being removed a step from public accountability.54 What is not open to question is that, whatever sources are consulted prior to nomination, the pre-nomination investigation of any nominee should be deep, broad, and disinterested enough to assure an informed evaluation of the nominee’s professional qualifications, temperament, health, and integrity. So long as the goals of the investigative process and the advisory roles of the participants are clearly defined, it should be possible to avoid the difficulties encountered during the Nixon nominations and make the best possible use of information from all sources. IV. The Confirmation Process Once the processes of candidate evaluation produce a nominee, the President submits his choice for the “advice and consent” of the Senate. For the first half of this century, it appeared that the Senate’s role in materially influencing the selection of a Justice had ended; its confirma­ tion of presidential nominees was virtually automatic.55 Though equal participation by the Senate and the President in choosing Justices may be gone, however, the Senate has significantly reasserted its hand in the selection of Justices since 1968. Since the conditional resignation of Earl Warren from the Chief Justiceship, four presidential nominations for the Chief or an Associate Justiceship have been withdrawn or were defeated at least in part because of Senate action.56 The Senate’s procedure following nomination is straightforward. Except in the cases of two ex-Senators, the Senate has always referred Supreme Court nominations to the Senate Judiciary Committee. Since 54 It has been debated since 1973 w h eth er the reporting and o th er “sunshine’* provisions o f the Federal A dvisory Com m ittee A ct, 5 U.S.C. A pp. § 10, apply to the A B A C om m ittee in its role o f advising this D epartm ent. T h e Office o f Legal Counsel concluded in 1973 that the A ct does c o v er the ABA Com m ittee, although the practical effects o f such co v erag e on the operation o f the C om m ittee w ould be limited. This position was affirm ed in a February, 1974, letter from A ttorney G eneral Saxbe to the. A BA Com m ittee. A fter fu rth er correspondence. A ttorney G eneral Saxbe inform ed the C om m it­ tee in O ctober, 1974, that O L C , under then Assistant A tto rn ey G eneral Scalia, had reexam ined the issue and found that the A ct did not c o v er the ABA Com m ittee. 95 Prior to 1968, the Senate failed only once in this century to confirm a presidential nom ination to the Suprem e C ourt: President H o o v er’s 1930 nom ination o f Judge John J. P arker to be an A ssociate Justice. Sw indler at S36. 56 Justice Fortas w ith d rew his nom ination for the C h ief Justiceship in O ctober, 1968, after the Senate failed to end a filibuster preventing a vote on his elevation. His action elim inated the prospective vacancy to w hich President Johnson had nom inated Ju d g e H om er T h o rn b erry o f the Fifth C ircuit. In 1969, the Senate defeated President N ixon's first nom inee to succeed Justice Fortas, Judge C lem ent F. H aynsw orth, Jr. In 1970, it defeated his second nominee. Judge G . H arrold Carsw ell. A braham at 266; Sw indler at 536. 473 President Coolidge’s nomination in 1925 of Harlan Fiske Stone to an Associate Justiceship, the committee has usually interviewed the nomi­ nee in person.57 It is modern practice, since President Roosevelt’s 1938 nomination of Stanley Reed, for the committee to hold public hearings on the nomination.58 If the committee recommends approval, as it invariably has in recent decades, the nomination is sent to the floor for debate and an eventual vote by the entire Senate. Confirmation requires a majority vote. The factors that may affect the results of a Senate confirmation vote are innumerable; long and complex explanations have been written concerning the politics of the confirmation process. Although the his­ tory is fascinating, this memo will only briefly consider the politics of confirmation to underline the one relevant and perhaps obvious point that Senators’ opposition to a candidate may not relate in any way to the President’s criteria for choosing a suitable candidate for the Court. This is understandable because Senators may well decide their votes based on partisanship, individual animosity, opposition to a nomination by constituent or special interest groups, ideological differences, or intraparty politics.59 One commentator has usefully divided the reasons for Senate opposi­ tion to a candidate into three categories: reasons related to the charac­ ter, ability, or integrity of the candidate; reasons related to partisanship or the candidate’s ideology; and reasons related to a candidate’s prior identification with the unpopular side of a significant political contro­ versy.60 The stronger the opposition to a candidate, the more likely the nominee is to face detractors on all of these grounds. Relatively few nominees have been credibly opposed on grounds of outright inability. Perhaps the nominee to fare worst in this respect was George H. Williams, an undistinguished lawyer nominated unsuccess­ fully by President Grant in 1873. Most recently, Judge Carswell was opposed in part because of alleged lack o f ability, although it would be difficult to determine the relative importance to his defeat of the Sen­ ate’s evaluation of his judicial performance and its reaction to his record of apparent insensitivity to civil rights. Opposition on ethical grounds was a factor in the defeat of both the nomination of Justice Fortas to be Chief Justice and the nomination of Judge Haynsworth to succeed Justice Fortas. The filibuster against 57 S tone's nom ination was controversial chiefly because, having succeeded a H arding appointee, H arry M. D augherty, as A tto rn ey G eneral, he refused to d ro p a D epartm ent o f Justice case brought by D augherty, a figure in the T eapot D om e scandal, against S enator W heeler o f M ontana. Frank at 491. 58 T h e Judiciary C om m ittee decided to enci its p ractice o f conducting its nom ination debates entirely in executive session after the co n tro v ersy engendered by public revelation o f the past K u Klux K lan m em bership o f Justice H ugo Black, w hose nom ination it had approved by a vote o f 13-4 in 1937. A braham at 201; A shby at S3. 59 See generally GofT; Sw indler. 60 A shby at 29-31. 474 Fortas may have succeeded chiefly because of opposition to his judicial philosophy and opposition to President Johnson as a lameduck Presi­ dent in 1968. However, Fortas was also opposed for accepting paid employment by American University while on the Court and for main­ taining a close advisory relationship with President Johnson, which seemed to some an inappropriate breach of separation of powers.61 When Fortas later resigned under charges of ethical insensitivity (he had received and returned, while on the Court, fees from investor Louis Wolfson and the Wolfson family’s foundation), President Nixon’s first designated successor, Judge Haynsworth, faced opposition based on his participation in lower court cases in which he arguably had or created a financial conflict of interest.62 Considerations of personal or judicial ideology were clearly grounds for Senate opposition to the nominations of Justice Fortas and Judges Haynsworth and Carswell. Senators opposed Fortas’ liberal stands on desegregation, criminal procedure, and free speech. Civil rights and labor groups attacked the allegedly hostile positions of Judge Haynsworth. Judge Carswell’s opponents emphasized his statement in support of “the principles of White Supremacy” during his 1948 cam­ paign for the Georgia legislature.63 Partisan opposition, whether or not “ideological,” may also defeat a candidate. Of the 14 presidents whose nominees were rejected or other­ wise “killed” by the Senate, six—John Quincy Adams, Tyler, Polk, Fillmore, Buchanan, and Andrew Johnson—held office in the face of overwhelming congressional opposition. At the times they lost their respective nomination fights, it is doubtful that they could have secured the nomination of almost any individual to the Court. Interestingly, the most “venerable” ground historically for Senate opposition to a nominee is the nominee’s prior identification with the losing side in a national controversy. The first rejected nomination was that of John Rutledge for Chief Justice in 1795, based largely on his attack on the Jay Treaty, which the Federalists vigorously supported. No one-issue debate has loomed as large in the defeat of any Supreme Court nominee in this century. The role of the Attorney General and the Department of Justice in the appointment process has generally been to identify and evaluate candidates according to the President’s criteria. Department of Justice witnesses, however, have occasionally played a role in confirmation hearings either to elaborate on the Administration’s evaluation of a 61 Ashby at 338-41. 62 A braham at 4-5; A shby, at 387-88. 93 Ideological opposition to a candidate may, o f course, backfire. T h e overall c areer record on civil rights and labor issues o f F o u rth C ircuit Judge John J. Parker, w hose Suprem e C ourt nom ination w as defeated in 1930, w as undoubtedly m ore progressive o r liberal then the Suprem e C ourt voting record o f President H oover's subsequent successful nominee, O w en J. R oberts, although P arker’s nom ination w as defeated prim arily th ro u g h the pressure o f labor and civil rights groups. Schubert at 49-50. 475 nominee’s record or to comment on legal issues raised by a particular appointment. Not including former Assistant Attorney General Rehnquist’s testimony at his own confirmation hearing, Department of Justice Representatives have testified with respect to only two of the nine persons nominated to the Supreme Court since 1968. Attorney General Levi testified in support of the 1975 nomination of Judge John Paul Stevens. Nomination o f John Paul Stevens to be a Justice o f the Supreme Court: Hearings Before the Senate Comm, on the Judiciary, 94th Cong., 1st Sess. 3 (1975). During the hearings on Justice Fortas’ nomi­ nation to the Chief Justiceship, Attorney General Clark testified regard­ ing whether Chief Justice W arren’s conditional resignation legally cre­ ated a vacancy on the Court, Nominations o f Abe Fortas and Homer Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th Cong., 2d Sess. 8 (1968), and Deputy Attorney General Warren Chris­ topher testified regarding a memorandum he had prepared at the re­ quest of committee member Senator Hart concerning the meaning and impact of the Supreme Court opinions of Justice Fortas. Id., at 315.64 V. Conclusion: The Appointment Process and Post-Appointment Performance Unsurprisingly, the measures of success on the Court vary as widely as the criteria for selection.65 In considering what process of candidate selection is most likely to yield a successful Justice, it must first be borne in mind that, like other virtues, judicial excellence is significantly in the eye of the beholder, varying with time and place. If a President’s measure of success is the predictability of his ap­ pointee’s decisions, no selection process can guarantee a happy result. Even a President’s intimate familiarity with the opinions of a nominee cannot assure that their views will coincide as the appointed Justice grows in his position and faces novel questions unforeseen at the time of his appointment. There are notable examples of presidential dissatis­ faction with the performance of an appointee, e.g., Madison, with the Federalist Story; Teddy Roosevelt, with Holmes’ vote in the Northern 6* A D epartm ent o f Justice A tto rn ey , N orm an K nopf, testified under subpoena in a private capacity during the hearings on Ju d g e C arsw ell concerning his experiences w ith Judge C arsw ell w hile a mem ber o f the Law Students Civil R ights R esearch Council, prior to his em ploym ent w ith the D epartm ent o f Justice. George Harrold Carswell: Hearings Before the Senate Comm, on the Judiciary, 91st C ong., 2d Sess. 174 (1970). 65 T w o com m entators have w ritten that success on the C ourt is: the result o f several qualities in com bination: scholarship; legal learning and analytical pow ers; craftsm anship and technique; w ide general know ledge and learning; character, moral integrity and impartiality; diligence and industry; the ability to express oneself w ith clarity, logic and com pelling force; openness to change; courage to take unpopu­ lar positions; dedication to the C o u rt as an institution and to the office o f Supreme C ourt Justice; ability to carry a pro p o rtio n ate share o f the C ourt's responsibility in opinion w riting; and finally, th e quality o f statesm anship. Dennis, Overcoming Occupational Heredity at the Suprem e Court. 66 A.B.A. J. 41, 43 (1980) (quoting A. Blaustein and R. M ersky, The First O ne H undred Justices: Statistical Studies o f the Suprem e Court o f the United States (\91%)). 476 Securities case; Wilson, with the conservative McReynolds; and Eisen­ hower, with W arren.66 It is likely that those Presidents who measured success more by the craftsmanship of their appointees were better pleased than those count­ ing on predictable votes. The average Justice has been one who has reliably made substantial contributions to acceptable adjudications of difficult issues over a significant period of time. Not every Justice, of course, possesses the creativity, intellect, political acumen, and perhaps longevity, to achieve not only excellence, but “greatness.” However, those candidates with the potential to be truly exceptional and extraor­ dinary rarely stand out clearly from the pool of excellent candidates, and a process seeking to identify the “potentially great” might prove more whimsical than practical. While the eminence of John Marshall or Brandeis was perhaps predictable, no prognosticator could confidently have predicted the careers of Harlan Fiske Stone, Hugo Black, or Earl Warren. Whether a process aimed at finding “great” future jurists would have focused on them originally cannot be known. History gives much reason for optimism that, whatever the Presi­ dent’s criteria, a potentially successful member of the Court meeting those criteria can be found with proper care. A clear set of standards, input from numerous sources, a broad-based search for candidates, and time enough for a thorough evaluation are the elements necessary and sufficient to find the appropriate nominee. APPENDIX DATA ON SUPREM E COURT APPOINTM ENTS 1. Succession of the Justices of the Supreme Court of the United States 2. Supreme Court Nominations Rejected or Refused 3. Prior Judicial Experience of U.S. Supreme Court Justices and Their Subsequent Service 4. Occupations of Supreme Court Designees at Time of Appointment 5. Acknowledged Religion of the 100 Individual Justices of the Supreme Court (at time of appoint­ ment) 6. The 31 States From Which the 103 Supreme Court Appointments Were Made 7. Occupational Backgrounds of Supreme Court Nominees Since 1937 66 A braham at 62-63. 477 Table 1 T A B L E O F SUCCESSION O F TH E JU STICES O F TH E SUPREME C O U R T O F TH E U N ITE D S TA TES Showing Yean « f A d n t Srrvict on the Court Judiciary A il of I W John Jay P R O -1795 Jithn R u I M p 179$ Olr**r ElliworlH |79t».»799 John M in liill 1K0|.»R»5 John Ruttedpr 17*9-17*1 provided Im a Chief imtrar and 5 AtmciaU Ju ttim William Cuihina 1719-IRIO Jam n Irrdell 1790- 17<M Jamet Vihon 17R9.1 **a Alfred Moorr Buthrad Wathtnfton I79R.1RJ9 Thofflu JofcfKon I79|.|7<*J William Patmon |79t.|ROh John blaa |7 * 9|7 % Samuel Oiaw |79*-|RII William Johnwn IftfM IR U Hrnry B. 1 mngMnn IROhlR.'.l J w p h Story IR I I 1 M 5 C.jhnrl Duvil INI M « » * Smith Thnmpvw l* M IK4I IWnry Baldwin IK10-IH44 lam n M Waynr IN.UIRftT Rnfrr | Taney IN 1ft |N*4 Samuel Nchon iM M r; Levi Wpndhurv |R4*n |RH fillip P Rirhftii i m Wiina i Rnhert ( (.riei IR 4 t.lR ’ i) Peter V Dan»1 IH4I IMM) Beniamin R Curti* IK M IR 5 ’ Nathan Clifford 1 Z. 5 3 s i a Salmon P Chav iH M in S * s ? Samuel F Millet |Bfi ’ Ht'Ht \\ M m non R V m « IR74-IRRR 8 « ; 3 ; s I» se Ward Hunt i r ?m r m : Samuel Blatchford IH R JIR UI Horave C n y 1RRM90.' MelmllrW Fuller IRRR-1910 Wilham Stroma 1*70 IRRU William B Wood* iNRtyiRR?' M i •- s L w i i m O C Lamar IRRN IR41 " c Edward 0 White J IR94 <1 1 9 | 0 -l»:i < Howell E J k I w i IR9.1 |R«H Rufus W Peikham |R<*S 191)9 Oti»tr Wendrll H o in n i « * o :i9 i : Edward D Vhiic JIR94 ( J 1910-19:1 William H Moody |9Qf> 1910 M o n o H Lurtm |909.|g<4 Wtdti V n Dt*afilrr 1910-19.17 Ja m n C McRrynnMt I9 I4 I9 4 I William H Taft I9.M-I9.M) Hrnry B Brown IR90l90n lo v p h R Lamar |9|(v I9ir* Loun D Brandrn lvtn-1919 Benjamin N Cardoro I 9 IM 9 J H F rln Frankfurt" I 9 i9 i« r ,j 1910-1941 Hugo L BIk I |917. |'IT ( William O Doufta* 1919 J I9JS * ( J 1941 |94A Jamn F Byfnei 1941.1942 Wiley R u tlrd^ |V4.M*49 Sherman Hinton " |<*4U.|«<* F n d M V im m I94A -I9JJ Karl V a r m |9<M <*9 W illim J Brennan I9*h Arthur J ( « l d M f !% M % < Ahr Fortas I9 M -I9 A 9 Warrrn E Burfrr |9fi9 1r a n E Powell. Jt l« 7 : |U70 'S ucceeded by Justice Jo h n Paul Stevens. December 19, 1975. From A braham at 292-93. Fe b n w y. 1973 TABLE O F SUCCESSION O F THF JUSTICES O F THE S UP tE M E COURT O F TH E UNITED S TA TE S 1789 IT9 0 j c l >11 i ii'-J u! 1800 1 t g | ' T t w m a To d d 1807-1826 . i =11 “ o E x oJ <w Robert Tum ble John M k U t i) | 21 1 « !o Si ar X o John Catron IR t T -l f t M John M c K u ilty 1 8 V 1852 < 8 e i i i i l l 21| 5ii 0 o ! 1 8 )0 & O a n d Dana I8 6 M 8 7 7 h | 18*0 Stephen J Field 1863-1897 ! i l l I- ni * ?«5 Stanley Matthew* 1M I I 889 1840 i i “1 Noah H S va y n r 1*62 1*81 1820 1 8 )0 6 «5* 5S 'S* John A Campbell IN V tlA M tlto John M Hartan l«-r? .| Q i i - Joaepto P. Bradley — 1870-1892 1870 5 1880 - ^ *e O < D and J B i t x i 1889-19)0 C r a r p S h in e . Jr 1892 1903 1890 ioaeph McKenna 1898-192) 1900 W ilK «n R. O n >903-1922 Chartei E Hughes 1910-1916 1910 Mahkm Pitney 19121922 Jofin H Clarkr 19(^-1 9 2 2 1920 GfOfft Swlhrrland 1922-19,18 F d v i f d T Sanford I9 2 .V I9 J0 H ir lt * F . Slone J 192) C J 1941-1946 Pierce Bvftet 1922-1939 1930 I9 .W 1 9 4 5 Stanley F Heed I9 JR I9 S 7 Frank M urphy H ir n M H . Burton I9 4 J -I9 M I 1940 Robert H . Ja ct ton 1 9 41-19)4 Tom C. C M 1949-1967 C h a rtn E Whittaker 19)7-1062 Poller Stewart 1959 1950 John M Htrtan 1955-1971 l«6 0 It Byron While |9f>2 Th vrfo o d Manhall 1967 W m H . R rhn qim t 197’ 1970 1980 478 T a b l e 2.— S u p r e m e C o u r t N o m i n a t i o n s R e j e c t e d o r R e f u s e d (In the following tabulation, details on the nominations to the Suprem e C ourt o f the United States w hich w ere declined by the nominees or acted on adversely by the Senate have been summarized. T he political com position o f the Senate at ihc time o f such action is show n by m ajor parlies only: F .— Federalist; A .-F.—A nti-Federalist; D.R. — D em ocratic Republican: N.R. — National Republican; W .—W hig; D .— D em ocratic; R. —Republican.] President and Supreme Court nominee G eorge W ashington Robert H. Harrison William P aterson1 John Rutledge, C J .2 William Cushing, C.J. John Adams John Jay, C .J........... James Madison Levi L in co ln ........... A lexander W olcott. John Q. A d am s....... John Q. Adams John J. C ritte n d e n .. A ndrew Jack'son R oger B. T an ey n .... W illiam S m ith ......... John Tyler John C. Spencer Reuben H. W alw orth Edw ard K in g .......... John M. R e a d ......... James K. Polk G eorge W. W oodw ard M illard Fillm ore Edw ard A. Bradford G eorge E. B a d g e r.. William C. M icou... James Buchanan Jerem iah S. B lack... A ndrew Johnson H enry S ta n b e ry ...... Ulysses S. G rant Ebenezer R. H oar... Edw in M. S ta n to n .. G eorge H. Williams, C.J. C aleb Cushing, C.J. R utherford B. Hayes Stanley M atthew s4 . C hester A. A rth u r Roscoe C o n k lin g .... G ro v e r Cleveland William B. H om blow er W heeler H. Peckham H erbert H oover John J. P ark er......... Senate com position D ate o f nomination A ction on nomination N ature o f action F. 19; A.-F. 13. Sept. 24. 1789.... Sept. 26, 1789.... Feb. 27. 1793..... Feb. 23, 1793..... July I. 1795 ! D ec. 15. 1795 Nov. 5. 1795 Jan. 26. 1796...... Jan. 27, 1796.. F. 19; D .R. 13. Dec. 18. 1800... Dec. 19. 1800.... C onfirm ed; declined. D .R. 28; F 6... D .R . 28; F. 6... D .R . 28; F. 6... Jan. 2, 1811... Feb. 4, 1811... Feb. 21. 1811. Jan. 13, 1811.. Feb. 13, 1811. Feb. 22, 1811. C onfirm ed; declined. R ejected. 9-24. Confirm ed; declined. D .R. 28; N.R. 20..! D ec. 17, 1828... Feb. 12, 1829.. “ Postponed. “ D. 20; W. 20 . D. 30; W. 18 . Jan. 15. 1835.. Mar. 3, 1837.. Mar. 3, 1835. Mar. 8, 1837. “ Postponed.” 24-21. C onfirm ed; declined. W. 28; D. 25 . W. 28; D. 25 . Jan. 9, 1844...... Mar. 13, 1844.. W. 28; D. 25 . June 5. 1844.. Dec. 4. 1844. Feb. 7, 1845.. Jan. Jan. Jan. Jan. Feb. 31, 1844.. 15. 1845.. 27, 1845.. 15, 1845.. 7, 1845... Rejected, 21-26. "P ostponed.“ W ithdraw n. “ Postponed.** W ithdraw n. N u action. Jan. 22, 1846.. Rejected, 20-29. F. 17; A .-F. 9... F. 17; A .-F. 13. F. 1^; A .-F. 13. W. 28; D. 25 . D. 31; W. 2 5 ......... Dec. 23. 1845 . C onfirm ed; declined. W ithdraw n. Rejected. 10-14. Confirm ed; declined. No action. D. 35; W. 2 4 ......... Aug. 16. 1852. D. 35; W. 2 4 ......... | Jan. 10. 1853.... D. 35; W. 2 4 .........1 Feb. 24. 1853.. Feb. 1 1. 1853. “ Postponed." N o action. D. 36; R. 26. Feb. 5, 1861.... Feb. 21. 1861. R ejected, 25-26. R. 36; D. 26 . A pr. 16, 1866.. R. 56; D. 11 . R. 56; D. II . Dec. 15. 1869... Dec. 20. 1869... N o action. R. 49; D. 19. Feb. 3. 1870....... Rejected, 46-11. D ec. 20, 1869... C onfirm ed (d. D ec. 24, 1869). W ithdraw n. Dec. I. 1873 ...... Jan. 8. 1874.... R. 49; D. 19. Jan. 10. 1874...... Jan. 13, 1874.. W ithdraw n. D. 42; R. 33. Jan. 26, 1881...... N o action. R. 37; D. 37 . Feb. 24, 1882.... Mar. 2, 1882... C onfirm ed; declined. D. 44; R. 38 . Sept. 17. 1893.... Jan. 15, 1894... Rejected, 24-30. D . 44; R. 38 . Jan. 22, 1893...... Feb. 16, 1894.. R ejected, 32-41. R. 56: D. 3 9 .......... Mar. 21, 1930.... M ay 5, 1930....... R ejected. 39-41 479 T a b l e 2.— S u p r e m e C o u r t N o m i n a t i o n s R e j e c t e d o r R e f u s e d — Continued [In the follow ing tabulation, details on the nom inations to the Suprem e C ourt of the U nited States w hich w ere declined by the nominees o r acted on adversely by the Senate have been summarized. T he political com position o f the Senate at the time o f such action is show n by m ajor parties only: F .— Federalist: A .-F .— A nti-Federalist: D .R .— D em ocratic Republican; N .R .—National Republican: W .— W hig; D .— D em ocratic; R .— Republican.] President and Suprem e C ourt nominee Senate com position Lyndon B. Johnson A be Fortas. C .J......... H om er T h o rn b erry r> R ichard M. Nixon C lem ent F. H aynsw orth, Jr. G . H arrold Carsw ell D ate o f nom ination A ction on nom ination O ct. 7. 1968 O ct. 7. 1968 N ature o f action W ithdraw n, W ithdraw n. D. 64; R. 36 D. 64; R. 36 June 27. 1968 June 27, 1968 D. 58; R. 42 Sept. 4, 1969...... Nov. 21, 1969... Rejected, 45-55. D. 58; R. 42 Jan. 19. 1970 A pril 7, 1970 R ejected, 45-51. 1 Paterson's name w as inadvertently subm itted before his term as Senator had expired, he having been a mem ber o f the Senate w hich created the C ourt positions under the Judiciary A ct o f 1789, I Stat. 73. 2 Rutledge w as com m issioned, sw orn in and presided o v er the August, 1795. Term o f the C ourt. 3 T he Senate rejected the nom ination as an attem pt to co n trol the C ourt through T aney's Cabinet affiliation. In the 1836 election, w ith six additional states voting, the D em ocrats won control o f the Senate. Taney was renom inated, this time for C h ief Justice, and w as confirm ed. 29-15. 4 T h e nom ination, caught betw een D em ocratic co n tro l o f the Senate and Senator C onkling’s fight w ith Hayes, was pigeonholed. In the new Senate. D em ocrats and R epublicans w ere evenly divided. G arfield prom ptly resubm itted M atthew s' name, and he was confirm ed. 24-23. 5 T he Senate never reached this nom ination, as it was tied to the effort to advance Fortas to C hief Justice. From Sw indler at 536. T a b l e 3.— P r i o r J u d i c i a l E x p e r i e n c e o f U .S . S u p r e m e C o u r t J u s t ic e s a n d T h e ir S u b s e q u e n t S e r v ic e Ju stice Y ear N o m in ated J a y ‘ ......................... 1789 ......................... J. R u tled g e* * ....... '1789 an d 1795..... C u s h in g ................. 1 7 8 9 ......................... 1789 .................... 1 7 8 9 ................... .*... 1 7 9 0 ......................... 1 7 9 1 ......................... 1793 ......................... 1 7 9 6 ......................... 1 7 9 6 ......................... W a s h in g to n .......... 1 7 9 8 ......................... 1 7 9 9 ......................... 1 8 0 1 ......................... 1 8 0 4 ......................... L iv in g s to n ............ 1 8 0 6 ......................... T o d d ....................... 1 8 0 7 ......................... S to r y ....................... 1 8 1 1 ......................... 1 8 1 1 ......................... T h o m p s o n ............ 1823 ......................... T rim b le .................. 1 8 2 6 ......................... N u m b e r o f Y ears o f P rio r Ju d icial E x p erien ce F e d e ra l S tate T o ta l 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 2 6 29 0 11 2 6 29 0 11 480 Vz Vz l>/2 0 8 5 0 1 0 6 0 6 0 6 16 2 1 >/2 0 8 5 0 1 0 6 0 6 0 6 16 11 Y ears o f S e rv ice on S u p re m e C o u rt 6 “2 21 9 7 9 2 13 15 4 31 5 34 Vi 30 17 20 34 24 20 2 T able 3.—P rior J udicial E x per ien ce of U.S. S uprem e C ourt J ustices an d T heir S ubsequent S erv ice —Continued Ju stice Y ear N o m inated N u m b er o f Y ears o f P rio r Judicial E x p erien ce F ed eral 1 8 2 9 ......................... 1 8 3 0......................... 1835 ......................... 1 8 3 6 ......................... 1836 ......................... 1837 ......................... 1837 ......................... 1 8 4 1 ......................... 1845 ......................... 1845 ......................... 18 4 6......................... 1 8 5 1......................... 1853 ......................... C liffo rd .................. 1858 ......................... 1862 ......................... 1 8 6 2......................... 1 8 6 2......................... F i e l d ..................... 1 8 6 3......................... 1 8 6 4 ......................... 1 8 7 0 ......................... 1 8 7 0......................... 1872 ......................... 1 8 7 4......................... 1877 ......................... 1 8 8 0......................... 1 8 8 1......................... 1 8 8 1......................... 1882 ......................... L. Q. C. L am ar... 1888 ......................... 1 8 8 8.......................... 1 8 8 9......................... 18 9 0......................... 1892 ......................... 1 8 9 3......................... W hite*................... ‘ 1894 and 1910..... 1 8 9 5......................... 1898 ......................... 19 0 2......................... 1 9 0 3......................... 1 9 0 6......................... 1 9 0 9........ ................ '1 9 1 0 an d 1930..... 1 9 1 0......................... 1 9 1 0......................... 1 9 1 2......................... 1 9 1 4......................... 1 9 1 6 ......................... 1 9 1 6 ......................... T a ft’........................ 1 9 2 1 ......................... 1 9 2 2......................... B u tle r..................... 1 9 2 2......................... 0 0 0 0 6 0 0 4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 12 0 0 15 0 0 6 16 0 7 0 0 5 0 4 0 16 0 7 0 0 0 0 2 8 0 0 481 S tate T o ta l 6 0 5 0 2 10 0 0 22 6 13 0 0 0 0 0 14 6 0 11 0 8 0 1 0 4 18 0 0 0 22 0 0 0 l'/2 9 0 20 3 0 10 0 1 2 11 0 0 0 5 0 0 6 0 5 0 8 10 0 0 22 6 13 0 0 0 0 0 14 6 0 11 0 8 0 1 12 4 18 15 0 0 28 16 0 7 P/2 9 5 20 7 0 26 0 8 2 11 0 0 2 13 0 0 Y ears o f S e rv ic e on S u p rem e C o u rt 32 14 32 28 5 28 15 19 27 6 24 6 8 23 19 28 15 34'/2 9 10 22 10 14 34 7 8 21 II 5 22 21 16 11 '2 27 14 27 1 30 19 4 5 17 27 6 10 27 23 6 9 16 17 T able 3.— P rior J ud icial E x per ien ce of U.S. S uprem e C ou rt J ustices a n d T heir S ubsequent S erv ice —Continued Ju stic e Y ear N o m in ated 1923 ......................... '1923 and 1941..... 1 9 3 0......................... 1932 ......................... 1937 ........................ 1937 ......................... 1 9 3 9......................... 1939 ......................... 1940 ...................... 1 9 4 1 ......................... 1941 .......................... 1943 ......................... 1 9 4 5 ......................... 1946 ......................... 1949 ........................ 1 9 4 9 ......................... 1953 ......................... 1955 ......................... 1956 1957 ......................... 1958 W h ite ...................... 1 9 6 2 ......................... 1 9 6 2 ......................... 1 9 6 5 ......................... 1 9 6 7 ......................... 1 9 6 9 ......................... 1 9 7 0 ......................... 1971 ....................... 1 9 7 1 ......................... 1975 ....................... N u m b e r o f Y ears o f P rio r Judicial E x p e rie n c e F ed eral S tate T o ta l 14 0 0 0 0 0 0 0 0 0 0 4 0 5 0 8 0 1 0 3 4 0 0 0 3 '/2 13 11 0 0 5 0 0 0 18 l ‘/2 0 0 0 7 0 0 0 0 0 0 0 0 0 7 0 0 0 0 0 0 0 0 0 0 0 14 0 0 18 l ‘/2 0 0 0 7 0 0 4 0 5 0 8 0 1 7 3 4 0 0 0 3'/2 13 11 0 0 5 Y ears o f S e rv ic e on S uprem e C o u rt 7 23 15 6 34 19 23 36 9 1 13 6 13 7 18 7 16 16 5 3 4 ‘ In d ic a te s C h ie f Ju s tic e and d a te o f his a p p o in tm e n t o r p ro m o tio n . * R u tle d g e 's n o m in atio n w as re je c te d by th e S en ate in D e c e m b e r 1795, b ut h e had se rv e d as C h ie f Ju s tic e u n d e r a recess a p p o in tm e n t fo r fo u r m onths. “ A c tu a lly R u tle d g e n e v e r se rv e d as A sso ciate Ju stic e , a lth o u g h he d id p e rfo rm c irc u it d u ty b efo re his resig n atio n in 1791. n In d icates n o ju d ic ia l ex p e rie n c e w h e n a p p o in ted as Associate Ju stice. From A b ra h a m at 45-47. 482 T a b l e 4 .— O c c u p a t i o n s * o f S u p r e m e C o u r t D e s i g n e e s a t T i m e o f A pp o in t m e n t + F ed eral O ffice h o ld e r in E x ecu tiv e B r a n c h ...................................................................... Ju d g e o f In ferio r F ed eral C o u r t ........................................................................................... Ju d g e o f S tate C o u r t................................................................................................................. P riv a te P ra c tic e o f L a w .............................................................................................:............ U.S. S e n a to r.................................................................................................................................. U.S. R e p re se n ta tiv e ............................................................... .................................................... S tate G o v e r n o r ............................................................................................................................ P ro fesso r o f L a w ........................................................................................................................ A ssociate Ju stice o f U.S. S u p re m e C o u rt " ..................................................................... Ju stice o f the P erm an en t C o u rt o f In tern atio n al J u s tic e ............................................ 22 21 21 18 8 4 3 3 2 1 ' M any o f the ap p o in tees had held a v ariety o f federal o r sta te offices, o r ev en b o th , p rio r to th eir selection. * In g en eral the ap p o in tm en ts from sta te office are c lu ste re d at th e beg in n in g o f the C o u rt’s existence; th o se from federal office are m o re recen t. “ Ju stices W hite and Stone, w h o w e re promoted to the C h ie f Ju sticesh ip in 1910 and 1930, resp ectiv ely . D o es not in clu d e Ju stic e Jo h n Paul Stevens, a p p o in te d 1975, fo rm erly a ju d g e o f the U.S. C o u rt o f A p p eals for th e S ev en th C ircu it. From A b rah am at 53. T a b l e 5.— A c k n o w l e d g e d R e l i g i o n o f t h e 100 I n d i v i d u a l J u s t i c e s o f t h e S u p r e m e C o u r t ( a t t i m e o f a p p o i n t m e n t )* E p is c o p a lia n ............................................................................................................................................. 26 U nspecified P ro te sta n t.......................................................................................................................... 24 P re sb y te ria n .............................................................................................................................................. 17 R om an C a th o lic ...................................................................................................................................... 6 U n ita ria n .................................................................................................................................................... 6 B a p tis t........................................................................................................................................................ 5 J e w is h ......................................................................................................................................................... 5 M e th o d ist................................................................................................................................................... 4 C o n g re g a tio n a list................................................................................................................................... 3 D isciples o f C h r i s t ................................................................................................................................. 2 L u th e ra n .................................................................................................................................................... 1 Q u a k e r........................................................................................................................................................ ............ 1 100 •D o e s not in clu d e Ju stice Jo h n P aul S tevens, ap p o in ted 1975. From A b rah am at 57. 483 T a b l e 6 .— T h e 31 S t a t e s f r o m W h i c h t h e 103 S u p r e m e C o u r t A pp o in t m e n t s W e r e M a d e N e w Y o r k ................................................ O h io ............................................................ M a s s a c h u s e tts ......................................... V ir g in ia ..................:................................. T e n n e s s e e ................................................. P e n n sy lv a n ia ........................................... K e n tu c k y .......... M a ry la n d .......... N e w J e r s e y ...... S o u th C a ro lin a C o n n e c tic u t...... G e o r g i a ............. A la b a m a ............ C a lif o r n ia ......... Illin o is................. L o u is ia n a .......... M in n e so ta ................................................. 2 N o rth C a ro lin a ...................................... 2 Io w a ................................................................2 M ic h ig a n .................................................. ....2 N e w H a m p sh ire ..................................... ....1 M a in e ......................................................... ....1 M ississip p i....................................................1 K a n s a s ....................................................... ....1 W y o m in g .................................................. ....1 U ta h ................................................................1 T e x a s ......................................................... ....1 In d ia n a ...........................................................I M isso u ri.........................................................1 C o l o r a d o .................................................. ....1 A riz o n a ..........................................................1 15 9 8 7 6 6 • J o h n Paul S tev ens, w h o receiv ed the 104th successful p resid en tial ap p o in tm en t to the C o u rt, w as from Illinois, th u s raising th at S ta te ’s total to four. From A b rah am at 56. 484 T able 7.— O c c u p a t i o n a l N N o m in ee Backgrounds o m in e e s S in c e of S u prem e C o urt 1937 L ast o ccu p a tio n befo re ap p o in tm en t M a jo r o ccu p a tio n D o u g la s .......................... S ecurities and E x ch an g e C om m ission L aw and teaching. R e e d ................................. J a c k s o n ........................... S to n e ................................ B y rn es.............................. M u rp h y ........................... R u tle d g e ......................... B u rto n .............................. V in s o n ............................ M in to n ............................ C la r k ................................ S o licito r G e n e ra l................. A tto rn e y G e n e r a l................ S u p rem e C o u rt J u s t ic e ..... U .S. S e n a to r ......................... A tto rn e y G e n e ra l................ A p p e lla te c o u r t ................... U.S. S e n a to r ......................... S e c re ta ry o f T re a s u r y ....... A p p ellate c o u r t ................... A tto rn e y G e n e ra )................ E x e c u tiv e b ra n c h and p riv a te p ractice. E x e c u tiv e b ra n c h and p riv a te p ractice. E x e c u tiv e b ra n c h and p riv a te p ractice. Politics. Politics. L aw sc h o o l d ean an d in stru cto r. P o litic s an d p riv a te practice. Politics. P olitics. E x e c u tiv e b ra n c h an d p riv a te p ractice. H a rla n .............................. B re n n a n .......................... S te w a r t........................... W h itta k e r ....................... W h ite ............................... P riv a te P riv a te P riv a te P riv a te P riv a te M a rsh all.......................... T h o rn b e rry .................... B u rg e r.............................. H a y n s w o rth .................. C a rs w e ll......................... B la c k m u n ...................... P o w e l l ............................ R e h n q u is t....................... P riv a te practice. P riv a te p ra c tic e w ith som e ex p erien ce in ex ecu tiv e b ran ch . N A A C P a tto rn e y and F e d eral bench. Politics. P riv a te p ractice. P riv a te practice. P riv a te practice. P riv a te practice. P riv a te practice. P riv a te practice. A p p ellate c o u r t ................... S tate c o u r t ............................. A p p e lla te c o u r t ................... A p p e lla te c o u r t ................... A ssistant A tto rn e y G en eral G o ld b e r g ........................ S e c re ta ry o f L a b o r ............ F o r t a s .............................. P riv a te p ra c tic e ................... practice. p ra c tic e an d S tate ju d g e . practice. practice. practice. S o licito r G e n e r a l................. A p p e lla te c o u r t ................... A p p ellate c o u r t ................... A p p ellate c o u r t ................... A p p ellate c o u r t ................... A p p e lla te c o u r t ................... P riv a te p r a c tic e ................... A ssistant A tto rn e y G en eral S te v e n s ........................... A p p e lla te c o u r t ................... P riv a te practice. Adapted from A sh b y at 453. 485 BIBLIOGRAPHY H. Abraham, Justices and Presidents: A Political History of Appoint­ ments to the Supreme Court (1974). H. Abraham and E. Goldberg, A N ote on the Appointment o f Justices o f the Supreme Court o f the United States, 46 A.B.A. J. 147 (1960). American Bar Association, The Standing Committee on Federal Judici­ ary: What It Is and How It Works (1977). J. Ashby, “Supreme Court Appointments Since 1937” (unpublished Notre Dame Ph.D. thesis, Library of Congress). (1972) E. Dennis, Overcoming Occupational H eredity at the Supreme Court, 66 A.B.A. J. 41 (1980). J. Frank, The Appointm ent o f Supreme Court Justices: Prestige, Principles and Politics, 1941 Wise. L. Rev. 172, 343, 461 (1941). J. Goff, The Rejection o f United States Supreme Court Appointments, 5 Am. J. Legal Hist. 357 (1961). J. Grossman, Lawyers and Judges: The ABA and the Politics of Judi­ cial Selection (1965). W. Murphy and C. Pritchett, Courts, Judges and Politics: An Introduc­ tion to the Judicial Process (1961). S. Padover, To Secure These Blessings (1970). W. Rogers, Judicial Appointments in the Eisenhower Administration, 41 J. Am. Jud. Soc. 38 (1957). A.. Rubin, Judicial Review in the United States, 40 La. L. Rev. 67 (1979). J. Schmidhauser, Judges and Justices: The Federal Appellate Judiciary (1979). G. Schubert, Constitutional Politics: The Political Behavior of Supreme Court Justices and The Constitutional Policies They Make (1960). D. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293 (1976). W. Swindler, The Politics o f “Advice an d Consent, ” 56 A.B.A. J. 533 (1970). S. Teger, “Presidential Strategy for the Appointment of Supreme Court Justices” (1976) (unpublished U. of Rochester Ph.D. thesis, Library of Congress). L. Walsh, Selection o f Supreme Court Justices, 56 A.B.A. J. 555 (1970). B. W oodward and S. Armstrong, The Brethren: Inside the Supreme Court (1979). B. Wukasch, The A be Fortas Controversy: A Research N ote on the Sen­ ate's R ole in Judicial Selection, 24 W. Pol. Q. 24 (1971). 486

Write a legal research memo on the following topic.

Constitutional Concerns Raised by the Collections of Information Antipiracy Act The p roposed C o llectio n s o f Information A ntipiracy Act raises difficult and novel constitutional ques­ tions co n cern in g C o n g ress’s power to restrict the dissem ination o f inform ation. C ongress may not, p u rsu an t to the In tellectual Property C lause o f the C onstitution, create “ sweat o f the brow ” protec­ tion for com piled facts, at least insofar as such protection would extend to w hat the Suprem e C o u rt has term ed the nonoriginal portion of such a com pilation. E ither or both the Intellectual P roperty C lau se and the F irst Am endm ent m ay impose lim itations on the exercise o f congressional po w er u n d er the C o m m erce Clause that w ould raise serious constitutional concerns regarding the constitu tio n ality o f the bill. July 28, 1998 M e m o r a n d u m O p in io n f o r t h e A s s o c i a t e W h it e H o u s e C o u n s e l You have asked for our views on the constitutionality of the Collections of Information Antipiracy Act, H.R. 2652, 105th Cong. (1998), which passed the House on May 19, 1998. H.R. 2652 raises very difficult, and quite novel, constitu­ tional questions, which are the subject of this memorandum. The following anal­ ysis is preliminary and general. We would, of course, be pleased to provide views directed to more specific questions that you might have. The object of H.R. 2652 is, in effect, to provide a quasi-property right in certain collections of information that required great effort to compile. H.R. 2652 would impose liability upon anyone who “ extracts, or uses in commerce, all or a substan­ tial part, measured either quantitatively or qualitatively, o f a collection of informa­ tion gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered for sale or otherwise in commerce by that other person, or a successor in interest o f that person.” Id. §2 (proposed 17 U.S.C. § 1202 ). In assessing the constitutional concerns raised by the bill, which would provide what is known as “ sweat of the brow ” protection for certain compilations of factual material, we address three related questions: (i) whether the bill constitutes a valid exercise of Congress’s power under the Intellectual Property Clause o f the Constitution, art. I, §8, cl. 8, which provides that Congress shall have the power “ to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” ; 166 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act (ii) whether, if the bill does not constitute a valid exercise of Congress’s power under the Intellectual Property Clause, it con­ stitutes a valid exercise of Congress’s power under the Commerce Clause, or whether the Intellectual Property Clause precludes such Commerce Clause legislation; and (iii) whether, if the Intellectual Property Clause does not preclude Congress from exercising its commerce power to enact such legisla­ tion, the First Amendment restricts such an exercise of the com­ merce power. As to the first question, the Supreme Court’s decision in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), indicates that Congress may not, pursuant to the Intellectual Property Clause of the Constitution, create such “ sweat of the brow” protection for compiled facts, at least insofar as such protection would extend to what the Court termed the nonoriginal portion of such a compilation. As to the second and third questions, Supreme Court precedents do not provide clear guidance; it is fair to say, however, that either or both the Intellectual Property Clause and the First Amendment may impose limitations on the exercise of congressional power under the Commerce Clause that would raise serious constitutional concerns regarding the constitutionality of H.R. 2652.1 I. Description of H.R. 2652 The stated purpose of H.R. 2652 is to “ complement” the protection that copy­ right law provides to collections of information. See Collections o f Information Antipiracy Act, H.R. Rep. No. 105-525, at 5 (1998) (“ House Report” ). According to the House Report on H.R. 2652, the Supreme Court’s decision in Feist (described in more detail below) has substantially reduced the incentives for the creation of compilations of information at the same time that “ [c]opying large quantities of materials from another’s collection, and using it in a competing information product— behavior that copyright protection may not effectively pre­ vent-—is cheaper and easier than ever, through digital technology now in wide­ spread use.” House Report at 7. The House Report recognizes that “ [vjarious legal and technological options exist today for producers of collections of informa­ 1 Ir is u matter of some contention whether, and to what extent, the incentives that would be created by H R 2652 are necessary to stimulate a significant quantum ot valuable compilations ot tacts that otherwise would remain uncompiled, or whether currently available incentives and legal protections arc sufficient to ensure the continued wide dissemination of factual compilations in the pubhc domain See. e g , J H Reichman & Pamela Samuelson, Intellectual Properly Rights in D a ta ', 50 Vand L Rev 51, 113-36 (1997), Jessica Lilman. After Feist, 17 U Dayton L Rev 607, 611-13 (1992), Jane C Ginsburg, No “Sweat 7 Copyright and Other Protection o f Works o f Information after Feist v Rural Telephone 92 Coluin L Rev 338 (1992) This memorandum does not address the merits ot this dispute, but, as we explain below, courts would be more likely to uphold the legislation against constitutional challenge it they were persuaded that it would increase, rather than decrease, the collection and use of information 167 Opinions of the Office o f Legal Counsel in Volume 22 tion to protect their investments” — namely, copyright and state contract law. Id.2 The House Report concludes, however, that these other existing tools are not “ adequate to address the crux o f the problem,” and that there are “ meaningful gaps in protection that can best be filled by a new federal statute.” Id. at 7 8. In particular, “ the coverage o f copyright law is limited after Feist, and the protection of a contract binds only the parties to that contract.” Id. at 7. The asserted “ goal” o f H.R. 2652 “ is to stimulate the creation of more collec­ tions [of information], as well as increased dissemination to the public, and to encourage more competition among producers.” House Report at 8. In particular, the object of H.R. 2652 is to “ restore a modified form of the ‘sweat of the brow’ protection available in the past as a separate doctrine and then under copyright law, but under appropriate Constitutional power and with appropriate limitations.” Id. at 9. The House Report asserts that the Act would not “ create a property right like copyright,” but would instead establish “ a tort-based cause of action against misappropriation.” Id. H.R. 2652 would establish a new chapter in title 17, to be entitled “ Misappro­ priation o f Collections of Information.” The principal provision would establish a “ misappropriation” tort, to be codified as 17 U.S.C. § 1202: Any person who extracts, or uses in commerce, all or a substantial part, measured either quantitatively or qualitatively, of a collection o f information gathered, organized, or maintained by another person through the investment o f substantial monetary or other resources, so as to cause harm to the actual or potential market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered for sale or otherwise in commerce by that other person, or a successor in interest of that person, shall be liable to that person o r successor in interest for the remedies set forth in section 1206. Any person injured by a use or extraction o f information in violation of § 1202 could file a civil action in federal district court. Id. (proposed § 1206(a)). Such courts would have the power to issue injunctions enjoining any uses or extractions 2 Increasingly, compilers o f information—particularly those who incorporate such compilations in electronic form— package such compilations with a so-called “ shrinkwrap” license (or “ click-on” license, for documents posted on-line). This sort o f “ contract” purports to condition consum ers’ use of the product on the consumers’ implicit agreement not to copy the information or disseminate it to others See generally ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) Such contract-based restrictions might have a significant impact on the ability of users of factual compilations to copy or distribute the facts contained therein However, because of several unresolved questions concerning the enforceabitity of these contracts, the efficacy o f this approach is unclear. See, e g , id. at 1453-55 (discussing w hether contract claim is preempted by the Copyright Act and holding that it is not); see also Cohen v. Cowles M edia C o , 501 U S 663, 669-71 (1991) (holding that the First Amendment does not prohibit a state from applying a “ generally applicable” law of promissory estoppel to impose damages on a newspaper that revealed the identity o f a source to whom it had promised confidentiality) 168 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act of information that would contravene § 1202. Id. (proposed § 1206(b)). Those courts also would be able to “ impound[]” any “ copies of contents of a collection of information extracted or used in violation of § 1202.” Id. (proposed § 1206(c)). A prevailing plaintiff in a civil action would be entitled to treble damages, as well as any profits realized by the defendant, costs and attorneys’ fees. Id. (pro­ posed § 1206(d)). Willful violations would, under certain circumstances, be subject to criminal felony sanctions, including five years imprisonment. Id. (proposed § 1207(b)). No criminal or civil action could be maintained by virtue of a use or extraction “ that occurs more than 15 years after the investment of resources that qualified the . . . collection of information for protection under [H.R. 2652].” Id. (proposed § 1208(c)). But this limitation might, for all intents and purposes, create perpetual liability, since every time the collection of information is “ main­ tained,” id. (proposed § 1202), that would be an “ investment of . . . resources” that qualifies the “ collection of information” for protection under proposed § 1202. Thus, if the collector “ expandfs]” or “ refresh[es]” the collection, arguably the fifteen-year period would start anew. See House Report at 21. The proposed legislation sets forth six categories of what it terms “ permitted acts.” See proposed § 1203(a)-(f). The first subsection provides that the legislation shall not prevent “ the extraction or use of an individual item, or other insubstantial part of a collection of information, in itself,” but notes that repeated or systematic uses or extractions of individual items or insubstantial portions may not be used in a manner that would circumvent the general prohibition against uses or extrac­ tions. Id. (proposed § 1203(a)). The second subsection makes clear that the legisla­ tion shall not “ restrict any person from independently gathering information or using information obtained by means other than extracting it from a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources.” Id. (proposed § 1203(b)). The third subsection provides that the legislation shall not restrict a person from using or extracting information contained in a compilation “ for the sole purpose of verifying the accuracy of information independently gathered, organized, or maintained by that person.” Id. (proposed § 1203(c)). The fourth subsection pro­ vides that extractions or uses “ for nonprofit educational, scientific, or research purposes” shall not be prohibited unless such extractions or'uses- would “ harm the actual or potential market for the product or service.” Id. (proposed § 1203(d)). The fifth subsection provides an exception for uses or extractions “ for the sole purpose of news reporting” in certain specific circumstances. Id. (proposed § 1203(e)). The sixth subsection permits “ the owner of a particular lawfully made copy of all or part of a collection of information from selling or otherwise dis­ posing of the possession of that copy.” Id. (proposed § 1203(f)). The proposed bill also contains a separate exclusion (with limited exceptions) for “ collections of information gathered, organized, or maintained by or for a government entity, whether Federal, State, or local, including any employee or 169 Opinions o f the Office o f Legal Counsel in Volume 22 agent of such entity.” Id. (proposed § 1204(a)). This “ exclusion,” would be con­ fined to collections o f information gathered, organized, or maintained “ in the course o f performing governmental functions,” and thus would not appear to exempt factual databases— even databases made available to the public—that were compiled by private parties using government funding, or pursuant to government contract. Finally, another section of the bill provides, in pertinent part, that an exclusion for “ collections of information gathered, organized, or maintained in the course of performing governmental functions other than education or scholar­ ship, by or for a government entity, whether Federal, State, or local, including any employee or agent of such entity, or any person exclusively licensed by such entity, within the scope of the employment, agency, or license.” However, the exception for “ education or scholarship” would mean that § 1202’s “ use or extraction” tort would still make the prohibition applicable to information com­ piled entirely by public colleges and universities. See also House Report at 17 (confirming that the statute would apply to information collected by “ Federal or State educational institutions in the course of engaging in education or scholar­ ship” ). Particularly in light of the constitutional limitations that might apply to the type of protection afforded by H.R. 2652, the precise nature of the prohibitions, permis­ sions and exemptions that are contained in the proposed bill are of critical impor­ tance. However, many o f the critical, proposed statutory terms are not welldefined. Because o f the ambiguity of many o f these terms, it is impossible to know for certain how wide-ranging H.R. 2652’s application would be. Neverthe­ less, in the remainder of this section, we identify some of the broadest and most ambiguous provisions of H.R. 2652 in order to clarify its possible scope. To begin with, “ information” would be defined to mean “ facts, data, works of authorship, or any other intangible material capable of being collected and orga­ nized in a systematic way.” Proposed § 1201(2). As a result, unlike the Copyright Act, the proposed legislation would provide protection that would not be limited to compilations of what have been termed expressive or original materials, con­ cepts that we discuss in more detail below. The legislation would instead also provide protection to ordinary facts, which are not now subject to copyright protection and may be unsuited to such protection as a matter of constitutional law. In addition, the definition of “ information” would not, from its face, appear to be limited to those compilations of information that are accessible only for a fee. The proposed legislation also does not define either the term “ extracts” or the phrase “ uses in commerce.” Given their seemingly expansive, ordinary meanings, these words would, standing alone, appear to give H.R. 2652 quite a broad scope. See House Report at 12 (explaining that the provision would cover any “ dissemi­ nation to others” ). Moreover, the bill does not expressly provide that the prohibi­ tion on uses or extractions would apply only to uses or extractions for commercial 170 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act purposes. In addition, the bill would not expressly limit liability to uses of information that is conveyed for a fee, or that is conveyed subject to contractual conditions on its further dissemination.3 Finally, the provision would prohibit cer­ tain “ uses” or “ extractions” of even quantitatively insubstantial parts of a com­ pilation, if the part in question is “ qualitatively” substantial. The House Report provides the following elaboration on this point: Only portions of the collection that are substantial in amount or importance to the value of the collection as a whole would be cov­ ered. Qualitative harm may occur through the extraction of a quali­ tatively small but valuable portion of a collection of information. For example, the Physician’s Desk Reference, a work that compiles generally available information about every prescription drug approved by the FDA, contains some several thousand drugs and is available to both consumers and medical professionals. If a second comer extracted information about the thousand most com­ monly prescribed medications and offered it for sale to the general public— for example under the title “ Drugs Every Consumer Should Know” —that extraction and use, although a fraction of the total collection of information, would cause the kind of market harm that the Committee intends H.R. 2652 to prevent. Similarly, the extraction or use of real-time quotes for all technology stocks from a securities database, while constituting a relatively small por­ tion of actively traded or volatile securities, may be of such “ quali­ tative” importance to the value of the database that it creates the type of commercial harm that the Committee intends section 1202 to prevent. House Report at 12.4 At the same time, the bill only prohibits extractions or uses in commerce that would “ harm the actual or potential market” of the person who gathered, orga­ nized or maintained the collection of information. Proposed § 1202. The scope of this important limitation is unclear. The legislation would define “ potential market” to mean “ any market that a person claiming protection under section 1202 has current and demonstrable plans to exploit or that is commonly exploited 3 Indeed, the proposed statute is intended to supplement, rather than to supplant, any contractual remedies that the compiler might have See § I205(a)-(b) (expressly providing that state contract law is not preempted). Accord­ ingly, it would prevent the “ use” or “ extraction” o f data from a collection even if (he creator of the collection had disseminated it freely, without any contractual limitations 4 The prohibition against extracting or using such information would not (at least not expressly) be limited to the use or extraction o f those parts o f a collection that were compiled “ through the investment of substantial monetary or other resources” , instead, the prohibition apparently would apply to uses or extractions of a substantial part of a compilation, so long as the compilation itself (rather than the extracted components thereof) was “ gathered, organized, or maintained through the investment o f substantial monetary or other resources.” 171 Opinions o f the Office o f Legal Counsel in Volume 22 by persons offering similar products or services incorporating collections of information.” Proposed § 1201(3). This definition is arguably an expansive one that would justify a very broad construction of what would constitute harm to the potential market. Under such a broad construction, even an individual’s deci­ sion to download information that had been offered for sale, purchased, but then posted on the internet for free use by the purchaser could give rise to liability on the theory that such an “ extraction” would decrease the “ potential market” by depriving the initial seller of a potential buyer. So construed, even the provi­ sions in H.R. 2652 that would exempt certain uses and extractions for scientific or educational purposes would do little to confine the reach of the bill. As noted above, these exemptions are themselves limited by the requirement that such uses or extractions not harm the potential market o f the original compiler, and it would appear that any educational or scientific sharing of information could deprive a potential seller of a potential buyer. In addition, H.R. 2652 does not include anything resembling the express exemp­ tions found in the Copyright Act for uses that Congress previously has considered to be of particular public benefit. See, e.g., 17 U.S.C.A. § 108 (concerning repro­ duction by libraries and archives), §110(1) (concerning face-to-face teaching activities), §110(2) (concerning performances and transmissions for educational purposes), § 110(3) (concerning performances in the course of religious services and assemblies), §118 (concerning uses by noncommercial broadcasters). The absence o f these express exemptions in what would be a statutory scheme closely related to the Copyright Act could be read to suggest that Congress intended to prohibit such uses. There are, however, factors that counsel against a broad construction of “ poten­ tial market,” and thus that point toward a more limited construction of the scope of the protection that would be provided by H.R. 2652. As an initial matter, the broadest possible construction would raise very serious constitutional concerns that we discuss in the following sections, and thus courts may be likely to avoid such a construction for that reason alone. In addition, the Copyright Act itself identifies harm to the “ potential market” as one o f the four statutory factors to be weighed in determining whether the “ fair use” standard has been met, see 17 U.S.C.A. § 107(4), and thus the appear­ ance of this same phrase in the proposed legislation may signal Congress’s intention to incorporate the definition that has been developed in the copyright context. Moreover, H.R. 2652 would contain, in addition to the “ harm to the potential m arket” requirement, the requirement that a use or extraction be of a substantial portion of the compilation. This limitation also appears to be analogous to one of the four statutory factors for determining “ fair use” under the Copyright Act. See 17 U.S.C.A. § 107(3) (describing the factor as “ the amount and substan­ 172 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act tiality of the portion used in relation to the copyrighted work as a whole” ).5 Thus, there would appear to be some textual basis for concluding that H.R. 2652 is intended to incorporate, albeit implicitly, something like the “ fair use” provision of the Copyright Act, and thus to limit to a significant degree the scope of the protection that the statute would provide. If so, the Court’s recent decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590-94 (1994), would be relevant to the construction of H.R. 2652. The Court there suggested that the potential market factor is satisfied for purposes of the Copyright Act when a copyrighted work is used in a way that would create, in effect, a substitute product in direct competition with the original. See id. at 590-94. The Court added, however, that when “ the second use is transformative, market substitution is less certain, and market harm may not be so readily inferred.” Id. at 591. Applying that same approach here, H.R. 2652 would arguably reach, with some exceptions, only non-transformative uses for commer­ cial purposes, as it would be only such uses that, in light of the “ fair use standard” developed in copyright law, would result in harm to the potential market within the meaning of H.R. 2652. It is important in this regard to emphasize that the fair use standard in copyright law is an equitable one that requires a sensitive weighing of the statutory factors in light of the specific factual context at issue, see id. at 577 (“ The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” ), and that a determination as to fair use may also depend upon an evaluation of the “ good faith” of the use, see id. at 585 n .l8. In sum, while it is clear that H.R. 2652 is intended to cover nonoriginal, factual material, which the Copyright Act does not (and, as we explain below, for con­ stitutional reasons, probably could not be extended to reach), the scope of the protection that H.R. 2652 is intended to afford to such factual materials is far less clear. The ambiguity concerning the scope of the intended protection for fac­ tual material arises in large part because the legislation does not make clear whether it is intended to incorporate a version of the fair use provision that is contained in the Copyright Act or whether it is instead intended to reach broadly to encompass individual uses by noncompetitors for noncommercial purposes. Suffice it to say that, notwithstanding the ambiguities in the text, to the extent the provision would prohibit extractions or uses of substantial portions of factual compilations by direct competitors, it is much more likely to be held constitutional than if it would prohibit extractions or uses by potential consumers for non­ commercial purposes. By contrast, if the provision were construed to provide 5 The two other statutory factors that are identified in the fair use provision of the Copyright Act are also arguably incorporated by H R 2652 The first factor is “ the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” 17 U S C A .§107(1) The second factor is “ the nature of the copynghted work ” Id. § 107(2). These factors are also arguably implicitly encompassed by H R 2652, which applies to collections of information, broadly defined, with specific provisions permitting certain acts such as educational and scientific uses (to the extent that they would not harm the potential market) 173 Opinions o f the Office o f Legal Counsel in Volume 22 protection against uses by potential consumers, and not simply direct competitors, it would appear to be of almost limitless scope and therefore to raise constitutional concerns that would appear insurmountable.6 We explain, however, that even if the protection provided by H.R. 2652 were construed as limited direct competitors and to somehow distinguish between “ fair” and “ unfair” uses of collections of information, there would remain substantial constitutional questions concerning the degree to which any reuse of factual information that would not infringe on the originality of a work may be deemed by Congress to be in some sense “ unfair” and therefore subject to regulation. In other words, it is unclear what “ unfair uses” of factual material could be constitutionally prohibited. There is also little precedent to guide interpretation as to where the line between fair and unfair uses of factual information is intended to be drawn precisely because the Copyright Act, which codifies the ‘ ‘fair use’ ’ standard, does not provide protection for facts. With this background concerning the proper construction of H.R. 2652 in place, we now turn to the constitutional analysis o f the bill. II. The Intellectual Property Clause We understand that the proposed legislation is not necessarily intended to con­ stitute an exercise of Congress’s power under the Intellectual Property Clause, and that it is instead apparently premised on Congress’s power to regulate inter­ state commerce. Nevertheless, it is instructive for purposes of analysis to examine, as an initial matter, whether the legislation could be premised on Congress’s power under the Intellectual Property Clause. It is only to the extent that the legislation would fall outside the permissible scope of the power conferred by that clause that it would give rise to concerns that, as an exercise of the Commerce Power, it would impermissibly infringe on an implicit limitation contained in the Intellec­ tual Property Clause. The key precedent for assessing whether this proposed legislation would con­ stitute a valid exercise of Congress’s power under the Intellectual Property Clause is Feist. In Feist, the Supreme Court considered the extent to which the Copyright Act, 17 U.S.C.A. §§ 101-1101 (W est 1996 & Supp. 1998), protected the listings 6 Read literally, for exam ple, §1202 would appear to prevent the library from disseminating “ substantial” (including “ qualitatively” substantial) portions o f the compilation to its patrons, and might prevent the patrons from using such compilations, since such patrons are part of a market or “ potential market” for purchase o f the book. Or, imagine a book that contains a great deal o f unearthed factual material— such as valuable, accurate information on the dangers o f prescription drugs (see House Report at 13), a thorough historical chronology of important events, or a com prehensive amalgamation o f geographical or topographical data. If a subsequent researcher, scientist or historian concludes that a “ qualitatively substantial” portion o f such facts are important, and therefore posts them to the W orld W ide W eb o r includes them m a later work— or, possibly, if that later histonan so much as “ extracts” the facts by taking notes— he or she might possibly violate § 1202, whether or not that later work uses, incorporates, or transform s the facts in a m anner that the compilation did not. See J.H Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 Vand. L. Rev. 51, 135, 143 n.424 (1997). O f course, the extreme nature of these exam ples may counsel in favor o f a construction o f H.R. 2652 that would exclude them. 174 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act in telephone directory white pages from copying by a competitor. In answering that statutory question, the Court did not confine itself to a conventional consider­ ation of congressional intent. Instead, the Court first examined the constitutional limitations inherent in the power conferred by the Intellectual Property Clause, on which the Copyright Act was premised.7 Only after having considered these background constitutional limitations on the exercise of the copyright power did it reach the conclusion that Congress did not intend the Copyright Act to extend protection to such listings. There is language in the opinion, however, that indicates that the Court also predicated its decision on a judgment that the Intellec­ tual Property Clause would not empower Congress to provide copyright protection to either the listings themselves, or the facts contained in the listings, even if Congress intended to extend such protection. In addressing the background constitutional limitations on the scope of the power conferred by the Intellectual Property Clause, the Court acknowledged that copyright protection may extend to factual compilations and to other “ fact-based works,” but concluded that the prerequisite for such protection is that the selection or arrangement of the facts is in some degree “ original.” 499 U.S. at 344-51. The Court explained that “ [o]riginality is a constitutional requirement.” Id. at 346. In order to satisfy this constitutional prerequisite of originality, the Court opined, the work in question must “ possess[] at least some minimal degree of creativity.” Id. at 345. In a factual compilation, this .creativity can be present in the manner in which the compiler selects or arranges the facts. Id. at 348. Indeed, “ [t]he vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble, or obvious it might be.” Id. at 345 (internal quotation marks omitted). The Court noted that “ [o]riginality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” Id. Under Feist, however, even if a compilation is in some sense original, and thereby entitled to some copyright protection, “ the copyright in a factual compila­ tion is thin.” Id. at 349. That is because, in such circumstances, the bulk of the material that comprises the work will, by definition, be facts that in and of them­ selves lack the originality that justifies protection pursuant to the Intellectual Prop­ erty Clause. As the Court explained: The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Thus, if the compilation author clothes facts with an original col­ location of words, he or she may be able to claim a copyright in 7There was no contention in Feist that the Copyright Act was premised on any sourcc of power other than the Intellectual Property Clause 175 Opinions o f the Office o f Legal Counsel in Volume 22 this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. . . . . . . Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one com­ mentator explains it: “ [N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking . . . . [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.” Id. at 348—49 (citations omitted) (quoting Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection o f Works o f Information, 90 Colum. L. Rev. 1865, 1868 (1990)). Accordingly, as applied to a factual compilation that has nonoriginal written expression, the Court concluded that “ only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.” Id. at 350. Against this backdrop, the Court rejected the argument that the Copyright Act incorporated the “ sweat of the brow ” doctrine— namely, that, whether or not a factual compilation contained any degree of creativity, copyright still attached in order to compensate compilers for the hard work and resources that they expended in the course of compiling the facts. Id. at 352—54. Such a doctrine was not teth­ ered to the originality requirement that the Court concluded was the sine qua non for copyright protection. On the basis of its constitutional and statutory analysis, the Court concluded that the white pages at issue in Feist contained none of the creativity that would suffice to render a work “ original.” It therefore concluded that the listings were entitled to no protection under the Act, despite the fact that the defendant had copied significant portions of the plaintiffs compilation for use in its own com­ peting white pages. The Court noted that the listings at issue fell into the “ narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Id. at 359. It explained that the white pages at issue are “ entirely typical. Persons desiring telephone service in Rural’s service area fill out an application and Rural issues them a telephone number. In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace o f creativity.” Id. at 362. The Court 176 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act further explained that Rural could not claim “ originality in its coordination and arrangement of facts. . . . [Tjhere is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmlyrooted in tradition and so commonplace that it has come to be expected as a matter of course.” Id. at 363. The Court therefore concluded that both the compilation itself, and the particular pieces of information contained therein, lacked sufficient originality to warrant protection. The Court summarized its judgment as follows: We conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural’s combined white and yellow pages directory. As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity. Rural’s white pages, limited to basic subscriber information and arranged alphabetically, fall short of the mark. As a statutory matter, 17 U.S.C. § 101 does not afford protec­ tion from copying to a collection of facts that are selected, coordi­ nated, and arranged in a way that utterly lacks originality. Given that some works must fail, we cannot imagine a more likely can­ didate. Indeed, were we to hold that Rural’s white pages pass muster, it is hard to believe that any collection of facts could fail. Id. at 363-64. Despite the strong language contained in the opinion, an argument can be made that the Court’s constitutional pronouncements in Feist were dictum because they were unnecessary to the disposition of the case. The Court in Feist was asked only to resolve a statutory issue concerning the scope of statutory protection for compilations under the Copyright Act. On the other hand, the Court in Feist plainly stated at numerous points that originality and creativity are constitutional prerequisites for copyright protection under Article I, Section 8, Clause 8 o f the Constitution.8 Those statements strongly indicate that the Court’s decision rested on a constitutional, rather than merely a statutory, judgment. Because the proposed bill would clearly provide protection for “ collections of information” without regard to whether they are original, and because it would define “ information” quite expansively, it would appear to protect even the type of noncreative white pages listing at issue in Feist, as well as similarly unoriginal factual compilations or facts within otherwise original compilations. In this respect, the prohibition in proposed section. 1202 would go well beyond the “ thin gSee, e g , 499 U S ai 346 ( “ Originality is a constitutional requirement.” ), id. at 363 ( “ [a]s a constitutional matter,” copyright protection requires “ more than a de minimis quantum of creanvity” ). See also Paul Goldstein, Copyright, 55 Law & Contemp Probs 79, 88 (1992) (noting that Feist Court indicated thirteen times that originality was a constitutional requirement, and indicated sixteen times that creativity was a requirement of originality) 177 Opinions of the Office o f Legal Counsel in Volume 22 protection” for factual compilations recognized in Feist.9 Accordingly, to the extent that the proposed bill would attempt to provide protection, pursuant to the Intellectual Property Clause rather than some other power, to the very type of unoriginal factual materials that were at issue in Feist, it would run afoul of recent Supreme Court precedent that is, if not binding, at a minimum a clear indication of how the Court would likely rule. III. Possible Intellectual Property Clause Limitations on the Commerce Power The House Report asserts that H.R. 2652 may be enacted “ within Congress’ authority to regulate interstate commerce under Article I, Section 8, Clause 3 of the Constitution.” House Report at 9-10. Absent some external constitutional limitation, the bill would appear to constitute a valid exercise of the commerce power, as we understand that extractions, or uses in commerce, of substantial por­ tions of collections of information would, in the aggregate, substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549 (1995).10 This sec­ tion examines the question whether the Intellectual Property Clause places an external limitation on such an exercise of the commerce power. Feist does not provide clear guidance on the question. Nothing in Feist holds that the Intellectual Property Clause limits the scope o f Congress’s power under other Clauses, such as the Commerce Clause, and the opinion may be read to state limits that pertain to the exercise of the Intellectual Property Clause itself. At the same time, some language in Feist might also fairly be read to suggest, not only that the Intellectual Property Clause does not authorize sweat-of-thebrow protection for either unoriginal factual compilation or facts in otherwise original compilations, but also that the Intellectual Property Clause prohibits Con­ gress from relying on any other constitutional power to afford copyright-like protection to facts and to the nonoriginal parts of factual compilations. For example, the Court noted that “ all facts . . . ‘may not be copyrighted and are part of the public domain available to every person.’ ” 499 U.S. at 348 (emphasis added; citation omitted). See also id. at 349 ( “ ‘[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free fo r the taking. . . . [T]he very same facts and ideas may be divorced from the context 9 It is important to note, however, that, due to the breadth o f the definition of “ information,” which expressly includes works o f authorship, the bill also w ould appear to provide protection to many factual compilations that do possess the requisite creativity necessary for copynght protection under Feist. In addition, it would appear that at least some, and perhaps many, extractions o r uses barred by the bill might infringe on sufficiently original characteristics o f such work— such as unique arrangements or selections of the facts copied. We caution, however, that these valid applications o f the bill might n o t provide much greater protection than would already be provided under the C opynght Act, although H R. 2652 w ould also provide for criminal sanctions. Moreover, even these seem­ ingly valid applications o f the bill would be authorized under the Intellectual Property Clause only insofar as the legislation satisfied the requirement that the “ exclusive Right[s]” being conferred were for “ limited Tim es.” U.S. Const, art I, § 8, cl 8 l0O f course, as we discuss below, too broad a construction o f “ harm to the potential market” would give rise to sen o u s First Amendment concerns, and might, if particularly extreme, raise concerns under Lopez as well. 178 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.’ ” ) (emphasis added) (quoting Ginsburg, Creation and Commercial Value, 90 Colum. L. Rev. at 1868). The Court also opined that it is a “ constitutional requirement” that persons be permitted to use “ the fruit of the [factual] compiler’s labor” without compensation: It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “ some unforeseen byproduct of a statutory scheme.” Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather, “ the essence of copyright,” id., and a constitutional requirement. Id. The Court further explained that the constitutional objective is realized not only by providing intellectual property rights in expression, but also by permitting ideas and information to be disseminated freely: This principle, known as the idea/expression or fact/expression dichotomy, applies to all works o f authorship. As applied to a fac­ tual compilation, assuming the absence of original written expres­ sion, only the compiler’s selection and arrangement may be pro­ tected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. Id. at 350. Accordingly, one possible reading of the Feist decision is that a system in which the “ raw facts” in a compilation may not be “ copied at will” is a system that necessarily undermines the object of the Intellectual Property Clause— the progress of science and art— and is therefore unconstitutional. On this view, the clause would constitute not only a grant of power to Congress but also a limitation on Congress. Cf. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (discussing scope of federal preemption of state intellectual property law and stating that “ [a]s we have noted in the past, the [Intellectual Property] Clause contains both a grant of power and certain limitations upon the exercise of that power” ); Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966) (explaining, again with reference to federal preemption of state law, that “ [t]he clause is both a grant of power and a limitation. . . . Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” ); Compco Corp. v. DayBrite Lighting, Inc., 376 U.S. 234, 237 (1964) (discussing scope of federal 179 Opinions o f the Office o f Legal Counsel in Volume 22 preemption of state law and explaining that “ [t]o forbid copying [under state law] would interfere with the federal policy, found in [Article] I, [section] 8, [clause] 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain” ). If the Intellectual Property Clause precluded Congress from providing protection against the copying of nonoriginal portions of factual compilations, even pursuant to a power other than that conferred by that Clause, then Congress would not be able to use the Commerce Clause to avoid the implicit strictures of the Intellec­ tual Property Clause that the Court in Feist could be said to have recognized, just as Congress may not use the Commerce Clause to avoid the Bankruptcy Clause’s express requirement that bankruptcy laws be uniform, see Railway Labor Executives’ A s s ’n v. Gibbons, 455 U.S. 457, 468-69 (1982). Under this reading, Congress’s reliance on the commerce power would not obviate any of the constitu­ tional problems concerning the exercise of congressional power under the Intellec­ tual Property Clause that we have already identified.11 On the other hand, prior to Feist, the Court had recognized intellectual property interests not grounded in the Intellectual Property Clause. There are at least four notable circumstances outside the copyright context in which the Court has recog­ nized such interests. Although these examples, together, indicate that there is no categorical prohibition on Congress’s power to restrict the dissemination of data and other forms of “ intellectual property” that are not copyrighted, neither do they make clear that Congress would have the power to enact legislation like H.R. 2652 under the Commerce Clause against a claim that the Intellectual Prop­ erty Clause imposes a limitation. With one exception, the cases are distinguishable, and even that case does not, by itself, support legislation of this scope. First, the Court has sanctioned federal limitations on the dissemination of information where the person who wishes to disseminate it received such informa­ tion only on the condition that it remain secret or confidential, whether such condi­ tion was expressly set forth by contract or impliedly recognized as a matter of law. For example, the government is able to afford protection to factual informa­ tion pursuant to its commerce power in order to protect trade secrets. See Bonito Boats, 489 U.S. at 155-57 (1989) (discussing compatibility of state trade secret protection with the federal intellectual property regime). See also Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (federal court may impose protective order restricting party from revealing trade secrets that it obtained pursuant to compul­ n See G insburg, No ‘'S w e a t" 7, 92 Colum L. Rev at 368 (“ Feist's claim that its standard of originality is ‘con­ stitutionally m andated’ may impede enactment o f a federal law protecting unoriginal compiled information under the Com m erce C lause.” ), id. at 349 (“ Justice O ’Connor’s opinion appears to enshnne a policy of free-nding in the C onstitution” ). 180 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act sory discovery process).12 These types of protection would appear to be distin­ guishable, however, from the type of protection that H.R. 2652 would provide. H.R. 2652 would provide protection to compilers of information so that they would be able to offer the information to the public for a fee. By contrast, provi­ sions that protect trade secrets do not restrict the manner in which information that is offered to the public in the market may be used. Such provisions instead simply provide protection to those persons who wish to keep information con­ fidential and therefore to persons who have no interest in offering to the wider public for sale. As a result, trade secret protections do not interfere, at least directly, with the manner in which information that is made available for sale to the public might be used. By contrast, H.R. 2652 would impose direct limita­ tions on the manner in which members of the public might use information that is, in some sense that may be constitutionally relevant, already in the public domain. Cf. Bonito Boats, 489 U.S. at 155-57 (explaining that state trade secrets protection is not preempted by federal patent laws because trade secrets protection does not interfere with policy that “ matter once in the public domain must remain in the public domain” ).13 Second, protection may be afforded pursuant to the commerce power to deter false representation, or to protect consumers from confusion, as the trademark laws demonstrate. See The Lanham Act, 15 U.S.C. §§ 1501-1540 (1994). An analogy between H.R. 2652 and trademark protection would appear questionable, as the bill plainly provides protection that is not directed at avoiding confusion as to the identity of the source of the information. See Bonito Boats, 489 U.S. at 154-55 (distinguishing between traditional trade dress regulation and laws aimed at protecting factual information that would not sow confusion). Indeed, the provision would provide protection even if it were made perfectly clear, and no consumer could reasonably conclude otherwise, that the copier of the collection of information had not exerted personal effort in compiling the facts provided but had instead merely copied them from someone who had exerted such personal effort. In one notable case, protection analogous to that afforded trademarks has been extended to a word, the use of which would not cause consumer confusion. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539 (1987). That case, however, is distinguishable. There, Congress had prol2See also Carpenter v United States, 484 U S 19 (1987) (conspiracy to trade on newspaper’s confidential information is within reach of federal mail and wire fraud statutes), Snepp v United States, 444 U S. 507 (1980) (government can, as a condition of employment, extract enforceable promise that employees will not reveal classified information they learn dunng their employ) 13 We note, however, that in the specific context of libel law, a plurality of the Court in one notable case drew significance from the fact that information was provided only to a limited number o f subscribers for a fee “ [SJince the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any strong interest in the free flow of commercial information.” Dun & Bradstreet, Inc. v Greenmoss Builders, Inc , 472 U.S. 749, 762 (1985) (plurality opinion) (internal quotation marks and citations omitted) (permitting recovery of damages for defamatory statement not involving matters o f public concern absent a showing o f actual malice). 181 Opinions o f the Office o f Legal Counsel in Volume 22 vided statutory protection for the use of the word “ Olympic” in order to protect the commercial interests of the United States Olympic Committee and “ the value [that] the USOC’s efforts have given to [that word].” Id. at 541. That case did not involve protection of facts, as such, but rather of the special commercial value associated with the use of a particular word in a particular context. H.R. 2652, however, would appear to provide such broad protection that it would protect facts not for any special value apart from their ordinary meaning that has been given to them by the compiler’s efforts but rather merely because the compiler expended effort in collecting them. Third, state law has been used to provide protection against dissemination of certain “ copied” materials to protect what has been termed “ the right of pub­ licity.” See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 569 (1977). The right of publicity protection, however, only guards the use of an individual’s “ personality” and personal talents against unauthorized commercial exploitation. See id. For example, Zacchini concerned the legality of a news service’s airing of film o f an individual’s paid human cannonball performance, against the wishes of the performer. The case therefore involved protection of a depiction of the performer’s original performance, a “ fact” — the performance— that existed only because of the performer’s own efforts. The Court expressly noted that the right of publicity would not serve to prevent reporting of facts about the cannonball act, as opposed to display of the act itself in its entirety, id. at 574, and that the right was analogous to copyright’s protection of original expression, id. at 577 n .l 3. See also id. at 569 (a case involving description of the act would be “ a very different case” ). By contrast, the protection provided by H.R. 2652 would extend to factual data that exists independently of the compiler’s efforts. Finally, competitive misappropriation of so-called “ hot news” information has also been afforded protection by the Supreme Court as a matter of federal common law. See International News Serv. v. Associated Press, 248 U.S. 215 (1918). Inter­ national News Service might provide some authority for the argument that Con­ gress may use its Commerce Clause power to create certain torts relating to ‘‘mis­ appropriation” of facts, even where the facts themselves may not be copyrighted pursuant to the Intellectual Property Clause. In International News Service, the Court, without relying on the Intellectual Property Clause, recognized the permissibility o f a certain limited form of liability for copying publicly disclosed information. The case arose prior to the Court’s decision in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), and it represented an exercise of the Supreme Court’s power to make federal common law pursuant to the grant of diversity jurisdiction. The case concerned a dispute that arose from a practice o f the International News Service. The news agency systematically reviewed East Coast editions of newspapers published by subscribers to the Asso­ ciated Press, copied or rewrote the stories contained therein, and published the stories in its own West Coast newspapers, some of which were delivered and 182 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act sold before rival Associated Press newspapers in the same cities. International News Serv., 248 U.S. at 231. The Associated Press had not copyrighted its stories, id. at 233, and there was no established cause of action that the Associated Press could invoke to stop the International News Service practices. The Court held that, even if the Associated Press did not have any property interest in its reported facts “ as against-the public,” it had a “ quasi property” right vis-a-vis the International News Service, which was “ seeking to make profits at the same time and in the same field.” Id. at 236. The Court used this quasiproperty right to justify an injunction against the International News Service’s “ misappropriation” of Associated Press’s reportage, because the International News Service was “ endeavoring to reap where it has not sown.” Id. at 239. The Court’s holding “ only postpone[d] participation by [the Associated Press’s] competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that competitor from reaping the fruits of [the Associated Press’s] efforts and expenditure, to the partial exclusion of [the Associated Press].” Id. at 241.14 Although the legal status of the quasi-property right recognized in International News Service— and, more particularly, the scope of that right— is not entirely clear, Feist suggested that the so-called “ hot news” misappropriation tort, at least as it was recognized in International News Service itself, could survive. The Feist Court explained that the International News Service Court had acknowledged that the news articles themselves were “ copyrightable,” but had then “ flatly rejected” the view “ that the copyright in an article extended to the factual information it contained.” 499 U.S. at 353-54. Nevertheless, the Court noted that “ [t]he Court ultimately rendered judgment for Associated Press on noncopyright grounds that are not relevant here.” Id. at 354 n.*. More generally, the Feist Court suggested that an “ unfair competition” theory could be the basis for some anti-copying protection of nonoriginal factual compila­ tions: Protection for the fruits of such research . . . may in certain cir­ cumstances be available under a theory of unfair competition. But to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of “ writings” by “ authors.” 14 International News Service did not discuss the Intellectual Property Clause, except to note that [ijt is not to be supposed that the framers of the Constitution, when they empowered Congress ‘to promote the progress o f science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective wntings and discoveries’ (Const Art. I ,‘ §8, par 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive nght for any penod to spread the knowledge o f it. Id. at 234 183 Opinions o f the O ffice o f Legal Counsel in Volume 22 499 U.S. at 354 (quoting Melville B. Nimmer & David Nimmer, Nimmer on Copy­ right §3.04, at 3-23 (1990) (footnote omitted)). The passage is obscure, and thus it is not exactly clear what protection might be available ‘‘under a theory of unfair competition,” or even what the Court intended by the phrase “ a theory of unfair competition.” It is possible, however, that the passage provides further support for an argument that the misappropriation tort recognized in International News Service survives the Feist analysis as an example of permissible regulation of unfair competition. Some insight into the possible meaning of the phrase “ unfair competition” as it appears in Feist may be gleaned from Justice O ’Connor’s decision for the Court, two years prior to her opinion in Feist, in Bonito Boats. Justice O ’Connor identi­ fied the “ usual sense [in which] the term ‘unfair competition’ is understood” by tying it to trade dress protection: The law of unfair competition has its roots in the common-law tort of deceit: its general concern is with protecting consumers from confusion as to source. W hile that concern may result in the cre­ ation of “ quasi-property rights” in communicative symbols, the focus is on the protection o f consumers, not the protection o f pro­ ducers as an incentive to product innovation. Judge Hand captured the distinction well in Crescent Tool Co., v. Kilborn & Bishop Co., 247 F. 299, 301 (CA2 1917), where he wrote: “ [T]he plaintiff has the right not to lose his customers through false representations that those are his wares which in fact are not, but he may not monopolize any design or pattern, however trifling. The defendant, on the other hand, , may copy plaintiffs goods slavishly down to the minutest detail: but he may not represent himself as the plaintiff in their sale.” 489 U.S. at 157 (emphasis added). As the Court in Bonito Boats concluded, “ unfair com petition” thus does not describe the object of a statute “ aimed directly at preventing the exploitation of [publicly disclosed factual information].” Id. at 158. H.R. 2652 would be such a statute. If this limited meaning of “ unfair competition” were all that the Court intended to cover in the passage quoted above from Feist, then it would be difficult to rely on that passage as authority for the type of “ unfair competition” protection contemplated here. On the other hand, the tort recognized in International News Service does appear to have been premised on the notion that the International News Service had engaged in “ unfair competition,” and thus that a legal remedy could be provided for such conduct even though the copyright power would not 184 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act provide the basis for such protection. As a result, the general reference in Feist to protection against unfair competition emanating from the exercise of a valid power other than the Intellectual Property Clause provides some basis for the congressional creation of a misappropriation tort, at least along the lines recog­ nized in International News Service. If, as seems fair to be the case, Feist does not foreclose Congress from enacting something approximating the misappropriation tort recognized in International News Service itself, there remains the question concerning the permissible scope of an extension of such a tort. There is little precedent to provide direct guidance on this point in part because there has been little legal development in the mis­ appropriation tort itself since Feist. Indeed, even prior to Feist, due to the C ourt’s decision in Erie Railroad limiting the authority of federal courts to engage in common lawmaking, federal courts had no occasion to expand upon the tort recog­ nized in International News Service. State courts have also had little occasion to expand upon the tort recognized in International News Service, in part because of the preemptive effect of the Copyright Act. As explained in the recent case of NBA v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997), a state-law tort that would not be preempted by the Copyright Act must have the following essential elements: (i) the plaintiff generates or collects information at some cost or expense; (ii) the value o f the information is highly time-sensitive; (iii) the defend­ ant’s use of the information constitutes free-riding on the plaintiffs costly efforts to generate or collect it; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; and (v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.15 Unburdened as it is by limitations on judicial common lawmaking or federal preemption doctrine, Congress might have greater freedom than federal courts or states to expand upon the tort recognized in International News Service. It is plain, however, that H.R. 2652 would constitute, not a modest extension of the “ hot news” misappropriation tort, but a dramatic extension of the tort recognized in the case. See House Report at 17 (explaining that H.R. 2652 would “ preserve the holding” of International News Service, but would reach far beyond that case to make impermissible much conduct that does not fall within the “ narrow scope,” id., of that holding). H.R. 2652 would not require, a civil plaintiff or a federal prosecutor, to prove that the value of the information be highly timesensitive, or that the ability of other parties to free-ride on the efforts of the plain­ 15 Indeed, the “ unusual circumstances” in International News Service itself may not have been limited to misappro­ priation simphciter. The Associated Press alleged that the International News Service had done far more than simply republish the facts conveyed in the Associated Press’s stories. The International News Service allegedly had bribed employees of A ssociated Press subscribers for an early look at breaking news, 248 U.S at 231, occasionally had sold Associated Press’s stories “ bodily,” i.e., without rewriting them, id., and had falsely represented to its readers that the news transmitted was the result of International News Services’s own investigation, id at 242. Such factors, the Court acknowledged, “ accentuated] the wrong,” even if they were not “ the essence of it.’ ’ Id 185 Opinions o f the Office o f Legal Counsel in Volume 22 tiff would so reduce the incentive to produce the product or service that its exist­ ence or quality would be substantially threatened. Moreover, due to the ambiguity as to the scope of the limitation that there must be a demonstration of harm to the potential market, it is not at all clear that H.R. 2652 would even require proof that the offending use or extraction be committed by a person in direct competition with a product or service offered by the plaintiff, or even that a use was nontransformative and for a commercial purpose. In contrast, the Court in International News Service repeatedly emphasized that the tort it was identifying would not extend to the copying and dissemination of news stories by members of the public, as opposed to by competitors of the Associated Press. 248 U.S. at 239-41.16 Accordingly, to the extent that Feist may be read to have construed the Intellec­ tual Property Clause to have established a kind of constitutionally prescribed public domain for factual material on which Congress may not infringe (absent, perhaps, private contractual agreements), a broad expansion of the “ hot news” tort would appear to raise serious constitutional concerns. H.R. 2652— which would apply well beyond the context of direct competitors, let alone the context of time-sensitive direct competition— would therefore raise substantial questions under Feist (and under the First Amendment, see infra) that would not be raised by a less ambitious statute that codified a limited International News Service­ like tort. See Reichman & Samuelson, Intellectual Property Rights in Data?, 50 Vand. L. Rev. at 139-45. IV. Possible First Amendment Limitations on the Commerce Power Even if the Intellectual Property Clause does not itself impose constraints on Congress’s Commerce Clause power, the First Amendment might nevertheless limit the type of protection that Congress can provide against the “ use” and “ extraction” of factual compilations. One of the principal aims of the First Amendment is to “ secure ‘the widest possible dissemination o f information from diverse and antagonistic sources.’ ” New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964) (quoting Associated 16 For example: D efendant insists that when, with the sanction and approval o f complainant, and as the result of the use o f its news for the very purpose for which it is distributed, a portion of complainant’s members commu­ nicate it to the general public by posting it upon bulletin boards so that all may read, or by issuing it to newspapers and distributing it indiscriminately, complainant no longer has the right to control the use to be made o f it; that when it thus reaches the light o f day it becomes the common possession of all to whom it is accessible, and that any purchaser o f a newspaper has the right to communicate the intel­ ligence which it contains to anybody and fo r any purpose, even for the purpose of selling it for profit to newspapers published for profit in competition with com plainant’s members. T he fault in the reasoning lies in applying as a test the right o f the complainant as against the public, instead o f considering the rights o f complainant and defendant, competitors in business, as between them­ selves. The n g h t o f the purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with com plainant’s nght to make merchandise of it, may be admitted, but to transmit that new s for commercial use, in competition with complainant— which is what defendant has done and seeks to justify— is a very different matter. Id. at 239 186 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act Press v. United States, 326 U.S. 1, 20 (1945)). In accordance with this objective, the First Amendment imposes significant constraints on the ability of the govern­ ment to restrict the dissemination of information that has been publicly disclosed and that the disseminator has lawfully obtained. For example, although the Supreme Court has been careful never to hold categorically that publication of lawfully obtained truthful information “ is automatically constitutionally pro­ tected,” see The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989), the Court has, on several occasions, held that “ the government may not generally restrict individ­ uals from disclosing information that lawfully comes into their hands in the absence of a ‘state interest of the highest order.’ ” United States v. Aguilar, 515 U.S. 593, 605 (1995) (quoting Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979)). See also Butterworth v. Smith, 494 U.S. 624, 632 (1990).17 And even if the state has such an interest, “ punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” Florida Star, 491 U.S. at 541.18 What is more, even in situations in which the government hypothetically could impose subsequent sanctions for the publication or copying of certain information, there is a particular concern about imposing a prior restraint on a secondary recipient from disseminating noncommercial speech. See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971). That is true even where the information was unlawfully obtained as an initial matter. Id. To be sure, cases such as New York Times v. Sullivan and Florida Star are not directly on point. Those cases involved governmental attempts to suppress certain types of information from being disseminated on the basis of content. By contrast, H.R. 2652 would not target any particular types of messages for suppres­ sion. It would instead prescribe the means under which collections of information 17 This same restriction does not necessarily apply if the information is secret, confidential, or classified, and is provided to another on the express condition that it not be further disclosed For example, the Court has upheld the constitutionality of governmental restrictions on its own employees’ activities to ensure that those employees do not disclose classified information belonging to the government itself. The Court explained in Snepp v United States, 444 U S 507, 509 n 3 (1980), that such restrictions on employee conduct generally will not violate the First Amendment so long as they are a “ reasonable means” o f protecting the government’s “ compelling interest in protecting . . the secrecy o f information important to our national security ” Similarly, a court may provide trade secrets to a plaintiff as part o f discovery in a civil lawsuit, subject to the condition that the plaintiff not further disseminate such secrets Seattle Times Co v Rhinehart, 467 U S 20 (1984) And even a private party can create enforceable limits on the right to publish confidential information that it shares with another, pursuant to state laws of contract or promissory estoppel that are “ generally applicable” (i e , that do not single out speech for disfavored treatment) See Cohen v Cowles Media Co , 501 U S 663, 669-71 (1991) (whereas First Amendment is not implicated by application o f “ generally applicable law s” to violations involving speech or the press, there is a greater constitutional problem where, as in Florida Star, the “ Slate itself define{s] the content of publications that would trigger liability” ). These cases would not be directly applicable to the proposed bill, however, in that they involved restrictions on the person to whom the information had been distributed under the confidentiality agreement, and not to restrictions on third parties who would be subsequent users or disseminators of such informa­ tion 18On occasion, the Court has indicated that this demanding standard applies only to information concerning “ ‘a matter of public significance*” See, e g , Florida Star, 491 U S . at 533 (quoting Smith, 443 U S at 103) See also Dun & Bm dstreet, 472 U S at 759 (plurality opinion) (speech on matters of “ purely private concern” entitled to less First Amendment protection in defamation cases); id at 764 (Burger, C J , concurring in pertinent part), id. at 773-74 (W hite, J., concurring in pertinent part) But see Florida Star, 491 U.S. at 541 (omitting the “ matter of public significance” standard in the Court’s ultimate holding, quoted in the text above) 187 Opinions o f the Office o f Legal Counsel in Volume 22 that had been complied may be used by others. Namely, it would require users, in certain circumstances, to expend great effort independendy before using information contained in a collection that itself had been compiled only after great effort. This ground of distinction hardly dispenses with the concern that H.R. 2652 trenches on First Amendment rights. Copyright protection similarly does not seek to suppress certain types of messages. It, too, merely prescribes the means by which information may be used by others. Nevertheless, the Court has concluded that the First Amendment may impose limitations on the types of material that may be copyrighted. Most significantly, in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), the Court explained that the First Amendment and the Copyright Act can be reconciled by virtue of the fact that copyright law already embodies a distinction between original forms of expres­ sion— which are copyrightable— and facts (and ideas)—which are not: [CJopyright’s idea/expression dichotomy “ strikefs] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression. No author may copyright his ideas or the facts he narrates. 17 U.S.C. § 102(b).” Id. at 556 (citation omitted). See also New York Times Co., 403 U.S. at 726 n.* (Brennan, J., concurring); Feist, 499 U.S. at 344—45 (“ The most fundamental axiom of copyright law is that ‘[n]o author may copyright his ideas or the facts he narrates.’ ” ) (quoting Harper & Row, 471 U.S. at 556). Thus, for example, the Court held that although direct quotations from President Ford’s biography were subject to copyright, the historical facts contained in that biography were not subject to copyright and could be freely copied. See Harper & Row, 471 U.S. at 565-66 & n.8 (applying copy­ right analysis only to “ verbatim quotes” from the biography, and excluding from infringement consideration historical quotations attributed to third parties and to government documents). See also Zacchini, 433 U.S. at 574 (right of publicity would not serve to prevent reporting of facts about the cannonball act, as opposed to display of the act itself in its entirety); id. at 577 n.13 (noting analogy to copy­ right’s expression/idea distinction). The distinction referenced in Harper & Row may be understood to reflect the Court’s understanding that, in order to reconcile and accommodate copyright and the First Amendment, no intellectual property rights can extend to facts that have been released in the public domain.19 Moreover, even in the context of creative forms of expression that can be copyrighted (as opposed to factual information, which cannot), First Amendment values are further protected in the copyright law by virtue o f the “ latitude for scholarship and comment traditionally afforded by fair use.” Harper & Row, 471 U.S. at 560. Furthermore, the Intellectual Property 19N im m er explains that this would be so even where a great quantity of labor and expense were necessary to research and compile the facts: “ W ould anyone seriously suggest that the Washington Post was entitled to a copyright on the facts o f the W atergate incident because its reporters, W oodward and Bernstein, through considerable labor, expense and ingenuity, discovered such facts?” I N im m er on Copyright § 2 1l[E], at 2 - 172 30 to 172.31. 188 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act Clause ensures that expression itself must enter the public domain after the “ lim­ ited times” for which copyright protection is available. Indeed, where important factual information could not satisfactorily be conveyed except by certain unique expression, the First Amendment might even ensure that copyright protection for such expression be denied or limited. See Nimmer on Copyright § 1.10[C][2], at 1-85 to 1-92. Accordingly, H.R. 2652, by providing protection for facts, raises serious First Amendment concerns. It would restrict the ability of persons to use and dissemi­ nate factual materials that are not protected by copyright, and it arguably would do so even in circumstances where the copyright law would not protect creative expression. We can imagine two arguments that might be made in support of H.R. 2652 against a First Amendment challenge. First, it remains the case that in Inter­ national News Service, the Court permitted a tort for the dissemination of informa­ tion, as such. It is unclear to what extent the International News Service tort can be reconciled with modem First Amendment doctrine. Nevertheless, that case was approvingly cited in San Francisco Arts & Athletics, where the Court recognized the possibility that the unauthorized use of an Olympic logo could impermissibly undermine the “ owner’s” legitimate commercial interests, even in the absence of a demonstration that such a use would be confusing to consumers. 483 U.S. at 541. As the Court there explained, “ [t]here is no question that this unauthorized use could undercut the [United States Olympic Committee’s] efforts to use, and sell the right to use, the word in the future, since much of the word’s value comes from its limited use.” Id. at 539. Thus, “ [e]ven though this protection may exceed the traditional rights of a trademark owner in certain circumstances, the application of the Act to . . . commercial speech is not broader than necessary to protect the legitimate congressional interest and therefore does not violate the First Amendment.” Id. at 540. The Court went on to reject the claim that the restriction violated the First Amendment because it reached noncommercial, promotional uses of the word. “ The mere fact that [petitioner] claims an expressive, as opposed to purely commercial, purpose, does not give it a First Amendment right to ‘appropriat[e] to itself the harvest of those who have sown.’ ” Id. at 541 (quoting International News Serv., 248 U.S. at 239^40). San Francisco Arts & Athletics did not consider a~b”rbad prohibitibhligaihst the dissemination of factual informa---------tion of the type that is at issue here; therefore it did not implicate the First Amend­ ment doctrine discussed above. Nonetheless, that case’s favorable reference to International News Service in response to a different First Amendment argument indicates that the former case provides some authority for a possible intellectual property exception to certain First Amendment constraints that would apply out­ side the intellectual property context. Even if International News Service does indicate that the First Amendment per­ mits some anti-copying protection for nonoriginal factual information, however, 189 Opinions of the Office o f Legal Counsel in Volume 22 it must be emphasized that H.R. 2652 raises serious constitutional concerns because it provides protection that is much broader than that at issue in Inter­ national News Service. Unlike the “ hot news” misappropriation tort that the Court recognized in International News Service, the bill would not create liability only for “ competitive and systematic interference with dissemination of unpublished, partially published or access-controlled information,” where “ the timeliness of the information makes its commercial value of short duration.” Ginsburg, No “Sw eat” ?, 92 Colum. L. Rev. at 357; see also NBA v. Motorola, 105 F.3d at 852. Second, there is an important consideration that might distinguish H.R. 2652 from the prototypical First Amendment case where the government acts to limit the use of publicly available information. As we explained above, in the usual First Amendment cases, such as the ones cited at the beginning of this section, the government’s restriction on the dissemination of information has the intent and effect of constricting the total quantum of information that the public could put to lawful and valuable use by singling out certain disfavored messages for suppression. Because H.R. 2652 would simply regulate the means by which information generally may be re-used, it arguably could be defended as a legiti­ mate attempt to recognize individual rights in intellectual property in order to ensure in an overall increase in the amount of available, valuable factual informa­ tion (because of the heightened incentives to compile facts). See Ginsburg, No “Sw eat” ?, 92 Colum. L. Rev. at 386. It could be argued that such a statute— like copyright’s protection of creative expression— would secure a wider “ dissemination of information from diverse and antagonistic sources,” New York Times, 376 U.S. at 266, than would result from a regime in which factual compila­ tions are protected against reproduction only by “ thin” copyright and (perhaps) by state contract law. We should note, however, that the above-stated rationale— that protection against reuse and copying of factual compilations could increase, rather than decrease, the existence of useful knowledge—would be in some tension with the premises o f the Court’s holdings in Feist and with the Court’s and Congress’s exclusion of copyright protection for facts, reflected in the Copyright Act and in cases such as Harper & Row. In those contexts, the Congress and the Court have concluded that, whereas protection against reuse of expression has the effect of increasing the output of unique and original writings, analogous protection of facts would, on the whole, impede the progress of knowledge. In addition, the strength of the argument would no doubt turn in large part on the scope of the protection afforded by H.R. 2652. To the extent it would apply even to non­ commercial, transformative uses, it would appear to be far more vulnerable to constitutional attack on First Amendment grounds. 190 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act V. Possible Ways in Which H.R. 2652 Might be Narrowed It may be the case that any “ misappropriation” statute such as H.R. 2652 enacted pursuant to the Commerce Clause “ may prove difficult to reconcile with Feist's constitutionally derived endorsement of free-riding on previously gathered information.” Ginsburg, No “Sw eat” ?, 92 Colum. L. Rev. at 341. Such a statute might also raise serious First Amendment problems, no matter how it is crafted. We do, however, believe that H.R. 2652 could be narrowed in several ways that would lessen the risk of constitutional invalidity. Each of these suggestions would have the effect of preserving more of what is now understood to constitute the public domain, in which facts could freely be copied in furtherance of important scientific, educational, and analogous objectives. The easiest and most direct way to cabin the constitutional issues would be to limit the statutory liability to the sort of “ hot news” misappropriation tort that the Court recognized in International News Service. The law could, for example, create liability for “ competitive and systematic interference with dissemination of unpublished, partially published or access-controlled informa­ tion,” where “ the timeliness of the information makes its commercial value of short duration.” Ginsburg, No “Sweat” ?, 92 Colum. L. Rev. at 357. The elements of a claim under such a statute could be: (i) that the plaintiff generates or collects information at some cost or expense; (ii) that the value of the information is highly time-sensitive; (iii) that the defendant’s use of the information constitutes free­ riding on the plaintiff s costly efforts to generate or collect it; (iv) that the defend­ ant’s use of the information is in direct competition with a product or service offered by the plaintiff; and (v) that the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. See NBA v. Motorola, 105 F.3d at 852. Absent such a fundamental change in H.R. 2652, the following changes would tend to alleviate some of the constitutional concerns20: 1. The provision could dispense with the time-sensitivity element of the International News Service tort of misappropriation, but still require proof that the defendant's use of the information constitutes----------------free-riding on the plaintiffs costly efforts to generate or collect it; that the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; and that the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. Again, we 20 We should not be understood as suggesting that any or all o f these changes would, or would not, be preferable as a matter of policy 191 Opinions o f the O ffice o f Legal Counsel in Volume 22 emphasize that a statute of even this more limited scope would still raise substantial constitutional concerns for the reasons provided in the previous sections. 2. The prohibition in § 1202 could be expressly limited to nontransformative uses and extractions by direct competitors in the par­ ticular market for the database in question.21 This could be accom­ plished in part by expressly including a “ fair use” exception akin to that contained in the Copyright Act, and other like statutory exceptions, at least as expansive as those found in the Copyright Act.22 As noted at the outset, it may well be that H.R. 2652 is intended to incorporate something approximating the fair use standard for copyright by virtue of its reference to two of the four statutory fair use factors contained in the Copyright Act’s fair use provision. Nonetheless, in light of the difficulties in determining how a fair use exception would apply to facts, given that it has thus far developed in the context of copyright, which does not pro­ tect facts, it would be advisable to be far more clear on this point than the present statute is. Moreover, for constitutional reasons, it would probably be advisable to provide even greater protection for the public’s interest in freely exchanging information here than would be necessary outside the context of a statute that would pro­ vide intellectual property interests in factual information. As a result, a broad definition of fair use would be appropriate. 3. The duration of the protection could be substantially shortened, to the briefest period that would provide sufficient incentives for the data collection. Perpetual protection probably is unnecessary to provide sufficient incentive to the creation of databases. 4. Instead of effectively prohibiting certain use or extraction by sub­ jecting it to potential treble-damage judgments, Congress could consider permitting widespread copying on reasonable terms and conditions, under a system of compulsory, nondiscriminatory licensing. That would allow the compiler to receive fair value for the cost of compiling, but might not unreasonably deter valuable reuses of the information.23 2 lSee, e g , Jessica Litman, After Feist, 17 U Dayton L Rev. at 615, Ginsburg, No "Sw eat"?, 92 Colum. L. Rev at 386 22See Reichman & Samuelson, Intellectual Property Rights in D a ta 9, 50 Vand. L Rev at 146, 155-57. 23See Ginsburg, N o “Sw eat"?, 92 Colum. L. Rev. at 386-87; Reichman & Samuelson, Intellectual Property Rights in Data?, 50 Vand L. Rev at 146 192 Constitutional Concerns Raised by the Collections o f Information Antipiracy Act 5. The provisions for injunctive relief and impoundment could be eliminated, in light of the disfavored status under the First Amend­ ment of prior restraints. Cf. Campbell, 510 U.S. at 578 n.10. 6. The prohibition in § 1202 should be narrowed so that it extends, at most, only to those portions of a compilation that were gathered, organized or maintained through investment of substantial resources. There is little apparent justification for constraining third parties’ use of portions of a collection that were not the result of such an investment. VI. Conclusion H.R. 2652, the Collection of Information Antipiracy Act, raises difficult and novel questions of constitutional law. It is clear, however, that, under current Supreme Court case law, the bill, in its current form, raises serious constitutional concerns. WILLIAM M. TREANOR Deputy Assistant Attorney General Office o f Legal Counsel 193

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(Slip Opinion) Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The Department of Defense’s proposed use of military personnel to provide limited assistance with respect to certain Customs and Border Protection inspection and observation functions along the southern border of the United States is permissible under the Posse Comitatus Act and applicable regulations. January 19, 2021 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE The Posse Comitatus Act, 18 U.S.C. § 1385, restricts the use of “any part of the Army or the Air Force” in civilian law enforcement, unless expressly authorized by law. Consistent with these restrictions, for many years, the Department of Defense (“DoD”) has provided assistance to the efforts by the Department of Homeland Security (“DHS”) to stem the illegal flow of persons and contraband across the southern land border between the United States and Mexico. This assistance is principally authorized by chapter 15 of title 10 of the United States Code, 10 U.S.C. §§ 271–284, which allows DoD to provide a number of different forms of support to civilian law enforcement. Congress endorsed DoD’s ongoing efforts in 2015 by providing that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1059, 129 Stat. 986‒87 (2015) (“FY 2016 NDAA”). In February 2020, DHS requested that DoD perform 26 specific duties in support of U.S. Customs and Border Protection (“CBP”) operations at the southern border for fiscal year 2021. See Memorandum for Oliver Lewis, Captain, USN, Executive Secretary, Department of Defense, from Juliana Blackwell, Acting Executive Secretary, Department of Homeland Security, Re: Request for Extension of Department of Defense (DoD) Assistance in Support of U.S. Customs and Border Protection’s (CBP) Southwest Border (SWB) Security Mission Through Fiscal Year (FY) 2021 (Feb. 3, 2020). DoD approved support for 22 of these 26 duties, most of which involved the kind of support that DoD already had been providing 1 45 Op. O.L.C. __ (Jan. 19, 2021) to DHS, such as motor-transport operations support and a crisis-response force for certain urgent needs. See Memorandum for the Executive Secretary, Department of Homeland Security, from David S. Soldow, Captain, USN, Executive Secretary, Department of Defense, Re: Request for Extension of Department of Defense Assistance in Support of U.S. Customs and Border Protection’s Southern Border Security Mission Through Fiscal Year 2021 (June 23, 2020). DoD, however, held off on approving support for four duties pending further consideration as to whether they would be consistent with the Posse Comitatus Act and DoD regulations implementing chapter 15. Those four duties concern rail-support, seal-check, port-of-entry-observer, and checkpoint-observer functions. We understand that the rail-support duty would have military personnel assist CBP personnel responsible for inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. The seal-check duty would involve visually verifying whether commercial cargo trucks and containers have intact and unbroken seal tags, which CBP requires for trucks and containers passing through ports of entry. The port-of-entry and checkpoint observers would monitor the output of CBP’s electronic systems that automatically collect and process data, such as license-plate information, about individuals and vehicles passing through a port of entry or U.S. Border Patrol checkpoint, and display an alert message if the system identifies a concern. We conclude that neither the Posse Comitatus Act nor DoD’s regulations prohibit the requested assistance. The rail-support and seal-check duties would not violate the Posse Comitatus Act because they would not involve military personnel subjecting civilians to military regulation, directly or actively participating in civilian law enforcement activities, or pervading the activities of civilian law enforcement. The port-of-entry and checkpoint-observer duties would not violate the Posse Comitatus Act because they would involve operating equipment and would not involve direct participation in civilian law enforcement activities, as expressly authorized by 10 U.S.C. § 274(c). All four duties would be similar to the types of support that the courts and this Office’s precedents have held to be consistent with the Posse Comitatus Act and DoD regulations, and that the military is authorized to provide under chapter 15. 2 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act I. The Posse Comitatus Act generally prohibits the use of the military to engage in civilian law enforcement activities. At English common law, the sheriff had the right to summon a body of available adults, the posse comitatus, to assist in executing the laws or restoring civil order. See Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. 321, 322 (1989). This practice continued in the United States, and in the Judiciary Act of 1789, Congress vested the first federal law enforcement officers, the U.S. Marshals, with the “power to command all necessary assistance in the execution of [their] duty.” Act of Sept. 24, 1789, ch. 20, § 27, 1 Stat. 73, 87. That power remains with the U.S. Marshals Service, now codified at 28 U.S.C. § 566(c). In enacting the Posse Comitatus Act in 1878, Congress sought to prevent civilian law enforcement officials from generally relying upon the U.S. Army to assist with the enforcement of the civilian laws. The statute arose out of the objections of southern States to the use of the U.S. Army in civilian law enforcement during the Reconstruction era. See Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies, 15 Op. O.L.C. 36, 42 (1991) (“Military Use of Infrared Radars”); see Act of June 18, 1878, ch. 263, § 15, 20 Stat. 145, 152; 7 Cong. Rec. 3845‒3852 (May 27, 1878); 7 Cong. Rec. 4239‒4248 (June 7, 1878). But the statute’s restrictions are not limited to that historical episode and instead reflect an American tradition of limiting direct military involvement in civilian law enforcement. See, e.g., Laird v. Tatum, 408 U.S. 1, 15 (1972). In its current form, the statute provides that, except where “expressly authorized by the Constitution or Act of Congress,” public officials may not use “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the law.” 18 U.S.C. § 1385. 1 The prohibition thus precludes “military personnel [from] applying force to the civilian community in the normal course of civil government” and prevents “actual or Although the Posse Comitatus Act applies only to the Army and the Air Force, DoD regulations implementing similar restrictions apply to the Navy and the Marines. See DoD Instruction 3025.21, ¶ 4.b, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). The Secretary of Defense, however, is authorized to make exceptions on a case-by-case basis. See id. encl. 3, ¶ 3. 1 3 45 Op. O.L.C. __ (Jan. 19, 2021) threatened coercion by persons subject to military discipline on behalf of civil law enforcement officers.” Letter for Deanne Siemer, General Counsel, Department of Defense, from Mary Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 5 (Mar. 24, 1978) (“Lawton Letter”). As relevant here, Congress has expressly authorized the military to support civilian law enforcement under chapter 15. Among other things, chapter 15 authorizes the military to provide to civilian law enforcement information acquired in the normal course of military training or operations; equipment, training, and advice; and military personnel to maintain and operate equipment. See 10 U.S.C. §§ 271–74. Chapter 15 also authorizes military personnel to perform additional tasks in support of counterdrug activities. See 10 U.S.C. § 284. But while granting DoD authority to assist civilian law enforcement, Congress retained the core prohibition of the Posse Comitatus Act by requiring that the Secretary of Defense issue regulations “as may be necessary to ensure that any activity . . . under this chapter does not include or permit the direct participation” of a member of the military “in a search, seizure, arrest, or other similar activity.” Id. § 275. The Secretary has implemented section 275 in DoD Instruction 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). The somewhat oblique prohibition under the Posse Comitatus Act against using the military as “a posse comitatus or otherwise to execute the law,” 18 U.S.C. § 1385, has led courts and this Office to employ different tests against which to measure whether the activities in question comply with this prohibition. See Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal Division, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military Personnel for Monitoring Electronic Surveillance at 11 (Apr. 5, 1994) (“Electronic Surveillance”) (“[T]he courts have employed three slightly varying formulations of the test for determining whether military involvement in civilian law enforcement has crossed the line separating proper activity from violations of the PCA”); Riley v. Newton, 94 F.3d 632, 636 (11th Cir. 1996) (describing “three different tests”); United States v. Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991) (recognizing that courts have employed “one of three tests”). We have recognized that an action “does not violate the Posse Comitatus Act unless it actually regu4 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act lates, forbids, or compels some conduct on the part of those claiming relief.” Electronic Surveillance at 10 (quoting Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir. 1985), aff’d en banc, 800 F.2d 812 (8th Cir. 1986), aff’d, 485 U.S. 264 (1988)); see also Lawton Letter at 15‒16. Under this test, courts consider whether a military activity “is that which is regulatory, proscriptive, or compulsory in nature and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority.” United States v. McArthur, 419 F. Supp. 186, 194 (D.N.D. 1974), aff’d sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976) (per curiam). Courts have also employed a slightly different formulation: whether the military is conducting law enforcement activities, rather than merely supporting them, which is determined by whether the activities involve “the direct active participation of federal military troops in law enforcement activities.” United States v. Red Feather, 392 F. Supp. 916, 924 (D.S.D. 1975). As noted, this is the test that Congress directed the Secretary of Defense to impose as a restriction on DoD’s support for civilian law enforcement under chapter 15. See 10 U.S.C. § 275. Finally, in some cases, courts have employed a third test to ensure that the military is not indirectly taking the lead in law enforcement activities, even when it is not operating directly on civilians. These courts ask whether the military activity in question “pervade[d] the activities of civilian officials.” Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990) (quoting United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988) (per curiam)). In a recent case, the Ninth Circuit, sitting en banc, concluded that a Naval Criminal Investigative Service (“NCIS”) investigation into child pornography on the Internet violated DoD regulations restricting law enforcement activity by the Navy, because the NCIS investigation “pervaded the actions of civilian law enforcement.” United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015) (en banc). 2 2 One issue in Dreyer was whether NCIS was targeting offenses by military personnel. See 804 F.3d at 1276. It is well established that the Posse Comitatus Act does not restrict the actions of military personnel “where the military has a legitimate interest for its own proceedings or matters involving the internal administration of the military or the performance of its proper functions.” Permissibility Under Posse Comitatus Act of Detail of Defense Civilian Employee to the National Infrastructure Protection Center, 22 Op. O.L.C. 103, 105‒06 (1998) (alteration and quotation marks omitted); see id. at 106 5 45 Op. O.L.C. __ (Jan. 19, 2021) In our prior opinions, we have often applied the “direct active participation” test in considering whether the activities were consistent with the restriction applicable to support provided under chapter 15. See, e.g., Memorandum for the Attorney General from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Department of Defense Assistance in an Federal Bureau of Investigation Domestic Terrorism Investigation at 4 (Nov. 5, 2002) (“Domestic Terrorism”); Military Use of Infrared Radars, 15 Op. O.L.C. at 38–39; Use of Department of Defense Drug-Detecting Dogs to Aid in Civilian Law Enforcement, 13 Op. O.L.C. 185, 186 (1989) (“DoD Drug-Detecting Dogs”). But in opinions not involving chapter 15 support, we have generally followed the lead of the courts of appeals by asking whether the military support would be consistent with all three of the court-applied tests, without worrying about whether they are all equally correct, or mutually exclusive. See Permissibility Under Posse Comitatus Act of Detail of Defense Civilian Employee to the National Infrastructure Protection Center, 22 Op. O.L.C. 103, 104 (1998) (“NIPC Detail ”) (asking whether the military support violated any of these tests); Electronic Surveillance at 11 (same); cf. Lawton Letter at 13 (concluding that the assistance in question did not violate the Posse Comitatus Act because, under any of the formulations the courts have employed, the assistance was “indirect and nonauthoritarian”). We understand from your request that DoD would assist DHS by using National Guard members operating under federal command and control, who would be considered as either part of the Army or Air Force while operating in that status. See Use of the National Guard to Support Drug Interdiction Efforts in the District of Columbia, 13 Op. O.L.C. 91, 92 (1989); Mueller v. City of Joliet, 943 F.3d 834, 837 (7th Cir. 2019). 3 Because those members would be subject to the Posse Comitatus Act, we must first consider whether Congress has expressly authorized the mili(explaining that “[n]othing in the [Posse Comitatus Act] suggests that Congress intended to circumscribe military participation in legitimately military matters”). Separately, the Posse Comitatus Act does not apply outside United States territory. See Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at 344. 3 By contrast, National Guard troops operating in militia status—that is, under state command and control—are not subject to the Posse Comitatus Act. See Mueller, 943 F.3d at 837; Clark v. United States, 322 F.3d 1358, 1367–68 (Fed. Cir. 2003). 6 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act tary to perform the four duties at issue. 4 Where Congress has not, we then consider whether those tasks nevertheless would be consistent with the Posse Comitatus Act. II. We begin with the rail-support and seal-check duties. Both tasks would involve military personnel providing support to CBP in inspecting articles coming across the border. Neither would involve the military engaging or interacting directly with any civilians or assuming primary responsibility for searching the vehicles, cargo trucks, or containers in question. Military personnel would be under the direct supervision of CBP personnel, would not be expected to have any contact with civilians, and would not be expected to take custody of any evidence that might be used in any subsequent legal proceeding, such as a criminal prosecution. Both military and CBP personnel would receive training to ensure that they clearly understand the scope of the approved activities of the military personnel. We understand that military personnel performing the rail-support duty would assist CBP personnel in inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. This inspection would occur in a secured and private rail yard, and vehicle owners would have signed waivers authorizing the inspection. Military personnel would open the doors, trunks, and hoods of unoccupied vehicles to prepare them for CBP personnel’s subsequent inspection of the spaces within the vehicles. Military personnel would not participate in that inspection. Military personnel would not be expected to make any observations as they open the vehicle doors, trunks, and hoods, but if they did notice something suspicious, they would immediately notify CBP personnel. Military personnel would have no involvement in any subsequent action. We do not believe that, under the facts presented, DoD’s assistance to DHS would be expressly authorized by the Constitution. We have previously described the constitutional exception to the PCA as applying to “any use of the military for constitutional purposes,” including the deployment of “troops pursuant to a plenary constitutional authority.” Memorandum for the Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Determination of Enemy Belligerency and Military Detention at 9 (June 8, 2002). DoD’s assistance here to support DHS’s mission would not involve the plenary constitutional authority of the President. 4 7 45 Op. O.L.C. __ (Jan. 19, 2021) We understand that the seal-check duty would involve similar support to CBP personnel. Military personnel would visually verify whether commercial cargo trucks and containers have intact and unbroken seal tags, which are required for the trucks and containers as they pass through ports of entry. This activity would take place at locations secured and controlled by CBP. Seal tags are located in plain view on the outside of the trucks and containers. In some cases, the cargo truck driver may be in the cabin of the truck while military personnel check whether the truck’s seal tag is intact, but the seal tag is located at the rear of the truck and military personnel are not expected to have any contact with the driver. If military personnel notice a discrepancy in a seal tag, then they would immediately notify CBP personnel and would not participate in any subsequent inspection performed by CBP personnel. A. We first consider whether these tasks are expressly authorized under chapter 15 or under the FY 2016 NDAA. We think that the chapter 15 question is straightforward, because neither the rail-support or seal-check duties fit within the tasks authorized under chapter 15. Sections 271 to 274 authorize DoD to support civilian law enforcement agencies by providing information, military equipment and facilities, training and advising, or the maintenance and operation of equipment. See 10 U.S.C. § 271–74. None applies here. Section 284(b)(6) likewise authorizes DoD to assist through the “detection, monitoring, and communication” of air, sea, and surface traffic within designated parameters of the U.S. borders, but those provisions do not speak to the inspection of goods. Likewise, we do not believe that any of the other activities authorized by section 284(b) would readily apply to these tasks. Whether section 1059 expressly authorizes the rail-support or sealcheck duties for purposes of the Posse Comitatus Act, however, is a closer question. As relevant here, section 1059(a) states that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” FY 2016 NDAA § 1059(a). 5 The section continues: 5 Section 1059 was enacted as part of the FY 2016 NDAA, but the section has no expiration date and remains in effect. See, e.g., United States v. Hernandez-Garcia, No. 19- 8 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The assistance provided under subsection (a) may include the following: (1) Deployment of members and units of the regular and reserve components of the Armed Forces to the southern land border of the United States. (2) Deployment of manned aircraft, unmanned aerial surveillance systems, and ground-based surveillance systems to support continuous surveillance of the southern land border of the United States. (3) Intelligence analysis support. Id. § 1059(c). The rail-support and seal-check duties do not fall into any of the categories of activities specifically mentioned in section 1059(c)(2) and (c)(3): They involve neither the “[d]eployment” of the aircraft and surveillance equipment nor “[i]ntelligence analysis support.” The duties could perhaps be viewed as falling within section 1059(c)(1), which permits the general “[d]eployment” of military personnel “to the southern land border” without specifying what missions such personnel would perform. In addition, the categories in subsection (c) are not exclusive. The statute makes clear that the assistance “may include the following.” See Burgess v. United States, 553 U.S. 124, 131 n.3 (2008) (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation.” (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutory Construction § 47:7, at 305 (7th ed. 2007)). So we must also consider whether the rail-support and seal-check duties fall within the statute’s authorization for general “assistance” to CBP for “purposes of increasing ongoing efforts to secure the southern land border” under section 1059(a). CR-4373-GPC, 2020 WL 1083427, at *2 (S.D. Cal. Mar. 6, 2020) (“[T]he provision lacks any language expressly limiting its operative terms to fiscal year 2016.”); United States v. Rios-Montano, 438 F. Supp. 3d 1149, 1151–52 (S.D. Cal. 2020) (rejecting the argument that section 1059’s “legal effect lapsed with fiscal year 2016” because the section “provides an unrestrained grant of authority” and “contains no sunset provision”); see generally Memorandum for Mary De Rosa, Legal Adviser, National Security Council, from David J. Barron, Acting Assistant Attorney General, Re: Engagement with the International Criminal Court at 3 (Jan. 15, 2010) (noting that the “presumption against permanency” does not “automatically apply” to authorization acts (quotation marks omitted)). 9 45 Op. O.L.C. __ (Jan. 19, 2021) The question then is whether either of these sections constitute express authorization for purposes of the Posse Comitatus Act. Both section 1059(a) and section 1059(c)(1) no doubt generally authorize deploying military personnel to the southern border to provide “assistance” to CBP in support of “ongoing efforts to secure the southern land border.” But it does not follow that this authorization necessarily “expressly” authorizes actions that would otherwise violate the Posse Comitatus Act. 18 U.S.C. § 1385. In 1878, as now, “expressly” means “[i]n an express manner,” “in direct terms,” or “plainly.” Noah Webster, A Dictionary of the English Language 156 (1878 ed.); Henry Campbell Black, Dictionary of Law Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern 462 (1891) (defining “express” to mean “[m]ade known distinctly and explicitly, and not left to inference or implication”); Webster’s (Third) New International Dictionary of the English Language 803 (1993) (defining “expressly” to mean “in direct or unmistakable terms.”). Thus, for a statute to authorize a military activity expressly for purposes of the Posse Comitatus Act, we think that it must be clear that Congress has approved that activity without regard to the restrictions on using the military “as a posse comitatus or otherwise to execute the laws.” 18 U.S.C. § 1385; see Dorsey v. United States, 567 U.S. 260, 273– 75 (2012) (holding that statutory requirement that the “repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide,” 1 U.S.C. § 109, is satisfied where the “plain import” or “fair implication” of the repealing Act is that it should apply to pre-Act offenders). We do not think that a general authorization of “assistance” necessarily means that the restrictions of the Posse Comitatus Act fall away. The generic authorization in section 1059(a) and (c)(1) to “[d]eploy” military personnel “to the southern land border of the United States” for “assistance” to CBP in “ongoing efforts” does not reflect that kind of clear approval. To the contrary, we think that section 1059 points not to new forms of support DoD may provide, but rather toward the types of assistance that DoD had already been providing to CBP as part of “ongoing efforts,” which include the types of activities specifically mentioned in section 1059(c)(2) and (c)(3). A contrary reading would dramatically change DoD’s assistance to these “ongoing efforts,” authorizing DoD to 10 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act perform functions not traditionally done at the southern border, including through “direct participation” by the military “in a search, seizure, arrest, or other similar activity.” 10 U.S.C. § 275; see also Memorandum for Jamie Gorelick, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military to Enforce Immigration Laws at 2 (May 10, 1994) (“Immigration Laws”) (recognizing that the “direct use of the military to detain or arrest suspect aliens would violate” the Posse Comitatus Act “unless otherwise authorized by law”). We think it quite unlikely that Congress would have so significantly changed DoD’s mission at the border by generally authorizing the “deployment” of military personnel to provide “assistance.” Where Congress has affirmatively authorized DoD to provide assistance to law enforcement in other contexts, it has often included restrictions on the military’s “direct participation” in encounters with civilians. In fact, in another provision of the FY 2016 NDAA, Congress authorized the military to provide “assistance” to the Department of Justice in its efforts to investigate domestic bombings of places of public use or of Government facilities. FY 2016 NDAA § 1082(a), 129 Stat. at 1003–04 (codifying 10 U.S.C. § 383, now 10 U.S.C. § 283). In so doing, Congress took care to specify that military personnel were not authorized to engage in “arrest[s]”; any “direct participation in conducting a search for or seizure of evidence”; or any “direct participation in the collection of intelligence for law enforcement purposes,” save in narrowly delineated circumstances. Id. (codifying 10 U.S.C. § 383(c)(2), now 10 U.S.C. § 283(c)(2)); see also 10 U.S.C. § 282(c)(2)(B) (providing similar limited authority for military personnel to engage in searches and seizures in investigating emergency situations involving weapons of mass destructions). Congress provided no such limitation in authorizing “assistance” under section 1059. One could perhaps infer from the absence of such language that Congress intended to authorize DoD to provide assistance to CBP in a manner that did not restrict “direct participation” in arrests, searches, and seizures. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotation marks and brackets omitted)). But we think that the 11 45 Op. O.L.C. __ (Jan. 19, 2021) more likely inference is that Congress sought to authorize the kinds of “ongoing” assistance that DoD had been providing under chapter 15, consistent with the existing statutory restriction on “direct participation” required by 10 U.S.C. § 275. 6 At a minimum, with two plausible interpretations available, we cannot say that Congress expressly authorized the support to proceed without regard to the restrictions of the Posse Comitatus Act. Elsewhere, when Congress has authorized the military to engage in civilian law enforcement activities, it has explicitly stated that the Posse Comitatus Act is inapplicable to those activities, see, e.g., 5 U.S.C. app. 3, § 8(g) (“The provisions of section 1385 of title 18, United States Code, shall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Department of Defense to carry out the purposes of this Act.”); 18 U.S.C. § 831(f )(1) (stating that DoD may provide specified assistance to the Attorney General “[n]otwithstanding section 1385 of this title” if certain conditions are met), or authorized the military to engage in activities that plainly involve coercive action against civilians, see, e.g., 10 U.S.C. § 251 (authorizing the military, under certain circumstances, to “suppress . . . insurrection[s]”); id. § 252 (authorizing the military to “enforce the laws of the United States” and to “suppress . . . rebellion[s]”); id. § 253 (authorizing the military to take needed “measures . . . to suppress . . . any insurrection, domestic violence, unlawful combination, or conspiracy”); 18 U.S.C. § 112(f ) (authorizing the Attorney General to seek the assistance of, 6 This interpretation is consistent with the section 1059’s legislative history, which reflects an intent to authorize “the ongoing efforts by [DoD] to provide additional assistance to secure the southern land border of the United States”—assistance that DoD provided consistent with the Posse Comitatus Act—and desire that DoD “continue these efforts and coordinate with the Secretary of Homeland Security to identify opportunities to provide additional support.” Sen. Rep. No. 114-49, at 206 (2015) (emphases added); see also National Defense Authorization Act for Fiscal Year 2016: Legislative Text and Joint Explanatory Statement 740 (Comm. Print Nov. 2015) (noting that section 1059 “would authorize the Secretary of Defense . . . to provide assistance to [CBP] for the purpose of increasing the ongoing efforts to secure the southern land border of the United States” (emphasis added)). We have not located any legislative history suggesting that Congress intended that military personnel deployed to the border to provide “assistance” to CBP under section 1059 could depart from the sort of assistance the military had previously provided to civilian law enforcement consistent with the Posse Comitatus Act and DoD’s regulations. 12 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act among other agencies “the Army, Navy, and Air Force” in enforcing the criminal prohibition on harming foreign dignitaries); id. § 1751(i) (authorizing the Attorney General to seek the assistance of, among other agencies “the Army, Navy, and Air Force” in investigating the criminal prohibition on murdering or assaulting the President or presidential staff ). See generally Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at 340 (discussing 21 U.S.C. § 873(b), which authorizes the Attorney General to request military assistance to enforce the Controlled Substances Act). We think that these specific authorizations in the U.S. Code for the military to provide particular support reinforce that the more general authorization of assistance in section 1059 should not be read to authorize actions without regard to the limitations of the Posse Comitatus Act. As the Court has recognized, “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). In addition, specific statutory provisions inform the meaning of more general ones, and this canon “has full application . . . to statutes . . . in which a general authorization and a more limited, specific authorization exist side-by-side.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). The contrast between the generality of section 1059 and the specificity of these other provisions suggest that Congress did not intend section 1059(a) and (c)(1) to authorize the “deployment” of military personnel to provide “assistance” to CBP without regard to whether such assistance would otherwise violate the Posse Comitatus Act. This interpretation is consistent with the Office’s prior caution in reading generally worded statutes to authorize the military to engage in coercive civilian law enforcement activities. In 1994, this Office concluded that the Attorney General’s authority to delegate immigration law enforcement functions to “any employee of the United States” did not clearly authorize the Attorney General to delegate such authority to military personnel to engage in immigration-enforcement activities that would otherwise violate the Posse Comitatus Act. 7 See Immigration Laws at 9– 7 The authority was then vested in the Attorney General. See 8 U.S.C. § 1103(a) (1994). The Homeland Security Act of 2002 transferred most immigration-enforcement functions to the Secretary of Homeland Security. See Homeland Security Act of 2002, 13 45 Op. O.L.C. __ (Jan. 19, 2021) 12. We explained that where a determination that a statute constitutes express authority for purposes of the Posse Comitatus Act “would represent a sharp departure from the traditional restrictions embodied” in the statute, the determination “should rest on a well-founded conviction that Congress intended such a result” because “it cannot be assumed that Congress would approve such a major change in the military’s permissible law enforcement role without providing some specific indication that it was doing so.” Id. at 12. The same year, we concluded that general language in the Electronic Communications Privacy Act of 1986 authorizing “government personnel” to assist in electronic surveillance, see 18 U.S.C. § 2518(5), was insufficiently clear to authorize expressly military personnel to engage in surveillance that would otherwise violate the Posse Comitatus Act. See Electronic Surveillance at 4‒6. These precedents suggest that the similarly general authorization in section 1059 does not authorize coercive military participation in civilian law enforcement activities with the requisite clarity. This conclusion also accords with judicial opinions addressing whether an activity is expressly authorized for purposes of the Posse Comitatus Act. Courts have found such express authority when the statute specifically refers to the Posse Comitatus Act. See, e.g., United States v. Stouder, 724 F. Supp. 951, 954 (M.D. Ga. 1989) (“Congress specified in § 8(g) of the Inspector General Act of 1978 that . . . ‘[t]he provisions of section 1385 of title 18, United States Code . . . shall not apply to audits and investigations conducted by . . . the Inspector General of the Department of Defense.’”). They have reached the same conclusion when the statute authorizes the military to engage in a particular activity with such specificity that Congress clearly approved the particular use of the military. 8 Pub. L. No. 107-296, § 1102(2)(A), 116 Stat. 2135, 2273 (2002), as amended by Consolidated Appropriations Resolution, Pub. L. No. 108-7, div. L, § 105(a)(1), 107 Stat. 11, 531 (2003). 8 See, e.g., Gilbert v. United States, 165 F.3d 470, 473‒74 (6th Cir. 1999) (noting that 32 U.S.C. § 112(b) authorizes the National Guard, while not in federal service, to be used for the “purpose of carrying out drug interdiction and counter-drug activities”); United States v. Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995) (“This DEA airlift was specifically authorized by § 1004 of the National Defense Authorization Act for Fiscal Year 1991 (‘NDAA’), which allows military ‘transportation of supplies and equipment for the purpose of facilitating counter-drug activities.’”); United States v. Allred, 867 F.2d 856, 14 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act At the same time, we have identified several decisions that have read somewhat general statutes as constituting express authorization under the Posse Comitatus Act. Of note, two district court judges have suggested, albeit with little analysis, that section 1059 does constitute express authorization under the Posse Comitatus Act. See United States v. HernandezGarcia, No. 19-CR-4373-GPC, 2020 WL 1083427, at *3 (S.D. Cal. Mar. 6, 2020) (Curiel, J.) (“[T[he Court finds that the 2016 NDAA unambiguously authorized the participation of DoD personnel at issue here, namely, their observation of someone alleged to be Mr. Hernandez-Garcia through a scope, and their subsequent communication with BPA AllenLimon as to that person’s location.”); United States v. Cardenas-Tovar, No. 19-CR-04370-BTM, 2020 WL 905634, at *3 (Feb. 25, 2020) (Moskowitz, J.) (“Even assuming arguendo that the Marines’ involvement rose to the level of direct involvement, however, such involvement appears to have been ‘otherwise authorized by law’ pursuant to Section 1059 of the National Defense Authorization Act for Fiscal Year 2016.”); United States v. Rios-Montano, 438 F. Supp. 3d 1149, 1151, 1054‒55 (S.D. Cal. 2020) (Curiel, J.) (agreeing that section 1059 “‘authorize[s] by law’ the Marine Corps’ conduct on the United States’ southern border with Mexico” (alteration in original)). We believe that these decisions are correct insofar as these cases involved military surveillance activities that were specifically and expressly authorized by section 1059(c)(2). But we would not read these decisions as suggesting that section 1059(a) and (c)(1) expressly authorize the deployment of military personnel to provide assistance to CBP without regard whether to such assistance would otherwise conflict with the Posse Comitatus Act. Two other courts have similarly read general statutes to constitute express authorization of certain activities for purposes of the Posse Comitatus Act. See United States v. Allred, 867 F.2d 856, 871 (5th Cir. 1989) (suggesting, in dictum, that the Attorney General’s authority to appoint Special Assistant United States Attorneys constitutes an express authorization for purposes of the Posse Comitatus Act); Red Feather, 392 F. Supp. at 923 (“The Economy Act, 31 U.S.C. § 686, expressly authorizes any executive department or independent establishment of the government, or any bureau or office thereof, to place orders with any other such 871 (5th Cir. 1989) (relying on 10 U.S.C. § 806(d)(1) in holding that military lawyers are statutorily authorized to represent the United States in criminal cases). 15 45 Op. O.L.C. __ (Jan. 19, 2021) department, establishment, bureau, or office, for materials, supplies, or equipment.” (quotation marks omitted)). We think that the better reading of the decisions in these cases, if not their reasoning, is that the pertinent activities, such as furnishing materials or supplies or the use of a commissioned officer of the Judge Advocate General’s Corps (“JAGC”) as a special assistant to a United States Attorney, would generally not have violated the Posse Comitatus Act even without express authorization. See Bissonette, 776 F.2d at 1390 (“[T]he mere furnishing of materials and supplies cannot violate the [Posse Comitatus Act].”); Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 116 (1986) (“The Department may use JAGC lawyers to assist in preparing cases and in performing a number of other duties in connection with civil and criminal litigation under our responsibility, without raising issues under the Posse Comitatus Act.”). 9 Neither Allred nor Red Feather considered section 1059 or, of course, whether it constitutes express authorization under the Posse Comitatus Act. Finally, our conclusion that section 1059(a) and (c)(1) does not expressly authorize the military to engage in activities without regard to the restrictions of the Posse Comitatus Act is consistent with DoD’s practices since 2016. For many years now, DoD has deployed military personnel to the southern border to assist DHS, but has not used such personnel to conduct coercive immigration-enforcement activities. This Office, too, has regularly provided advice to DoD concerning the legal restrictions on the use of military in its ongoing support for DHS at the southern border, including with respect to the national emergency declared by the President on February 15, 2019, see Declaring a National Emergency Concerning the Southern Border of the United States, Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). We have advised, for example, regarding whether certain military support provided to DHS is authorized by chapter 15, whether military personnel could engage in coercive civilian law enforcement activities in protecting ports of entry and other federal prop9 The JAGC opinion also stated that “questions under the Posse Comitatus Act may be raised if military lawyers perform prosecutorial functions involving direct contact with civilians, unless such military lawyers are detailed to the Department on a full-time basis and operate under the supervision of departmental personnel.” Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. at 116. The extent to which these “questions” might have been implicated by the facts in Allred is unclear, and in any event we need not address them here. 16 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act erty near the southern border, and whether the Insurrection Act could be invoked to stem the flow of illegal aliens across the southern border. At no point during these discussions has DoD or this Office treated section 1059(a) and (c)(1) as providing express authorization that would effectively moot any further consideration concerning the restrictions imposed by the Posse Comitatus Act. B. Because DoD’s activities at the border remain subject to the Posse Comitatus Act, we must consider whether the rail-support and seal-check duties are consistent with the statute’s restrictions. In accordance with the approach taken in our prior opinions, we review these activities based upon each of the three tests that courts have used in evaluating military activities for compliance with the Posse Comitatus Act. We conclude that DoD’s limited support for CBP inspections does not involve military personnel in the kind of coercive regulatory activity, direct participation in civilian law enforcement, or pervasive conduct that is prohibited by the Posse Comitatus Act absent express authorization. 1. To start, we do not think that the rail-support and seal-check duties would subject any civilians to military regulation, proscription, or compulsion. NIPC Detail, 22 Op. O.L.C. at 105. Courts have explained that “[a] power regulatory in nature is one which controls or directs,” “[a] power proscriptive in nature is one that prohibits or condemns,” and “[a] power compulsory in nature is one that exerts some coercive force.” United States v. Yunis, 681 F. Supp. 891, 895‒96 (D.D.C. 1988), aff’d 924 F.2d 1086 (D.C. Cir. 1991); United States v. Gerena, 649 F. Supp. 1179, 1182‒83 (D. Conn. 1986) (same). The Eighth Circuit considered when military activities subject civilians to military regulation, proscription, or compulsion in Bissonette v. Haig. That case was one of several to arise from the U.S. military’s involvement in a 1973 occupation by protesters of the town of Wounded Knee, South Dakota. The plaintiffs alleged that military personnel “maintained or caused to be maintained roadblocks and armed patrols constituting an armed perimeter around the village of Wounded Knee,” which “seized, 17 45 Op. O.L.C. __ (Jan. 19, 2021) confined, and made prisoners [of plaintiffs] against their will,” and they also alleged that “they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance.” 776 F.2d at 1390–91. As to the allegations that troops had engaged in aerial surveillance, the court held that “that this sort of activity does not violate the Posse Comitatus Act.” Id. at 1391. But the court held that the military’s alleged activities in seizing individuals while setting up a roadblock sufficiently stated a claim that the troops had “in violation of the Posse Comitatus Act” engaged in activities that “were ‘regulatory, proscriptive, or compulsory’” because they involved a claim that military personnel “directly restrained plaintiffs’ freedom of movement.” Id. Here, military personnel performing the rail-support and seal-check duties are not expected to have any contact with civilians—much less to control, direct, coerce, or otherwise regulate them. See United States v. Bacon, 851 F.2d 1312, 1313 ‒14 (11th Cir. 1988) (per curiam) (Army agent’s undercover role in state drug investigation did not subject citizenry to regulatory exercise of military power, and therefore did not violate the Posse Comitatus Act); United States v. Moraga, No. 01-964, 2002 WL 35649965, at *10 (D.N.M. 2002) (use of air force dog and handler did not “compel the Defendant to do anything or forbid the Defendant from doing anything”); Electronic Surveillance at 11 (“Mere assistance by military personnel in the monitoring of court-authorized electronic surveillance by civilian authorities . . . is neither regulatory nor proscriptive, nor is it a compulsory application of military power”). Military personnel would provide support to CBP personnel by engaging in plain-view inspections of property and the fairly ministerial tasks of opening unoccupied vehicles. There is no sense in which such actions would subject civilians to military regulation, proscription, or compulsion. 2. We next consider the “direct active participation” test, which asks whether military personnel have “direct active” involvement in law enforcement activities, or instead are playing a “passive role in civilian law enforcement activities.” Red Feather, 392 F. Supp. at 924; see NIPC Detail, 22 Op. O.L.C. at 105; Domestic Terrorism at 4; Electronic Surveillance at 8. This test “permits a broad degree of cooperation between the military and civilian law enforcement.” NIPC Detail, 22 Op. O.L.C. at 18 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act 105. “Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.” Red Feather, 392 F. Supp. at 925; see also Immigration Laws at 2. By contrast, [a]ctivities which constitute a passive role which might indirectly aid law enforcement are: mere presence of military personnel under orders to report on the necessity for military intervention; preparation of contingency plans to be used if military intervention is ordered; advice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics; presence of military personnel to deliver military materiel, equipment or supplies, to train local law enforcement officials on the proper use and care of such material or equipment, and to maintain such materiel or equipment; aerial photographic reconnaissance flights and other like activities. Red Feather, 392 F. Supp. at 925 (emphasis omitted); see also Yunis, 924 F.2d at 1094. We believe that the military’s provision of personnel to perform the rail-support and seal-check duties is permissible indirect, passive assistance under this framework. These duties would not require military personnel to perform any traditional law enforcement task, such as the arrest, seizure, or search of a person. There is a sense in which these duties may involve military personnel “searching” commercial cargo trucks and containers and vehicle compartments, at least to a small degree. 10 But our precedents make clear that not every activity that could be described as a “search,” even if it is a “search” for purposes of the Fourth Amendment, constitutes direct participation in civilian law enforcement. The opening of a closed vehicle would likely constitute a search under the Fourth Amendment. See United States v. Jones, 565 U.S. 400, 406 n.3 (2012) (“Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”). A plain-view search, however, of the seals on a cargo container would not. See id. at 412 (“This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.”); New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”). 10 19 45 Op. O.L.C. __ (Jan. 19, 2021) In Military Use of Infrared Radars, for instance, we advised that military personnel do not directly participate in civilian law enforcement merely by providing aerial reconnaissance using Forward Looking Infrared Radars (“FLIR”) technology to assist in identifying structures suspected of illegal drug production. See 15 Op. O.L.C. at 36–38. We assumed without deciding that FLIR surveillance might be a “search” for purposes of the Fourth Amendment but did not find that fact dispositive. 11 Instead, we concluded that “searches” constitute direct participation “at most” when they involve “physical contact with civilians or their property,” and even then “perhaps only” when the searches involve “physical contact that [is] likely to result in a direct confrontation between military personnel and civilians.” Id. at 39–40; see also Domestic Terrorism at 4 (same); Military Use of Infrared Radars, 15 Op. O.L.C. at 44 (reading the direct-participation restriction “to prohibit only activity that entailed direct, physical confrontation between military personnel and civilians”). And the courts too agree that surveillance operations, such as aerial reconnaissance, in support of civilian law enforcement constitute permissible indirect assistance. See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (“[I]n examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that ‘aerial photographic reconnaissance flights and other like activities’ do not reflect direct military involvement violative of the Posse Comitatus Act.” (quoting Red Feather, 392 F. Supp. at 925, and collecting cases)); Bissonette, 776 F.2d at 1391 (“[P]laintiffs charge that they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance. As we have already noted . . . this sort of activity does not violate the Posse Comitatus Act.”). 12 See Military Use of Infrared Radars, 15 Op. O.L.C. at 48; see generally Kyllo v. United States, 533 U.S. 27, 34 (2001) (“We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where (as here) the technology in question is not in general public use.” (citation and quotation marks omitted)). 12 In United States v. Johnson, 410 F.3d 137, 147 (4th Cir. 2005), the Fourth Circuit stated that “[a] blood test constitutes a search under the Fourth Amendment . . . and thus falls under the rubric of law enforcement activities” requiring express congressional authorization. Unlike the rail-support and seal-check duties, the conduct of a blood test is an investigative activity and puts military officers within the chain of custody of evi11 20 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act We reached similar conclusions in opinions approving DoD support for civilian law enforcement by supplying drug-detecting dogs with military handlers. We agreed that DoD may provide this support “to identify packages containing illegal narcotics” because “the proposed use of the dogs and their handlers will not involve confrontation with civilians.” Use of Navy Drug-Detecting Dogs by Civilian Postal Inspectors, 13 Op. O.L.C. 312, 316 (1989); see also DoD Drug-Detecting Dogs, 13 Op. O.L.C. at 186 (“[W]e believe that drug-detecting dogs may be used in searches of packages and places in the absence of persons with whom a confrontation may arise, as long as the actual seizure is made by civilian law enforcement personnel.”). This was true notwithstanding the likelihood of physical contact with civilian property. See generally United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007) (“Ajax jumped and placed his front paws on the body of the car in several places during a walk-around sniff that took less than one minute.”). Courts have also held that military activities constituted permissible indirect support even where those activities involved some degree of physical contact with civilian property. In United States v. Khan, 35 F.3d 426 (9th Cir. 1994), the court held that Navy “logistical support and backup security” for a Coast Guard operation to interdict a suspected drug-smuggling ship constituted permissible indirect assistance notwithstanding the fact that Navy personnel actually boarded the ship. Id. at 431‒32. The court explained that “Navy personnel on board the [ship] had acted under the command of the Coast Guard, and that only the Coast Guard had searched the ship and arrested the crew.” Id. at 432. Similarly, the court in United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998), concluded that similar Navy assistance was permissible indirect assistance to civilian law enforcement, even though, in addition to boarding the ship, “Navy engineers in the present case moved the fluids among the fifteen tanks” in order to facilitate a search of the tanks. Id. at 1259. 13 dence. We do not read Johnson as holding that every military activity that might constitute a “search” for purposes of the Fourth Amendment necessarily constitutes the direct active use of military personnel in civilian law enforcement for purposes of the Posse Comitatus Act. 13 In Johnson, military personnel performed a blood test that “would yield the primary evidence of guilt of a DUI offense and, should the driver not plead guilty and go to trial, the serviceman who performed the test likely would be called to testify.” 410 F.3d at 148. By contrast, military personnel performing the rail-support and seal-check duties would 21 45 Op. O.L.C. __ (Jan. 19, 2021) We think that both the rail-support and seal-check duties are plainly permissible under these precedents. The seal-check duty neither “involv[es] physical contact with civilians or their property” nor is “likely to result in a direct confrontation between military personnel and civilians.” Military Use of Infrared Radars, 15 Op. O.L.C. at 39–40. Military personnel would merely observe the exteriors of cargo trucks and containers, and would have no physical contact with that property. With respect to the rail-support duty, military personnel would prepare the vehicles for inspection by CBP by opening vehicle doors, trunks, and hoods, but such cursory and incidental physical contact does not amount to direct participation. The military personnel’s assistance to CBP is not likely to result in any interactions with civilians, since the vehicles would be unmanned and in a restricted rail yard. And if military personnel notice anything suspicious, they would immediately notify CBP personnel and not participate in any resulting law enforcement activities. Because the rail-support and seal-check duties would not require military personnel to directly participate in traditional law enforcement activities, such as a search, seizure, or arrest, as those terms are understood in common parlance, and would not risk a confrontation with civilians, we do not believe that either duty would involve the direct active participation of military personnel in civilian law enforcement. 3. Finally, the rail-support and seal-check duties in no way involve the activities of military personnel “pervad[ing] the activities of civilian law enforcement.” NIPC Detail, 22 Op. O.L.C. at 105. The purpose of these duties is to allow military personnel to provide support for ongoing civilian law enforcement activities in which CBP personnel take the lead role. There is no sense in which DoD’s support would pervade CBP’s activities. The federal courts have recognized that DoD’s actions will not be pervasive where they merely provide support to civilian law enforcement. In Yunis, 681 F. Supp. at 895, the district court held that the Navy’s inperform no investigative activities and would not be within the chain of custody of evidence. 22 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act volvement in the apprehension, arrest, and transportation of the defendant did not “pervade the activities of civilian authorities” because “it was a civilian operation originating from within the FBI.” Further, “[u]nder the direction of the FBI,” Navy personnel never participated in the arrest or interrogation of the defendant, and the Navy merely “gave the necessary support in the form of equipment, supplies, and services.” Id. at 895; see also Yunis, 924 F.2d at 1094 (same). More recently, in United States v. Holloway, 531 F. App’x 582 (6th Cir. 2013) (per curiam), the court held that the actions of a Naval officer in discovering and notifying civilian law enforcement of the defendant’s possession of child sexual abuse material did not “permeate” civilian law enforcement because, “after the Navy agent turned over the information she had on Holloway to the civil authorities, the military was not involved in the subsequent search of his home, the seizure of evidence, or his arrest.” Id. at 583; see also Hayes, 921 F.2d at 103 (actions of military personnel did not pervade civilian law enforcement because, despite sharing information with the police and offering other aid, they “did not become involved in any of the activities typically performed by the police, namely the arrest, the search of the premises where the transaction occurred, the seizure of the evidence, or the transportation of that evidence to the station for testing”). 14 As in these cases, the role of military personnel performing the railsupport and seal-check duties would be strictly limited and peripheral to the CBP activities that the duties would support—investigative activities that would be undertaken by CBP personnel and not military personnel. Military personnel also would operate under the direct supervision of CBP personnel. The activities of military personnel would not come close to pervading CBP’s law enforcement activities. 14 In United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015), the court held that the military “investigation in this case pervaded the actions of civilian law enforcement” where the personnel “initiated an operation to search for individuals sharing child pornography online,” and themselves testified that they conducted an “active” investigation. Id. at 1275. Unlike in Dreyer, military personnel performing the rail-support and seal-check duties would not be leading an investigation, but merely assisting CBP in its activities. 23 45 Op. O.L.C. __ (Jan. 19, 2021) III. We turn next to the port-of-entry and checkpoint-observer duties. We believe that these duties fall within the types of activities expressly authorized under chapter 15, see 10 U.S.C. § 274, and, therefore, DoD is expressly authorized to perform those duties without the need for further evaluation under the Posse Comitatus Act. We understand that military personnel performing these duties would monitor the output of CBP electronic systems that automatically collect and process data, such as license-plate information, regarding individuals and vehicles passing through a port of entry or U.S. Border Patrol checkpoint and display an alert message if the system identifies a concern. Military personnel would perform this duty in an enclosed location, either in close proximity to the port of entry or checkpoint or from a remote location. If military personnel see an alert message from the CBP electronic display, then they would notify CBP personnel who would take action in response. Military personnel would have no involvement in any resulting inspection or investigation. 15 Section 274 is one of several provisions of chapter 15 that authorize the military to provide certain assistance to civilian law enforcement. Congress originally enacted section 274 in 1981, when it added a new subchapter to title 10, specifically concerning DoD support for civilian law enforcement, in order to provide a legislative clarification of congressional intent with respect to the Posse Comitatus Act so as to “maximize[] the degree of cooperation between the military and civilian law enforcement.” Military Use of Infrared Radars, 15 Op. O.L.C. at 45 (quoting H.R. Rep. No. 97-71, pt. 2, at 3 (1981)); Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, § 905(a)(1), 95 Stat. 1099, 1115 (1981). Any Military personnel additionally would be expected to visually observe and maintain situational awareness of their port-of-entry or checkpoint environments and to notify CBP personnel of anything suspicious. We understand that, to fulfill this expectation, military personnel would merely report any suspicious activity observed while doing their job. This additional aspect of the duty is expressly authorized by 10 U.S.C. § 271(a), which allows military personnel to provide “any information collected during the normal course of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials.” We think that support provided under chapter 15 would itself be a military operation. 15 24 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act support for civilian law enforcement that is authorized by section 274 is expressly authorized for purposes of the Posse Comitatus Act (although such activities must be done consistent with the regulatory restrictions required by section 275). See Domestic Terrorism at 3‒5. Section 274 authorizes DoD to provide support in the form of operating equipment. Section 274(b)(1) authorizes DoD, “upon request from the head of a Federal law enforcement agency, [to] make Department of Defense personnel available to operate equipment” for the purpose of enforcing, among other laws, criminal violations of immigration and customs laws. 10 U.S.C. § 274(b)(1)(A), (b)(4)(A). Section 274(b)(2) requires that such support may be provided only for certain specifically listed purposes, but none of those purposes encompasses the full range of the port-of-entry and checkpoint-observer duties. 16 Section 274(c), however, contains a catch-all provision specifying that military personnel may “operate equipment for purposes other than described in subsection (b)(2)” if “such support does not involve direct participation by such personnel in a civilian law enforcement operation unless such direct participation is otherwise authorized by law.” We think that the port-of-entry and checkpoint-observer duties are authorized by section 274(c). Military personnel would perform these duties by operating CBP electronic equipment in an enclosed location and reporting upon alert messages that may indicate the possibility of unlawful conduct. We understand that CBP personnel use the information gathered in these operations to detect violations of the criminal immigration and customs laws. These duties thus would involve the use of military personnel “to operate equipment” with respect to criminal violations of immigration and customs laws, as authorized by 10 U.S.C. § 274(b)(1)(A). See also id. § 274(b)(4)(A) (listing applicable criminal laws). The closest potentially applicable purpose specified in section 274(b)(2) is the “[d]etection, monitoring, and communication of the movement of surface traffic outside of the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.” 10 U.S.C. § 274(b)(2)(B). We understand, however, that some of the activity here would not fit within that purpose because it would involve monitoring surface traffic moving well within the boundaries of the United States, and in some instances at checkpoints that are more than 25 miles away from the border. 16 25 45 Op. O.L.C. __ (Jan. 19, 2021) These activities, moreover, would not “involve direct participation by such personnel in a civilian law enforcement operation.” Id. § 274(c). We read this language in parallel with the restriction on “direct participation” required under 10 U.S.C. § 275. See Military Use of Infrared Radars, 15 Op. O.L.C. at 46. As discussed above, that reference codifies the “direct active participation” test for whether military activity violates the Posse Comitatus Act. See Domestic Terrorism at 4; Electronic Surveillance at 8; see also supra Part I (describing the three tests). The text of section 274(c) is materially similar to section 275 insofar as both bar the military from engaging in “direct participation,” either categorically “in a civilian law enforcement operation,” 10 U.S.C. § 274(c), or in the slightly more specific “search, seizure, arrest, or other similar activity,” id. § 275. We do not think that the port-of-entry and checkpoint-observer duties involve direct participation in a civilian law enforcement operation. As discussed above, the operation of surveillance equipment by military personnel, such as monitoring an infrared radar surveillance system, or operating airborne surveillance equipment, does not itself constitute “direct participation” in civilian law enforcement. See supra Part II.B.2. In 2002, for example, we concluded that military personnel may assist an FBI domestic terrorism investigation by piloting an airplane that carried surveillance equipment, operating the surveillance equipment, and transmitting the imagery to the FBI, with FBI personnel responsible for the overall conduct of the investigation, including directing the aircraft to focus on particular targets. See Domestic Terrorism at 2, 4. And in 1994, we concluded that military personnel do not engage in direct participation in civilian law enforcement activities in serving “as contemporaneous monitors of electronic surveillance transmissions.” Electronic Surveillance at 2. We explained that such “remote monitoring through various forms of electronic assistance” was “distinct from such activities as ‘planting’ the surveillance equipment at the targeted location or carrying a concealed recording device while acting as an undercover agent.” Id. at 2, 8. As in these instances, the port-of-entry and checkpoint-observer duties would not involve “physical contact with civilians or their property.” Domestic Terrorism at 4 (quotation marks omitted); see also Electronic Surveillance at 8; Military Use of Infrared Radars, 15 Op. O.L.C. at 48. 26 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The port-of-entry and checkpoint-observer duties would involve the use of military personnel “to operate equipment” with respect to criminal violations of immigration and customs laws, 10 U.S.C. § 274(b)(1), and would not involve “direct participation” in civilian law enforcement, id. § 274(c). Therefore, such assistance is expressly authorized for purposes of the Posse Comitatus Act by section 274. 17 IV. We conclude that neither chapter 15 of title 10 of the United States Code nor section 1059 of the FY 2016 NDAA expressly authorize the rail-support and seal-check activities for purposes of the Posse Comitatus Act, but that neither of those activities would involve the use of the mili17 We also think that the port-of-entry and checkpoint-observer duties are consistent with DoD Instruction 3025.21, which codifies the restriction on “direct participation” with more particularized restrictions on “direct civilian law enforcement assistance,” id. encl. 3, ¶ 1.c. Some of those restrictions simply track the terms contained within 10 U.S.C. § 275, such as “search,” and should be construed in the same fashion. Enclosure 3 of this Instruction introduces a new term by restricting DoD personnel from engaging in “surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or acting as undercover agents, informants, investigators, or interrogators.” DoD Instruction 3025.21 encl. 3, ¶ 1.c(1)(f ). We view this reference to “surveillance” to encompass only the kinds of activities that involve “direct civilian law enforcement assistance,” such as the targeting and tracking of specific individuals. The regulation pairs the term “surveillance” with “pursuit,” “acting as undercover agents, informants, investigators, or interrogators,” and we thus must read “surveillance” to bear a similar meaning to these neighboring words. See, e.g., Yates v. United States, 574 U.S. 528, 543 (2015) (stating that “the principle of noscitur a sociis” counsels that “a word is known by the company it keeps”). If “surveillance” were construed more broadly, then it would prohibit DoD from engaging in activities that are plainly authorized under the regulation, such as the “[d]etection, monitoring, and communication of the movement” of sea, air, and surface traffic near the border. Id. encl. 3, ¶ 1.d(5)(b)(1)‒(2). Thus, we do not think that either the port-of-entry or checkpoint-observer duties involve impermissible “surveillance” under the regulation. DoD Instruction 3025.21 also prohibits military personnel from conducting a “search.” Id. encl. 3, ¶ 1.c(1)(b). As with the regulation’s prohibition of “surveillance,” we read this portion of the regulations to apply only to a “search” that would constitute “direct civilian law enforcement assistance,” which, for reasons noted above, the rail-support and sealcheck duties would not involve. While the rail-support and seal-check duties could be said to involve a “search” in some sense, we do not believe that they would involve a “search” as that term is used in this regulation. See supra Part II.B.2. 27 45 Op. O.L.C. __ (Jan. 19, 2021) tary “as a posse comitatus or otherwise to execute the laws,” 18 U.S.C. § 1385, so as to violate that Act. We further conclude that the port-ofentry and checkpoint-observer activities are expressly authorized by 10 U.S.C. § 274(c). STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 28

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(Slip Opinion) Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The Department of Defense’s proposed use of military personnel to provide limited assistance with respect to certain Customs and Border Protection inspection and observation functions along the southern border of the United States is permissible under the Posse Comitatus Act and applicable regulations. January 19, 2021 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE The Posse Comitatus Act, 18 U.S.C. § 1385, restricts the use of “any part of the Army or the Air Force” in civilian law enforcement, unless expressly authorized by law. Consistent with these restrictions, for many years, the Department of Defense (“DoD”) has provided assistance to the efforts by the Department of Homeland Security (“DHS”) to stem the illegal flow of persons and contraband across the southern land border between the United States and Mexico. This assistance is principally authorized by chapter 15 of title 10 of the United States Code, 10 U.S.C. §§ 271–284, which allows DoD to provide a number of different forms of support to civilian law enforcement. Congress endorsed DoD’s ongoing efforts in 2015 by providing that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1059, 129 Stat. 986‒87 (2015) (“FY 2016 NDAA”). In February 2020, DHS requested that DoD perform 26 specific duties in support of U.S. Customs and Border Protection (“CBP”) operations at the southern border for fiscal year 2021. See Memorandum for Oliver Lewis, Captain, USN, Executive Secretary, Department of Defense, from Juliana Blackwell, Acting Executive Secretary, Department of Homeland Security, Re: Request for Extension of Department of Defense (DoD) Assistance in Support of U.S. Customs and Border Protection’s (CBP) Southwest Border (SWB) Security Mission Through Fiscal Year (FY) 2021 (Feb. 3, 2020). DoD approved support for 22 of these 26 duties, most of which involved the kind of support that DoD already had been providing 1 45 Op. O.L.C. __ (Jan. 19, 2021) to DHS, such as motor-transport operations support and a crisis-response force for certain urgent needs. See Memorandum for the Executive Secretary, Department of Homeland Security, from David S. Soldow, Captain, USN, Executive Secretary, Department of Defense, Re: Request for Extension of Department of Defense Assistance in Support of U.S. Customs and Border Protection’s Southern Border Security Mission Through Fiscal Year 2021 (June 23, 2020). DoD, however, held off on approving support for four duties pending further consideration as to whether they would be consistent with the Posse Comitatus Act and DoD regulations implementing chapter 15. Those four duties concern rail-support, seal-check, port-of-entry-observer, and checkpoint-observer functions. We understand that the rail-support duty would have military personnel assist CBP personnel responsible for inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. The seal-check duty would involve visually verifying whether commercial cargo trucks and containers have intact and unbroken seal tags, which CBP requires for trucks and containers passing through ports of entry. The port-of-entry and checkpoint observers would monitor the output of CBP’s electronic systems that automatically collect and process data, such as license-plate information, about individuals and vehicles passing through a port of entry or U.S. Border Patrol checkpoint, and display an alert message if the system identifies a concern. We conclude that neither the Posse Comitatus Act nor DoD’s regulations prohibit the requested assistance. The rail-support and seal-check duties would not violate the Posse Comitatus Act because they would not involve military personnel subjecting civilians to military regulation, directly or actively participating in civilian law enforcement activities, or pervading the activities of civilian law enforcement. The port-of-entry and checkpoint-observer duties would not violate the Posse Comitatus Act because they would involve operating equipment and would not involve direct participation in civilian law enforcement activities, as expressly authorized by 10 U.S.C. § 274(c). All four duties would be similar to the types of support that the courts and this Office’s precedents have held to be consistent with the Posse Comitatus Act and DoD regulations, and that the military is authorized to provide under chapter 15. 2 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act I. The Posse Comitatus Act generally prohibits the use of the military to engage in civilian law enforcement activities. At English common law, the sheriff had the right to summon a body of available adults, the posse comitatus, to assist in executing the laws or restoring civil order. See Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. 321, 322 (1989). This practice continued in the United States, and in the Judiciary Act of 1789, Congress vested the first federal law enforcement officers, the U.S. Marshals, with the “power to command all necessary assistance in the execution of [their] duty.” Act of Sept. 24, 1789, ch. 20, § 27, 1 Stat. 73, 87. That power remains with the U.S. Marshals Service, now codified at 28 U.S.C. § 566(c). In enacting the Posse Comitatus Act in 1878, Congress sought to prevent civilian law enforcement officials from generally relying upon the U.S. Army to assist with the enforcement of the civilian laws. The statute arose out of the objections of southern States to the use of the U.S. Army in civilian law enforcement during the Reconstruction era. See Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies, 15 Op. O.L.C. 36, 42 (1991) (“Military Use of Infrared Radars”); see Act of June 18, 1878, ch. 263, § 15, 20 Stat. 145, 152; 7 Cong. Rec. 3845‒3852 (May 27, 1878); 7 Cong. Rec. 4239‒4248 (June 7, 1878). But the statute’s restrictions are not limited to that historical episode and instead reflect an American tradition of limiting direct military involvement in civilian law enforcement. See, e.g., Laird v. Tatum, 408 U.S. 1, 15 (1972). In its current form, the statute provides that, except where “expressly authorized by the Constitution or Act of Congress,” public officials may not use “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the law.” 18 U.S.C. § 1385. 1 The prohibition thus precludes “military personnel [from] applying force to the civilian community in the normal course of civil government” and prevents “actual or Although the Posse Comitatus Act applies only to the Army and the Air Force, DoD regulations implementing similar restrictions apply to the Navy and the Marines. See DoD Instruction 3025.21, ¶ 4.b, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). The Secretary of Defense, however, is authorized to make exceptions on a case-by-case basis. See id. encl. 3, ¶ 3. 1 3 45 Op. O.L.C. __ (Jan. 19, 2021) threatened coercion by persons subject to military discipline on behalf of civil law enforcement officers.” Letter for Deanne Siemer, General Counsel, Department of Defense, from Mary Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 5 (Mar. 24, 1978) (“Lawton Letter”). As relevant here, Congress has expressly authorized the military to support civilian law enforcement under chapter 15. Among other things, chapter 15 authorizes the military to provide to civilian law enforcement information acquired in the normal course of military training or operations; equipment, training, and advice; and military personnel to maintain and operate equipment. See 10 U.S.C. §§ 271–74. Chapter 15 also authorizes military personnel to perform additional tasks in support of counterdrug activities. See 10 U.S.C. § 284. But while granting DoD authority to assist civilian law enforcement, Congress retained the core prohibition of the Posse Comitatus Act by requiring that the Secretary of Defense issue regulations “as may be necessary to ensure that any activity . . . under this chapter does not include or permit the direct participation” of a member of the military “in a search, seizure, arrest, or other similar activity.” Id. § 275. The Secretary has implemented section 275 in DoD Instruction 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). The somewhat oblique prohibition under the Posse Comitatus Act against using the military as “a posse comitatus or otherwise to execute the law,” 18 U.S.C. § 1385, has led courts and this Office to employ different tests against which to measure whether the activities in question comply with this prohibition. See Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal Division, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military Personnel for Monitoring Electronic Surveillance at 11 (Apr. 5, 1994) (“Electronic Surveillance”) (“[T]he courts have employed three slightly varying formulations of the test for determining whether military involvement in civilian law enforcement has crossed the line separating proper activity from violations of the PCA”); Riley v. Newton, 94 F.3d 632, 636 (11th Cir. 1996) (describing “three different tests”); United States v. Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991) (recognizing that courts have employed “one of three tests”). We have recognized that an action “does not violate the Posse Comitatus Act unless it actually regu4 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act lates, forbids, or compels some conduct on the part of those claiming relief.” Electronic Surveillance at 10 (quoting Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir. 1985), aff’d en banc, 800 F.2d 812 (8th Cir. 1986), aff’d, 485 U.S. 264 (1988)); see also Lawton Letter at 15‒16. Under this test, courts consider whether a military activity “is that which is regulatory, proscriptive, or compulsory in nature and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority.” United States v. McArthur, 419 F. Supp. 186, 194 (D.N.D. 1974), aff’d sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976) (per curiam). Courts have also employed a slightly different formulation: whether the military is conducting law enforcement activities, rather than merely supporting them, which is determined by whether the activities involve “the direct active participation of federal military troops in law enforcement activities.” United States v. Red Feather, 392 F. Supp. 916, 924 (D.S.D. 1975). As noted, this is the test that Congress directed the Secretary of Defense to impose as a restriction on DoD’s support for civilian law enforcement under chapter 15. See 10 U.S.C. § 275. Finally, in some cases, courts have employed a third test to ensure that the military is not indirectly taking the lead in law enforcement activities, even when it is not operating directly on civilians. These courts ask whether the military activity in question “pervade[d] the activities of civilian officials.” Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990) (quoting United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988) (per curiam)). In a recent case, the Ninth Circuit, sitting en banc, concluded that a Naval Criminal Investigative Service (“NCIS”) investigation into child pornography on the Internet violated DoD regulations restricting law enforcement activity by the Navy, because the NCIS investigation “pervaded the actions of civilian law enforcement.” United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015) (en banc). 2 2 One issue in Dreyer was whether NCIS was targeting offenses by military personnel. See 804 F.3d at 1276. It is well established that the Posse Comitatus Act does not restrict the actions of military personnel “where the military has a legitimate interest for its own proceedings or matters involving the internal administration of the military or the performance of its proper functions.” Permissibility Under Posse Comitatus Act of Detail of Defense Civilian Employee to the National Infrastructure Protection Center, 22 Op. O.L.C. 103, 105‒06 (1998) (alteration and quotation marks omitted); see id. at 106 5 45 Op. O.L.C. __ (Jan. 19, 2021) In our prior opinions, we have often applied the “direct active participation” test in considering whether the activities were consistent with the restriction applicable to support provided under chapter 15. See, e.g., Memorandum for the Attorney General from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Department of Defense Assistance in an Federal Bureau of Investigation Domestic Terrorism Investigation at 4 (Nov. 5, 2002) (“Domestic Terrorism”); Military Use of Infrared Radars, 15 Op. O.L.C. at 38–39; Use of Department of Defense Drug-Detecting Dogs to Aid in Civilian Law Enforcement, 13 Op. O.L.C. 185, 186 (1989) (“DoD Drug-Detecting Dogs”). But in opinions not involving chapter 15 support, we have generally followed the lead of the courts of appeals by asking whether the military support would be consistent with all three of the court-applied tests, without worrying about whether they are all equally correct, or mutually exclusive. See Permissibility Under Posse Comitatus Act of Detail of Defense Civilian Employee to the National Infrastructure Protection Center, 22 Op. O.L.C. 103, 104 (1998) (“NIPC Detail ”) (asking whether the military support violated any of these tests); Electronic Surveillance at 11 (same); cf. Lawton Letter at 13 (concluding that the assistance in question did not violate the Posse Comitatus Act because, under any of the formulations the courts have employed, the assistance was “indirect and nonauthoritarian”). We understand from your request that DoD would assist DHS by using National Guard members operating under federal command and control, who would be considered as either part of the Army or Air Force while operating in that status. See Use of the National Guard to Support Drug Interdiction Efforts in the District of Columbia, 13 Op. O.L.C. 91, 92 (1989); Mueller v. City of Joliet, 943 F.3d 834, 837 (7th Cir. 2019). 3 Because those members would be subject to the Posse Comitatus Act, we must first consider whether Congress has expressly authorized the mili(explaining that “[n]othing in the [Posse Comitatus Act] suggests that Congress intended to circumscribe military participation in legitimately military matters”). Separately, the Posse Comitatus Act does not apply outside United States territory. See Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at 344. 3 By contrast, National Guard troops operating in militia status—that is, under state command and control—are not subject to the Posse Comitatus Act. See Mueller, 943 F.3d at 837; Clark v. United States, 322 F.3d 1358, 1367–68 (Fed. Cir. 2003). 6 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act tary to perform the four duties at issue. 4 Where Congress has not, we then consider whether those tasks nevertheless would be consistent with the Posse Comitatus Act. II. We begin with the rail-support and seal-check duties. Both tasks would involve military personnel providing support to CBP in inspecting articles coming across the border. Neither would involve the military engaging or interacting directly with any civilians or assuming primary responsibility for searching the vehicles, cargo trucks, or containers in question. Military personnel would be under the direct supervision of CBP personnel, would not be expected to have any contact with civilians, and would not be expected to take custody of any evidence that might be used in any subsequent legal proceeding, such as a criminal prosecution. Both military and CBP personnel would receive training to ensure that they clearly understand the scope of the approved activities of the military personnel. We understand that military personnel performing the rail-support duty would assist CBP personnel in inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. This inspection would occur in a secured and private rail yard, and vehicle owners would have signed waivers authorizing the inspection. Military personnel would open the doors, trunks, and hoods of unoccupied vehicles to prepare them for CBP personnel’s subsequent inspection of the spaces within the vehicles. Military personnel would not participate in that inspection. Military personnel would not be expected to make any observations as they open the vehicle doors, trunks, and hoods, but if they did notice something suspicious, they would immediately notify CBP personnel. Military personnel would have no involvement in any subsequent action. We do not believe that, under the facts presented, DoD’s assistance to DHS would be expressly authorized by the Constitution. We have previously described the constitutional exception to the PCA as applying to “any use of the military for constitutional purposes,” including the deployment of “troops pursuant to a plenary constitutional authority.” Memorandum for the Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Determination of Enemy Belligerency and Military Detention at 9 (June 8, 2002). DoD’s assistance here to support DHS’s mission would not involve the plenary constitutional authority of the President. 4 7 45 Op. O.L.C. __ (Jan. 19, 2021) We understand that the seal-check duty would involve similar support to CBP personnel. Military personnel would visually verify whether commercial cargo trucks and containers have intact and unbroken seal tags, which are required for the trucks and containers as they pass through ports of entry. This activity would take place at locations secured and controlled by CBP. Seal tags are located in plain view on the outside of the trucks and containers. In some cases, the cargo truck driver may be in the cabin of the truck while military personnel check whether the truck’s seal tag is intact, but the seal tag is located at the rear of the truck and military personnel are not expected to have any contact with the driver. If military personnel notice a discrepancy in a seal tag, then they would immediately notify CBP personnel and would not participate in any subsequent inspection performed by CBP personnel. A. We first consider whether these tasks are expressly authorized under chapter 15 or under the FY 2016 NDAA. We think that the chapter 15 question is straightforward, because neither the rail-support or seal-check duties fit within the tasks authorized under chapter 15. Sections 271 to 274 authorize DoD to support civilian law enforcement agencies by providing information, military equipment and facilities, training and advising, or the maintenance and operation of equipment. See 10 U.S.C. § 271–74. None applies here. Section 284(b)(6) likewise authorizes DoD to assist through the “detection, monitoring, and communication” of air, sea, and surface traffic within designated parameters of the U.S. borders, but those provisions do not speak to the inspection of goods. Likewise, we do not believe that any of the other activities authorized by section 284(b) would readily apply to these tasks. Whether section 1059 expressly authorizes the rail-support or sealcheck duties for purposes of the Posse Comitatus Act, however, is a closer question. As relevant here, section 1059(a) states that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” FY 2016 NDAA § 1059(a). 5 The section continues: 5 Section 1059 was enacted as part of the FY 2016 NDAA, but the section has no expiration date and remains in effect. See, e.g., United States v. Hernandez-Garcia, No. 19- 8 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The assistance provided under subsection (a) may include the following: (1) Deployment of members and units of the regular and reserve components of the Armed Forces to the southern land border of the United States. (2) Deployment of manned aircraft, unmanned aerial surveillance systems, and ground-based surveillance systems to support continuous surveillance of the southern land border of the United States. (3) Intelligence analysis support. Id. § 1059(c). The rail-support and seal-check duties do not fall into any of the categories of activities specifically mentioned in section 1059(c)(2) and (c)(3): They involve neither the “[d]eployment” of the aircraft and surveillance equipment nor “[i]ntelligence analysis support.” The duties could perhaps be viewed as falling within section 1059(c)(1), which permits the general “[d]eployment” of military personnel “to the southern land border” without specifying what missions such personnel would perform. In addition, the categories in subsection (c) are not exclusive. The statute makes clear that the assistance “may include the following.” See Burgess v. United States, 553 U.S. 124, 131 n.3 (2008) (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation.” (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutory Construction § 47:7, at 305 (7th ed. 2007)). So we must also consider whether the rail-support and seal-check duties fall within the statute’s authorization for general “assistance” to CBP for “purposes of increasing ongoing efforts to secure the southern land border” under section 1059(a). CR-4373-GPC, 2020 WL 1083427, at *2 (S.D. Cal. Mar. 6, 2020) (“[T]he provision lacks any language expressly limiting its operative terms to fiscal year 2016.”); United States v. Rios-Montano, 438 F. Supp. 3d 1149, 1151–52 (S.D. Cal. 2020) (rejecting the argument that section 1059’s “legal effect lapsed with fiscal year 2016” because the section “provides an unrestrained grant of authority” and “contains no sunset provision”); see generally Memorandum for Mary De Rosa, Legal Adviser, National Security Council, from David J. Barron, Acting Assistant Attorney General, Re: Engagement with the International Criminal Court at 3 (Jan. 15, 2010) (noting that the “presumption against permanency” does not “automatically apply” to authorization acts (quotation marks omitted)). 9 45 Op. O.L.C. __ (Jan. 19, 2021) The question then is whether either of these sections constitute express authorization for purposes of the Posse Comitatus Act. Both section 1059(a) and section 1059(c)(1) no doubt generally authorize deploying military personnel to the southern border to provide “assistance” to CBP in support of “ongoing efforts to secure the southern land border.” But it does not follow that this authorization necessarily “expressly” authorizes actions that would otherwise violate the Posse Comitatus Act. 18 U.S.C. § 1385. In 1878, as now, “expressly” means “[i]n an express manner,” “in direct terms,” or “plainly.” Noah Webster, A Dictionary of the English Language 156 (1878 ed.); Henry Campbell Black, Dictionary of Law Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern 462 (1891) (defining “express” to mean “[m]ade known distinctly and explicitly, and not left to inference or implication”); Webster’s (Third) New International Dictionary of the English Language 803 (1993) (defining “expressly” to mean “in direct or unmistakable terms.”). Thus, for a statute to authorize a military activity expressly for purposes of the Posse Comitatus Act, we think that it must be clear that Congress has approved that activity without regard to the restrictions on using the military “as a posse comitatus or otherwise to execute the laws.” 18 U.S.C. § 1385; see Dorsey v. United States, 567 U.S. 260, 273– 75 (2012) (holding that statutory requirement that the “repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide,” 1 U.S.C. § 109, is satisfied where the “plain import” or “fair implication” of the repealing Act is that it should apply to pre-Act offenders). We do not think that a general authorization of “assistance” necessarily means that the restrictions of the Posse Comitatus Act fall away. The generic authorization in section 1059(a) and (c)(1) to “[d]eploy” military personnel “to the southern land border of the United States” for “assistance” to CBP in “ongoing efforts” does not reflect that kind of clear approval. To the contrary, we think that section 1059 points not to new forms of support DoD may provide, but rather toward the types of assistance that DoD had already been providing to CBP as part of “ongoing efforts,” which include the types of activities specifically mentioned in section 1059(c)(2) and (c)(3). A contrary reading would dramatically change DoD’s assistance to these “ongoing efforts,” authorizing DoD to 10 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act perform functions not traditionally done at the southern border, including through “direct participation” by the military “in a search, seizure, arrest, or other similar activity.” 10 U.S.C. § 275; see also Memorandum for Jamie Gorelick, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military to Enforce Immigration Laws at 2 (May 10, 1994) (“Immigration Laws”) (recognizing that the “direct use of the military to detain or arrest suspect aliens would violate” the Posse Comitatus Act “unless otherwise authorized by law”). We think it quite unlikely that Congress would have so significantly changed DoD’s mission at the border by generally authorizing the “deployment” of military personnel to provide “assistance.” Where Congress has affirmatively authorized DoD to provide assistance to law enforcement in other contexts, it has often included restrictions on the military’s “direct participation” in encounters with civilians. In fact, in another provision of the FY 2016 NDAA, Congress authorized the military to provide “assistance” to the Department of Justice in its efforts to investigate domestic bombings of places of public use or of Government facilities. FY 2016 NDAA § 1082(a), 129 Stat. at 1003–04 (codifying 10 U.S.C. § 383, now 10 U.S.C. § 283). In so doing, Congress took care to specify that military personnel were not authorized to engage in “arrest[s]”; any “direct participation in conducting a search for or seizure of evidence”; or any “direct participation in the collection of intelligence for law enforcement purposes,” save in narrowly delineated circumstances. Id. (codifying 10 U.S.C. § 383(c)(2), now 10 U.S.C. § 283(c)(2)); see also 10 U.S.C. § 282(c)(2)(B) (providing similar limited authority for military personnel to engage in searches and seizures in investigating emergency situations involving weapons of mass destructions). Congress provided no such limitation in authorizing “assistance” under section 1059. One could perhaps infer from the absence of such language that Congress intended to authorize DoD to provide assistance to CBP in a manner that did not restrict “direct participation” in arrests, searches, and seizures. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotation marks and brackets omitted)). But we think that the 11 45 Op. O.L.C. __ (Jan. 19, 2021) more likely inference is that Congress sought to authorize the kinds of “ongoing” assistance that DoD had been providing under chapter 15, consistent with the existing statutory restriction on “direct participation” required by 10 U.S.C. § 275. 6 At a minimum, with two plausible interpretations available, we cannot say that Congress expressly authorized the support to proceed without regard to the restrictions of the Posse Comitatus Act. Elsewhere, when Congress has authorized the military to engage in civilian law enforcement activities, it has explicitly stated that the Posse Comitatus Act is inapplicable to those activities, see, e.g., 5 U.S.C. app. 3, § 8(g) (“The provisions of section 1385 of title 18, United States Code, shall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Department of Defense to carry out the purposes of this Act.”); 18 U.S.C. § 831(f )(1) (stating that DoD may provide specified assistance to the Attorney General “[n]otwithstanding section 1385 of this title” if certain conditions are met), or authorized the military to engage in activities that plainly involve coercive action against civilians, see, e.g., 10 U.S.C. § 251 (authorizing the military, under certain circumstances, to “suppress . . . insurrection[s]”); id. § 252 (authorizing the military to “enforce the laws of the United States” and to “suppress . . . rebellion[s]”); id. § 253 (authorizing the military to take needed “measures . . . to suppress . . . any insurrection, domestic violence, unlawful combination, or conspiracy”); 18 U.S.C. § 112(f ) (authorizing the Attorney General to seek the assistance of, 6 This interpretation is consistent with the section 1059’s legislative history, which reflects an intent to authorize “the ongoing efforts by [DoD] to provide additional assistance to secure the southern land border of the United States”—assistance that DoD provided consistent with the Posse Comitatus Act—and desire that DoD “continue these efforts and coordinate with the Secretary of Homeland Security to identify opportunities to provide additional support.” Sen. Rep. No. 114-49, at 206 (2015) (emphases added); see also National Defense Authorization Act for Fiscal Year 2016: Legislative Text and Joint Explanatory Statement 740 (Comm. Print Nov. 2015) (noting that section 1059 “would authorize the Secretary of Defense . . . to provide assistance to [CBP] for the purpose of increasing the ongoing efforts to secure the southern land border of the United States” (emphasis added)). We have not located any legislative history suggesting that Congress intended that military personnel deployed to the border to provide “assistance” to CBP under section 1059 could depart from the sort of assistance the military had previously provided to civilian law enforcement consistent with the Posse Comitatus Act and DoD’s regulations. 12 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act among other agencies “the Army, Navy, and Air Force” in enforcing the criminal prohibition on harming foreign dignitaries); id. § 1751(i) (authorizing the Attorney General to seek the assistance of, among other agencies “the Army, Navy, and Air Force” in investigating the criminal prohibition on murdering or assaulting the President or presidential staff ). See generally Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at 340 (discussing 21 U.S.C. § 873(b), which authorizes the Attorney General to request military assistance to enforce the Controlled Substances Act). We think that these specific authorizations in the U.S. Code for the military to provide particular support reinforce that the more general authorization of assistance in section 1059 should not be read to authorize actions without regard to the limitations of the Posse Comitatus Act. As the Court has recognized, “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). In addition, specific statutory provisions inform the meaning of more general ones, and this canon “has full application . . . to statutes . . . in which a general authorization and a more limited, specific authorization exist side-by-side.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). The contrast between the generality of section 1059 and the specificity of these other provisions suggest that Congress did not intend section 1059(a) and (c)(1) to authorize the “deployment” of military personnel to provide “assistance” to CBP without regard to whether such assistance would otherwise violate the Posse Comitatus Act. This interpretation is consistent with the Office’s prior caution in reading generally worded statutes to authorize the military to engage in coercive civilian law enforcement activities. In 1994, this Office concluded that the Attorney General’s authority to delegate immigration law enforcement functions to “any employee of the United States” did not clearly authorize the Attorney General to delegate such authority to military personnel to engage in immigration-enforcement activities that would otherwise violate the Posse Comitatus Act. 7 See Immigration Laws at 9– 7 The authority was then vested in the Attorney General. See 8 U.S.C. § 1103(a) (1994). The Homeland Security Act of 2002 transferred most immigration-enforcement functions to the Secretary of Homeland Security. See Homeland Security Act of 2002, 13 45 Op. O.L.C. __ (Jan. 19, 2021) 12. We explained that where a determination that a statute constitutes express authority for purposes of the Posse Comitatus Act “would represent a sharp departure from the traditional restrictions embodied” in the statute, the determination “should rest on a well-founded conviction that Congress intended such a result” because “it cannot be assumed that Congress would approve such a major change in the military’s permissible law enforcement role without providing some specific indication that it was doing so.” Id. at 12. The same year, we concluded that general language in the Electronic Communications Privacy Act of 1986 authorizing “government personnel” to assist in electronic surveillance, see 18 U.S.C. § 2518(5), was insufficiently clear to authorize expressly military personnel to engage in surveillance that would otherwise violate the Posse Comitatus Act. See Electronic Surveillance at 4‒6. These precedents suggest that the similarly general authorization in section 1059 does not authorize coercive military participation in civilian law enforcement activities with the requisite clarity. This conclusion also accords with judicial opinions addressing whether an activity is expressly authorized for purposes of the Posse Comitatus Act. Courts have found such express authority when the statute specifically refers to the Posse Comitatus Act. See, e.g., United States v. Stouder, 724 F. Supp. 951, 954 (M.D. Ga. 1989) (“Congress specified in § 8(g) of the Inspector General Act of 1978 that . . . ‘[t]he provisions of section 1385 of title 18, United States Code . . . shall not apply to audits and investigations conducted by . . . the Inspector General of the Department of Defense.’”). They have reached the same conclusion when the statute authorizes the military to engage in a particular activity with such specificity that Congress clearly approved the particular use of the military. 8 Pub. L. No. 107-296, § 1102(2)(A), 116 Stat. 2135, 2273 (2002), as amended by Consolidated Appropriations Resolution, Pub. L. No. 108-7, div. L, § 105(a)(1), 107 Stat. 11, 531 (2003). 8 See, e.g., Gilbert v. United States, 165 F.3d 470, 473‒74 (6th Cir. 1999) (noting that 32 U.S.C. § 112(b) authorizes the National Guard, while not in federal service, to be used for the “purpose of carrying out drug interdiction and counter-drug activities”); United States v. Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995) (“This DEA airlift was specifically authorized by § 1004 of the National Defense Authorization Act for Fiscal Year 1991 (‘NDAA’), which allows military ‘transportation of supplies and equipment for the purpose of facilitating counter-drug activities.’”); United States v. Allred, 867 F.2d 856, 14 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act At the same time, we have identified several decisions that have read somewhat general statutes as constituting express authorization under the Posse Comitatus Act. Of note, two district court judges have suggested, albeit with little analysis, that section 1059 does constitute express authorization under the Posse Comitatus Act. See United States v. HernandezGarcia, No. 19-CR-4373-GPC, 2020 WL 1083427, at *3 (S.D. Cal. Mar. 6, 2020) (Curiel, J.) (“[T[he Court finds that the 2016 NDAA unambiguously authorized the participation of DoD personnel at issue here, namely, their observation of someone alleged to be Mr. Hernandez-Garcia through a scope, and their subsequent communication with BPA AllenLimon as to that person’s location.”); United States v. Cardenas-Tovar, No. 19-CR-04370-BTM, 2020 WL 905634, at *3 (Feb. 25, 2020) (Moskowitz, J.) (“Even assuming arguendo that the Marines’ involvement rose to the level of direct involvement, however, such involvement appears to have been ‘otherwise authorized by law’ pursuant to Section 1059 of the National Defense Authorization Act for Fiscal Year 2016.”); United States v. Rios-Montano, 438 F. Supp. 3d 1149, 1151, 1054‒55 (S.D. Cal. 2020) (Curiel, J.) (agreeing that section 1059 “‘authorize[s] by law’ the Marine Corps’ conduct on the United States’ southern border with Mexico” (alteration in original)). We believe that these decisions are correct insofar as these cases involved military surveillance activities that were specifically and expressly authorized by section 1059(c)(2). But we would not read these decisions as suggesting that section 1059(a) and (c)(1) expressly authorize the deployment of military personnel to provide assistance to CBP without regard whether to such assistance would otherwise conflict with the Posse Comitatus Act. Two other courts have similarly read general statutes to constitute express authorization of certain activities for purposes of the Posse Comitatus Act. See United States v. Allred, 867 F.2d 856, 871 (5th Cir. 1989) (suggesting, in dictum, that the Attorney General’s authority to appoint Special Assistant United States Attorneys constitutes an express authorization for purposes of the Posse Comitatus Act); Red Feather, 392 F. Supp. at 923 (“The Economy Act, 31 U.S.C. § 686, expressly authorizes any executive department or independent establishment of the government, or any bureau or office thereof, to place orders with any other such 871 (5th Cir. 1989) (relying on 10 U.S.C. § 806(d)(1) in holding that military lawyers are statutorily authorized to represent the United States in criminal cases). 15 45 Op. O.L.C. __ (Jan. 19, 2021) department, establishment, bureau, or office, for materials, supplies, or equipment.” (quotation marks omitted)). We think that the better reading of the decisions in these cases, if not their reasoning, is that the pertinent activities, such as furnishing materials or supplies or the use of a commissioned officer of the Judge Advocate General’s Corps (“JAGC”) as a special assistant to a United States Attorney, would generally not have violated the Posse Comitatus Act even without express authorization. See Bissonette, 776 F.2d at 1390 (“[T]he mere furnishing of materials and supplies cannot violate the [Posse Comitatus Act].”); Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 116 (1986) (“The Department may use JAGC lawyers to assist in preparing cases and in performing a number of other duties in connection with civil and criminal litigation under our responsibility, without raising issues under the Posse Comitatus Act.”). 9 Neither Allred nor Red Feather considered section 1059 or, of course, whether it constitutes express authorization under the Posse Comitatus Act. Finally, our conclusion that section 1059(a) and (c)(1) does not expressly authorize the military to engage in activities without regard to the restrictions of the Posse Comitatus Act is consistent with DoD’s practices since 2016. For many years now, DoD has deployed military personnel to the southern border to assist DHS, but has not used such personnel to conduct coercive immigration-enforcement activities. This Office, too, has regularly provided advice to DoD concerning the legal restrictions on the use of military in its ongoing support for DHS at the southern border, including with respect to the national emergency declared by the President on February 15, 2019, see Declaring a National Emergency Concerning the Southern Border of the United States, Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). We have advised, for example, regarding whether certain military support provided to DHS is authorized by chapter 15, whether military personnel could engage in coercive civilian law enforcement activities in protecting ports of entry and other federal prop9 The JAGC opinion also stated that “questions under the Posse Comitatus Act may be raised if military lawyers perform prosecutorial functions involving direct contact with civilians, unless such military lawyers are detailed to the Department on a full-time basis and operate under the supervision of departmental personnel.” Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. at 116. The extent to which these “questions” might have been implicated by the facts in Allred is unclear, and in any event we need not address them here. 16 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act erty near the southern border, and whether the Insurrection Act could be invoked to stem the flow of illegal aliens across the southern border. At no point during these discussions has DoD or this Office treated section 1059(a) and (c)(1) as providing express authorization that would effectively moot any further consideration concerning the restrictions imposed by the Posse Comitatus Act. B. Because DoD’s activities at the border remain subject to the Posse Comitatus Act, we must consider whether the rail-support and seal-check duties are consistent with the statute’s restrictions. In accordance with the approach taken in our prior opinions, we review these activities based upon each of the three tests that courts have used in evaluating military activities for compliance with the Posse Comitatus Act. We conclude that DoD’s limited support for CBP inspections does not involve military personnel in the kind of coercive regulatory activity, direct participation in civilian law enforcement, or pervasive conduct that is prohibited by the Posse Comitatus Act absent express authorization. 1. To start, we do not think that the rail-support and seal-check duties would subject any civilians to military regulation, proscription, or compulsion. NIPC Detail, 22 Op. O.L.C. at 105. Courts have explained that “[a] power regulatory in nature is one which controls or directs,” “[a] power proscriptive in nature is one that prohibits or condemns,” and “[a] power compulsory in nature is one that exerts some coercive force.” United States v. Yunis, 681 F. Supp. 891, 895‒96 (D.D.C. 1988), aff’d 924 F.2d 1086 (D.C. Cir. 1991); United States v. Gerena, 649 F. Supp. 1179, 1182‒83 (D. Conn. 1986) (same). The Eighth Circuit considered when military activities subject civilians to military regulation, proscription, or compulsion in Bissonette v. Haig. That case was one of several to arise from the U.S. military’s involvement in a 1973 occupation by protesters of the town of Wounded Knee, South Dakota. The plaintiffs alleged that military personnel “maintained or caused to be maintained roadblocks and armed patrols constituting an armed perimeter around the village of Wounded Knee,” which “seized, 17 45 Op. O.L.C. __ (Jan. 19, 2021) confined, and made prisoners [of plaintiffs] against their will,” and they also alleged that “they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance.” 776 F.2d at 1390–91. As to the allegations that troops had engaged in aerial surveillance, the court held that “that this sort of activity does not violate the Posse Comitatus Act.” Id. at 1391. But the court held that the military’s alleged activities in seizing individuals while setting up a roadblock sufficiently stated a claim that the troops had “in violation of the Posse Comitatus Act” engaged in activities that “were ‘regulatory, proscriptive, or compulsory’” because they involved a claim that military personnel “directly restrained plaintiffs’ freedom of movement.” Id. Here, military personnel performing the rail-support and seal-check duties are not expected to have any contact with civilians—much less to control, direct, coerce, or otherwise regulate them. See United States v. Bacon, 851 F.2d 1312, 1313 ‒14 (11th Cir. 1988) (per curiam) (Army agent’s undercover role in state drug investigation did not subject citizenry to regulatory exercise of military power, and therefore did not violate the Posse Comitatus Act); United States v. Moraga, No. 01-964, 2002 WL 35649965, at *10 (D.N.M. 2002) (use of air force dog and handler did not “compel the Defendant to do anything or forbid the Defendant from doing anything”); Electronic Surveillance at 11 (“Mere assistance by military personnel in the monitoring of court-authorized electronic surveillance by civilian authorities . . . is neither regulatory nor proscriptive, nor is it a compulsory application of military power”). Military personnel would provide support to CBP personnel by engaging in plain-view inspections of property and the fairly ministerial tasks of opening unoccupied vehicles. There is no sense in which such actions would subject civilians to military regulation, proscription, or compulsion. 2. We next consider the “direct active participation” test, which asks whether military personnel have “direct active” involvement in law enforcement activities, or instead are playing a “passive role in civilian law enforcement activities.” Red Feather, 392 F. Supp. at 924; see NIPC Detail, 22 Op. O.L.C. at 105; Domestic Terrorism at 4; Electronic Surveillance at 8. This test “permits a broad degree of cooperation between the military and civilian law enforcement.” NIPC Detail, 22 Op. O.L.C. at 18 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act 105. “Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.” Red Feather, 392 F. Supp. at 925; see also Immigration Laws at 2. By contrast, [a]ctivities which constitute a passive role which might indirectly aid law enforcement are: mere presence of military personnel under orders to report on the necessity for military intervention; preparation of contingency plans to be used if military intervention is ordered; advice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics; presence of military personnel to deliver military materiel, equipment or supplies, to train local law enforcement officials on the proper use and care of such material or equipment, and to maintain such materiel or equipment; aerial photographic reconnaissance flights and other like activities. Red Feather, 392 F. Supp. at 925 (emphasis omitted); see also Yunis, 924 F.2d at 1094. We believe that the military’s provision of personnel to perform the rail-support and seal-check duties is permissible indirect, passive assistance under this framework. These duties would not require military personnel to perform any traditional law enforcement task, such as the arrest, seizure, or search of a person. There is a sense in which these duties may involve military personnel “searching” commercial cargo trucks and containers and vehicle compartments, at least to a small degree. 10 But our precedents make clear that not every activity that could be described as a “search,” even if it is a “search” for purposes of the Fourth Amendment, constitutes direct participation in civilian law enforcement. The opening of a closed vehicle would likely constitute a search under the Fourth Amendment. See United States v. Jones, 565 U.S. 400, 406 n.3 (2012) (“Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”). A plain-view search, however, of the seals on a cargo container would not. See id. at 412 (“This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.”); New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”). 10 19 45 Op. O.L.C. __ (Jan. 19, 2021) In Military Use of Infrared Radars, for instance, we advised that military personnel do not directly participate in civilian law enforcement merely by providing aerial reconnaissance using Forward Looking Infrared Radars (“FLIR”) technology to assist in identifying structures suspected of illegal drug production. See 15 Op. O.L.C. at 36–38. We assumed without deciding that FLIR surveillance might be a “search” for purposes of the Fourth Amendment but did not find that fact dispositive. 11 Instead, we concluded that “searches” constitute direct participation “at most” when they involve “physical contact with civilians or their property,” and even then “perhaps only” when the searches involve “physical contact that [is] likely to result in a direct confrontation between military personnel and civilians.” Id. at 39–40; see also Domestic Terrorism at 4 (same); Military Use of Infrared Radars, 15 Op. O.L.C. at 44 (reading the direct-participation restriction “to prohibit only activity that entailed direct, physical confrontation between military personnel and civilians”). And the courts too agree that surveillance operations, such as aerial reconnaissance, in support of civilian law enforcement constitute permissible indirect assistance. See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (“[I]n examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that ‘aerial photographic reconnaissance flights and other like activities’ do not reflect direct military involvement violative of the Posse Comitatus Act.” (quoting Red Feather, 392 F. Supp. at 925, and collecting cases)); Bissonette, 776 F.2d at 1391 (“[P]laintiffs charge that they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance. As we have already noted . . . this sort of activity does not violate the Posse Comitatus Act.”). 12 See Military Use of Infrared Radars, 15 Op. O.L.C. at 48; see generally Kyllo v. United States, 533 U.S. 27, 34 (2001) (“We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where (as here) the technology in question is not in general public use.” (citation and quotation marks omitted)). 12 In United States v. Johnson, 410 F.3d 137, 147 (4th Cir. 2005), the Fourth Circuit stated that “[a] blood test constitutes a search under the Fourth Amendment . . . and thus falls under the rubric of law enforcement activities” requiring express congressional authorization. Unlike the rail-support and seal-check duties, the conduct of a blood test is an investigative activity and puts military officers within the chain of custody of evi11 20 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act We reached similar conclusions in opinions approving DoD support for civilian law enforcement by supplying drug-detecting dogs with military handlers. We agreed that DoD may provide this support “to identify packages containing illegal narcotics” because “the proposed use of the dogs and their handlers will not involve confrontation with civilians.” Use of Navy Drug-Detecting Dogs by Civilian Postal Inspectors, 13 Op. O.L.C. 312, 316 (1989); see also DoD Drug-Detecting Dogs, 13 Op. O.L.C. at 186 (“[W]e believe that drug-detecting dogs may be used in searches of packages and places in the absence of persons with whom a confrontation may arise, as long as the actual seizure is made by civilian law enforcement personnel.”). This was true notwithstanding the likelihood of physical contact with civilian property. See generally United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007) (“Ajax jumped and placed his front paws on the body of the car in several places during a walk-around sniff that took less than one minute.”). Courts have also held that military activities constituted permissible indirect support even where those activities involved some degree of physical contact with civilian property. In United States v. Khan, 35 F.3d 426 (9th Cir. 1994), the court held that Navy “logistical support and backup security” for a Coast Guard operation to interdict a suspected drug-smuggling ship constituted permissible indirect assistance notwithstanding the fact that Navy personnel actually boarded the ship. Id. at 431‒32. The court explained that “Navy personnel on board the [ship] had acted under the command of the Coast Guard, and that only the Coast Guard had searched the ship and arrested the crew.” Id. at 432. Similarly, the court in United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998), concluded that similar Navy assistance was permissible indirect assistance to civilian law enforcement, even though, in addition to boarding the ship, “Navy engineers in the present case moved the fluids among the fifteen tanks” in order to facilitate a search of the tanks. Id. at 1259. 13 dence. We do not read Johnson as holding that every military activity that might constitute a “search” for purposes of the Fourth Amendment necessarily constitutes the direct active use of military personnel in civilian law enforcement for purposes of the Posse Comitatus Act. 13 In Johnson, military personnel performed a blood test that “would yield the primary evidence of guilt of a DUI offense and, should the driver not plead guilty and go to trial, the serviceman who performed the test likely would be called to testify.” 410 F.3d at 148. By contrast, military personnel performing the rail-support and seal-check duties would 21 45 Op. O.L.C. __ (Jan. 19, 2021) We think that both the rail-support and seal-check duties are plainly permissible under these precedents. The seal-check duty neither “involv[es] physical contact with civilians or their property” nor is “likely to result in a direct confrontation between military personnel and civilians.” Military Use of Infrared Radars, 15 Op. O.L.C. at 39–40. Military personnel would merely observe the exteriors of cargo trucks and containers, and would have no physical contact with that property. With respect to the rail-support duty, military personnel would prepare the vehicles for inspection by CBP by opening vehicle doors, trunks, and hoods, but such cursory and incidental physical contact does not amount to direct participation. The military personnel’s assistance to CBP is not likely to result in any interactions with civilians, since the vehicles would be unmanned and in a restricted rail yard. And if military personnel notice anything suspicious, they would immediately notify CBP personnel and not participate in any resulting law enforcement activities. Because the rail-support and seal-check duties would not require military personnel to directly participate in traditional law enforcement activities, such as a search, seizure, or arrest, as those terms are understood in common parlance, and would not risk a confrontation with civilians, we do not believe that either duty would involve the direct active participation of military personnel in civilian law enforcement. 3. Finally, the rail-support and seal-check duties in no way involve the activities of military personnel “pervad[ing] the activities of civilian law enforcement.” NIPC Detail, 22 Op. O.L.C. at 105. The purpose of these duties is to allow military personnel to provide support for ongoing civilian law enforcement activities in which CBP personnel take the lead role. There is no sense in which DoD’s support would pervade CBP’s activities. The federal courts have recognized that DoD’s actions will not be pervasive where they merely provide support to civilian law enforcement. In Yunis, 681 F. Supp. at 895, the district court held that the Navy’s inperform no investigative activities and would not be within the chain of custody of evidence. 22 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act volvement in the apprehension, arrest, and transportation of the defendant did not “pervade the activities of civilian authorities” because “it was a civilian operation originating from within the FBI.” Further, “[u]nder the direction of the FBI,” Navy personnel never participated in the arrest or interrogation of the defendant, and the Navy merely “gave the necessary support in the form of equipment, supplies, and services.” Id. at 895; see also Yunis, 924 F.2d at 1094 (same). More recently, in United States v. Holloway, 531 F. App’x 582 (6th Cir. 2013) (per curiam), the court held that the actions of a Naval officer in discovering and notifying civilian law enforcement of the defendant’s possession of child sexual abuse material did not “permeate” civilian law enforcement because, “after the Navy agent turned over the information she had on Holloway to the civil authorities, the military was not involved in the subsequent search of his home, the seizure of evidence, or his arrest.” Id. at 583; see also Hayes, 921 F.2d at 103 (actions of military personnel did not pervade civilian law enforcement because, despite sharing information with the police and offering other aid, they “did not become involved in any of the activities typically performed by the police, namely the arrest, the search of the premises where the transaction occurred, the seizure of the evidence, or the transportation of that evidence to the station for testing”). 14 As in these cases, the role of military personnel performing the railsupport and seal-check duties would be strictly limited and peripheral to the CBP activities that the duties would support—investigative activities that would be undertaken by CBP personnel and not military personnel. Military personnel also would operate under the direct supervision of CBP personnel. The activities of military personnel would not come close to pervading CBP’s law enforcement activities. 14 In United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015), the court held that the military “investigation in this case pervaded the actions of civilian law enforcement” where the personnel “initiated an operation to search for individuals sharing child pornography online,” and themselves testified that they conducted an “active” investigation. Id. at 1275. Unlike in Dreyer, military personnel performing the rail-support and seal-check duties would not be leading an investigation, but merely assisting CBP in its activities. 23 45 Op. O.L.C. __ (Jan. 19, 2021) III. We turn next to the port-of-entry and checkpoint-observer duties. We believe that these duties fall within the types of activities expressly authorized under chapter 15, see 10 U.S.C. § 274, and, therefore, DoD is expressly authorized to perform those duties without the need for further evaluation under the Posse Comitatus Act. We understand that military personnel performing these duties would monitor the output of CBP electronic systems that automatically collect and process data, such as license-plate information, regarding individuals and vehicles passing through a port of entry or U.S. Border Patrol checkpoint and display an alert message if the system identifies a concern. Military personnel would perform this duty in an enclosed location, either in close proximity to the port of entry or checkpoint or from a remote location. If military personnel see an alert message from the CBP electronic display, then they would notify CBP personnel who would take action in response. Military personnel would have no involvement in any resulting inspection or investigation. 15 Section 274 is one of several provisions of chapter 15 that authorize the military to provide certain assistance to civilian law enforcement. Congress originally enacted section 274 in 1981, when it added a new subchapter to title 10, specifically concerning DoD support for civilian law enforcement, in order to provide a legislative clarification of congressional intent with respect to the Posse Comitatus Act so as to “maximize[] the degree of cooperation between the military and civilian law enforcement.” Military Use of Infrared Radars, 15 Op. O.L.C. at 45 (quoting H.R. Rep. No. 97-71, pt. 2, at 3 (1981)); Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, § 905(a)(1), 95 Stat. 1099, 1115 (1981). Any Military personnel additionally would be expected to visually observe and maintain situational awareness of their port-of-entry or checkpoint environments and to notify CBP personnel of anything suspicious. We understand that, to fulfill this expectation, military personnel would merely report any suspicious activity observed while doing their job. This additional aspect of the duty is expressly authorized by 10 U.S.C. § 271(a), which allows military personnel to provide “any information collected during the normal course of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials.” We think that support provided under chapter 15 would itself be a military operation. 15 24 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act support for civilian law enforcement that is authorized by section 274 is expressly authorized for purposes of the Posse Comitatus Act (although such activities must be done consistent with the regulatory restrictions required by section 275). See Domestic Terrorism at 3‒5. Section 274 authorizes DoD to provide support in the form of operating equipment. Section 274(b)(1) authorizes DoD, “upon request from the head of a Federal law enforcement agency, [to] make Department of Defense personnel available to operate equipment” for the purpose of enforcing, among other laws, criminal violations of immigration and customs laws. 10 U.S.C. § 274(b)(1)(A), (b)(4)(A). Section 274(b)(2) requires that such support may be provided only for certain specifically listed purposes, but none of those purposes encompasses the full range of the port-of-entry and checkpoint-observer duties. 16 Section 274(c), however, contains a catch-all provision specifying that military personnel may “operate equipment for purposes other than described in subsection (b)(2)” if “such support does not involve direct participation by such personnel in a civilian law enforcement operation unless such direct participation is otherwise authorized by law.” We think that the port-of-entry and checkpoint-observer duties are authorized by section 274(c). Military personnel would perform these duties by operating CBP electronic equipment in an enclosed location and reporting upon alert messages that may indicate the possibility of unlawful conduct. We understand that CBP personnel use the information gathered in these operations to detect violations of the criminal immigration and customs laws. These duties thus would involve the use of military personnel “to operate equipment” with respect to criminal violations of immigration and customs laws, as authorized by 10 U.S.C. § 274(b)(1)(A). See also id. § 274(b)(4)(A) (listing applicable criminal laws). The closest potentially applicable purpose specified in section 274(b)(2) is the “[d]etection, monitoring, and communication of the movement of surface traffic outside of the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.” 10 U.S.C. § 274(b)(2)(B). We understand, however, that some of the activity here would not fit within that purpose because it would involve monitoring surface traffic moving well within the boundaries of the United States, and in some instances at checkpoints that are more than 25 miles away from the border. 16 25 45 Op. O.L.C. __ (Jan. 19, 2021) These activities, moreover, would not “involve direct participation by such personnel in a civilian law enforcement operation.” Id. § 274(c). We read this language in parallel with the restriction on “direct participation” required under 10 U.S.C. § 275. See Military Use of Infrared Radars, 15 Op. O.L.C. at 46. As discussed above, that reference codifies the “direct active participation” test for whether military activity violates the Posse Comitatus Act. See Domestic Terrorism at 4; Electronic Surveillance at 8; see also supra Part I (describing the three tests). The text of section 274(c) is materially similar to section 275 insofar as both bar the military from engaging in “direct participation,” either categorically “in a civilian law enforcement operation,” 10 U.S.C. § 274(c), or in the slightly more specific “search, seizure, arrest, or other similar activity,” id. § 275. We do not think that the port-of-entry and checkpoint-observer duties involve direct participation in a civilian law enforcement operation. As discussed above, the operation of surveillance equipment by military personnel, such as monitoring an infrared radar surveillance system, or operating airborne surveillance equipment, does not itself constitute “direct participation” in civilian law enforcement. See supra Part II.B.2. In 2002, for example, we concluded that military personnel may assist an FBI domestic terrorism investigation by piloting an airplane that carried surveillance equipment, operating the surveillance equipment, and transmitting the imagery to the FBI, with FBI personnel responsible for the overall conduct of the investigation, including directing the aircraft to focus on particular targets. See Domestic Terrorism at 2, 4. And in 1994, we concluded that military personnel do not engage in direct participation in civilian law enforcement activities in serving “as contemporaneous monitors of electronic surveillance transmissions.” Electronic Surveillance at 2. We explained that such “remote monitoring through various forms of electronic assistance” was “distinct from such activities as ‘planting’ the surveillance equipment at the targeted location or carrying a concealed recording device while acting as an undercover agent.” Id. at 2, 8. As in these instances, the port-of-entry and checkpoint-observer duties would not involve “physical contact with civilians or their property.” Domestic Terrorism at 4 (quotation marks omitted); see also Electronic Surveillance at 8; Military Use of Infrared Radars, 15 Op. O.L.C. at 48. 26 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The port-of-entry and checkpoint-observer duties would involve the use of military personnel “to operate equipment” with respect to criminal violations of immigration and customs laws, 10 U.S.C. § 274(b)(1), and would not involve “direct participation” in civilian law enforcement, id. § 274(c). Therefore, such assistance is expressly authorized for purposes of the Posse Comitatus Act by section 274. 17 IV. We conclude that neither chapter 15 of title 10 of the United States Code nor section 1059 of the FY 2016 NDAA expressly authorize the rail-support and seal-check activities for purposes of the Posse Comitatus Act, but that neither of those activities would involve the use of the mili17 We also think that the port-of-entry and checkpoint-observer duties are consistent with DoD Instruction 3025.21, which codifies the restriction on “direct participation” with more particularized restrictions on “direct civilian law enforcement assistance,” id. encl. 3, ¶ 1.c. Some of those restrictions simply track the terms contained within 10 U.S.C. § 275, such as “search,” and should be construed in the same fashion. Enclosure 3 of this Instruction introduces a new term by restricting DoD personnel from engaging in “surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or acting as undercover agents, informants, investigators, or interrogators.” DoD Instruction 3025.21 encl. 3, ¶ 1.c(1)(f ). We view this reference to “surveillance” to encompass only the kinds of activities that involve “direct civilian law enforcement assistance,” such as the targeting and tracking of specific individuals. The regulation pairs the term “surveillance” with “pursuit,” “acting as undercover agents, informants, investigators, or interrogators,” and we thus must read “surveillance” to bear a similar meaning to these neighboring words. See, e.g., Yates v. United States, 574 U.S. 528, 543 (2015) (stating that “the principle of noscitur a sociis” counsels that “a word is known by the company it keeps”). If “surveillance” were construed more broadly, then it would prohibit DoD from engaging in activities that are plainly authorized under the regulation, such as the “[d]etection, monitoring, and communication of the movement” of sea, air, and surface traffic near the border. Id. encl. 3, ¶ 1.d(5)(b)(1)‒(2). Thus, we do not think that either the port-of-entry or checkpoint-observer duties involve impermissible “surveillance” under the regulation. DoD Instruction 3025.21 also prohibits military personnel from conducting a “search.” Id. encl. 3, ¶ 1.c(1)(b). As with the regulation’s prohibition of “surveillance,” we read this portion of the regulations to apply only to a “search” that would constitute “direct civilian law enforcement assistance,” which, for reasons noted above, the rail-support and sealcheck duties would not involve. While the rail-support and seal-check duties could be said to involve a “search” in some sense, we do not believe that they would involve a “search” as that term is used in this regulation. See supra Part II.B.2. 27 45 Op. O.L.C. __ (Jan. 19, 2021) tary “as a posse comitatus or otherwise to execute the laws,” 18 U.S.C. § 1385, so as to violate that Act. We further conclude that the port-ofentry and checkpoint-observer activities are expressly authorized by 10 U.S.C. § 274(c). STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 28

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(Slip Opinion) Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The Department of Defense’s proposed use of military personnel to provide limited assistance with respect to certain Customs and Border Protection inspection and observation functions along the southern border of the United States is permissible under the Posse Comitatus Act and applicable regulations. January 19, 2021 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE The Posse Comitatus Act, 18 U.S.C. § 1385, restricts the use of “any part of the Army or the Air Force” in civilian law enforcement, unless expressly authorized by law. Consistent with these restrictions, for many years, the Department of Defense (“DoD”) has provided assistance to the efforts by the Department of Homeland Security (“DHS”) to stem the illegal flow of persons and contraband across the southern land border between the United States and Mexico. This assistance is principally authorized by chapter 15 of title 10 of the United States Code, 10 U.S.C. §§ 271–284, which allows DoD to provide a number of different forms of support to civilian law enforcement. Congress endorsed DoD’s ongoing efforts in 2015 by providing that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1059, 129 Stat. 986‒87 (2015) (“FY 2016 NDAA”). In February 2020, DHS requested that DoD perform 26 specific duties in support of U.S. Customs and Border Protection (“CBP”) operations at the southern border for fiscal year 2021. See Memorandum for Oliver Lewis, Captain, USN, Executive Secretary, Department of Defense, from Juliana Blackwell, Acting Executive Secretary, Department of Homeland Security, Re: Request for Extension of Department of Defense (DoD) Assistance in Support of U.S. Customs and Border Protection’s (CBP) Southwest Border (SWB) Security Mission Through Fiscal Year (FY) 2021 (Feb. 3, 2020). DoD approved support for 22 of these 26 duties, most of which involved the kind of support that DoD already had been providing 1 45 Op. O.L.C. __ (Jan. 19, 2021) to DHS, such as motor-transport operations support and a crisis-response force for certain urgent needs. See Memorandum for the Executive Secretary, Department of Homeland Security, from David S. Soldow, Captain, USN, Executive Secretary, Department of Defense, Re: Request for Extension of Department of Defense Assistance in Support of U.S. Customs and Border Protection’s Southern Border Security Mission Through Fiscal Year 2021 (June 23, 2020). DoD, however, held off on approving support for four duties pending further consideration as to whether they would be consistent with the Posse Comitatus Act and DoD regulations implementing chapter 15. Those four duties concern rail-support, seal-check, port-of-entry-observer, and checkpoint-observer functions. We understand that the rail-support duty would have military personnel assist CBP personnel responsible for inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. The seal-check duty would involve visually verifying whether commercial cargo trucks and containers have intact and unbroken seal tags, which CBP requires for trucks and containers passing through ports of entry. The port-of-entry and checkpoint observers would monitor the output of CBP’s electronic systems that automatically collect and process data, such as license-plate information, about individuals and vehicles passing through a port of entry or U.S. Border Patrol checkpoint, and display an alert message if the system identifies a concern. We conclude that neither the Posse Comitatus Act nor DoD’s regulations prohibit the requested assistance. The rail-support and seal-check duties would not violate the Posse Comitatus Act because they would not involve military personnel subjecting civilians to military regulation, directly or actively participating in civilian law enforcement activities, or pervading the activities of civilian law enforcement. The port-of-entry and checkpoint-observer duties would not violate the Posse Comitatus Act because they would involve operating equipment and would not involve direct participation in civilian law enforcement activities, as expressly authorized by 10 U.S.C. § 274(c). All four duties would be similar to the types of support that the courts and this Office’s precedents have held to be consistent with the Posse Comitatus Act and DoD regulations, and that the military is authorized to provide under chapter 15. 2 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act I. The Posse Comitatus Act generally prohibits the use of the military to engage in civilian law enforcement activities. At English common law, the sheriff had the right to summon a body of available adults, the posse comitatus, to assist in executing the laws or restoring civil order. See Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. 321, 322 (1989). This practice continued in the United States, and in the Judiciary Act of 1789, Congress vested the first federal law enforcement officers, the U.S. Marshals, with the “power to command all necessary assistance in the execution of [their] duty.” Act of Sept. 24, 1789, ch. 20, § 27, 1 Stat. 73, 87. That power remains with the U.S. Marshals Service, now codified at 28 U.S.C. § 566(c). In enacting the Posse Comitatus Act in 1878, Congress sought to prevent civilian law enforcement officials from generally relying upon the U.S. Army to assist with the enforcement of the civilian laws. The statute arose out of the objections of southern States to the use of the U.S. Army in civilian law enforcement during the Reconstruction era. See Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies, 15 Op. O.L.C. 36, 42 (1991) (“Military Use of Infrared Radars”); see Act of June 18, 1878, ch. 263, § 15, 20 Stat. 145, 152; 7 Cong. Rec. 3845‒3852 (May 27, 1878); 7 Cong. Rec. 4239‒4248 (June 7, 1878). But the statute’s restrictions are not limited to that historical episode and instead reflect an American tradition of limiting direct military involvement in civilian law enforcement. See, e.g., Laird v. Tatum, 408 U.S. 1, 15 (1972). In its current form, the statute provides that, except where “expressly authorized by the Constitution or Act of Congress,” public officials may not use “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the law.” 18 U.S.C. § 1385. 1 The prohibition thus precludes “military personnel [from] applying force to the civilian community in the normal course of civil government” and prevents “actual or Although the Posse Comitatus Act applies only to the Army and the Air Force, DoD regulations implementing similar restrictions apply to the Navy and the Marines. See DoD Instruction 3025.21, ¶ 4.b, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). The Secretary of Defense, however, is authorized to make exceptions on a case-by-case basis. See id. encl. 3, ¶ 3. 1 3 45 Op. O.L.C. __ (Jan. 19, 2021) threatened coercion by persons subject to military discipline on behalf of civil law enforcement officers.” Letter for Deanne Siemer, General Counsel, Department of Defense, from Mary Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 5 (Mar. 24, 1978) (“Lawton Letter”). As relevant here, Congress has expressly authorized the military to support civilian law enforcement under chapter 15. Among other things, chapter 15 authorizes the military to provide to civilian law enforcement information acquired in the normal course of military training or operations; equipment, training, and advice; and military personnel to maintain and operate equipment. See 10 U.S.C. §§ 271–74. Chapter 15 also authorizes military personnel to perform additional tasks in support of counterdrug activities. See 10 U.S.C. § 284. But while granting DoD authority to assist civilian law enforcement, Congress retained the core prohibition of the Posse Comitatus Act by requiring that the Secretary of Defense issue regulations “as may be necessary to ensure that any activity . . . under this chapter does not include or permit the direct participation” of a member of the military “in a search, seizure, arrest, or other similar activity.” Id. § 275. The Secretary has implemented section 275 in DoD Instruction 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). The somewhat oblique prohibition under the Posse Comitatus Act against using the military as “a posse comitatus or otherwise to execute the law,” 18 U.S.C. § 1385, has led courts and this Office to employ different tests against which to measure whether the activities in question comply with this prohibition. See Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal Division, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military Personnel for Monitoring Electronic Surveillance at 11 (Apr. 5, 1994) (“Electronic Surveillance”) (“[T]he courts have employed three slightly varying formulations of the test for determining whether military involvement in civilian law enforcement has crossed the line separating proper activity from violations of the PCA”); Riley v. Newton, 94 F.3d 632, 636 (11th Cir. 1996) (describing “three different tests”); United States v. Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991) (recognizing that courts have employed “one of three tests”). We have recognized that an action “does not violate the Posse Comitatus Act unless it actually regu4 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act lates, forbids, or compels some conduct on the part of those claiming relief.” Electronic Surveillance at 10 (quoting Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir. 1985), aff’d en banc, 800 F.2d 812 (8th Cir. 1986), aff’d, 485 U.S. 264 (1988)); see also Lawton Letter at 15‒16. Under this test, courts consider whether a military activity “is that which is regulatory, proscriptive, or compulsory in nature and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority.” United States v. McArthur, 419 F. Supp. 186, 194 (D.N.D. 1974), aff’d sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976) (per curiam). Courts have also employed a slightly different formulation: whether the military is conducting law enforcement activities, rather than merely supporting them, which is determined by whether the activities involve “the direct active participation of federal military troops in law enforcement activities.” United States v. Red Feather, 392 F. Supp. 916, 924 (D.S.D. 1975). As noted, this is the test that Congress directed the Secretary of Defense to impose as a restriction on DoD’s support for civilian law enforcement under chapter 15. See 10 U.S.C. § 275. Finally, in some cases, courts have employed a third test to ensure that the military is not indirectly taking the lead in law enforcement activities, even when it is not operating directly on civilians. These courts ask whether the military activity in question “pervade[d] the activities of civilian officials.” Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990) (quoting United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988) (per curiam)). In a recent case, the Ninth Circuit, sitting en banc, concluded that a Naval Criminal Investigative Service (“NCIS”) investigation into child pornography on the Internet violated DoD regulations restricting law enforcement activity by the Navy, because the NCIS investigation “pervaded the actions of civilian law enforcement.” United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015) (en banc). 2 2 One issue in Dreyer was whether NCIS was targeting offenses by military personnel. See 804 F.3d at 1276. It is well established that the Posse Comitatus Act does not restrict the actions of military personnel “where the military has a legitimate interest for its own proceedings or matters involving the internal administration of the military or the performance of its proper functions.” Permissibility Under Posse Comitatus Act of Detail of Defense Civilian Employee to the National Infrastructure Protection Center, 22 Op. O.L.C. 103, 105‒06 (1998) (alteration and quotation marks omitted); see id. at 106 5 45 Op. O.L.C. __ (Jan. 19, 2021) In our prior opinions, we have often applied the “direct active participation” test in considering whether the activities were consistent with the restriction applicable to support provided under chapter 15. See, e.g., Memorandum for the Attorney General from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Department of Defense Assistance in an Federal Bureau of Investigation Domestic Terrorism Investigation at 4 (Nov. 5, 2002) (“Domestic Terrorism”); Military Use of Infrared Radars, 15 Op. O.L.C. at 38–39; Use of Department of Defense Drug-Detecting Dogs to Aid in Civilian Law Enforcement, 13 Op. O.L.C. 185, 186 (1989) (“DoD Drug-Detecting Dogs”). But in opinions not involving chapter 15 support, we have generally followed the lead of the courts of appeals by asking whether the military support would be consistent with all three of the court-applied tests, without worrying about whether they are all equally correct, or mutually exclusive. See Permissibility Under Posse Comitatus Act of Detail of Defense Civilian Employee to the National Infrastructure Protection Center, 22 Op. O.L.C. 103, 104 (1998) (“NIPC Detail ”) (asking whether the military support violated any of these tests); Electronic Surveillance at 11 (same); cf. Lawton Letter at 13 (concluding that the assistance in question did not violate the Posse Comitatus Act because, under any of the formulations the courts have employed, the assistance was “indirect and nonauthoritarian”). We understand from your request that DoD would assist DHS by using National Guard members operating under federal command and control, who would be considered as either part of the Army or Air Force while operating in that status. See Use of the National Guard to Support Drug Interdiction Efforts in the District of Columbia, 13 Op. O.L.C. 91, 92 (1989); Mueller v. City of Joliet, 943 F.3d 834, 837 (7th Cir. 2019). 3 Because those members would be subject to the Posse Comitatus Act, we must first consider whether Congress has expressly authorized the mili(explaining that “[n]othing in the [Posse Comitatus Act] suggests that Congress intended to circumscribe military participation in legitimately military matters”). Separately, the Posse Comitatus Act does not apply outside United States territory. See Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at 344. 3 By contrast, National Guard troops operating in militia status—that is, under state command and control—are not subject to the Posse Comitatus Act. See Mueller, 943 F.3d at 837; Clark v. United States, 322 F.3d 1358, 1367–68 (Fed. Cir. 2003). 6 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act tary to perform the four duties at issue. 4 Where Congress has not, we then consider whether those tasks nevertheless would be consistent with the Posse Comitatus Act. II. We begin with the rail-support and seal-check duties. Both tasks would involve military personnel providing support to CBP in inspecting articles coming across the border. Neither would involve the military engaging or interacting directly with any civilians or assuming primary responsibility for searching the vehicles, cargo trucks, or containers in question. Military personnel would be under the direct supervision of CBP personnel, would not be expected to have any contact with civilians, and would not be expected to take custody of any evidence that might be used in any subsequent legal proceeding, such as a criminal prosecution. Both military and CBP personnel would receive training to ensure that they clearly understand the scope of the approved activities of the military personnel. We understand that military personnel performing the rail-support duty would assist CBP personnel in inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. This inspection would occur in a secured and private rail yard, and vehicle owners would have signed waivers authorizing the inspection. Military personnel would open the doors, trunks, and hoods of unoccupied vehicles to prepare them for CBP personnel’s subsequent inspection of the spaces within the vehicles. Military personnel would not participate in that inspection. Military personnel would not be expected to make any observations as they open the vehicle doors, trunks, and hoods, but if they did notice something suspicious, they would immediately notify CBP personnel. Military personnel would have no involvement in any subsequent action. We do not believe that, under the facts presented, DoD’s assistance to DHS would be expressly authorized by the Constitution. We have previously described the constitutional exception to the PCA as applying to “any use of the military for constitutional purposes,” including the deployment of “troops pursuant to a plenary constitutional authority.” Memorandum for the Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Determination of Enemy Belligerency and Military Detention at 9 (June 8, 2002). DoD’s assistance here to support DHS’s mission would not involve the plenary constitutional authority of the President. 4 7 45 Op. O.L.C. __ (Jan. 19, 2021) We understand that the seal-check duty would involve similar support to CBP personnel. Military personnel would visually verify whether commercial cargo trucks and containers have intact and unbroken seal tags, which are required for the trucks and containers as they pass through ports of entry. This activity would take place at locations secured and controlled by CBP. Seal tags are located in plain view on the outside of the trucks and containers. In some cases, the cargo truck driver may be in the cabin of the truck while military personnel check whether the truck’s seal tag is intact, but the seal tag is located at the rear of the truck and military personnel are not expected to have any contact with the driver. If military personnel notice a discrepancy in a seal tag, then they would immediately notify CBP personnel and would not participate in any subsequent inspection performed by CBP personnel. A. We first consider whether these tasks are expressly authorized under chapter 15 or under the FY 2016 NDAA. We think that the chapter 15 question is straightforward, because neither the rail-support or seal-check duties fit within the tasks authorized under chapter 15. Sections 271 to 274 authorize DoD to support civilian law enforcement agencies by providing information, military equipment and facilities, training and advising, or the maintenance and operation of equipment. See 10 U.S.C. § 271–74. None applies here. Section 284(b)(6) likewise authorizes DoD to assist through the “detection, monitoring, and communication” of air, sea, and surface traffic within designated parameters of the U.S. borders, but those provisions do not speak to the inspection of goods. Likewise, we do not believe that any of the other activities authorized by section 284(b) would readily apply to these tasks. Whether section 1059 expressly authorizes the rail-support or sealcheck duties for purposes of the Posse Comitatus Act, however, is a closer question. As relevant here, section 1059(a) states that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” FY 2016 NDAA § 1059(a). 5 The section continues: 5 Section 1059 was enacted as part of the FY 2016 NDAA, but the section has no expiration date and remains in effect. See, e.g., United States v. Hernandez-Garcia, No. 19- 8 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The assistance provided under subsection (a) may include the following: (1) Deployment of members and units of the regular and reserve components of the Armed Forces to the southern land border of the United States. (2) Deployment of manned aircraft, unmanned aerial surveillance systems, and ground-based surveillance systems to support continuous surveillance of the southern land border of the United States. (3) Intelligence analysis support. Id. § 1059(c). The rail-support and seal-check duties do not fall into any of the categories of activities specifically mentioned in section 1059(c)(2) and (c)(3): They involve neither the “[d]eployment” of the aircraft and surveillance equipment nor “[i]ntelligence analysis support.” The duties could perhaps be viewed as falling within section 1059(c)(1), which permits the general “[d]eployment” of military personnel “to the southern land border” without specifying what missions such personnel would perform. In addition, the categories in subsection (c) are not exclusive. The statute makes clear that the assistance “may include the following.” See Burgess v. United States, 553 U.S. 124, 131 n.3 (2008) (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation.” (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutory Construction § 47:7, at 305 (7th ed. 2007)). So we must also consider whether the rail-support and seal-check duties fall within the statute’s authorization for general “assistance” to CBP for “purposes of increasing ongoing efforts to secure the southern land border” under section 1059(a). CR-4373-GPC, 2020 WL 1083427, at *2 (S.D. Cal. Mar. 6, 2020) (“[T]he provision lacks any language expressly limiting its operative terms to fiscal year 2016.”); United States v. Rios-Montano, 438 F. Supp. 3d 1149, 1151–52 (S.D. Cal. 2020) (rejecting the argument that section 1059’s “legal effect lapsed with fiscal year 2016” because the section “provides an unrestrained grant of authority” and “contains no sunset provision”); see generally Memorandum for Mary De Rosa, Legal Adviser, National Security Council, from David J. Barron, Acting Assistant Attorney General, Re: Engagement with the International Criminal Court at 3 (Jan. 15, 2010) (noting that the “presumption against permanency” does not “automatically apply” to authorization acts (quotation marks omitted)). 9 45 Op. O.L.C. __ (Jan. 19, 2021) The question then is whether either of these sections constitute express authorization for purposes of the Posse Comitatus Act. Both section 1059(a) and section 1059(c)(1) no doubt generally authorize deploying military personnel to the southern border to provide “assistance” to CBP in support of “ongoing efforts to secure the southern land border.” But it does not follow that this authorization necessarily “expressly” authorizes actions that would otherwise violate the Posse Comitatus Act. 18 U.S.C. § 1385. In 1878, as now, “expressly” means “[i]n an express manner,” “in direct terms,” or “plainly.” Noah Webster, A Dictionary of the English Language 156 (1878 ed.); Henry Campbell Black, Dictionary of Law Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern 462 (1891) (defining “express” to mean “[m]ade known distinctly and explicitly, and not left to inference or implication”); Webster’s (Third) New International Dictionary of the English Language 803 (1993) (defining “expressly” to mean “in direct or unmistakable terms.”). Thus, for a statute to authorize a military activity expressly for purposes of the Posse Comitatus Act, we think that it must be clear that Congress has approved that activity without regard to the restrictions on using the military “as a posse comitatus or otherwise to execute the laws.” 18 U.S.C. § 1385; see Dorsey v. United States, 567 U.S. 260, 273– 75 (2012) (holding that statutory requirement that the “repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide,” 1 U.S.C. § 109, is satisfied where the “plain import” or “fair implication” of the repealing Act is that it should apply to pre-Act offenders). We do not think that a general authorization of “assistance” necessarily means that the restrictions of the Posse Comitatus Act fall away. The generic authorization in section 1059(a) and (c)(1) to “[d]eploy” military personnel “to the southern land border of the United States” for “assistance” to CBP in “ongoing efforts” does not reflect that kind of clear approval. To the contrary, we think that section 1059 points not to new forms of support DoD may provide, but rather toward the types of assistance that DoD had already been providing to CBP as part of “ongoing efforts,” which include the types of activities specifically mentioned in section 1059(c)(2) and (c)(3). A contrary reading would dramatically change DoD’s assistance to these “ongoing efforts,” authorizing DoD to 10 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act perform functions not traditionally done at the southern border, including through “direct participation” by the military “in a search, seizure, arrest, or other similar activity.” 10 U.S.C. § 275; see also Memorandum for Jamie Gorelick, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military to Enforce Immigration Laws at 2 (May 10, 1994) (“Immigration Laws”) (recognizing that the “direct use of the military to detain or arrest suspect aliens would violate” the Posse Comitatus Act “unless otherwise authorized by law”). We think it quite unlikely that Congress would have so significantly changed DoD’s mission at the border by generally authorizing the “deployment” of military personnel to provide “assistance.” Where Congress has affirmatively authorized DoD to provide assistance to law enforcement in other contexts, it has often included restrictions on the military’s “direct participation” in encounters with civilians. In fact, in another provision of the FY 2016 NDAA, Congress authorized the military to provide “assistance” to the Department of Justice in its efforts to investigate domestic bombings of places of public use or of Government facilities. FY 2016 NDAA § 1082(a), 129 Stat. at 1003–04 (codifying 10 U.S.C. § 383, now 10 U.S.C. § 283). In so doing, Congress took care to specify that military personnel were not authorized to engage in “arrest[s]”; any “direct participation in conducting a search for or seizure of evidence”; or any “direct participation in the collection of intelligence for law enforcement purposes,” save in narrowly delineated circumstances. Id. (codifying 10 U.S.C. § 383(c)(2), now 10 U.S.C. § 283(c)(2)); see also 10 U.S.C. § 282(c)(2)(B) (providing similar limited authority for military personnel to engage in searches and seizures in investigating emergency situations involving weapons of mass destructions). Congress provided no such limitation in authorizing “assistance” under section 1059. One could perhaps infer from the absence of such language that Congress intended to authorize DoD to provide assistance to CBP in a manner that did not restrict “direct participation” in arrests, searches, and seizures. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotation marks and brackets omitted)). But we think that the 11 45 Op. O.L.C. __ (Jan. 19, 2021) more likely inference is that Congress sought to authorize the kinds of “ongoing” assistance that DoD had been providing under chapter 15, consistent with the existing statutory restriction on “direct participation” required by 10 U.S.C. § 275. 6 At a minimum, with two plausible interpretations available, we cannot say that Congress expressly authorized the support to proceed without regard to the restrictions of the Posse Comitatus Act. Elsewhere, when Congress has authorized the military to engage in civilian law enforcement activities, it has explicitly stated that the Posse Comitatus Act is inapplicable to those activities, see, e.g., 5 U.S.C. app. 3, § 8(g) (“The provisions of section 1385 of title 18, United States Code, shall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Department of Defense to carry out the purposes of this Act.”); 18 U.S.C. § 831(f )(1) (stating that DoD may provide specified assistance to the Attorney General “[n]otwithstanding section 1385 of this title” if certain conditions are met), or authorized the military to engage in activities that plainly involve coercive action against civilians, see, e.g., 10 U.S.C. § 251 (authorizing the military, under certain circumstances, to “suppress . . . insurrection[s]”); id. § 252 (authorizing the military to “enforce the laws of the United States” and to “suppress . . . rebellion[s]”); id. § 253 (authorizing the military to take needed “measures . . . to suppress . . . any insurrection, domestic violence, unlawful combination, or conspiracy”); 18 U.S.C. § 112(f ) (authorizing the Attorney General to seek the assistance of, 6 This interpretation is consistent with the section 1059’s legislative history, which reflects an intent to authorize “the ongoing efforts by [DoD] to provide additional assistance to secure the southern land border of the United States”—assistance that DoD provided consistent with the Posse Comitatus Act—and desire that DoD “continue these efforts and coordinate with the Secretary of Homeland Security to identify opportunities to provide additional support.” Sen. Rep. No. 114-49, at 206 (2015) (emphases added); see also National Defense Authorization Act for Fiscal Year 2016: Legislative Text and Joint Explanatory Statement 740 (Comm. Print Nov. 2015) (noting that section 1059 “would authorize the Secretary of Defense . . . to provide assistance to [CBP] for the purpose of increasing the ongoing efforts to secure the southern land border of the United States” (emphasis added)). We have not located any legislative history suggesting that Congress intended that military personnel deployed to the border to provide “assistance” to CBP under section 1059 could depart from the sort of assistance the military had previously provided to civilian law enforcement consistent with the Posse Comitatus Act and DoD’s regulations. 12 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act among other agencies “the Army, Navy, and Air Force” in enforcing the criminal prohibition on harming foreign dignitaries); id. § 1751(i) (authorizing the Attorney General to seek the assistance of, among other agencies “the Army, Navy, and Air Force” in investigating the criminal prohibition on murdering or assaulting the President or presidential staff ). See generally Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at 340 (discussing 21 U.S.C. § 873(b), which authorizes the Attorney General to request military assistance to enforce the Controlled Substances Act). We think that these specific authorizations in the U.S. Code for the military to provide particular support reinforce that the more general authorization of assistance in section 1059 should not be read to authorize actions without regard to the limitations of the Posse Comitatus Act. As the Court has recognized, “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). In addition, specific statutory provisions inform the meaning of more general ones, and this canon “has full application . . . to statutes . . . in which a general authorization and a more limited, specific authorization exist side-by-side.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). The contrast between the generality of section 1059 and the specificity of these other provisions suggest that Congress did not intend section 1059(a) and (c)(1) to authorize the “deployment” of military personnel to provide “assistance” to CBP without regard to whether such assistance would otherwise violate the Posse Comitatus Act. This interpretation is consistent with the Office’s prior caution in reading generally worded statutes to authorize the military to engage in coercive civilian law enforcement activities. In 1994, this Office concluded that the Attorney General’s authority to delegate immigration law enforcement functions to “any employee of the United States” did not clearly authorize the Attorney General to delegate such authority to military personnel to engage in immigration-enforcement activities that would otherwise violate the Posse Comitatus Act. 7 See Immigration Laws at 9– 7 The authority was then vested in the Attorney General. See 8 U.S.C. § 1103(a) (1994). The Homeland Security Act of 2002 transferred most immigration-enforcement functions to the Secretary of Homeland Security. See Homeland Security Act of 2002, 13 45 Op. O.L.C. __ (Jan. 19, 2021) 12. We explained that where a determination that a statute constitutes express authority for purposes of the Posse Comitatus Act “would represent a sharp departure from the traditional restrictions embodied” in the statute, the determination “should rest on a well-founded conviction that Congress intended such a result” because “it cannot be assumed that Congress would approve such a major change in the military’s permissible law enforcement role without providing some specific indication that it was doing so.” Id. at 12. The same year, we concluded that general language in the Electronic Communications Privacy Act of 1986 authorizing “government personnel” to assist in electronic surveillance, see 18 U.S.C. § 2518(5), was insufficiently clear to authorize expressly military personnel to engage in surveillance that would otherwise violate the Posse Comitatus Act. See Electronic Surveillance at 4‒6. These precedents suggest that the similarly general authorization in section 1059 does not authorize coercive military participation in civilian law enforcement activities with the requisite clarity. This conclusion also accords with judicial opinions addressing whether an activity is expressly authorized for purposes of the Posse Comitatus Act. Courts have found such express authority when the statute specifically refers to the Posse Comitatus Act. See, e.g., United States v. Stouder, 724 F. Supp. 951, 954 (M.D. Ga. 1989) (“Congress specified in § 8(g) of the Inspector General Act of 1978 that . . . ‘[t]he provisions of section 1385 of title 18, United States Code . . . shall not apply to audits and investigations conducted by . . . the Inspector General of the Department of Defense.’”). They have reached the same conclusion when the statute authorizes the military to engage in a particular activity with such specificity that Congress clearly approved the particular use of the military. 8 Pub. L. No. 107-296, § 1102(2)(A), 116 Stat. 2135, 2273 (2002), as amended by Consolidated Appropriations Resolution, Pub. L. No. 108-7, div. L, § 105(a)(1), 107 Stat. 11, 531 (2003). 8 See, e.g., Gilbert v. United States, 165 F.3d 470, 473‒74 (6th Cir. 1999) (noting that 32 U.S.C. § 112(b) authorizes the National Guard, while not in federal service, to be used for the “purpose of carrying out drug interdiction and counter-drug activities”); United States v. Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995) (“This DEA airlift was specifically authorized by § 1004 of the National Defense Authorization Act for Fiscal Year 1991 (‘NDAA’), which allows military ‘transportation of supplies and equipment for the purpose of facilitating counter-drug activities.’”); United States v. Allred, 867 F.2d 856, 14 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act At the same time, we have identified several decisions that have read somewhat general statutes as constituting express authorization under the Posse Comitatus Act. Of note, two district court judges have suggested, albeit with little analysis, that section 1059 does constitute express authorization under the Posse Comitatus Act. See United States v. HernandezGarcia, No. 19-CR-4373-GPC, 2020 WL 1083427, at *3 (S.D. Cal. Mar. 6, 2020) (Curiel, J.) (“[T[he Court finds that the 2016 NDAA unambiguously authorized the participation of DoD personnel at issue here, namely, their observation of someone alleged to be Mr. Hernandez-Garcia through a scope, and their subsequent communication with BPA AllenLimon as to that person’s location.”); United States v. Cardenas-Tovar, No. 19-CR-04370-BTM, 2020 WL 905634, at *3 (Feb. 25, 2020) (Moskowitz, J.) (“Even assuming arguendo that the Marines’ involvement rose to the level of direct involvement, however, such involvement appears to have been ‘otherwise authorized by law’ pursuant to Section 1059 of the National Defense Authorization Act for Fiscal Year 2016.”); United States v. Rios-Montano, 438 F. Supp. 3d 1149, 1151, 1054‒55 (S.D. Cal. 2020) (Curiel, J.) (agreeing that section 1059 “‘authorize[s] by law’ the Marine Corps’ conduct on the United States’ southern border with Mexico” (alteration in original)). We believe that these decisions are correct insofar as these cases involved military surveillance activities that were specifically and expressly authorized by section 1059(c)(2). But we would not read these decisions as suggesting that section 1059(a) and (c)(1) expressly authorize the deployment of military personnel to provide assistance to CBP without regard whether to such assistance would otherwise conflict with the Posse Comitatus Act. Two other courts have similarly read general statutes to constitute express authorization of certain activities for purposes of the Posse Comitatus Act. See United States v. Allred, 867 F.2d 856, 871 (5th Cir. 1989) (suggesting, in dictum, that the Attorney General’s authority to appoint Special Assistant United States Attorneys constitutes an express authorization for purposes of the Posse Comitatus Act); Red Feather, 392 F. Supp. at 923 (“The Economy Act, 31 U.S.C. § 686, expressly authorizes any executive department or independent establishment of the government, or any bureau or office thereof, to place orders with any other such 871 (5th Cir. 1989) (relying on 10 U.S.C. § 806(d)(1) in holding that military lawyers are statutorily authorized to represent the United States in criminal cases). 15 45 Op. O.L.C. __ (Jan. 19, 2021) department, establishment, bureau, or office, for materials, supplies, or equipment.” (quotation marks omitted)). We think that the better reading of the decisions in these cases, if not their reasoning, is that the pertinent activities, such as furnishing materials or supplies or the use of a commissioned officer of the Judge Advocate General’s Corps (“JAGC”) as a special assistant to a United States Attorney, would generally not have violated the Posse Comitatus Act even without express authorization. See Bissonette, 776 F.2d at 1390 (“[T]he mere furnishing of materials and supplies cannot violate the [Posse Comitatus Act].”); Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 116 (1986) (“The Department may use JAGC lawyers to assist in preparing cases and in performing a number of other duties in connection with civil and criminal litigation under our responsibility, without raising issues under the Posse Comitatus Act.”). 9 Neither Allred nor Red Feather considered section 1059 or, of course, whether it constitutes express authorization under the Posse Comitatus Act. Finally, our conclusion that section 1059(a) and (c)(1) does not expressly authorize the military to engage in activities without regard to the restrictions of the Posse Comitatus Act is consistent with DoD’s practices since 2016. For many years now, DoD has deployed military personnel to the southern border to assist DHS, but has not used such personnel to conduct coercive immigration-enforcement activities. This Office, too, has regularly provided advice to DoD concerning the legal restrictions on the use of military in its ongoing support for DHS at the southern border, including with respect to the national emergency declared by the President on February 15, 2019, see Declaring a National Emergency Concerning the Southern Border of the United States, Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). We have advised, for example, regarding whether certain military support provided to DHS is authorized by chapter 15, whether military personnel could engage in coercive civilian law enforcement activities in protecting ports of entry and other federal prop9 The JAGC opinion also stated that “questions under the Posse Comitatus Act may be raised if military lawyers perform prosecutorial functions involving direct contact with civilians, unless such military lawyers are detailed to the Department on a full-time basis and operate under the supervision of departmental personnel.” Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. at 116. The extent to which these “questions” might have been implicated by the facts in Allred is unclear, and in any event we need not address them here. 16 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act erty near the southern border, and whether the Insurrection Act could be invoked to stem the flow of illegal aliens across the southern border. At no point during these discussions has DoD or this Office treated section 1059(a) and (c)(1) as providing express authorization that would effectively moot any further consideration concerning the restrictions imposed by the Posse Comitatus Act. B. Because DoD’s activities at the border remain subject to the Posse Comitatus Act, we must consider whether the rail-support and seal-check duties are consistent with the statute’s restrictions. In accordance with the approach taken in our prior opinions, we review these activities based upon each of the three tests that courts have used in evaluating military activities for compliance with the Posse Comitatus Act. We conclude that DoD’s limited support for CBP inspections does not involve military personnel in the kind of coercive regulatory activity, direct participation in civilian law enforcement, or pervasive conduct that is prohibited by the Posse Comitatus Act absent express authorization. 1. To start, we do not think that the rail-support and seal-check duties would subject any civilians to military regulation, proscription, or compulsion. NIPC Detail, 22 Op. O.L.C. at 105. Courts have explained that “[a] power regulatory in nature is one which controls or directs,” “[a] power proscriptive in nature is one that prohibits or condemns,” and “[a] power compulsory in nature is one that exerts some coercive force.” United States v. Yunis, 681 F. Supp. 891, 895‒96 (D.D.C. 1988), aff’d 924 F.2d 1086 (D.C. Cir. 1991); United States v. Gerena, 649 F. Supp. 1179, 1182‒83 (D. Conn. 1986) (same). The Eighth Circuit considered when military activities subject civilians to military regulation, proscription, or compulsion in Bissonette v. Haig. That case was one of several to arise from the U.S. military’s involvement in a 1973 occupation by protesters of the town of Wounded Knee, South Dakota. The plaintiffs alleged that military personnel “maintained or caused to be maintained roadblocks and armed patrols constituting an armed perimeter around the village of Wounded Knee,” which “seized, 17 45 Op. O.L.C. __ (Jan. 19, 2021) confined, and made prisoners [of plaintiffs] against their will,” and they also alleged that “they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance.” 776 F.2d at 1390–91. As to the allegations that troops had engaged in aerial surveillance, the court held that “that this sort of activity does not violate the Posse Comitatus Act.” Id. at 1391. But the court held that the military’s alleged activities in seizing individuals while setting up a roadblock sufficiently stated a claim that the troops had “in violation of the Posse Comitatus Act” engaged in activities that “were ‘regulatory, proscriptive, or compulsory’” because they involved a claim that military personnel “directly restrained plaintiffs’ freedom of movement.” Id. Here, military personnel performing the rail-support and seal-check duties are not expected to have any contact with civilians—much less to control, direct, coerce, or otherwise regulate them. See United States v. Bacon, 851 F.2d 1312, 1313 ‒14 (11th Cir. 1988) (per curiam) (Army agent’s undercover role in state drug investigation did not subject citizenry to regulatory exercise of military power, and therefore did not violate the Posse Comitatus Act); United States v. Moraga, No. 01-964, 2002 WL 35649965, at *10 (D.N.M. 2002) (use of air force dog and handler did not “compel the Defendant to do anything or forbid the Defendant from doing anything”); Electronic Surveillance at 11 (“Mere assistance by military personnel in the monitoring of court-authorized electronic surveillance by civilian authorities . . . is neither regulatory nor proscriptive, nor is it a compulsory application of military power”). Military personnel would provide support to CBP personnel by engaging in plain-view inspections of property and the fairly ministerial tasks of opening unoccupied vehicles. There is no sense in which such actions would subject civilians to military regulation, proscription, or compulsion. 2. We next consider the “direct active participation” test, which asks whether military personnel have “direct active” involvement in law enforcement activities, or instead are playing a “passive role in civilian law enforcement activities.” Red Feather, 392 F. Supp. at 924; see NIPC Detail, 22 Op. O.L.C. at 105; Domestic Terrorism at 4; Electronic Surveillance at 8. This test “permits a broad degree of cooperation between the military and civilian law enforcement.” NIPC Detail, 22 Op. O.L.C. at 18 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act 105. “Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.” Red Feather, 392 F. Supp. at 925; see also Immigration Laws at 2. By contrast, [a]ctivities which constitute a passive role which might indirectly aid law enforcement are: mere presence of military personnel under orders to report on the necessity for military intervention; preparation of contingency plans to be used if military intervention is ordered; advice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics; presence of military personnel to deliver military materiel, equipment or supplies, to train local law enforcement officials on the proper use and care of such material or equipment, and to maintain such materiel or equipment; aerial photographic reconnaissance flights and other like activities. Red Feather, 392 F. Supp. at 925 (emphasis omitted); see also Yunis, 924 F.2d at 1094. We believe that the military’s provision of personnel to perform the rail-support and seal-check duties is permissible indirect, passive assistance under this framework. These duties would not require military personnel to perform any traditional law enforcement task, such as the arrest, seizure, or search of a person. There is a sense in which these duties may involve military personnel “searching” commercial cargo trucks and containers and vehicle compartments, at least to a small degree. 10 But our precedents make clear that not every activity that could be described as a “search,” even if it is a “search” for purposes of the Fourth Amendment, constitutes direct participation in civilian law enforcement. The opening of a closed vehicle would likely constitute a search under the Fourth Amendment. See United States v. Jones, 565 U.S. 400, 406 n.3 (2012) (“Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”). A plain-view search, however, of the seals on a cargo container would not. See id. at 412 (“This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.”); New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”). 10 19 45 Op. O.L.C. __ (Jan. 19, 2021) In Military Use of Infrared Radars, for instance, we advised that military personnel do not directly participate in civilian law enforcement merely by providing aerial reconnaissance using Forward Looking Infrared Radars (“FLIR”) technology to assist in identifying structures suspected of illegal drug production. See 15 Op. O.L.C. at 36–38. We assumed without deciding that FLIR surveillance might be a “search” for purposes of the Fourth Amendment but did not find that fact dispositive. 11 Instead, we concluded that “searches” constitute direct participation “at most” when they involve “physical contact with civilians or their property,” and even then “perhaps only” when the searches involve “physical contact that [is] likely to result in a direct confrontation between military personnel and civilians.” Id. at 39–40; see also Domestic Terrorism at 4 (same); Military Use of Infrared Radars, 15 Op. O.L.C. at 44 (reading the direct-participation restriction “to prohibit only activity that entailed direct, physical confrontation between military personnel and civilians”). And the courts too agree that surveillance operations, such as aerial reconnaissance, in support of civilian law enforcement constitute permissible indirect assistance. See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (“[I]n examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that ‘aerial photographic reconnaissance flights and other like activities’ do not reflect direct military involvement violative of the Posse Comitatus Act.” (quoting Red Feather, 392 F. Supp. at 925, and collecting cases)); Bissonette, 776 F.2d at 1391 (“[P]laintiffs charge that they were searched and subjected to surveillance against their will by aerial photographic and visual search and surveillance. As we have already noted . . . this sort of activity does not violate the Posse Comitatus Act.”). 12 See Military Use of Infrared Radars, 15 Op. O.L.C. at 48; see generally Kyllo v. United States, 533 U.S. 27, 34 (2001) (“We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where (as here) the technology in question is not in general public use.” (citation and quotation marks omitted)). 12 In United States v. Johnson, 410 F.3d 137, 147 (4th Cir. 2005), the Fourth Circuit stated that “[a] blood test constitutes a search under the Fourth Amendment . . . and thus falls under the rubric of law enforcement activities” requiring express congressional authorization. Unlike the rail-support and seal-check duties, the conduct of a blood test is an investigative activity and puts military officers within the chain of custody of evi11 20 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act We reached similar conclusions in opinions approving DoD support for civilian law enforcement by supplying drug-detecting dogs with military handlers. We agreed that DoD may provide this support “to identify packages containing illegal narcotics” because “the proposed use of the dogs and their handlers will not involve confrontation with civilians.” Use of Navy Drug-Detecting Dogs by Civilian Postal Inspectors, 13 Op. O.L.C. 312, 316 (1989); see also DoD Drug-Detecting Dogs, 13 Op. O.L.C. at 186 (“[W]e believe that drug-detecting dogs may be used in searches of packages and places in the absence of persons with whom a confrontation may arise, as long as the actual seizure is made by civilian law enforcement personnel.”). This was true notwithstanding the likelihood of physical contact with civilian property. See generally United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007) (“Ajax jumped and placed his front paws on the body of the car in several places during a walk-around sniff that took less than one minute.”). Courts have also held that military activities constituted permissible indirect support even where those activities involved some degree of physical contact with civilian property. In United States v. Khan, 35 F.3d 426 (9th Cir. 1994), the court held that Navy “logistical support and backup security” for a Coast Guard operation to interdict a suspected drug-smuggling ship constituted permissible indirect assistance notwithstanding the fact that Navy personnel actually boarded the ship. Id. at 431‒32. The court explained that “Navy personnel on board the [ship] had acted under the command of the Coast Guard, and that only the Coast Guard had searched the ship and arrested the crew.” Id. at 432. Similarly, the court in United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998), concluded that similar Navy assistance was permissible indirect assistance to civilian law enforcement, even though, in addition to boarding the ship, “Navy engineers in the present case moved the fluids among the fifteen tanks” in order to facilitate a search of the tanks. Id. at 1259. 13 dence. We do not read Johnson as holding that every military activity that might constitute a “search” for purposes of the Fourth Amendment necessarily constitutes the direct active use of military personnel in civilian law enforcement for purposes of the Posse Comitatus Act. 13 In Johnson, military personnel performed a blood test that “would yield the primary evidence of guilt of a DUI offense and, should the driver not plead guilty and go to trial, the serviceman who performed the test likely would be called to testify.” 410 F.3d at 148. By contrast, military personnel performing the rail-support and seal-check duties would 21 45 Op. O.L.C. __ (Jan. 19, 2021) We think that both the rail-support and seal-check duties are plainly permissible under these precedents. The seal-check duty neither “involv[es] physical contact with civilians or their property” nor is “likely to result in a direct confrontation between military personnel and civilians.” Military Use of Infrared Radars, 15 Op. O.L.C. at 39–40. Military personnel would merely observe the exteriors of cargo trucks and containers, and would have no physical contact with that property. With respect to the rail-support duty, military personnel would prepare the vehicles for inspection by CBP by opening vehicle doors, trunks, and hoods, but such cursory and incidental physical contact does not amount to direct participation. The military personnel’s assistance to CBP is not likely to result in any interactions with civilians, since the vehicles would be unmanned and in a restricted rail yard. And if military personnel notice anything suspicious, they would immediately notify CBP personnel and not participate in any resulting law enforcement activities. Because the rail-support and seal-check duties would not require military personnel to directly participate in traditional law enforcement activities, such as a search, seizure, or arrest, as those terms are understood in common parlance, and would not risk a confrontation with civilians, we do not believe that either duty would involve the direct active participation of military personnel in civilian law enforcement. 3. Finally, the rail-support and seal-check duties in no way involve the activities of military personnel “pervad[ing] the activities of civilian law enforcement.” NIPC Detail, 22 Op. O.L.C. at 105. The purpose of these duties is to allow military personnel to provide support for ongoing civilian law enforcement activities in which CBP personnel take the lead role. There is no sense in which DoD’s support would pervade CBP’s activities. The federal courts have recognized that DoD’s actions will not be pervasive where they merely provide support to civilian law enforcement. In Yunis, 681 F. Supp. at 895, the district court held that the Navy’s inperform no investigative activities and would not be within the chain of custody of evidence. 22 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act volvement in the apprehension, arrest, and transportation of the defendant did not “pervade the activities of civilian authorities” because “it was a civilian operation originating from within the FBI.” Further, “[u]nder the direction of the FBI,” Navy personnel never participated in the arrest or interrogation of the defendant, and the Navy merely “gave the necessary support in the form of equipment, supplies, and services.” Id. at 895; see also Yunis, 924 F.2d at 1094 (same). More recently, in United States v. Holloway, 531 F. App’x 582 (6th Cir. 2013) (per curiam), the court held that the actions of a Naval officer in discovering and notifying civilian law enforcement of the defendant’s possession of child sexual abuse material did not “permeate” civilian law enforcement because, “after the Navy agent turned over the information she had on Holloway to the civil authorities, the military was not involved in the subsequent search of his home, the seizure of evidence, or his arrest.” Id. at 583; see also Hayes, 921 F.2d at 103 (actions of military personnel did not pervade civilian law enforcement because, despite sharing information with the police and offering other aid, they “did not become involved in any of the activities typically performed by the police, namely the arrest, the search of the premises where the transaction occurred, the seizure of the evidence, or the transportation of that evidence to the station for testing”). 14 As in these cases, the role of military personnel performing the railsupport and seal-check duties would be strictly limited and peripheral to the CBP activities that the duties would support—investigative activities that would be undertaken by CBP personnel and not military personnel. Military personnel also would operate under the direct supervision of CBP personnel. The activities of military personnel would not come close to pervading CBP’s law enforcement activities. 14 In United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015), the court held that the military “investigation in this case pervaded the actions of civilian law enforcement” where the personnel “initiated an operation to search for individuals sharing child pornography online,” and themselves testified that they conducted an “active” investigation. Id. at 1275. Unlike in Dreyer, military personnel performing the rail-support and seal-check duties would not be leading an investigation, but merely assisting CBP in its activities. 23 45 Op. O.L.C. __ (Jan. 19, 2021) III. We turn next to the port-of-entry and checkpoint-observer duties. We believe that these duties fall within the types of activities expressly authorized under chapter 15, see 10 U.S.C. § 274, and, therefore, DoD is expressly authorized to perform those duties without the need for further evaluation under the Posse Comitatus Act. We understand that military personnel performing these duties would monitor the output of CBP electronic systems that automatically collect and process data, such as license-plate information, regarding individuals and vehicles passing through a port of entry or U.S. Border Patrol checkpoint and display an alert message if the system identifies a concern. Military personnel would perform this duty in an enclosed location, either in close proximity to the port of entry or checkpoint or from a remote location. If military personnel see an alert message from the CBP electronic display, then they would notify CBP personnel who would take action in response. Military personnel would have no involvement in any resulting inspection or investigation. 15 Section 274 is one of several provisions of chapter 15 that authorize the military to provide certain assistance to civilian law enforcement. Congress originally enacted section 274 in 1981, when it added a new subchapter to title 10, specifically concerning DoD support for civilian law enforcement, in order to provide a legislative clarification of congressional intent with respect to the Posse Comitatus Act so as to “maximize[] the degree of cooperation between the military and civilian law enforcement.” Military Use of Infrared Radars, 15 Op. O.L.C. at 45 (quoting H.R. Rep. No. 97-71, pt. 2, at 3 (1981)); Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, § 905(a)(1), 95 Stat. 1099, 1115 (1981). Any Military personnel additionally would be expected to visually observe and maintain situational awareness of their port-of-entry or checkpoint environments and to notify CBP personnel of anything suspicious. We understand that, to fulfill this expectation, military personnel would merely report any suspicious activity observed while doing their job. This additional aspect of the duty is expressly authorized by 10 U.S.C. § 271(a), which allows military personnel to provide “any information collected during the normal course of military training or operations that may be relevant to a violation of any Federal or State law within the jurisdiction of such officials.” We think that support provided under chapter 15 would itself be a military operation. 15 24 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act support for civilian law enforcement that is authorized by section 274 is expressly authorized for purposes of the Posse Comitatus Act (although such activities must be done consistent with the regulatory restrictions required by section 275). See Domestic Terrorism at 3‒5. Section 274 authorizes DoD to provide support in the form of operating equipment. Section 274(b)(1) authorizes DoD, “upon request from the head of a Federal law enforcement agency, [to] make Department of Defense personnel available to operate equipment” for the purpose of enforcing, among other laws, criminal violations of immigration and customs laws. 10 U.S.C. § 274(b)(1)(A), (b)(4)(A). Section 274(b)(2) requires that such support may be provided only for certain specifically listed purposes, but none of those purposes encompasses the full range of the port-of-entry and checkpoint-observer duties. 16 Section 274(c), however, contains a catch-all provision specifying that military personnel may “operate equipment for purposes other than described in subsection (b)(2)” if “such support does not involve direct participation by such personnel in a civilian law enforcement operation unless such direct participation is otherwise authorized by law.” We think that the port-of-entry and checkpoint-observer duties are authorized by section 274(c). Military personnel would perform these duties by operating CBP electronic equipment in an enclosed location and reporting upon alert messages that may indicate the possibility of unlawful conduct. We understand that CBP personnel use the information gathered in these operations to detect violations of the criminal immigration and customs laws. These duties thus would involve the use of military personnel “to operate equipment” with respect to criminal violations of immigration and customs laws, as authorized by 10 U.S.C. § 274(b)(1)(A). See also id. § 274(b)(4)(A) (listing applicable criminal laws). The closest potentially applicable purpose specified in section 274(b)(2) is the “[d]etection, monitoring, and communication of the movement of surface traffic outside of the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary if the initial detection occurred outside of the boundary.” 10 U.S.C. § 274(b)(2)(B). We understand, however, that some of the activity here would not fit within that purpose because it would involve monitoring surface traffic moving well within the boundaries of the United States, and in some instances at checkpoints that are more than 25 miles away from the border. 16 25 45 Op. O.L.C. __ (Jan. 19, 2021) These activities, moreover, would not “involve direct participation by such personnel in a civilian law enforcement operation.” Id. § 274(c). We read this language in parallel with the restriction on “direct participation” required under 10 U.S.C. § 275. See Military Use of Infrared Radars, 15 Op. O.L.C. at 46. As discussed above, that reference codifies the “direct active participation” test for whether military activity violates the Posse Comitatus Act. See Domestic Terrorism at 4; Electronic Surveillance at 8; see also supra Part I (describing the three tests). The text of section 274(c) is materially similar to section 275 insofar as both bar the military from engaging in “direct participation,” either categorically “in a civilian law enforcement operation,” 10 U.S.C. § 274(c), or in the slightly more specific “search, seizure, arrest, or other similar activity,” id. § 275. We do not think that the port-of-entry and checkpoint-observer duties involve direct participation in a civilian law enforcement operation. As discussed above, the operation of surveillance equipment by military personnel, such as monitoring an infrared radar surveillance system, or operating airborne surveillance equipment, does not itself constitute “direct participation” in civilian law enforcement. See supra Part II.B.2. In 2002, for example, we concluded that military personnel may assist an FBI domestic terrorism investigation by piloting an airplane that carried surveillance equipment, operating the surveillance equipment, and transmitting the imagery to the FBI, with FBI personnel responsible for the overall conduct of the investigation, including directing the aircraft to focus on particular targets. See Domestic Terrorism at 2, 4. And in 1994, we concluded that military personnel do not engage in direct participation in civilian law enforcement activities in serving “as contemporaneous monitors of electronic surveillance transmissions.” Electronic Surveillance at 2. We explained that such “remote monitoring through various forms of electronic assistance” was “distinct from such activities as ‘planting’ the surveillance equipment at the targeted location or carrying a concealed recording device while acting as an undercover agent.” Id. at 2, 8. As in these instances, the port-of-entry and checkpoint-observer duties would not involve “physical contact with civilians or their property.” Domestic Terrorism at 4 (quotation marks omitted); see also Electronic Surveillance at 8; Military Use of Infrared Radars, 15 Op. O.L.C. at 48. 26 Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The port-of-entry and checkpoint-observer duties would involve the use of military personnel “to operate equipment” with respect to criminal violations of immigration and customs laws, 10 U.S.C. § 274(b)(1), and would not involve “direct participation” in civilian law enforcement, id. § 274(c). Therefore, such assistance is expressly authorized for purposes of the Posse Comitatus Act by section 274. 17 IV. We conclude that neither chapter 15 of title 10 of the United States Code nor section 1059 of the FY 2016 NDAA expressly authorize the rail-support and seal-check activities for purposes of the Posse Comitatus Act, but that neither of those activities would involve the use of the mili17 We also think that the port-of-entry and checkpoint-observer duties are consistent with DoD Instruction 3025.21, which codifies the restriction on “direct participation” with more particularized restrictions on “direct civilian law enforcement assistance,” id. encl. 3, ¶ 1.c. Some of those restrictions simply track the terms contained within 10 U.S.C. § 275, such as “search,” and should be construed in the same fashion. Enclosure 3 of this Instruction introduces a new term by restricting DoD personnel from engaging in “surveillance or pursuit of individuals, vehicles, items, transactions, or physical locations, or acting as undercover agents, informants, investigators, or interrogators.” DoD Instruction 3025.21 encl. 3, ¶ 1.c(1)(f ). We view this reference to “surveillance” to encompass only the kinds of activities that involve “direct civilian law enforcement assistance,” such as the targeting and tracking of specific individuals. The regulation pairs the term “surveillance” with “pursuit,” “acting as undercover agents, informants, investigators, or interrogators,” and we thus must read “surveillance” to bear a similar meaning to these neighboring words. See, e.g., Yates v. United States, 574 U.S. 528, 543 (2015) (stating that “the principle of noscitur a sociis” counsels that “a word is known by the company it keeps”). If “surveillance” were construed more broadly, then it would prohibit DoD from engaging in activities that are plainly authorized under the regulation, such as the “[d]etection, monitoring, and communication of the movement” of sea, air, and surface traffic near the border. Id. encl. 3, ¶ 1.d(5)(b)(1)‒(2). Thus, we do not think that either the port-of-entry or checkpoint-observer duties involve impermissible “surveillance” under the regulation. DoD Instruction 3025.21 also prohibits military personnel from conducting a “search.” Id. encl. 3, ¶ 1.c(1)(b). As with the regulation’s prohibition of “surveillance,” we read this portion of the regulations to apply only to a “search” that would constitute “direct civilian law enforcement assistance,” which, for reasons noted above, the rail-support and sealcheck duties would not involve. While the rail-support and seal-check duties could be said to involve a “search” in some sense, we do not believe that they would involve a “search” as that term is used in this regulation. See supra Part II.B.2. 27 45 Op. O.L.C. __ (Jan. 19, 2021) tary “as a posse comitatus or otherwise to execute the laws,” 18 U.S.C. § 1385, so as to violate that Act. We further conclude that the port-ofentry and checkpoint-observer activities are expressly authorized by 10 U.S.C. § 274(c). STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 28

Write a legal research memo on the following topic.

Federal “Non-Reserved” Water Rights [The follow ing m em orandum of law deals with the scope of the federal governm ent’s rights to u nappropriated w ater flowing across federally ow ned lands in the western states It discusses the background and developm ent of the federal “ non-reserved” water rights theory, and concludes that that theory does not provide an appropriate legal basis for a broad assertion of water rights by federal agencies w ithout regard to state laws. It then sets forth the legal standards and considera­ tions that are applicable to an analysis o f federal water rights in connection with the m anagem ent of p articu lar federal lands under specific statutes authorizing federal land m anagem ent.] TABLE OF CONTENTS I. Introduction II. Background A. Development of “A ppropriative” Water Rights in the Western States B. Role of the Federal Government (1) Federal ownership o f western lands (2) Congressional recognition of state water law (3) Judicial recognition of federal water rights (a) Federal reserved rights (b) Conflicts with congressional directives (c) Administrative practice and interpretations (i) Krulitz Opinion (ii) Martz Opinion (iii) Coldiron Opinion III. Analysis A. Constitutional Basis for Federal Claims (1) Congressional authority to preempt state water laws (2) “ Ownership” of unappropriated water (3) Effect of Mining Acts of 1866 and 1870 and Desert Land Act B. Statutory Basis for Federal Claims IV. Conclusion 328 329 333 334 338 338 341 345 346 351 355 356 360 360 362 362 362 364 367 370 383 June 16, 1982 MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL, LAND AND NATURAL RESOURCES DIVISION I. Introduction You have asked us for our analysis and legal opinion concerning the federal government’s legal rights to unappropriated water arising on or flowing across federally owned lands in the western states. Specifically, you have asked us to consider whether the federal government can assert rights to unappropriated water, without regard to state laws governing the use of such water, under what has come to be known as the federal “ non-reserved” water rights theory. For the reasons set forth in detail in this opinion, we conclude that the federal nonreserved water rights theory which we address in this opinion does not provide an appropriate legal basis for assertion of water rights by federal agencies in the western states. The question presented to us arose in your Division in pending litigation in Wyoming State court involving, inter alia, rights of the United States Depart­ ment of Agriculture, through the Forest Service, to water in the Big Horn and Shoshone National Forests. The question presented to us initially was whether an appropriate legal basis exists for the Forest Service to assert amended claims in that litigation based on the federal non-reserved water rights theory. At that time the Forest Service supported assertion of such claims, at least for the purposes of the Wyoming litigation. The Department of Agriculture has since changed its position and decided as a matter of policy that it will not assert claims based on the non-reserved water rights theory, but rather will rely on state law to obtain water rights, except where Congress has specifically established a water right or where a federal reserved right exists. See Letter from John B. Crowell, Jr., Assistant Secretary for Natural Resources and Environment, Department of Agriculture, to the Honorable David H. Leroy, Attorney General, State of Idaho (Feb. 5, 1982). While the question of the validity of the federal non-reserved water rights theory arose in the relatively narrow context of the Wyoming litigation, it is a 329 question that has created considerable uncertainty for you and your client agencies (the Departments of the Interior, Agriculture, and Defense), and for the western states. It is no exaggeration to say that water is the single most vital resource in the western states. The importance of the availability of water for management of federal lands in the western states and concern at the state level with allocation of dwindling water resources have led in the past to conflicts within the Executive Branch and intense controversy with the western states over the basis and scope of the federal government’s right to use unappropriated water arising on or flowing across federal lands. Previous Executive Branch positions relative to federal government claims to water in the western states have been inconsistent and have produced confusion, turmoil, and significant hostility toward the federal government.1 The need to establish clear, dependable, reli­ able, and sound legal policies and to avoid conflicts and uncertainty in the western states to the extent possible, and to facilitate future planning for the use of water resources by both the western states and the responsible federal agencies has led you to ask this Office to address the matter more broadly. We address here only the legal issues raised by the federal non-reserved water rights theory. Some uncertainty may persist as to how the legal principles we outline here should be applied to specific factual situations. Policy considerations will also continue to be important, for example, in the determinations by federal agencies relative to the breadth of permissible rights which they wish to assert or in the choice of procedures and forums in which to adjudicate federal water rights, and quantification of current and future water rights may have to await comprehensive adjudications in each state. However, because much of the uncertainty has been created by contradictory analyses of the legal basis of the federal non-reserved right theory, a comprehensive resolution of the legal issues involved will go far toward reducing the uncertainty and therefore the tensions among the various federal agencies and between the Executive Branch and the western states. At the outset, it is important to understand what we address in this opinion. First, we are concerned here only with the federal government’s right to use unappropriated water— i.e., water that is not subject to any vested right of ownership under applicable state or federal law at the time the federal right accrues. We do not deal here with the scope of the federal government’s right to acquire, by purchase or condemnation, existing vested (“ appropriated” ) water rights held by private individuals or by the states. Second, the question we address is not simply whether a federal non-reserved right exists in the abstract. The federal government can, and does, acquire rights to use unappropriated water on federal lands by complying with state procedural and substantive laws. In 1 The Attorney General for the State of W yoming has stated, for example, that “ the non-reserved right doctrine creates a nightmare for Western States water resources m anagem ent” Letter from the Honorable Steven F. Freudenthal, Attorney General, State of W yoming, lo Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel (Apr. 1, 1982) The Montana Attorney General has suggested that failure to resolve the non-reserved water nghts dispute would lead to “ a long and acrimonious confrontation between the federal and state govern­ ments ” Memorandum from the Honorable M ike Greely, Attorney General, State of Montana, to Theodore B O lson, Assistant Attorney G eneral, Office of Legal Counsel (Apr 1, 1982) at 12. 330 addition, the Supreme Court has recognized federal “ reserved” water rights— i.e., when the federal government, acting pursuant to congressional authoriza­ tion, reserves or withdraws public land for a specific federal purpose, such as a national forest, it also reserves sufficient water to accomplish that purpose, regardless of limitations that might otherwise be imposed on the use of that water under applicable state law. See Part IlB(3)(a) infra. In its broadest formulation, a federal non-reserved water right might include any use by the federal government of unappropriated water that is recognized neither under applicable state law nor under the reserved right doctrine. Defined this broadly, federal non-reserved water rights would include even uses of water that have been explicitly authorized by Congress, but that may not be recognized by state law, such as preservation of a minimum instream flow in a particular river,2 or diversion of a stream and construction of a dam for flood control, improvement of navigation, or produc­ tion of hydroelectric power.3 Although Congress has rarely been explicit in directing the use or disposition of water by federal agencies, there is no question that, by operation of the Supremacy Clause, such a specific directive preempts inconsistent state laws. See discussion in Part IIIA(l) infra. As we discuss below, a legal basis may therefore exist under particular federal statutes for assertion of federal water rights that do not fall into the category of either reserved or staterecognized rights, and that might conceivably be classified as “ non-reserved” water rights simply because they do not stem from the reserved doctrine. This is not to say, however, that an appropriate legal basis exists for the federal non-reserved water rights theory, as it has been articulated by, among others, former Solicitor Leo Krulitz of the Department of the Interior. It is this theory that we address here. In his June 25, 1979, opinion on the legal bases for acquisition of water rights by the Department of the Interior, Solicitor Krulitz concluded that, in the absence of an explicit congressional directive to the contrary, a federal agency may claim and use whatever unappropriated water is necessary to carry out congressionally authorized “ management programs” for federal lands, with­ out regard to state law. See Part IIB(3)(c)(i) infra. Solicitor Krulitz’s theory of federal non-reserved water rights rested on the presumption that the federal government need not comply with state water law in its acquisition and use of water for federal purposes on federal lands— a presumption that could be rebutted only by an explicit statutory directive that the federal agency responsible for management of the federal lands in question abide by state law in the use, appropriation, or distribution of water on those lands. Thus, under this theory, in the absence of such a directive a federal agency may use whatever unappropriated water is necessary to carry out its land management functions without regard to state law.4 2 See, e.g.. 16 U S.C. § 577b (1976) (prohibiting any “ further alteration of the natural water level of any lake or stream” in the Lake Superior National Forest). 3 See, e g., Oklahoma v. Guy F Atkinson Co , 313 U.S. 508, 535 (1941), First Iowa Coop, v Federal Power Comm’n, 318 U .S. 152, 176 (1946), discussed in Part IIB(3)(b) infra 4 As we discuss in Part IIB(3)(c)(i) infra. Solicitor Krulitz concluded that federal agencies are immune from both substantive and procedural state law, but recommended as a matter of policy that the agencies comply with state procedures wherever possible 331 We conclude that the broad federal non-reserved water rights theory asserted by Solicitor Krulitz is not supported by an analysis of the applicable statutes and judicial decisions. As we discuss below, to the extent Solicitor Krulitz relies on federal ownership of unappropriated water in the western states as a basis for federal rights to water, that reliance is misplaced. More importantly, when the question is considered as one of competing state and federal regulatory jurisdic­ tion, rather than ownership of the water—as we believe it must— Solicitor Krulitz’s opinion fails to give adequate consideration to the pattern of con­ gressional deference to state water law, which the Supreme Court has recognized as critical in analyzing federal rights to water on federal lands. See California v. United States, 438 U.S. 645, 648—63 (1978); United States v. New Mexico, 438 U.S. 696, 701-02 (1978). We believe that the history of federal-state relations with respect to water rights in the western states and Congress’ weighing of the competing federal and state interests establish a presumption that is directly opposite to that asserted by Solicitor Krulitz: in the absence of evidence of specific congressional intent to preempt state water laws, the presumption is that federal agencies can acquire water rights only in accordance with state law. The mere assignment of land management functions to a federal agency, without more, does not create any federal rights to unappropriated water necessary to carry out those functions. It is important to keep in mind, however, that this presumption is rebuttable. There is no question that the federal government has the constitutional authority to acquire rights to whatever water is necessary to manage federal lands, either through purchase or condemnation of existing water rights or by clear con­ gressional action. The critical question is what evidence of congressional intent is necessary to rebut the inference that state law is controlling. The Supreme Court has addressed that question in its recent decisions in California v. United States and United States v. New Mexico, albeit in limited contexts. We believe that the Court’s reasoning in those two cases provides the relevant framework for analysis here. Read together, those cases suggest that congressional intent to preempt state control over unappropriated water in the western states will be found only if conditions imposed under state law on the use or disposition of water by a federal agency conflict with specific statutory directives authorizing a federal project or directing the use of federal lands, or if application of state law would prevent the federal agency from accomplishing specific purposes mandated by Congress for the federal lands in question. The scope of the federal rights that may be asserted under those circumstances is limited to water minimally necessary to carry out the relevant statutory directives or purposes. Although we believe that the water rights that can be asserted by federal agencies without regard to state law are far more limited than those available under Solicitor Krulitz’s non-reserved water rights theory, we do not believe it is appropriate to reach a blanket conclusion that under existing federal statutes no implied federal water rights exist except for reserved rights. The reasoning used by the Supreme Court to support federal reserved rights does not depend solely on a formal reservation of land from the public domain, but rather on Congress’ 332 exercise of a constitutional authority such as the Property or Commerce Clauses, coupled with the Supremacy Clause. Therefore, that reasoning is applicable even if there has been no such reservation. We believe, for example, that the Court’s decision in United States v. New Mexico is equally applicable to water necessary to fulfill the primary purposes of a federal statutory scheme where the lands in question have been acquired by the federal government from private ownership, rather than reserved from the public domain, and dedicated to particular federal purposes, such as a national forest, park, or military base. See Part IIIB infra. We also believe that it is open to federal agencies to argue that Congress has established particular mandatory purposes for the management of public domain lands that would be frustrated by the application of state water law, although, as we discuss below, the primary federal statutes authorizing management of the public domain appear to provide little basis for that argument. The New Mexico decision leaves virtually no room for arguing, however, that federal agencies can appropriate water without regard to state law if that water is necessary only to carry out a “ secondary use” of federal lands, in the terminology of the Court in New Mexico —i.e ., an incidental or ancillary use that is permitted by Congress, but not within the primary purposes mandated by Congress for the federal lands in question. The scope of the federal government’s rights to unappropriated water for use in the management of specific federal lands in the western states, whether charac­ terized as “ reserved” or “ non-reserved,” can be definitively determined only by a careful examination of the individual federal statutes that authorize manage­ ment of those lands and their legislative history, and of the potential conflicts that may be created by application of state laws. We cannot undertake that analysis here with respect to all federal statutes governing the use of federal lands, but must leave that task, at least initially, to the individual agencies responsible for administration of those statutes. We outline in this opinion, to the extent possible, the legal standards and considerations that are applicable to that analysis, and the bases for our conclusions. II. Background The rights of the federal government to use water in the western states cannot be analyzed solely as a question of abstract constitutional or statutory interpreta­ tion. See California v. United States, supra, 438 U.S. at 648. The unique geography, history, and climate of the western states and the ownership by the federal government of substantial land within those states have shaped many of the relevant questions and conclusions. In order to analyze the scope of the federal government’s rights to unappropriated water in the western states, it is therefore necessary to look in some detail at the development of western water law and the role played by the federal government in managing and disposing of the western public lands. 333 A . D evelopm en t c f “A p p ropriative” Water R ights in the Western States Because of different climatic, topographic and geographic conditions and the differing demands of agricultural and economic development, the arid and semiarid western states have developed legal doctrines and administrative machinery governing water rights that bear little resemblance to those developed in the humid eastern states.5 Most o f the eastern states have adopted, with some variations and modifications, the common law riparian theory of water rights. In general, under a riparian theory, the right to use water goes with ownership of land abutting a stream. Each owner of land on a stream has the right to make reasonable use of the water, but cannot interfere unreasonably with the right of a downstream owner to the continued flow of the stream. For example, if the riparian owner diverts the water, he must return it to its natural channel, un­ diminished except for reasonable consumptive uses. See 1 R. Clark, Waters and Water Rights, §§ 4.3, 16.1 (1967) (hereinafter cited as Clark); F. Trelease, Water Law, at 10—11 (3d ed. 1979). Similarly, a landowner in a riparian state generally has the right to make reasonable use of ground water arising on his land, but not to make unreasonable withdrawals of that water if it comes from a pool common to other landowners. Id. A landowner’s riparian rights exist whether or not he actually takes steps to use the water, and the use may be initiated at any time. See id. at 1 1. The riparian doctrine has for the most part been adequate to allocate water rights in the eastern states, where water is generally abundant and water problems most often involve flooding, drainage, pollution, or navigation.6 As the arid and semi-arid western states were settled, however, the riparian system proved to be inadequate to meet the needs of the early settlers, particularly the miners and, later, the farmers.7 The major problem faced by early settlers in those states was a shortage of water. The two primary occupations, mining and agriculture, re­ quired large consumptive uses o f water, which could be accomplished only by construction of systems to divert and store available stream and ground waters. Tying water rights to the ownership of adjacent land, and thereby retarding or 5 Land is generally considered arid or sem i-and if 11 cannot be cultivated without irrigation. See Note, FederalState Conflicts Over the Control c f Western Waters, 60C olum . L. Rev. 967 n 2 (1960) (hereinafter cited as Colum Note) Seventeen western states are usually included in this category. Arizona, California, Colorado, Idaho, Kansas, M ontana, N ebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, U tah, W ashington, and W yoming. These states, where water is relatively scarce, have developed systems of legal rights to water based on the doctrine of “appropriation” or capture of the water for a productive use See discussion at pp 8-11 infra. The remaining 31 contiguous states have adopted some form of a riparian system for the allocation of water rights, based on ownership of land S e e discussion at pp 7 -8 infra. Alaska appears to have largely rejected a riparian doctrine in favor of an appropriative system, while Hawaii has a mixed system based on custom, ancient n ghts, and legislation See 1 Clark, supra. § 4 4 6 Although most of the states outside of the seventeen arid or semi-and western states still adhere to riparian rights, in many of those states the common law has been codified or preempted by statutes governing specific uses such as construction of dams and use of water by cities, districts and state agencies, or preserving public uses such as minimum flows or, more recently, aesthetic and environmental values See F. Trelease, Water Law, supra, at 12. Some riparian states now require administrative permits prior to the initiation of new water uses. Id; see also F Trelease, “ Federal-State Relations in W ater Law” (Legal Study No 5, prepared for the National Water Commission) at 15-18 (Sept 7, 1971) (hereinafter cited as “ Federal-State Relations” ). 7 A riparian system was particularly ill-suited for use by the first wave of miners, who staked their claims at a time when most of the western lands were still owned largely by the federal government and not legally open for settlement Thus, for the most part there was no private ownership of land to which npanan rights could attach. See C olum. Note, supra n 5, at 969 334 precluding the diversion of waters from their normal channels, would have entirely frustrated development of the west. See, e.g ., California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 157 (1935). Accordingly, based largely on customs of the early miners, the western states developed what has come to be known as the “ law of the first taker,” or the “ appropriative” system. Under an appropriative system, unlike under a riparian system, the right to use water does not depend on ownership of underlying or appurtenant lands. Rather, the right depends on capture or “ appropriation” of the water for a particular use. The first person to put water to use is entitled to that water as long as the use continues, to the exclusion of subsequent users. The principle of “ firstin-time-first-in-right” embodied in this customary system was quickly confirmed by the state courts,8and refined and codified by state statute.9 Most of the western states have now adopted comprehensive water codes based primarily on appropri­ ation, which provide for recognition, administration, and enforcement of water rights and, in several of those states, for large-scale planning of water resource use.10 Although statutory and case law differ in many respects among the western states, there are several common principles that distinguish the appropriative systems from riparian systems. See generally Trelease, “ Federal-State Rela­ tions,” supra n.6, at 29-33; 1 Clark, supra, § 4. First, the right is based on the beneficial use of water, rather than on ownership of appurtenant land. Unless there has been an actual application of water to a beneficial use, there has been no valid appropriation. The beneficial use is also the measure of the right; an appropriator is entitled to only that quantity of water beneficially used in any given year upon particular land. See 5 Clark, supra, § 408.1. Uses considered “ beneficial” vary from state to state. Recognizing that the term must be applied pragmatically, the states have generally considered beneficial uses to include a variety of productive uses such as mining, irrigation, domestic and municipal uses, industry, power production, stock watering, and, more recently, wildlife preservation and recreation." See id. Some states have 8 See. e g., Irwin v Phillips, 5 Cal. P. 140, 63 Am Dec 113 (1855), Lux v. Haggin, 69 Cal. 255, 10 P. 674 (1886), Coffin v Lefthand Ditch Co., 6 Colo. 443 (1882). 9 See. e.g , Cal Civ. Code. lit. 8. pt 4 .d iv 2, §§ 1410-22 (1872), Colo Laws 1862. ch. 28. § 13, Colo Laws 1864. § 32, Mont Laws 1865, p 30, §§ 1-2 Bannack Slats 367; §§ 69-70 Mont. Sess Laws 57; Laws of Dec. 9, 1850, Laws of Utah (1866) ch. U 0 - U 1, Law of Feb. 18, 1852, Laws of Utah (1866). ch 117; Law of Jan. 17,1862, Laws of Utah (1866) ch. 119. Hills Laws Ann (Oregon) § 3832 (1864); Howell Code (Arizona) §§ 1 ,3 (1864) 10 Fora general description of state water laws, see R Dewsnup& D Jensen, A Summary-Digest of State Water Laws (1973) (study prepared for the National Water Commission) and 3 W Hutchins. Water Rights Laws in the Nineteen Western States (U S. Dept, of Agriculture Misc Pub. No. 1206, 1971) Nine of the western states, most notably California, have in the past recognized some limited forms of riparian nghts on private lands, in addition to appropriative rights. See I Clark, supra, § 18 2(B). By statute or constitutional amendment those states have largely eliminated or severely circumscribed reliance on riparian ownership, and consequently riparian rights now have, for the most part, only historic significance See 5 Clark, supra, § 420 The only states in which new uses may be initiated by exercising a riparian right are California and, to a limited extent, Nebraska. See F. Trelease, Water Law, supra, at 11-12 11 The Montana and Washington water codes contain examples of broad definitions of beneficial use. “ Beneficial use” . . means a use of water for the benefit of the appropnator, other persons, or the public, including but not limited to. agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal, power and recreational uses. Mont Rev Code 1979 § 85-2-102(2) Uses of water for domestic stock watering, industrial, commercial, agricultural, irrigation, hydroC ontinued 335 established statutory preferences to be given effect if there are competing applications for new uses that exceed the available unappropriated water supply. These preferences do not generally affect past or existing uses.12 Second, the water must be “ appropriated,” or reduced to possession. As a general rule, appropriation may be accomplished only by a physical diversion of a stream or capture of ground water. Although some states recognize exceptions for uses such as stock watering and irrigation by natural overflow, uses of a whole stream or lake, without diversion, for purposes such as maintenance of minimum instream flows to preserve fish and wildlife or for recreation are often not recognized. See 5 Clark, supra, § 409.2. A few states allow instream uses on a discretionary basis13 or provide that state agencies may make appropriations of minimum instream flows for recreational, wildlife, or other purposes.14 Third, when there is insufficient water to meet the needs of all appropriators, priority among appropriators is established chronologically, based on the time the various appropriators first put the water to use, rather than based on any proration that takes account of the utility of the competing uses. The priority date gives an appropriative water right its primary value, because it guarantees that a senior (in time) appropriator will receive the entire quantity of water to which he is entitled prior to delivery of any water to a more junior appropriator. Originally, priority dates were established on the basis of when the water was actually put to use. Most western states, however, have enacted statutes requiring noticing or filing of applications for new water uses. In many western states, that statutory procedure is the exclusive means for acquiring water rights. In these so-called “ permit states,” priority dates are normally fixed by the date of application for the water right rather than the date of actual use. See 5 Clark, supra, at § 410.1. In permit states, it is possible that an appropriator who fails to make the filings or applications required by state law but actually puts the water to use may find his rights cut off by a more junior appropriator who makes a timely filing.15 Fourth, an appropriation of water is a transferable right of permanent, or at least indefinite duration, provided the use is continued. It may be sold or transferred with the land or separately. Changes in the location or nature of the use (but generally not the quantity) may be permitted, provided they do not injure the rights of other appropriators, but in most cases must be approved in advance electric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation o f environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial Wash. Rev Code Ann § 90 54.020 12 See, e g., Ariz. Rev. Stat. Ann § 45-147B (West Supp.) (relative values are (1) domestic and municipal, (2) irrigation and stock watering; (3) power and mining, and (4) recreation and wildlife, including fish); Wyo. Slat. § 4 1 -3 -1 0 2 (1977); 5 Clark, supra, §§ 40 8 .1 , 408.4 13 See. e.g . W yo. Stat. § 4 1 -3-306 (1977) (State Engineer can make allowances for instream stock watering, without recognizing a right to such use). 14 See, e .g .. Colo Rev. Stat § 37-92-102(3), 37-92-103(3) (4) & (10) (1973) (state agency may make appropriations of minimum instream Hows). 15 Particularly where water rights may antedate water codes or adjudication statutes, rights in those states may in some cases be awarded priority by equity decrees or other adjudicative procedures, despite a failure to make the requisite filing See 5 C lark, supra. § 410.1. 336 by the state. See 5 Clark, supra, at § 412; Trelease, “ Federal-State Relations,” supra n.6, at 33. All the western states have developed administrative or judicial systems to recognize, administer and enforce water rights. In most of these states, new appropriations must be approved by a state administrator (often known as the State Engineer) who has the authority, inter alia, todetermine ifthere is sufficient unappropriated water available, if the proposed use is beneficial and, in some states, if the use is in the public interest. See Trelease, “ Federal-State Relations,” supra n.6 at 135-36; 1 Clark, supra, §§ 20-21. Judicial review of administrative determinations, and adjudication of competing rights are available in each state", often in special courts or under special procedures applicable only to water rights. Id. The western states do not generally provide any explicit exemption from their substantive or procedural requirements for the federal government or give any special recognition to uses of water by the federal government that may have no private counterpart, such as minimum instream flows necessary to sustain wildlife and fish or to provide recreational opportunities.16 In addition to statutes providing for the appropriation of water and enforcement of water rights, most of the western states have asserted, by statutory or constitu­ tional provision, some form of “ title” to or “ ownership” of waters by the state or the people of the state.17 Many of those states also recognize, however, that the federal government may have reserved some “ proprietary” interests in unap­ propriated water appurtenant to federal lands at the time the states were admitted into the Union. In the so-called “ California doctrine” and “ Oregon doctrine” states,18 the state courts have held that the federal government had an original property right to all non-navigable waters on the territories that formed those states, a right it did not pass to the states at the time of their admission. Those states, however, by virtue of their sovereignty over lands within their borders, can nonetheless determine rights that appertain to federal as well as private ownership of property, such as the use of water, subject to the ultimate authority of the federal government to determine such rights on federally owned lands.19In 16 Some states have, however, recognized that state agencies may have particular interests and rights not available to private parties See nn 13, 14 supra 17 See. e g . Colo Const art. XVI, § 5 ( “ The water of every natural stream, not heretofore appropriated, within the state o f Colorado, is hereby declared to be ihe property of the public, and the same is dedicated to the use of the people o f the state, subject to appropriation as hereinafter provided” ), Wyo Const art. VIII, § 1 ( “ The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state” ), N.D Const, art XVII, § 210 States such as California, Nevada and Oregon have provided by statute that all water within the state “ is the property of” or “ belongs to” the public or the people of the state. See Cal W aterCode§ 102,Nev Rev Stat § 533 0 2 5 (1 979);0re Rev Stat.§ 537 110(1963). See generally E M orreale, Federal-State Conflicts over Western Waters—A Decade c f Attempted "Clarifying L e g i s l a t i o n 20 Rutgers L Rev. 423, 446-59 (1966) (hereinafter cited as Federal-State Conflicts) 18 The “ California doctnne” states are California, Kansas, Nebraska, North Dakota, Oklahoma, Texas and Washington The “ Oregon doctnne” is followed in Oregon and South Dakota See Colum. Note, supra n.5, at 972-75; Note, Federal Nonreserved Water Rights, 48 U Chi L Rev. 758, 766 n.46 (1980); 2 Clark, supra. § 102 3. 19 The “ Oregon doctnne” differs from the “ California doctrine" in that it construes the Desert Land Act as establishing a uniform rule of appropriation applicable to private and federal rights The “ California doctnne” holds that the Desert Land Act, together with the Mining Acts of 1866 and 1870 (discussed at pp 18-24, infra) merely recognized and affirmed whatever state system had been developed for allocation of water nghts, including systems such as California’s that recognized some riparian nghts SeeColum Note,supra, n 5, at 972-75; 2 Clark, supra, § 102.3. 337 the “ Colorado doctrine” states, by contrast, the courts have held that the United States never acquired any proprietary interest in waters in those states, and therefore that the transfer of sovereignty to such states with their admission simultaneously transferred full power to control the disposition and use of those waters.20 B. Role c f the Federal Government The most significant role that the federal government has played in the development of water law in the western states has been that of owner of vast public lands within those states. As we discuss below, the federal government has largely acquiesced in or fostered the development of comprehensive state control over water in the western states, even with respect to water flowing over or arising on federally owned lands. With rare exceptions, Congress has not directly regulated the acquisition or use of water flowing over or arising on federal lands in the western states. The federal laws that have the greatest impact on state interests and state regulation of water rights are directions or authorizations to government agencies to construct projects, administer programs, manage property, and use water on federal lands. To the extent that a “ federal” law of water rights exists— i.e ., rights that can be asserted under federal statutes without regard to state law— it arises primarily because programs or projects on federal lands operated by federal agencies require the use of water, rather than because federal regulation of the uses of water overlaps with state regulation. As one commentator has noted: Most conflicts [between federal and state agencies] have come not from direct clashes between inconsistent laws applicable to the same subject of regulation, but from federal uses or operations which in particular applications do not mesh with state laws or private rights. [For example a] federal project may be illegal, or at least unauthorized, under state water law. A private use under state law may interfere with a federal use of water or of land. A federal use may destroy a state use. A federal program may encourage uses not provided for by state law. Trelease, “ Federal-State Relations,” supra n.6, at 56-57. Therefore, Congress’ policies towards the settlement, disposition, and management of federal lands in the western states provide the context for our consideration of the scope of federal water rights in those states. 1. Federal ownership of western lands The federal government was the original owner of substantially all the land that comprised the western territories.21 The acts of admission of the western states, 20 The “ Colorado doctrine” states are A rizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and W yom ing 2 Clark, supra, § 102.3(C) n 21 F o r a full discussion of the origins and holdings of the California, O regon, and C olorado doctrines, see 5 Clark, supra. §§ 401, 405, 420; Colum Note, supra n.5, at 972-75 21 Title to most of the western territories was obtained by the United States from foreign powers through purchase and treaty du n n g the first half of the 19th century Generally, the terms of acquisition provided for recognition of the few existing private property nghts, but granted title over the vast non-pnvate lands lo the United States Texas was an exception, it was admitted by annexation in 1845, and retained title to all its public lands. See Morreale, FederalState Conflicts, supra n 17, at 431 & n 41; C olum Note, supra n 5, at 968-69 & nn. 8, 9. 338 which guaranteed each state “ equal footing with the original States in all respects whatever” (see, e .g ., 9 Stat. 452 (1850)), reserved to the federal government ownership of unappropriated lands within the state, but made no provision with respect to unappropriated waters. See, e.g ., California v. United States, supra, 438 U.S. at 654. Much of the land originally owned by the federal government has been sold or disposed of under the terms of the federal public land laws,22 but the federal government still holds title to substantial acreage in the West.23 The lands owned by the federal government are generally classified as either “ public domain” or “ reserved” lands. The public domain includes lands that are open to settlement, public sale, or other disposition under the federal public land laws, and not exclusively dedicated to any specific governmental or public purpose. See, e .g ., Federal Power Commission v. Oregon, 349 U.S. 435, 443—44 (1955); United States v. Minnesota, 270 U.S. 181, 206 (1926). Public domain lands are for the most part managed by the Department of the Interior, through its Bureau of Land Management (BLM).24 Reserved lands are lands that have been expressly withdrawn from the public domain by statute, executive order, or treaty, and dedicated to a specific federal purpose. Federal statutes authorize reservation of public domain land for a variety of purposes, such as national parks and monuments,25 national forests, refuges and wilderness areas,26 reclamation projects,27 hydroelectric dams,28 and military facilities.29 Other withdrawals have been made by executive order, pursuant to the general authority of the Executive Branch to manage and administer federal lands, subject to congressional authorization or assent. See United States v. Midwest O il C o ., 236 22 The term “ public land laws” is generally used to refer to statutes providing for the sale or disposition of public lands, such as the Homestead Act. 12 Stat. 392 (1862), 43 U S.C § 161 (1970), and the Desert Land Act of 1877, 19 Slat 377, 43 U.S C § 321 et seq., which provided for land grants to settlers of western lands, and various statutes providing for the sale or grant of public lands to private individuals or the states under conditions set by Congress See. e.g., Act of Aug 18, 1894, 28 Stat. 422. 43 U .S.C § 641 (1976). Public Lands Act of 1964, Pub. L No 88-606, 78 Slat 982, 43 U.S C. § 1391 et seq (1970) The sale and disposition of public lands are now governed pnm anly by the Federal Land Policy and Management Act of 1976. Pub L No. 94-579, 90 Stat 2743, 43 U S C § 1701 etse q . Public land laws are usually distinguished from mining laws, which govern the mining of hard minerals on public lands, and mineral leasing laws, which provide for leasing of public lands for gas and oil. See generally 63 Am Jur. 2d “ Public Lands,” § 2 23 In 1978 the Supreme Court recited that the percentage of federally owned land in the western states, excluding Indian reservations and trust properties, ranged from 29.5 percent of the land in the State of Washington to 86 5 percent of the land m the State of Nevada, with an average of approximately 46 percent See United States v New Mexico, supra. 438 U.S at 699 n 3 (1978) 24 The two major statutes authorizing management of the public domain by the BLM are the Taylor Grazing Act, 48Stat 1269 (1934), asamended, 43 U.S C. § 315 etseq.. which authorizes the Secretary of the Interior to manage the public domain for grazing purposes, and the Federal Land Policy and Management Act, supra n 22, which directs the Secretary of the Interior to manage the public domain on the basis of “ multiple uses'* and for “ sustained yield ” See 43 U S C § 1702(c), (h) 25 See, e g.. National F^rk Service Act of 1916, 39 Stat 535, as amended, 16 U.S C § 1 et seq., American Antiquities Preservation Act of 1906, 34 Stat 225, 16 U S C § 431 (1976) 26 See, e g , Forest Service Creative Act o f 1891, 26 Stat. 1103, 16 U S.C. § 471 (1976), Forest Service Organic Administration Act of 1897, 30 Stat 34, 36, as amended, 16 U .S.C. § 473 (1976), National Wildlife Refuge Administration Act of 1966, Pub. L No 89-669, 80Stat 9 2 7 . 1 6 U S C § 668dd (1976), Wild and Scenic Rivers Act, Pub. L No 90-542, 82 Stat. 906 (1968), 16 U.S C. § 1271 et seq., Wilderness Act of 1964, Pub. L No. 88-577, 78 Stat 890, 16 U S C. § 1131 et seq. (1976). 21 See Reclamation Act o f 1902. 32 Stat 390. as amended. 43 U .S.C . § 371 et seq. (1976). 28 See Federal Power Act. 41 Stat 1075 (1920), as amended. 16 U .S.C . § 818 (1976). 29 See State c f Nevada ex rel. Shamberger v. United States, 165 F. Supp. 600 (D Nev 1958), rev d o n sovereign immunity grounds. 279 F.2d 699 (9lh Cir 1960), Act of Feb. 28, 1958, Pub L No 85-337, 72 Stat 2 7 ,4 3 U .S .C § 155 (withdrawal, reservation or restriction of public lands for defense purposes) 339 U.S. 459, 474 (1915). As a general rule, land that has been withdrawn from the public domain is no longer subject to laws governing the disposition or sale of public lands. See, e .g .. United States v. Minnesota, supra, 270 U.S. at 206. The terms “ public domain” and “ reserved lands” are most often used to refer to land that has been owned continuously by the federal government. There is a third category of federally owned land that includes lands acquired by the federal governm ent from private ownership by purchase, exchange, gift, or con­ demnation pursuant to statutory authorization. See, e .g ., 43 U.S.C. § 315g(c) & (d) (grazing lands); 16 U.S.C. § 515 e tse q . (1976) (national forest lands). These “ acquired” lands may become part of the public domain, or may be set aside for specific federal purposes in the same manner as reserved lands. When acquired lands are set aside, they are not characterized as reserved lands, because they were not, strictly speaking, reserved from existing public domain lands. They are nonetheless usually managed under the same statutory authority and for the same purposes as reserved lands,30 and therefore for most purposes can be considered as part of a federal reservation. See Rawson v. United States, 225 F.2d 855, 856 (9th Cir. 1955), cert, denied, 350 U.S. 934 (1956) (“ It may be stated as a universal proposition that patented lands reacquired by the United States are not by mere force of the reacquisition restored to the public domain. Absent legis­ lative or authoritative directions to the contrary, they remain in the class of lands acquired for special uses, such as parks, national monuments, and the like . . . .” ); Thompson v. United States, 308 F.2d 628, 632 (9th Cir. 1962). Until the end of the 19th century, federal policy emphasized and encouraged settlement and transfer of the public lands to private ownership. See Comment, Federal Non-Reserved Water Rights, 15 Land and Water L. Rev. 67, 69 (1980); 1 Clark, supra, § 20.2. Since that time, however, federal policy has shifted increasingly towards conservation and retention of land in federal ownership and management. The emphasis on retention of lands in federal ownership began around the turn of the century, with establishment by Congress of several national parks and forests, and passage o f statutes of general applicability authorizing the reservation of federally owned land for national forests, parks, and historic monuments,31 and authorizing management of public domain land to promote purposes such as grazing or wide use of the resources on such lands.32 In addition, the federal government began to take an active role in the promotion, financing, and use of water resources. In the Reclamation Act of 1902, supra n.27, for example, Congress established broad authorization for federal develop­ ment of facilities to reclaim arid lands. The Federal Power Act, supra n.28, passed in 1920, authorized the Federal Power Commission to license private power projects, and other acts provided for federal development or construction 30 For example, § 521 o f the Forest Service statute provides that acquired forest service lands “ shall be permanently reserved, held and administered as national forest lands under the provisions of section 4 7 1 of this title and Acts supplemental to and amendatory thereof." 16 U .S.C . § 521. 31 See nn 25, 26 supra 32 See n.24 supra. 340 of large-scale multipurpose flood control, navigation, or power projects.33 Most recently, in 1976 Congress declared in the Federal Land Policy and Management Act, supra n.22, that federal policy is to retain public lands in federal ownership unless it is determined, following procedures mandated by the Act, that disposal of a particular parcel will serve the national interest. 2. Congressional recognition of state water law As we described above, even before their admission into the Union, the western states developed customary and statutory laws governing the acquisition and use of water within their borders based primarily on appropriative rights. See Part IIA supra. Federal ownership of much of the underlying land raised the threat of a general federal law applicable to the acquisition of rights to unap­ propriated water on federal lands. However, in a series of statutes passed in the last half of the 19th century, Congress rejected the alternative of a general federal water law, and instead largely acquiesced in comprehensive state control over the appropriation of water, including water on federal lands, at least with respect to rights that could be asserted by private appropriators.34 The first of these acts, the Mining Act of 1866,35 officially opened federally owned lands to exploration and development by miners. Act of July 26, 1866, 14 Stat. 253, codified at 50 U.S.C. §§ 51, 52 and 43 U.S.C. § 661 (1976). Although the primary purpose of the Act was to allow open mining on federal lands,36 Congress included a provision that specifically disclaimed any intent to interfere with water rights and systems that had developed under state and local law: Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowl­ edged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the con­ 33 See, e g., Boulder Canyon Project Act, 45 Stat. 1057 (1928), 43 U.S C. § 617 (1976), Colorado River Storage Project, 70 Stat 105 (1956), as amended, 43 U S C § 620 (1976). 34 This deference to state control can be contrasted with Congress’ approach to control over mining on federal lands, as to which Congress authorized comprehensive procedures and standards for assertion and protection of mineral claims. See 30 U S C § 22 etseq (1976) The Supreme Court has recently noted that “although mining law and water law developed together in the West prior to 1866, with respect to federal lands Congress chose to subject only mining to comprehensive federal regulation.” Andrus v. Charlestone Stone Products Co , 436 U S. 604, 613 (1978). 35 The Homestead Act, passed in 1862 (see n.22 supra), did not contain any reference to water nghts or to the appropriation of water by homesteaders 36 The 1866 M ining Act was passed to thwart legislative initiatives calling for the sale of mining interests on federal lands Its effect was to legalize the system of "free mining’’ that had been established by custom and local rules of the western mining communities The legislative history of the provision indicates that proponents of the legislation believed it would merely confirm the existing rules and customs. See R. Grow & M Stewart* “The Winters Doctnne as Federal Common Law,” lONaturalRes Law 457, App at4 8 6 n .l6 (1 9 8 0 )(h erein aftercited as “Grow & Stewart”) 341 struction of ditches and canals for the purposes herein specified is acknowledged and confirmed; . . . 43 U .S.C . § 661 (1976). Four years later Congress amended the Mining Act of 1866 to extend its applicability to “ placer” mines. Act of July 9, 1870, 16 Stat. 218, codified at 30 U.S.C. §§ 51, 52, a n d 43 U.S.C. § 661 (1976). In perhaps an overabundance of caution, Congress reaffirmed in the 1870 Act that water rights obtained under applicable state or local law were not to be affected by grants made under the Act: [A]ll patents granted, or preemption of homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the [Mining Act of 1866]. 43 U .S.C . § 661 (1976).37 The Supreme Court has interpreted these acts as expressing congressional recognition of and acquiescence in the water rights law developed by the western states: Congress intended [by these acts] “ to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition.” California v. United States, supra, 438 U.S. at 656, quoting Basey v. Gallagher, 87 U.S. (20 Wall.) 670,684 (1875). See also United States v. Rio Grande & Dam Irrigation C o., 174 U.S. 690, 704 (1899) (“ The effect of this statute was to recognize, so far as the United States are concerned, the validity of the local customs, laws and decisions of courts in respect to the appropriation of water” ). The effect of the acts was not limited to recognition of rights that had previously vested under applicable state law or custom: They reach[ed] into the future as well, and approvefd] and confirm[ed] the policy of appropriation for a beneficial use, as recog­ nized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155 (1935). In 1877, Congress passed yet a third statute, the Desert Land Act, supra n.22, which permitted persons in most o f the western states to enter and claim irrigable lands “ by conducting water upon the same . . . [by] bona fide prior appropria­ 37 The legislative history o f this provision o f the 1870 Act is sparse, and indicates only that Congress wanted to assure that water rights vesting under the 1866 Act would not be adversely affected by the new act. See Grow & Stewart, supra n.36, App. at 493-94 342 tion.” 38 In what has become an important proviso, Congress limited the amount of water that could be appropriated by such entrymen under the statute to that amount “actually appropriated” and “ necessarily used” for irrigation and recla­ mation. Any excess non-navigable water was specifically saved for the public: [A]ll surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. 43 U.S.C. § 321. This proviso of the Desert Land Act has been given a somewhat broader reading by the Supreme Court than might be warranted by its legislative history, which suggests only that it was included to prevent any individual from monopo­ lizing a source of water on desert lands.39 In California Oregon Power Co. v. Beaver Portland Cement Co., supra, the Supreme Court construed the Act as effecting “ a severance of all waters upon the public domain, not theretofore appropriated, from the land itself,” and reserving those severed waters “ for the use of the public under the laws of the states and territories named.” 295 U.S. at 158, 162. The Court held that a land patent granted by the federal government to a settler under the Homestead Act did not carry with it any common law riparian rights not recognized by the state, because in the Desert Land Act (if not before) Congress had acquiesced in the authority of the western states to change the common law riparian system to an appropriative system. Id. at 158. Although the question before the Court in that case involved competing private rights to water arising on federal lands, the language used by the Court to describe the effect of the Desert Land Act is quite broad, and could be interpreted to apply to rights that may be asserted by the federal government: What we hold is that following the Act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control cf the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain . . . [t]he Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and 38 The Desert Land Act applies only to California, Colorado, Oregon, Nevada, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and North and South Dakota. 43 U.S.C. § 323(1976). It does not apply to Kansas, Nebraska, Oklahoma, or Texas. 19 See F Trelease, Federal Reserved Water Rights Since PLLRC, 54 Denver L J 473,476(1977). At the time the Act was proposed, concern was voiced that the language “ conducting water” upon the desert lands might work a partial repeal of the 1866 and 1870 Acts, and would permit a settler to monopolize available water by conducting it across his land and selling it to contiguous owners See Grow & Stewart, supra n 36, App. at 495 & n 48. The language quoted above was included to make it clear that an entryman could acquire only such rights as are available by appropriation under stale law (i e , limited to the quantity necessary for actual beneficial use). Id. 343 gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appro­ priation, and seeks to remove what otherwise might be an impedi­ ment to its full and successful operation. 295 U.S. at 163-64 (emphasis added). The Desert Land Act has been held inapplicable to federal reserved lands. See Federal Power Commission v. Oregon, 349 U.S. 435, 448 (1955), discussed at pp. 26-27, 32-33, & n.52. Thus, in the Mining Acts of 1866 and 1870and the Desert Land Act, Congress deferred to development by the states of comprehensive water codes and admin­ istrative systems, at least with respect to rights of private appropriators. Notwith­ standing the broad language in the statutes and in California Oregon Power Co. v. Beaver Portland Cement Co., supra, it is not so clear, as we discuss infra, that Congress also intended to subject federal uses of that water to state water law. In that regard, we must consider statutes that touch on the federal government’s use of water, including, most importantly, the Reclamation Act of 1902, supra n.27, the Federal Power Act, supra n.28, passed in 1920, and the McCarran Amend­ ment, July 10, 1952 , 66 Stat. 560, 43 U.S.C. § 666. The 1902 Reclamation Act authorized joint federal-state efforts to construct large-scale reclamation projects on federal lands, subject to the jurisdiction and oversight of the Secretary of the Interior through the Bureau of Reclamation. Several provisions of the Act and subsequent amendments deal explicitly with the acquisition, use, and distribution of water. Section 8 provides expressly for the application of state law: Nothing in [this title] shall be construed as affecting or intending to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use or distribution of water used in irrigation, or any vested right acquired there­ under, and the Secretary of the Interior, in carrying out the provisions of [the Act], shall proceed in conformity with such laws, and nothing herein shall in any way affect any rights of any State or of the Federal Government or of any landowner, appropri­ ator, or user of water in, to, or from any interstate stream or the waters thereof. 43 U.S.C. § 383. Other specific restrictions on the use or distribution of water reclaimed in a federal project appear in § 5, 43 U.S.C. § 431, which prohibits the sale of reclamation water to tracts of land in excess of 160 acres, and § 9 of the Reclamation Project Act of 1939, 43 U.S.C. § 485h, which provides for repay­ ment to the United States of funds expended in the construction of reclamation works and authorizes the Secretary of the Interior to make contracts to furnish reclamation water at appropriate rates for irrigation. The Federal Power Act established a comprehensive licensing scheme for water power projects constructed by private or public entities on navigable streams or federally owned land. The Act contains two provisions referring to the 344 applicability of state laws: § 9b, which requires an applicant to present evidence of “satisfactory compliance” with certain state laws;40 and § 27, which expressly saves certain state laws relating to property rights in the use of water from supersedure by the Act.41 The McCarran Amendment is not a substantive statute, but rather a limited waiver of sovereign immunity permitting the United States to be joined as a party in state general stream adjudications. It does not affect the federal government’s substantive rights with respect to water on federal lands. However, the Act has often been relied upon as evidence of congressional recognition of the primacy of the western states’ interests in regulating and administering water rights. See, e.g., California v. United States, supra, 438 U.S. at 678-79. This position is supported by the Senate Report on the Amendment, which states that: In the arid Western States, for more than 80 years, the law has been the water above and beneath the surface of the ground belongs to the public, and the right to the use thereof is to be acquired from the State in which it is found, which State is vested with the primary control thereof . . . . Since it is clear that the States have the control of water within their boundaries, it is essential that each and every owner along a given water course, including the United States, must be amenable to the law of the State, if there is to be a proper administration of the water law as it has developed over the years. S. Rep. No. 755, 82d Cong., 1st Sess. 3, 6 (1951) (emphasis added). In each of these statutes, Congress recognized that the western states have a legitimate interest in and responsibility for the allocation of water resources within their borders. Specific provisions of federal statutes such as the Reclama­ tion Act and Federal Power Act, however, have led to conflicts between federally mandated uses of water and state regulation of those uses. Those conflicts were left to the courts to resolve. 3. Judicial recognition of federal water rights The Supreme Court has grappled on several occasions with the federal government’s rights to use or dispose of water in the western states in the context of particular federal statutes, including the Reclamation Act and the Federal Power Act and statutes authorizing the reservation of land for particular federal purposes. Because Congress has not legislated definitively on the scope of the 40 Section 9(b) requires an applicant lo provide the Federal Power Commission with “ satisfactory evidence that [he] has complied with the requirements of the laws of the State or States within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purpose of a license under this chapter” 16 U.S C § 802(b). 41 Section 27 provides that “ [njothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating lo the control, appropriation, use or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein ” 16 U.S C. § 821. 345 federal government’s rights to use water on federal lands in the western states,42 we must look at the Court’s construction of those specific statutes to determine the principles and analysis the Court would apply to questions of federal rights that have not yet been litigated. The Supreme Court has recognized that even if a particular federal statute does not expressly authorize a federal agency to acquire water rights without regard to applicable state law, the federal government may nonetheless in some circum­ stances assert an implied right to use or divert unappropriated water in derogation of state law. The Supreme Court’s recognition of such implied rights has rested in each case on a finding of implied congressional intent to preempt application of state law. The Court has found such intent in at least two circumstances: (1) when land is reserved from the public domain for a specific federal purpose (see United States v. New Mexico, supra); or (2) when state regulation of the use of water by a federal agency or licensee is inconsistent with specific congressional directives governing the construction or operation of a federal project requiring the use of water (see California v. United States, supra).43 a. Federal reserved rights. It is now settled that when the federal government reserves land for a particular federal purpose, it also reserves, by implication, enough unappropriated water as is reasonably necessary to accomplish the purposes for which Congress author­ ized the land to be reserved, without regard to the limitations of state law. The right to that water vests as of the date of the reservation, whether or not the water is actually put to use, and is superior to the rights of those who commence the use of water after the reservation date. See Cappaert v. United States, 426 U.S. 128, 138 (1976); United States v. New Mexico, supra, 438 U.S. at 698. Although the reserved rights doctrine is now well-recognized, its contours and scope have been defined only recently. The doctrine had its origins in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899). In that case, the Court upheld an injunction restraining the petitioner from constructing an irrigation dam that would have destroyed the navigability of the Rio Grande River. While the Court recognized that Congress had by statute acquiesced in the substitution of appropriative water rights for common law riparian rights in the western states (see p. 20 supra), it found that Congress had not waived its superior authority under the Commerce Clause to preserve the navigability of navigable waters. The Court listed two “ limitations” inherent in the Supremacy Clause on the authority of the states to change the common-law rules: First, that, in the absence of specific authority from Congress, a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters, so far, at least, as may be necessary 42 See n 91 infra. 43 As we discuss infra, the constitutional basis for federal water nghts is the same in both circumstances enumerated above, whether the nghts fall within the “ reserved” nghts category or within the category of “ specific congressional directives.” Because the Supreme Court has developed the reserved right doctnne in a few, welldefined cases, for clarity we will set out the decisions in these two categories separately. 346 for the beneficial uses of the government property; second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. 174 U.S. at 703. The Court’s holding rested only on the second limitation— i.e., the federal goverment’s superior authority under the Commerce Clause to pre­ serve the navigability of the stream.44 Nine years later in Winters v. United States, 207 U.S. 565 (1908), the Court relied, inter alia, on the first limitation described in Rio Grande —the inability of the state to destroy the federal government’s rights to the continued flow of a stream “ at least, as may be necessary for beneficial uses of government proper­ ty”—to support implication of a so-called “reserved” right to water under a treaty between the federal government and the Indians of the Fort Berthold Reservation. The treaty set aside particular tracts of the public domain as a homeland for the Indians, but did not expressly provide for the water necessary to irrigate that land. The Court found nonetheless that the treaty and reservation of land impliedly set aside sufficient water for the present and future needs of the Indians, reasoning that Congress’ intent that the Indians become a pastoral and civilized people could not be accomplished without sufficient water to irrigate the reservation land. 207 U.S. at 576. Citing Rio Grande, the Court opined that, “ [t]he power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be.” Id. at 577. Until 1955, the Winters, or reserved right doctrine, was generally thought to be a special rule of Indian law, rather than a general rule applicable to all federal reservations. See F. Trelease, “ Federal Reserved Water Rights Since PLLRC,” 54 Denver L. J. 475 (1977). In 1955, the Supreme Court suggested for the first time that other types of federal reservations might also provide a basis for federal reserved rights. In Federal Power Commission v. Oregon, 349 U.S. 435 (1955), often referred to as the Pelton Dam decision, the Court considered whether a state agency could deny permission to a federal licensee under the Federal Power Act to construct a hydroelectric dam on lands of the United States that had been reserved for that purpose. The state argued, relying on the Court’s broad language in California Oregon Power Co. v. Beaver Portland Cement Co. (see pp. 21-22 supra), that by the Desert Land Act of 1877 Congress had expressly conveyed to the states the power to regulate all unappropriated water within their borders, and that therefore, in the exercise of its police powers, Oregon could deny use of those waters to an individual, even if the federal government had otherwise licensed the use. The Court rejected the state’s arguments on the ground that the Desert Land Act applies only to public domain lands and does not apply to lands that have been reserved by the federal government, even if the land 44 Nearly seventy years later, the Supreme Court slated that the holding in Rio Grande was limited, and lo be construed as reaffirming the rights of the states over disposition and use of water except in narrow and specific circumstances “ [E]xcept where the reserved rights or navigation servitude of the United States are invoked, the Stale has total authority over its internal waters." California v. United States, supra, 438 U.S. at 662 (emphasis added). 347 was reserved after passage of the Desert Land Act. See 349 U.S. at 448. Although the Pelton Dam decision did not involve directly the federal govern­ ment’s right to use water because the licensee was a private party, the Court’s holding implies that the licensee was exercising some right of the United States to use water that had been reserved from state control at the time the United States reserved the dam site. See, e.g., Cappaert v. United States, supra, 426 U.S. at 144 n.10; Federal Power Commission v. Oregon, supra, 349 U.S. at 453 (Douglas, J., dissenting). The applicability of the reserved right doctrine to all federal reservations was confirmed in Arizona v. California, 373 U.S. 546 (1963). There, the Court upheld, with little discussion, a M aster’s award of reserved rights to the United States in several national wildlife refuges and the Gila National Forest: The Master ruled that the principle underlying the reservation of water rights for Indian Reservations was equally applicable to other federal establishments such as National Recreation Areas and National Forests. We agree with the conclusions of the Master that the United States intended to reserve water sufficient for the future requirements of the Lake Mead National Recreation Area, the Havasu Lake National Wildlife Refuge, the Imperial National Wildlife Refuge and the Gila National Forest. 373 U.S. at 601. The scope of the reserved rights doctrine on non-Indian land remained some­ what uncertain until the Supreme Court’s decisions in Cappaert v. United States, supra, and United States v. New Mexico, supra. In Cappaert, the Court unan­ imously held that the reservation of Devil’s Hole as a national monument under the American Antiquities Preservation Act, supra n.25, also reserved sufficient unappropriated water to maintain the scientific value of the reservation— in that case, to maintain the water level in Devil’s Hole at the minimal level necessary to preserve the Devil’s Hole pupfish, a unique species that had been endangered by a drop in the water level.45 The Court stated that: [t]his Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appur­ tenant water then unappropriated to the extent needed to accom­ plish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, 45 The case arose as an action by the United States to enjoin pumping of wells by owners of a ranch near the Devil’s Hole Monument The pumping had been authorized by a state permit after the date of reservation of the monument See 426 U .S. at 134-35. 348 which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encom­ passing water rights in navigable and nonnavigable streams. 426 U.S. at 138 (citations omitted). The Court made it clear that the determinative issue was whether the federal government intended to reserve unappropriated water, and that such intent would be inferred if “ previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created.”46 426 U.S. at 139. The amount of water reserved, however, was “ only that amount of water necessary to fulfill the purpose of the reservation, no more.” Id. at 141 (citations omitted). In United States v. New Mexico, the Court upheld, for the first time, a denial of reserved rights to the federal government. In New Mexico, the Forest Service asserted reserved rights to waters within the Gila National Forest, including minimum instream flows, “ for the requirements and purposes of the forests” as of the date that various tracts of public lands were withdrawn from the public domain for inclusion in the Forest. The Forest Service’s claims to reserved rights for, inter alia, maintenance of instream flows, recreation, and stock watering were initially granted by the special master appointed to consider all the claims, but were denied by the New Mexico District and Supreme Courts on appeal, on the basis that those uses were not among the purposes included in the Forest Service’s Organic Administration Act, pursuant to which the Gila National Forest was created. The New Mexico Supreme Court drew a distinction between the “ primary purposes” for which a federal reservation is created, and “secondary uses” of federal lands that ma; be permitted or authorized by statute or admin­ istrative practice, finding that only the former provides a basis for reserved rights. The New Mexico Supreme Court found the primary purposes of national forest reservations to be limited to the preservation of timber and securing of water flows for public and private uses. Mimbres Valley Irrigation Co. v. Salopek, 90 N.M. 410, 564 P.2d 615, 617-18 (1977). The United States Supreme Court agreed with both the result and analysis of the New Mexico Supreme Court. Justice Rehnquist, writing for the majority, noted that the application of the reserved right doctrine requires a careful examination of “ both the asserted water right and the specific purposes for which the land was reserved” and must rest on the conclusion that “without the water the purposes of the reservation would be entirely defeated.” 438 U.S. at 700 (footnote omitted). Such an examination and tailoring of the reserved right is necessary “ because the reservation is implied, rather than explicit and because of the history of congressional intent in the field of federal-state jurisdiction with respect to allocation of water.” Id. at 701-02. The Court noted that, “ [wjhere Congress has expressly addressed the question of whether federal entities must 46 The Court actually found the requisite congressional intent to be explicit, rather than implied, because the 1952 presidential proclamation reserving the land recited that the “ pool . . . should be given special protection.” 426 U S at 140 349 abide by state water law, it has almost invariably deferred to the state law.”47Id. at 702 (footnote omitted). The Court accepted the primary purpose/secondary use distinction drawn by the New Mexico Supreme Court: Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress’ express deference to state water law in other areas, that the United States intended to reserve the neces­ sary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator. Id. (emphasis added). Based on the legislative history of the Forest Service’s Organic Administration Act, the Court concluded that Congress’ intent in author­ izing reservation of the Gila National Forest was “ that water would be reserved only where necessary to preserve the timber or to secure favorable water flows for private and public uses under state law.” Id. at 718.48 The Court found recreation, wildlife, and stock watering to be secondary uses rather than primary purposes of the reservation, and therefore upheld the state court’s denial of reserved rights for those uses. The Court did not address the further question whether, if the Forest Service applied under state law for appropriative rights not available under the reserved rights doctrine, the state could deny such rights.49 After Cappaert and New Mexico, it is safe to conclude that a federal agency may acquire unappropriated water on federal lands without regard to state substantive or procedural law, when that land has been reserved pursuant to congressional authorization for a specific federal purpose that requires the use of water. The right is based on implied congressional intent, and is limited in two 47 In California v. United States, supra, decided the same day as New Mexico, Justice Rehnquist, again speaking for the majority, discussed at length the “ purposeful and continued deference to state water law by Congress,” including principally the Mining Acts of 1866 and 1870, the Deserf Land Act and the Reclamation Act of 1902. 438 U.S. at 653-70 48 The opinion of the Court also concluded that the Multiple-Use Sustained-Yield Act of 1960, 16 U S.C. § 528 (MUSYA), which provides that national forests “ shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes,” does not provide any basis for assertion of reserved nghts in forests existing as of the effective date of the MUSYA “ for the secondary purposes there established ” 438 U S at 715. The Court “ intimate[d] no view as lo whether Congress [in the MUSYA] authorized the subsequent reservation oi national forests out of public lands to which a broader doctrine of reserved water nghts might apply.” Id. at n.22 As Justice Powell pointed out in his partial dissent from the Court’s opinion, the Court’s statements on the effect of the MUSYA are probably dicta because the United States did not argue that the MUSYA reserved additional water for use on national forests, but only that the Act confirmed Congress’ intent in the Organic Administration Act to establish multiple purposes that include fish, wildlife, and recreation See id at 718 n. 1. 49 New M exico was a split decision, with Justices Brennan, White, and Marshall joining in a dissent written by Justice Powell The dissenters, however, did not take issue with the conclusion of the majority that Congress had generally deferred to state water law and therefore “that the implied-reservation doctrine should be applied with sensitivity to its impact upon those who have obtained water nghts under state law and to Congress’ general policy of deference to state law,” and concurred in the m ajonty’s conclusion that the Organic Administration Act could not be read “as evidencing an intent to reserve water for recreational or stock watenng purposes ” 438 U.S at 718 The dissenters disagreed rather with the majority’s narrow reading of the legislative history of the Organic Administra­ tion Act to exclude preservation of wildlife as a primary purpose of the reservation of national forests Id. at 719 350 crucial respects. First, federal rights will be implied only if necessary to accom­ plish the specific purposes for which Congress authorized reservation of the land, not for incidental, or “secondary” uses that may be permitted by congressional authorization or acquiescence in agency practice. Drawing the line between the “primary purposes” for which water may be reserved and the “secondary uses” for which water may not be reserved requires a careful examination of con­ gressional intent, as expressed in the particular statute authorizing reservation and management of the land in question and its legislative history. Second, the amount of water reserved is only that minimally necessary to accomplish those primary purposes— i.e., that water “without [which] the purposes of the reserva­ tion would be entirely defeated.” United States v. New Mexico, supra, 438 U.S. at 700. b. Conflicts with congressional directives. In the second relevant line of decisions, the Court has held that a state may not veto a federally authorized water project by requiring the federal government or its licensee to obtain a state permit authorizing use of water necessary for the project, and may not impose conditions on the acquisition, use, or distribution of project water that are inconsistent with specific congressional directives authoriz­ ing the project. Although in these cases the Court has not developed a coherent theory of water rights comparable to the reserved right theory, there is a common thread: when the federal government, in the exercise of its constitutional powers, for example under the Commerce or Property Clauses, authorizes a project requiring the diversion or use of water, state laws that would effectively prevent the project from being built or operated under the conditions and terms and for the purposes prescribed by Congress must fall under the Supremacy Clause. The Court has consistently held that a state cannot block construction or operation by the United States or its licensee of dams and reservoirs for flood control, improvement of navigation, power production, or reclamation.50 For example, in Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508 (1941), the Court held that Oklahoma could not block construction by the United States of a dam and reservoir for purposes of flood control and improvement of navigability on the Red River in Oklahoma and Texas. One of the objections raised by Oklahoma to the federal project was that construction of the dam and impoundment of the waters would be inconsistent with the state’s water resources program. The Court rejected that argument, finding that: [T]he suggestion that this project interferes with the state’s own program for water development and conservation is likewise of no 50 The Supreme Court has recognized that Congress’ constitutional authority to construct or license such projects can stem from any of several constitutional grants of power, such as the Commerce Clause, which provides the basis, inter aha. for regulation and promotion of the navigability of streams, the Property Clause, which authorizes Congress to manage federal lands, or the General Welfare Clause. See, e g , Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508,534 (1941) (flood control and navigation project authorized under Commerce Clause); First Iowa Coop. v. Federal Power Comm’n, 328 U S. 152, 176 (1946) (hydroelectric project on navigable stream authorized under Commerce Clause), Federal Power Comm'n v Oregon, 349 U S. 435, 445 (1955) (hydroelectric project on nonnavigable stream authorized under Property Clause, because project to be constructed on federal lands); United States v. Gerlach Live Stock Co . 339 U.S 725, 737-38 (1950) (reclamation project authorized under General Welfare Clause). 351 avail. That program must bow before the “superior power” of Congress. 313 U.S. at 534—35 (citations omitted). Similarly, in cases involving federal licenses to construct hydroelectric proj­ ects awarded under the Federal Power Act, the Court has consistently rejected state attempts to block authorization of the construction of project facilities and reservoirs. See, e.g., First Iowa Cooperative v. Federal Power Commission, 328 U.S. 152, 176 (1946); Federal Power Commission v. Oregon, 349 U.S. 435,445 (1955); City of Tacoma v. Taxpayers cf Tacoma, 357 U.S. 320, 340 (1958). Although some of the language used by the Court in those decisions suggests that state law or permit requirements do not apply to federally licensed projects even if they are consistent with the authorization of the project,51 in each case application of state law would have prevented construction of the project.52Given a direct conflict between federal authorization and state requirements, the Court held that the state law must fall, even though the Federal Power Act contained savings provisions reserving traditional control over water resources to the individual states. See First Iowa Cooperative v. Federal Power Commission, supra, 328 U.S. at 176; City cf Tacoma v. Taxpayers cf Tacoma, supra, 357 U.S. at 340; Federal Power Commission v. Oregon, supra, 349 U.S. at 445. The Court has reached similar conclusions in cases involving the reclamation laws.53 Despite the direction of § 8 of the 1902 Reclamation Act that the Secretary of the Interior “proceed in conformity” with applicable state laws (see pp. 22-23 supra), the Court has held that state law or permit requirements are preempted if they are inconsistent with other, more specific provisions of the Act or of the legislation authorizing the project. In Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958), the Court reversed the refusal of the California Supreme Court to confirm certain reclamation contracts that contained clauses implementing § 5 of the Reclamation Act of 1902 and § 9 of the Reclamation Project Act of 1939 (see p. 23 supra) because limitations imposed by those sections were inconsistent with California law. The California Court had held that 51 For example, in First fowa Coop , Ihe C ourt, discussing the effect of the savings provisions of the Act, noted broadly that “in those fields where rights are not thus ‘saved’ to the States, Congress is willing to let the supersedure of the state laws by federal legislation lake its natural course " 328 U.S. at 176. See generally Federal Power Comm’n v Oregon, supra. 349 U .S. at 444—45 (“There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission to grant a valid license fora power project on reserved lands of the United States, provided that, as required by the Act, the use of the water does not conflict with vested nghts of others. To allow Oregon to veto such use, by requiring the State’s additional permission, would result in the very duplication of regulatory control precluded by the First Iowa decision ”) (citations omitted). 52 In First Iowa Coop , the power cooperative’s development plan required diversion of the Cedar River into another basin in order to get a greater drop and head for water power. That plan would have been barred by an Iowa statute requinng that any water taken from a stream for power purposes be returned lo the same stream at the nearest practicable location. See 328 U S. at 166 In Federal Power Comm’n v. Oregon, the Stale of Oregon sought lo prevent construction of the dam because it would cut off anadromous fish from their spawning and breeding grounds 349 U .S. at 449-50. City c f Tacoma involved a conflict between the terms upon which the FPC issued a license to the City to construct a power dam on the Cowlitz River, and a Washington statute prohibiting the construction of dams over 25 feet in height on the Cowlitz or other state streams tnbutary to the Columbia, for protection of salmon. See 357 U .S. at 328 n. l l . 53 Most large federal reclamation projects are authorized by specific legislation and appropriations, but incorpo­ rate by reference the provisions of Ihe federal “reclamation laws.” including, most importantly, the 1902 Act. See, e.g.. California v. United States, supra, 438 U .S. at 651 n 6. 352 § 8 required that “whenever there is a conflict between the Federal Reclamation laws and the laws of the State, the law of California must prevail.” 357 U.S. at 287. The United States Supreme Court held that the general savings provision of § 8 could not override the mandatory, specific provisions of § 5 and § 9. Id. at 292.54 The Court reaffirmed this view of § 8 in City cf Fresno v. California, 372 U.S. 627 (1963), in which the Court held that § 8 does not require the Secretary of the Interior to ignore the explicit preference established by § 9(c) of the Reclamation Act of 1939 for irrigation over domestic and municipal uses of reclamation water (see p. 23 supra)', and in Arizona v. California, 373 U.S. 546 (1963), in which the Court concluded that state law could not interfere with the power of the Secretary of the Interior, under the Boulder Canyon Project Act, supra n.33, to determine with whom and on what terms water contracts would be made. Language used by the Supreme Court in Ivanhoe, Fresno, and Arizona suggested that the scope of § 8 was extremely narrow. In Ivanhoe, for example, the Court stated that § 8 “merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested rights therein.” 357 U.S. at 291. The Court suggested in Fresno that state law would not control even the acquisition of water rights when the United States exercises its power of eminent domain, but instead would only determine the “definition of the property inter­ ests, if any, for which compensation must be paid.” 372 U.S. at 630. In Arizona, the Court endorsed its broad holdings in Ivanhoe and Fresno, noting “ [t]he argument that § 8 of the Reclamation Act requires the United States in the delivery of water to follow priorities laid down by state law has already been disposed of by this Court . . . .” 373 U.S. at 586. However, in California v. United States, supra, decided the same day as United States v. New Mexico, the Court made clear that its decisions in Ivanhoe, Fresno, and Arizona could be read only to hold that state laws governing the appropriation, use, control, or distribution of water do not control federal uses if they are inconsistent with specific congressional directives, for example § 5 of the Reclamation Act or § 9 of the Reclamation Project Act of 1939. California v. United States involved construction of the New Melones Dam in California, part of the mammoth Central Valley Reclamation Project, which has spawned much of the case law under the Reclamation Act.55 The California State Water Re­ sources Control Board, upon application by the Bureau of Reclamation, author­ ized the impoundment of water for the project, but imposed several conditions on the use of that water. The Bureau of Reclamation then sought a declaratory 54 The Court also rejected a constitutional challenge to the reclamation projects in question, finding that “[tjhere can be no doubt of the Federal Government’s general authority to establish and execute” the projects under the General Welfare Clause and Property Clauses of the Constitution. 357 U S at 294-95 Those clauses give the federal government the power “to impose reasonable conditions on the use of federal funds, federal property, and federal privileges,” and prohibit the states from “compel[ling] uses of federal property on terms other than those prescribed or authorized by Congress ” Id. at 295 55 See, e g , United States v. Gerlach Live Stock Co , 339 U.S. 725 (1950); Ivanhoe Irrigation District v McCracken, supra; City o f Fresno v California, supra; Dugan v Rank, 372 U S 609 (1963). 353 judgment that the United States could impound whatever unappropriated water was necessary for the project without complying with state law. The District Court held that the United States must apply to the State Board for an appropriation permit as a matter of comity, but that the Board must issue the permit without condition if there is sufficient unappropriated water. United States v. California, 403 F. Supp. 847 (E.D. Cal. 1975). The Ninth Circuit affirmed, but held that § 8 of the Reclamation Act of 1902, rather than comity, required the United States to apply for the permit. United States v. California, 558 F.2d 1347 (9th Cir. 1977). In the Supreme Court the United States argued for affirmance of the decisions below on the ground that a state may not impose any conditions on a federal reclamation project, whether or not they may be consistent with author­ ization for construction and operation of the project. See Brief for the United States at 31-55, California v. United States, 438 U.S. 645 (1978).56 In its decision reversing the Ninth Circuit, the Supreme Court recognized that its prior statements regarding the effect of § 8 of the Reclamation Act of 1902 could be read to support the United States’ argument, but the Court characterized those statements as dicta “to the extent [they] impl[y] that state law does not control even where not inconsistent with . . . expressions of congressional intent.” 438 U.S. at 671 n.24. The Court pointed out that each of its prior decisions involved a direct conflict between state law and a specific provision of the federal reclamation laws, and therefore disavowed that dicta insofar as it “would prevent petitioners from imposing conditions on the permit granted to the United States which are not inconsistent with congressional provisions authoriz­ ing the project in question.” Id. at 674. Because the courts below had not reached the question whether the conditions actually imposed were inconsistent with congressional directives authorizing the New Melones project, the Court re­ manded the case for further consideration.57 The Court suggested that on remand the district court would be free to consider arguments that the legislation authorizing the New Melones project had “by its terms signified] congressional intent that the Secretary condemn or be permitted to appropriate the necessary water rights for the project in question.” Id. at 669 n.21.58 56 The United States also argued that the conditions imposed on the permit granted by the California Board were inconsistent with the terms upon which construction and operation of the project had been authorized. See U.S. Brief at 57-85 Because the lower courts had both found that California could not impose any substantive conditions on the permit, this argument was not considered below. 57 Three justices (White, Brennan, and Marshall) dissented from the majority’s decision, on the ground that § 8 should be read narrowly, as it was in Ivanhoe, Fresno, and Arizona, to deal only with the acquisition of water rights and to require only that the United States respect water rights that have been vested under state law See 438 U S. at 691. The dissent would have upheld the lower court decisions “that the State was without power under the reclamation laws to impose conditions on the operation of the New Melones Dam and on the distribution of project water developed by that Dam, which would be undertaken with federal funds.” Id. at 693 Justice Powell, who wrote the dissent in United States v. New Mexico, joined in the majority in California. 58 On remand, the district court found that certain conditions imposed by the California Board on the amount and purposes of water to be appropriated, the times of the year in which water could be appropriated, and the distribution of water outside certain counties were not inconsistent with Congress’ purpose in authorizing the New Melones project. O ther conditions, for example, those imposing limitations on the use of impounded water for the production of power were rejected as inconsistent with the congressional intent. United States v California, 509 F. Supp 867 (E.D . Cal 1981). Cross-appeals were filed in the Ninth Circuit Those appeals have been briefed and argued and are pending decision. U nitedStates v State of California, C A Nos 81—4189 and 81—4309 {appeals docketed Apr 10, 1981, and June 5, 1981). 354 c. Administrative practice and interpretations. Because the Supreme Court and Congress have not definitively answered many of the questions in the area of federal-state water rights, administrative practice and interpretation by the federal land management agencies have served to fill some of the interstices. We understand that there has never been a uniform policy among the agencies with primary responsibility over federal lands regard­ ing the extent to which the federal government should or would comply with state laws and procedures in acquiring water rights or give notice to appropriate state agencies or officials of the water needs and uses of the agency.59 Agencies have participated in general stream adjudications, at least since passage of the McCarran Amendment in 1952,60 and have litigated water rights in individual cases, but have not developed wholly consistent policies as to whether they should file all water right claims with state agencies. See Report cf the Task Force on NonIndian Federal Water Rights at 35 (Government Printing Office 1980) (here­ inafter cited as Task Force Report). For example, the Forest Service and Fish and Wildlife Service, at least since the 1930s, have generally attempted to notify the states of water uses and needs and to file for some water rights pursuant to applicable state law. Task Force Report at 36. Since 1946, the Forest Service has generally not filed for water rights on reserved lands, although it has filed for water rights on acquired lands and, since 1966, has informed state officials of the scope of its reserved water rights. The policy of the National Park Service has been to comply with state water laws, particularly with respect to rights not available under the reserved right doctrine. Id. Other agencies have often com­ plied with state procedures in acquiring water rights, but have also asserted rights or used water in many instances without compliance with state law or notice to appropriate state authorities.61 While the ad hoc approach reflected in the practice of responsible agencies may have accommodated both state and federal concerns when water supplies were relatively ample, over-appropriation of streams in most of the western states and increasing competition for water between and among private and public users has led to efforts at the state and federal levels to achieve certainty in the definition and allocation of water rights. In 1978, President Carter submitted a Federal Water Policy Message to Congress, which recognized the difficulties created for the states by the existence of unquantified, undetermined federal 59 These agencies include, most importantly, the Department of the Interior, which has jurisdiction over all public domain lands and some reserved lands, such as national parks, refuges, and wilderness areas; the Department of Agriculture, which, through its Forest Service, has jurisdiction over the national forests; and the Department of Defense, which has jurisdiction over military bases and reservations and, through the Army Corps of Engineers, over flood control and navigattonal public works. 60 See, e g.. United States v. District Court in and fo r Water Division No. 5, 401 U.S 527 (1971); Colorado River Conservation District v United States, 424 U.S 800 (1976). 61 For example, following the Pelton Dam decision in 1955, the Department of the Navy apparently ceased filing any claims for water with state agencies. See Nevada ex rel. Shambergerv United States, supra n 29, 165 F. Supp. at 606. That has not, however, been the consistent position of the Department of Defense since then We understand, for example, that the Air Force has agreed that water necessary for deployment of the MX missile system in Nevada and Utah will be appropriated only under state laws See Letter from Grant C Reynolds, Assistant General Counsel, Department of the Air Force, to Myles E. Flint, Chief, General Litigation Section, Land and Natural Resources Division, Dept, of Justice (Nov 19, 1981). 355 reserved rights to water in the western states, and recommended that priority be given to quantification of federal reserved rights.62 At the same time, federal agencies were directed to expeditiously establish and quantify federal reserved rights. In response to this initiative, Solicitor Krulitz of the Department of the Interior issued a formal opinion in June 1979, covering both “reserved” and “nonreserved” water rights under statutes authorizing the Department of the Interior to manage federal lands. As we discuss in the next segment of this opinion, Solicitor Krulitz articulated the non-reserved water rights theory of the Department of the Interior, stating that the federal government had a right to use water for “congressionally authorized uses” irrespective of any reservation of land. Solicitor Krulitz’s opinion provoked a maelstrom in the western states and an almost immediate decision by Interior Secretary Andrus not to implement segments of the Krulitz opinion except in very limited circumstances. Secretary Andrus’ announcement was followed in January 1981 by an opinion by Solicitor Krulitz’s successor, Solicitor Clyde 0. Martz, restricting the application of the Krulitz opinion. In September 1981, the current Solicitor, William H. Coldiron, issued an opinion repudiating the legal basis and conclusions of the Krulitz opinion. Since these opinions have shaped much of the recent debate on the scope of federal water rights,63 we will review them in detail here. i. Krulitz Opinion In his opinion, Solicitor Krulitz set out to analyze comprehensively the legal bases for the Department of the Interior to assert rights to water on federal lands. In addition to federal reserved rights, Solicitor Krulitz concluded that the federal government has the right to make use of unappropriated water on federal lands without regard to state substantive or procedural law, so long as the water is necessary to carry out “congressionally authorized purposes” or “uses,” unless Congress clearly and expressly directs otherwise—the so-called federal “non­ 62 Pub. Papers c f Jimmy Carter, 1978, pp. 1044-51. Pursuant to this initiative, a Task Force on Non-Indian Reserved Rights was established. The Task Force issued a final report in 1980, in which it recommended, inter alia, that federal agencies attempt to quantify all current and future water requirements, that state law be used to the fullest extent possible for water uses not subject to existing reserved rights, and that the Executive Branch attempt, as a matter of policy, to obtain future water nghts by purchase, exchange, condemnation, or appropriation under state law. Task Force Report, supra, at 3 -6 This last recommendation was “grounded on the belief that, to the extent neither existing state law nor existing federal reserved nghts provide an adequate base for federal water needs to carry out congressionally established management objectives, in some cases a new reserved right might be created and in other cases a federal non-reserved right might be asserted.” The Task Force urged, however, “that neither course be followed except where it is absolutely essential to carry out congressionally mandated management objectives ” Task Force Report at 66-67 The Report did not address in any detail the legal basis for assertion of any federal non-reserved water rights. 63 Solicitor Krulitz's opinion, in particular, has been the subject of considerable comment. See, e g., The Western States Water Council, “Response to the Solicitor’s Opinion on Federal Water Rights of June 25, 1979” (Oct 25, 1979); Note, “Federal Nonreserved Water Rights,” 48 U Chi. L. Rev. 758 (1981); F Trelease, “Uneasy Federalism— State Water Laws and National Water Uses,” 55 Wash. L. Rev 751 (1980); Comment, “Federal NonReserved Water Rights,” 15 Land and Water L. Rev. 67 (1980), Note, “Federal Acquisition of Non-Reserved Water Rights after New M exico," 31 Stan. L. Rev 885 (1979). Solicitor Coldiron’s opinion has been the subject of at least one recent comment. See Gould, “Solicitor Rejects Non-Reserved Rights,” 14 Water Law Newsletter No 3 (Rocky Mountain Mineral Law Foundation 1981). 356 reserved” water rights theory. Dept, of Interior Solicitor’s Opinion No. M-36914, “Federal Water Rights of the National Park Service, Fish and Wildlife Service, Bureau of Reclamation and the Bureau of Land Management,” 8 6 1.D. 553(1979) (Krulitz Op.). Solicitor Krulitz did not elaborate on the scope of “con­ gressionally authorized purposes” or “uses,” but his subsequent discussion of the availability of federal non-reserved water rights under statutes applicable to the Department of the Interior indicates that he thought those purposes and uses should be broadly defined.64 Thus, in Solicitor Krulitz’s opinion, there are only two prerequisites to the existence of a federal non-reserved water right: (1) the assignment of a land management function to a federal agency, e.g., by statute, appropriation, legislation, or acquiescence in long-standing administrative inter­ pretation; and (2) the actual application of water to use. The non-reserved water right asserted by Solicitor Krulitz is both broader and narrower than the reserved right. It is broader in that it does not depend on a formal reservation of land, and therefore may arise on public domain and acquired, as well as reserved, federal lands. In addition, it is not limited to the specific “primary purposes” for which federal land is managed, but also extends to any management use or function that is permitted by Congress for the land, even if such uses are only incidental to the purposes mandated by Congress for the land, or “secondary,” in the language of the Court in New Mexico. Thus, under Solicitor Krulitz’s formulation, a federal agency may assert a non-reserved right for any secondary use of reserved lands (assuming it has reserved rights covering all primary purposes), and for all permissible uses on acquired and public domain lands, whether characterized as primary or secondary. In one respect, however, the non-reserved right is narrower than the reserved right, because it is based on the appropriation of water to actual use, rather than on a reservation of land. Thus, the priority date for non-reserved rights is the date the water was first put to use, and its measure is the amount of water reasonably necessary for that use. By contrast, reserved rights have priority as of the date of the reservation, regardless of when or whether the water was put to use, and extend to all water reasonably necessary for current and future uses. See, e.g., Cappaert v. United States, supra, 426 U.S. at 138. Solicitor Krulitz rested his opinion on an asserted federal proprietary interest in unappropriated waters in the western states and the federal government’s superior right under the Supremacy Clause to make use of water in furtherance of its constitutional powers. See Comment, “Federal Non-Reserved Water Rights,” 15 Land and Water L. Rev. 67, 74—75 (1980). He started with the premise that, through cession from foreign nations, the United States acquired ownership of the lands that now comprise the western states and ownership of all rights appurtenant to those lands, including “ the power to control the disposition and use of water on, under, flowing through or appurtenant to such lands.” Krulitz Op. at 563, 575. He asserted that under the Property Clause of the Constitution, the United States has plenary power to control its property; no interest in that 64 See discussion infra. 357 property may be acquired, by the states or private parties, “ in the absence of an express grant from Congress . . . Solicitor Krulitz concluded that “absent that grant or consent, [the property] continues to be held by the United States.” 65 Id. (citing United States v. Grand River Dam Authority, 363 U.S. 229, 235 (1960); Utah Power & Light Co. v. United States, 243 U.S. 389,404-05 (1917)). Solicitor Krulitz buttressed this conclusion with a Supremacy Clause argument: Federal control over its needed water rights, unhampered by compliance with procedural and substantive state law, is support­ ed by the Supremacy Clause and the doctrine that federal ac­ tivities are immune from state regulation unless there is a “ clear congressional mandate,” or “ specific congressional action,” providing for state control. Id. at 564 (citing Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954)); Paul v. United States, 371 U.S. 245, 263 (1963); Hancock v. Train, 426 U.S. 167, 178-81 (1976); EPA v. State Water Resources Control Board, 426 U.S. 200, 214, 217, 221 (1976). Under either theory, the conclusion reached by Solicitor Krulitz as to the applicable legal analysis is the same: [T]o the extent Congress has not clearly granted authority to the states over waters which are in, on, under or appurtenant to federal lands, the Federal Government maintains its sovereign rights in such waters and may put them to use irrespective of state law. Id. at 563. Krulitz concluded that neither the equal footing doctrine66 nor the Acts of 1866 and 187067 and the Desert Land Act68 constituted the necessary clear grant of authority over unappropriated waters on federal lands to the states, and therefore that the federal government may use that water without interference 65 However, Solicitor Krulitz disavowed statements made by a prior Interior Department Solicitor that the United States is the “ owner of unappropriated non-navigable water on the public domain” as “ broad and irrelevant to the nght of the United States to make use of such water.*’ He stated that “ concepts of ‘ownership’ of unappropriated waters are not determinative in federal-state relations in non-reserved water rights.” Krulitz Op. at 613 Solicitor Krulitz's partial disavowal of the proprietary basis for federal claims is somewhat confusing and seems inconsistent with his statements that the federal government has a retained “ proprietary interest” m waters not otherwise appropriated pursuant to state law and “plenary power” over unappropriated waters on federal lands by virtue of the Property Clause See, e g , id at 563, 575. 66 Solicitor Krulitz concluded that the equal footing doctnne (see p. 15 supra), which is generally relied on to support state claims of ownership of unappropnated waters, did not divest the United Stales of its ownership interests in unappropnated waters, because (1) the state acts of admission into the Union contained no express grant of ownership, such as is required when the United States divests itself of its property rights, and (2) state ownership of unappropriated water at the time of admission into the Union is “ difficult to square with the reserved rights doctrine . . . as appl[ied] to reservations of land in a state after statehood.” Krulitz Op. at 564. 67 Solicitor Krulitz interpreted the 1866 and 1870 Mining Acts to waive the United States’ “ proprietary and riparian nghts to water on the public domain [only] to the extent that water is appropnated by members of the public under state law . . . .” Krulitz Op. at 565 By negative implication, because the acts did not deal with the federal government’s rights to use that water, they recognized the United States’ “ inchoate federal water nghts to unappropnated waters that exist at any point in time ” Id at 565-66 68 Solicitor Krulitz interpreted the Desert Land Act as a statute of limited applicability that “ does not directly address federal nghts to use water for congressionally authonzed purposes on the federal lands, but instead is aimed at appropriation and use ‘by the public’” Krulitz Op at 566 358 from the states. Thus, he asserted that by these “ relatively narrow” acts, the United States did not divest itself of its authority “to use the unappropriated waters on public lands for governmental purposes.” Id. at 569 (emphasis in original). Solicitor Krulitz acknowledged that the language of the Supreme Court in United States v. New Mexico, supra, that, in the absence of a reserved right “ there arises the contrary inference that Congress intended federal agencies to acquire water in the same manner as any other public or private appropriator” (438 U.S. at 702) makes it unclear whether federal agencies must conform the assertion of non-reserved federal water rights to state law. He concluded, however, that the Court could not have intended to suggest that state procedural or substantive law would control federal non-reserved uses, because requiring federal agencies to assert non-reserved water rights only for purposes recognized as beneficial under state law would lead to the “ anomalous result” that federal land managers would have to manage the same kind of federal land differently in different states. Rather, he argued that the Court intended only to suggest that water rights other than those available as reserved rights must be acquired through some form of appropriation and actual use, and not merely through a reservation of land. Id. at 576-77. As a matter of policy, Solicitor Krulitz recommended that federal agencies comply with procedures established by the states “ to the greatest practicable extent.” He did not conclude, however, that compliance with state procedural requirements is required as a matter of law. Id. at 577-78. In the second portion of his opinion Solicitor Krulitz outlined reserved and non-reserved federal water rights available to the land management divisions of the Department of the Interior. He acknowledged that the Taylor Grazing Act and the Federal Land Policy Management Act (FLPMA) do not create any reserved rights, but concluded that those statutes express a congressional mandate that the public domain be managed for multiple use and sustained yield purposes, including recreational campgrounds, timber production, livestock grazing, and minimum instream flows necessary to protect and enhance fish and wildlife resources and scenic values. Therefore, he concluded that the BLM may appro­ priate any water on the public domain necessary to fulfill those purposes. See id. at 615. With respect to the National Park Service and the Fish and Wildlife Service, Solicitor Krulitz concluded that those agencies may appropriate (in addition to water available as reserved rights) all unappropriated water necessary to fulfill a broad range of consumptive and non-consumptive uses, including, inter alia, conservation of scenery, natural and historic objects, fish, and wildlife; provision for public recreation and enjoyment; construction and maintenance of easements, rights-of-way, and trails; operation of concession operations and construction of airports in national parks; and management of timber, range, agricultural crops, and animals in national refuges. Id. at 616-17. Only in § 8 of the Reclamation Act of 1902 did Solicitor Krulitz find a sufficiently clear congressional directive to require that water necessary for operation and mainte­ nance of reclamation projects be acquired pursuant to state law. Id. at 615-16. 359 ii. Martz Opinion In 1980, Solicitor of the Interior Clyde O. Martz issued a supplemental opinion dealing with the federal non-reserved water rights theory. See Dept, of the Interior Solicitor’s Opinion No. M-36914 (Supp.), “ Supplement to Solicitor Opinion No. M -36914, on Federal Water Rights of the National Park Service, Fish and Wildlife Service, Bureau of Reclamation and the Bureau of Land Management,” 8 8 1.D. 253 (1981) (Martz Op.). Solicitor Martz did not disagree with or disavow Solicitor Krulitz’s analysis of the existence and nature of the federal non-reserved water rights theory,69 but concluded that no federal nonreserved water rights could be asserted under FLPMA or the Taylor Grazing Act. Solicitor Martz noted that FLPMA authorizes a wide range of land management activities that require the use of water, but concluded that the savings provision in § 701(g) of the Act70 indicates that Congress did not intend to provide an independent statutory basis for claims to water that would be inconsistent with the substantive requirements of state law. Martz Op. at 257-58. Without discus­ sion, he concluded that “ [t]he same analysis and conclusion is equally applicable to the Taylor Grazing Act.” Id.1' iii. Coldiron Opinion The current Solicitor of the Interior, William H. Coldiron, issued an opinion on September 11, 1981, concluding that “ there is no federal ‘non-reserved’ water right” and disavowing the Krulitz and Martz opinions to the extent they asserted that such rights exist. See Dept, of the Interior Solicitor’s Opinion M -36914 (Supp. I), “Non-Reserved Water Rights— United States Compliance with State Law,” (Sept. 11, 1981) (Coldiron Op.). Solicitor Coldiron acknowl­ edged that Congress has the power under the Commerce and Property Clauses to control the disposition and use of water appurtenant to lands owned by the federal government, and that, under the Supremacy Clause, it is “ unlikely that state law could preclude reasonable water use by a federal agency if Congress specifies a 69 Solicitor Martz reaffirmed Solicitor Krulitz’s conclusion that situations exist in which the federal government has a legal basis for asserting a federal right to use water in a manner not conforming to all substantive requirements of state law, and not available as a matter of a reserved right. “ Federal claims in such cases may be founded on Federal supremacy if and where clearly mandated by Act of Congress Such claims may also be supported by the dominion the United States has and continues to exercise over unappropriated waters ansing on the public lands." M am Op. at 256. 70 Section 701(g) provides, in relevant part: Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or (1) as affecting in any way any law governing appropriation or use of, or Federal right to, water on public lands; (2) as expanding or diminishing Federal or State jurisdiction, responsibility, interests or rights in water resource development or control Reprinted at 43 U S.C. § 1701. 71 Solicitor Martz also noted that the Department of the Interior had previously decided, as a matter of policy, to refrain from asserting non-reserved nghts, except if specifically approved m individual cases by the Assistant Secretary or Secretary of the Department, or if the Department was required to submit all claims for water nghts in litigation. Martz predicted that in the future most federal water rights would be founded on appropriation or purchase. Martz Op. at 255 n.4. 360 particular federal usage.” Coldiron Op. at 5.72 However, Solicitor Coldiron observed that Congress can also defer to state control over water resources, and that therefore the crucial question is whether Congress intended to delegate that authority to the states. Solicitor Coldiron analyzed the question of congressional intent in much the same terms as did the Supreme Court in California v. United States and United States v. New Mexico—decisions which Solicitor Coldiron concluded “defi­ nitively and directly addressed” the issue of federal non-reserved water rights. Coldiron Op. at 9. Thus, Solicitor Coldiron interpreted the land management statutes of the 19th century, the Reclamation Act of 1902, and other public land use statutes to express congressional recognition of the practical importance of local control of water resources and a general policy of deference to state water law. Id. at 6-7. Solicitor Coldiron asserted that only two exceptions have been recognized to this general deference to state water law: the federal navigation servitude and the federal reserved right. Id. at 10-11. He concluded, drawing on language from California and New Mexico, that Congress has given the states broad power to provide for the administration of water rights, which can be infringed by the federal government only where necessary to accomplish the original purpose of a congressionally mandated reservation of land, or to protect the navigation servitude. Therefore, in analyzing land management statutes, the presumption should be that “ the United States and its agencies must acquire water rights in accordance with state substantive and procedural law unless necessary for the original purpose of a reservation” (or, presumably, unless incident to the federal government’s navigation servitude). Id. at 12. Solicitor Coldiron did not address the question of what evidence of con­ gressional intent is necessary to overcome the presumption that state law applies. He concluded, without an analysis of specific statutory schemes such as that undertaken by Solicitor Krulitz and Solicitor Martz, that “ there is an insufficient legal basis for the creation of what has been called federal ‘non-reserved’ water rights . . . . There is no federal ‘non-reserved’ water right.” Coldiron Op. at 12. This conclusion suggests that, in Solicitor Coldiron’s opinion, no existing federal land management statute contains a congressional directive of sufficient speci­ ficity to overcome the presumption of deference to state law, and that, unless and until Congress enacts statutes specifically authorizing non-reserved rights or repeals the land management statutes that preserve control over water rights in the states, the only water rights available to federal agencies outside of state law are reserved rights or rights necessary to preserve the navigation servitude. Id. 72 Although Solicitor Coldiron’s analysis is rooted primarily in the Supremacy Clause, he also found a basis for congressional authonty in the United States’ ownership of unappropnated water on the public domain. He suggested in his opinion that the United States’ power over unappropriated non-navigable water located on the public domain “ arises from retention of federal property, including the streams and lakes thereon at the time of statehood,” and charactenzed the pattern of ownership of waters with the western states as follows “ [w]hen the vanous western states were admitted to the Union, the title to the beds and waters of the navigable streams and lakes passed to the new states, with the United States retaining title to the non-navigable waters on the public domain.” Coldiron Op. at S 361 III. Analysis A. Constitutional Basis for Federal Claims 1. Congressional authority to preempt state water laws As a matter of constitutional law, Congress clearly has the power to preempt state law governing the use and disposition of unappropriated water by federal agencies on federal lands. That authority arises from the constitutional provi­ sions authorizing the federal government, for example, to regulate interstate commerce (Art. I § 8), to provide for a common defense (Art. I § 8), to enter into treaties (Art. II § 2), to manage federal property (Art. IV § 3), and to provide for the general welfare (Art. I § 8).73 In the exercise of its constitutional authority under the Commerce, Property, or General Welfare Clauses, or under its treaty and war powers, Congress has the power to authorize the appropriation of unappropriated water by federal land management agencies. If Congress exer­ cises that power, by operation of the Supremacy Clause such an exercise preempts inconsistent state laws. See United States v. Rio Grande Dam & Irrigation Co., supra, 174 U.S. at 703; Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 534 (1941). Congress may, for example, authorize a comprehensive interstate plan for control and disposition of water resources that preempts inconsistent or duplicat­ ing state regulation;74 provide for maintenance of instream flows without regard to whether such flows are recognized under state law;75 authorize federal agencies or licensees to divert streams for the construction and operation of hydroelectric projects without regard to state restrictions on such diversions;76place limitations or conditions on the use or disposition of water from federal projects that are inconsistent with state laws governing the use of such water;77 or impliedly reserve water necessary to carry out specific federal purposes at the time land is withdrawn from the public domain.78 The question, therefore, is not generally whether Congress has the power to establish federal rights to unappropriated water, but whether it has exercised that power. See United States v. New Mexico, supra, 438 U.S. at 698. It is important to understand that any water rights that may be asserted by the federal government outside of state law— whether called reserved, non-reserved, 73 R>r the most part, ihe authorizations to federal agencies that are of concern here are based directly on the Property Clause, which grants Congress the power “ lo dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Art. IV § 3 cl.2 As we discuss at pp. 51-56 infra, we believe the proper analytical approach is to consider that the “ property” that is subject lo federal control in this context is not the unappropriated water arising on federal lands, but the lands themselves. See generally Kleppe v. New Mexico. 426 U S. 529, 537-39 (1976). 74 See, e.g , Arizona v California, 373 U S. 546 (1963) (Boulder Canyon Project); Oklahoma v. Guy F. Atkinson Co , 313 U .S. 508, 534 (1941) (navigation and flood control project) 75 See, e g , 16 U S.C. § 557b (prohibiting any “ federal alteration of ihe natural water level of any lake or stream ” in the Lake Superior National Forest) 76 See, e g., Ashwander v. Tennessee Valley Authority, 297 U S. 288, 350 (1936), First Iowa Coop. v. Federal Power Com m'n. 32$ U S. 152, 176(1946): Federal Power Com m 'nv. Oregon. 349 U.S. 435, 445 (1955), Tacoma v. Taxpayers o f Tacoma. 357 U.S. 320, 340 (1958); United States v Grand River Dam Authority. 363 U.S 229, 232-33 (1960). 77 See. e.g . Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958), City c f Fresno v California, 372 U.S 627 (1963); California v United States, 438 U S 645 (1978) 78 See, e.g.. Cappaert v United States, 426 U .S. 128(1976); United States v New Mexico, 438 U.S. 696 (1978). 362 or by some other name—rest on this same constitutional basis. Thus, federal reserved rights are not a unique species of federal rights that arise directly out of the reservation of federal lands, so that, absent a reservation of land, no federal water rights can exist. As one commentator has noted, “the reservation doctrine is not a source of federal power.” Trelease, “Federal-State Relations,” supra n.6, at 139 (emphasis added). The reserved right doctrine does not rest on any unique constitutional basis. Rather: [t]he federal functions exercised in the name of the reservation doctrine rest instead on the supremacy clause, coupled with the power exercised in making the reservation of land, or with some other power incidentally exercised on the reserved land. Id.19 Thus the willingness of the Supreme Court to recognize federal reserved rights does not, under an exclusio unius principle, necessarily preclude the federal government from asserting in other circumstances water rights not available under state law or under the reserved right doctrine. The fact that the Supreme Court has never explicitly recognized a non-reserved water right in haec verba does not mean that the Court would not recognize the federal government’s implied rights to unappropriated water, arising from clear congressional intent, in a situation that has not yet been presented to it.80 As we discuss below, however, 19 Similarly, the navigation servitude, which has been characterized as one of only two “ exceptions” to Congress’ deference to state law (see California v. United States, supra, at 602; Coldiron Op. at 8), is not a unique source of federal constitutional authority or federal rights. The navigation servitude is a doctrine which holds that the federal government is not constitutionally required to pay compensation if, in the exercise of its power over navigable streams, it lakes, destroys, or impairs private property rights that depend on the use or presence of the water. See United States v. Rands, 389 U.S 121, 122-23 (1967); see generally Trelease, “ Federal-State Relations,” supra n 6, at 72, 175; E Morreale, “ Federal Power in Western Waters* The Navigation Power and the Rule of No Compensation,” 3 Natural Resources J 1. 64-65. 74-75 (1963). The navigation servitude stems from Congress* power to preserve and promote the navigability of waters, which in turn rests on the Commerce Clause. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); United States v Rio Grande Dam & Irrigation Co.. 174 U.S 690, 707 (1899); United States v. Grand River Dam Authority, 363 U S. 229, 232-33 (1960) As with other exercises of constitutional authority, inconsistent state laws, programs, or permit requirements must fall by operation of the Supremacy Clause See Oklahoma v. Guy F. Atkinson Co . 313 U S. 508, 534-35 (1941), First Iowa Coop v Federal Power Comm’n, 328 U S. 152, 176(1946) The analysis of federal water nghts under Congress'navigation power is the same as the analysis of any federal water rights. Has Congress exercised its power under the Commerce Clause over navigable waters9 If so, what is the scope of the congressional mandate9 Would state law conflict with or frustrate that mandate? 80 Although the Court has recognized under specific statutes such as the Reclamation Act and the Federal Power Act that the federal government has certain rights to unappropnated water outside of the reserved right doctnne (see pp. 31-37 supra), the Court has not addressed directly a broad assertion of federal implied water nghts such as that asserted by Solicitor Krulitz— i e., that a federal agency may assert a federal water right based solely on the assignment of land management functions to a federal agency In Nebraska v. Wyoming, 325 U S 589 (1945), an action between Nebraska, Wyoming, Colorado, and the United States for allocation of water of the North Platte River, the Court specifically declined to rule on an argument analogous to that made by Solicitor Krulitz. The United States argued that, given the federal ownership of unappropriated water on federal lands, the federal government could acquire all water necessary to carry out two reclamation projects using water from the nver regardless of state law, because “ if the right of the United States lo these water nghts is not recognized [by state law], its management of the projects will be jeopardized ” 325 U S at 615 The Court declined to rule on that contention, however, as it found that all necessary rights had been acquired by the United States under applicable law. The Court expressly reserved decision on the broader claim. We do not suggest that where Congress has provided a system of regulation for federal projects it must give way before an inconsistent state system We are dealing here only with an allocation, through the States, of water rights among appropriators The nghts of the United Slates in respect to the storage of water are recognized. Id at 615 363 the reasoning used by the Court in shaping the reserved right doctrine is relevant to an analysis of what other rights the federal government may have. See pp. 70-72 infra. 2. “ Ownership” of unappropriated water Much of the confusion about the federal government’s rights to unappropriated water in the western states stems from arguments based on “ ownership” of the unappropriated waters on federal lands and the effect of the land management statutes of the 19th century. As we outlined supra, Solicitor Krulitz’s assertion of a broad federal non-reserved water right, while not clearly stated, apparently rested in part on the assumption that the United States acquired proprietary rights to all unappropriated water on public lands at the time it acquired the territories that became the western states, and that it has never subsequently granted away that proprietary interest except to the extent that private individuals may have actually appropriated water on those lands. Some of the western states have argued that the federal government acquired ownership of unappropriated water together with the public lands, but ceded ownership of the water to the states by the acts of admission into the Union or at least by the passage of the Desert Land Act in 1877, or that the federal government never acquired ownership of those waters.81 The contention is made that the states therefore own those waters and can exercise control over their use, even if the use is by the federal government. See, e.g., Morreale, “ Federal-State Conflicts,” supra n.17, at 446-59; Colum. Note, supra n.5 at 972-74. The only exception to that control is if Congress withdraws land (and water) from the applicability of those acts by a formal reservation. This proprietary view of western water rights has significant ramifications both for the federal government and the states. As Solicitor Krulitz noted, the Supreme Court has characterized the federal government’s control over the use and disposition of its property as “ complete” and “without limitation,” and has stated that an interest in property of the United States may be acquired only by an express grant from Congress. See Krulitz Op. at 563; Kleppe v. New Mexico, supra, 426 U.S. at 539—40; Caldwell v. United States, 250 U.S. 14, 20-21 (1919). Therefore, if the United States “ owns” the water, it may be contended that all that is necessary to perfect its rights is use of that water for an authorized federal purpose; a state cannot impose any restrictions on that use unless Congress has explicitly granted an ownership interest to the states. See Com­ ment, “ Federal Non-Reserved Water Rights,” 15 Land and Water L. Rev. 67, 76 (1980). At the same time, the ownership theory provides a basis for the states’ argument that statehood acts and the federal land acts passed in the 1860s and 1870s (see Part IIB(2) supra ) constituted an express grant of ownership to the states of all unappropriated water within their borders, and that therefore they 81 See F^rt I1A supra. 364 may now exercise plenary authority over that water.82 If the states own that unappropriated water, the only way the federal goverment can acquire an interest in the water is if Congress withdraws certain lands from the scope of the acts, appropriates water under state law, or acquires existing water rights through purchase, exchange, or condemnation. We believe that state and federal claims of title to or ownership of unappropri­ ated water within the western states do not provide an adequate basis for either denial or assertion of federal water rights. Arguments made on either side of the issue are difficult to reconcile with the reserved rights doctrine, as it has been developed by the Supreme Court. With respect to state claims of ownership, the theory creates substantial questions concerning the constitutionality of the re­ served water rights doctrine. That is, if Congress, either by the statehood acts or land management statutes, gave the states ownership of all unappropriated waters on the public domain, on what basis can the federal government reserve some of that water for a federal use, without compensation, by a withdrawal of land made after ownership of the waters passed to the states? On the other hand, with respect to federal claims, the Supreme Court has clearly limited the reserved rights that the United States can assert to those which are minimally necessary to fulfill the explicit or necessarily implied congressional intent, and has recognized that the United States will not, in every instance, have reserved rights to all unappropri­ ated water on federal reserved lands. See United States v. New Mexico, supra, 438 U.S. at 702. If the United States owned all the unappropriated water on the public domain at the time a particular parcel was reserved and had plenary control over its disposition, this limitation would appear to be superfluous, and the Court’s extended analysis of the scope of the reserved right doctrine unnecessary. Furthermore, it seems anomalous to suggest that an entity can own water that has not yet been appropriated, if ownership is understood to mean a proprietary 82 Aside from the effect of the Mining Acts of 1866 and 1870 and the Desert Land Act, the western states have also asserted other theories to support claims of ownership in unappropnated waters within their borders, viz, (1) in the original thirteen (ripanan) states, the federal government had no interest in water as a sovereign and, therefore, under the constitutional equal footing doctnne. which guaranteed admission to the western states on an “ equal footing” with the original thirteen states, the federal government relinquished all claims to water within the new states, or (2) Congress by the vanous acts of admission impliedly accepted or ratified state constitutional and statutory provisions asserting the ownership of water Neither theory provides an adequate or consistent basis for state claims of ownership of unappropriated water Although in California v. United Slates, supra, 438 U S at 654, the Court noted, without elaboration, that “ [o]ne school of legal commentators held the view that, under the equalfooting doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the unappropnated waters in their stream s,” the Court’s interpretation of the equal footing doctnne in other cases has been limited In enera, the Court has interpreted the doctnne to apply only to political nghts of sovereignty granted the original stales, not to property or economic rights. See, e g . , United States v. Texas. 339 U.S 707, 716 (1950) In Arizona v California, 373 U S 546, 597-98 (1963), the Court rejected the contention that the equal footing doctnne could limit “ the broad powers of the United States to regulate navigable waters under the Commerce Clause and to regulate government lands under Art IV, § 3 of the Constitution "See discussion at 2 Clark, supra, § 102 6 The ratification and compact theories also suffer from several deficiencies. Most notably, the language and meaning of the various constitutional and statutory provisions relied upon by the states vary considerably, as do the admission procedures followed by the western states It is impossible to construct a coherent theory that would apply to each state, especially as several of the western states either have no constitutional or statutory provision asserting ownership or passed such a provision only after admission. The ratification or compact theory would make a state’s ownership of unappropnated water within its borders turn on the fortuitous language of its constitution and the circumstances of its admission into the Union As several commentators have noted, the theory therefore provides little support for state claims of ownership See, e g , Morreale, “ Federal-State Conflicts,” supra n. 17, at 446-55; Trelease, “ Federal-State Relations,” supra n 6, at 117 n*; Goldberg, “ Interposition— Wild West Water S tyle,” 17 Stan L. Rev 1, 12-16(1964). 365 interest in the water. Unappropriated water, much as wild animals, has been viewed as res nullius— the property of no one— until it has been captured. See F. Trelease, “ Government Ownership and Trusteeship of Water,” 45 Calif. L. Rev. 638, 643 (1957); Trelease, “Federal-State Relations,” supra n.6, at 147b—i; Note, “ Federal Nonreserved Water Rights,” 48 U. Chi. L. Rev. 785, 770-71 (1981). In Hughes v. Oklahoma, 441 U.S. 322 (1979), the Supreme Court noted that concepts of ownership of or title to natural resources such as natural gas, minerals, landfill areas, birds, fish, and other wildlife is a “legal fiction” that merely expresses legitimate state regulatory interests in the conservation and protection of its natural resources: The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. 441 U.S. at 334, quoting Toomer v. Witsell, 334 U.S. 385,402 (1948). The Court made it clear that a state’s power over wild animals, as over other natural resources, is based on the state’s police powers and is subject to ordinary constitutional limitations—in that case, the Commerce Clause.83 Thus, claims of ownership of natural resources by the states or by the federal government are best understood as claims of regulatory jurisdiction over those resources, either under the states’ police powers or under the federal govern­ ment’s constitutional powers. See Kleppe v. New Mexico, 426 U.S. 529, 537 (1976) (ownership of wild horses and burros on federal lands is irrelevant to the scope of the federal government’s authority under the Property and General Welfare Clauses to protect those horses and burros). This interpretation of the nature of the states’ and federal government’s interests in unappropriated water is consistent with the approach taken by the Supreme Court in cases involving the use or disposition of water in the western states. The Court has consistently analyzed claims by the states and the federal government over navigable and nonnavigable waters as a question of competing regulatory authority, rather than as a question of property rights.84 See, e.g., United States v. Rio Grande Dam & Irrigation Co., supra, 174U.S. at 703; Wintersv. UnitedStates, supra, 207U.S. at 577; Arizona v. California, supra, 373 U.S. at 597-98; California v. United States, supra, 438 U.S. at 665—79; United States v. New Mexico, supra, 438 83 In H ughes v. Oklahoma, the Court overruled Geer v. Connecticut, 161 U S 519 (1896), which had sustained against a Commerce Clause challenge a Connecticut statute forbidding the transportation beyond the state of game birds that had been lawfully killed within the state The Court’s decision in Geer rested on its conclusion that no interstate commerce was involved, because the state had the power as representative for its citizens, who owned all wild animals within the state, to control both the taking and ownership of game that had been lawfully reduced to possession in the state. See 441 U.S at 322. In Hughes, the Court noted that the Geer rationale had been considerably eroded and limited in subsequent decisions dealing with state authority over other natural resources See 441 U.S at 329-335. faced with an Oklahoma statute prohibiting the transport or shipping outside the state of minnows procured from waters within the state, the Court explicitly overruled the holding in Geer, and concluded that the Oklahoma law unconstitutionally interfered with interstate commerce Id. 84 In several cases in which the Court has been faced with claims of “ ownership” of the unappropnated waters by the states or the federal government, it has refused to address the question, and found a narrower ground for its decision. See. e g . Ickes v Fox, 300 U S. 82, 96 (1937); Nebraska v Wyoming, 325 U.S 589, 615-16 (1945) 366 U.S. at 698. While some of these decisions made reference to the Property Clause, in each instance federally owned land was at the center of the controver­ sy, and the references made to the Property Clause may be best understood as relating to an exercise of power over that property. The Court made the distinction between ownership and regulatory jurisdiction clear in a slightly different context in United States v. California, 332 U.S. 19, 36 & n.20 (1947). In that case, the Court found that California does not hold title to submerged lands off its coast by virtue of the equal footing doctrine, but that California could nonetheless exercise police powers over waters flowing over that land, limited by constitu­ tional constraints such as the Commerce Clause or the war power. See id. The question is not one of competing ownership, therefore, but of competing regulatory jurisdiction. As one commentator has noted: The state and federal governments share an interest in proper regulation of water. Neither “ owns” unappropriated water but each has the power to use it and to regulate its use . . . . The important question is whether state or federal rules of capture apply to the United States. In other words, the issue is whether Congress has established a federal regulatory jurisdiction over federal appropriations, or has recognized the inherent regulatory jurisdiction of the states and adapted federal programs to it. Note, “ Federal Nonreserved Water Rights,” 48 U. Chi. L. Rev. 758, 772 (1981) (footnotes omitted). 3. Effect of Mining Acts of 1866 and 1870 and the Desert Land Act The major 19th century land acts—the Mining Acts of 1866 and 1870 and the Desert Land Act of 1877 (see pp. 18-21 supra )— can thus best be understood as an allocation of jurisdiction to regulate the use of unappropriated water on federal lands between the states and the federal goverment, rather than a conveyance of property interests in that water. See Trelease, “ Federal-State Relations,” supra n.6, at 147; Morreale, “ Federal-State Conflicts,” supra n.17, at 432. Since Congress has the power to cede its constitutional authority over federal uses of such water to the states, the question is whether those acts divested the federal government of that authority.85 The Supreme Court’s treatment of those acts, particularly the Desert Land Act, has been ambiguous and far from definitive. In California Oregon Co. v. Beaver 85 At one time the Justice Department took the position that Congress could not provide for state administration of federal property rights because to do so would be in contravention of Article IV, § 3 of the Constitution and the separation of powers principle See Letter of Deputy Attorney General William P. Rogers to Sen. James E. Murray, Chairman, Senate Committee on Interior and Insular Affairs, dated March 19, 1956, reprimedin S. Rep N o .2587, 84th Cong , 2d Sess. 25 (1956) This Office has since rejected that position. See Memorandum for James W Moorman, Assistant Attorney General. Land and Natural Resources Division, from Larry L. Simms. Deputy Assistant Attorney General, Office of Legal Counsel (Jan 22, 1980), at 13 n 10 As we stated in that memorandum, “ [t]he Supremacy Clause charges the States with protecting federal rights and, other than sovereign immunity limitations, we perceive no constitutional or common law limitations on state administration of those rights ” See generally United States v New Mexico, 438 U S. 696 (1978); California v United States, 438 U.S. 645 (1978) 367 Portland Cement Co., supra, for example, the Court stated that, “ [the Desert Land Act] . . . recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropria­ tion.” 295 U.S. at 164 (emphasis added). Even if that language could be interpreted as an unambiguous statement that the Desert Land Act applies to federal uses, the case involved only competing claims by private parties, not claims by the federal government, and the Court’s statement must be regarded as dictum. See pp. 21-22 supra. In the Pelton Dam decision, which did involve, at least indirectly, claims by the federal government (i.e., through its licensee), the Court characterized the Desert Land Act as severing, ‘for purposes of private acquisition, soil and water rights on public lands.” Federal Power Commission v. Oregon, supra, 349 U.S. at 448 (first emphasis added; second emphasis in original). Again, however, the Court’s statement is not definitive, because the Court refused to rule on the general question of the effect of the Desert Land Act or the 1866 and 1870 Acts on a state’s exercise of jurisdiction over unappropriated water within its borders, holding only that the acts do not apply to federal reserved lands.86 Id. In Cappaert v. United States, supra, the court characterized the Desert Land Act as “ provid[ing] that patentees of public land [i.e., private purchasers or grantees] acquire only title to land through the patent and must acquire water rights in nonnavigable water in accordance with state law.” 426 U.S. at 143. Although that characterization appears to limit the effect of the Act (and, by implication, the preceding Mining Act of 1866 and 1870) to rights that may be acquired by private appropriators,87 the Court rested its holding, as in the Pelton Dam decision, on the inapplicability of the Act to federal reserved lands. Id. at 144 & n.9. Although the issue is not free from doubt, we believe that the sounder view is that the Mining Acts and Desert Land Act authorize state control only over appropriations by private individuals of unappropriated water on federal lands, and do not, by their terms, cede to the states control over the federal government’s use of water for federal purposes and programs. That interpretation is suggested by the Supreme Court’s language quoted above from the Pelton Dam decision and Cappaert v. United States. Moreover, it is consistent with the legislative back­ ground and history of the Acts. At the time the Mining Acts and Desert Land Act were passed, the concern at the state and federal level was not with possible federal-state conflicts over the use of water on the public lands, but rather with settlement of private disputes between private claimants. See generally 2 Clark, supra, § 102.5. The somewhat sparse legislative history of the acts suggests that the primary— if not the only— contemplated purpose of provisions of the acts dealing with water rights was to clarify that private patentees or users of federal lands would not acquire, by virtue of that ownership or use, any rights to 86 In Federal Power Comm’n v. Oregon, supra, the state argued that the 1866, 1870, and 1877 legislation constituted express congressional conveyances to the states of the power to regulate the use of non-navigable waters The Supreme Court found it unnecessary “ to pass upon the question whether this legislation constitutes the express delegation or conveyance of power that is claimed by the State, because these Acts are not applicable to the reserved lands and waters here involved.” 349 U S. at 448. B7 See Cappaert v United States, supra, 426 U S. at 143 n.8. 368 unappropriated water except as recognized by state law. See generally Grow & Stewart, supra n.36, at 468-69.88 It was not until the end of the 19th century that federal users of water within the western states began to be of major concern. In United States v. Rio Grande Dam & Irrigation Co., supra, one of the first cases to discuss a federal-state conflict over the use of water resources within those states, the Court noted that the Mining Acts and Desert Land Act must be interpreted “ in the light of existing facts,” i.e.: . . . that all through this mining region in the West were streams, not navigable, whose waters could safely be appropriated for mining and agricultural industries, without serious interference with the navigability of the rivers into which those waters flow. And in reference to all these cases of purely local interest the obvious purpose of Congress was to give its assent, so far as the public lands were concerned, to any system, although in con­ travention to the common-law rule, which permitted the appropri­ ation of those waters for legitimate industries. To hold that Con­ gress, by these acts, meant to confer upon any state the right to appropriate all the waters cf the tributary streams which unite into a navigable water course, and so destroy the navigability of that water course in derogation cf the interests cfall the people cf the United States, is a construction which cannot be tolerated. It ignores the spirit of the legislation, and carries the statute to the verge of the letter, and far beyond what, under the circumstances of the case, must be held to have been the intent of Congress. 174 U.S. at 706-07 (emphasis added). The Court clearly affirmed that the intent of the Mining Acts and the Desert Land Act was to deal with issues of local concern— i.e., private appropriations—and not to interfere with Congress’ supe­ rior right, in the exercise of a constitutional power such as that over navigation, to use water within the western states.89See, e.g., Colum. Note, supra n.5, at 980. We believe the conclusion that the acts by their terms do not cede regulatory authority over federal uses to the states is consistent with the Supreme Court’s holding in the Pelton Dam decision that the acts do not apply to federal reserved lands. In the Pelton Dam decision, the Court rested its conclusion on its 88 In particular, it is difficult to construe the Desert Land Act as ceding the federal government’s control over its use of water on federal lands in the 17 western states, because the Act does not apply to all 17 states or to navigable waters within those states See n 38 supra 89 This part of the Court’s holding in Rio Grande cannot be dismissed as dealing only with the federal government’s power over navigable waters and therefore inapplicable to the Desert Land Act, which applied by its terms only to non-navigable waters. As we noted supra at n.79, the federal government’s authority to preserve the navigability of streams is not a source of federal power, but rather an example of federal power that can be exercised under the Commerce Clause Therefore, the Court’s comments would be equally applicable if some other constitutional power— for example the Property or General Welfare Clauses— were the basis of the United States’ attempt to enjoin diversion of the nver by private appropriators. In any event, the Court’s comments were directed not at state-approved diversions of navigable waters, but state-approved diversions of non-navigable waters, waters that are clearly within the scope of the Desert Land Act 369 interpretation of the term “public lands” in the Desert Land Act to include only public domain lands— i.e., those open for settlement and disposition. See p. 27 supra. The Act therefore did not apply to reserved lands. At the time of the Court’s decision, because the federal reservation in question had been made subsequent to passage of the Act, the relevant public domain was not the public domain as of the time the Act was passed, but the public domain as of 1954. The Court’s decision has consistently been interpreted to mean therefore that the federal government can withdraw unappropriated water from the state appropria­ tion system at any time by withdrawing appurtenant lands from the public domain for a particular federal purpose. See, e.g., Cappaert v. United States, supra, 426 U.S. at 145; Morreale, “ Federal-State Conflicts,” supra n.17, at 432. The basis upon which the federal government can make such a withdrawal is not clear from the Court’s discussion in Federal Power Commission v. Oregon, 349 U.S. 435 (1955). Commentators have suggested that the appropriate analysis is repeal-by-implication. The argument is that, although Congress granted the states plenary authority over unappropriated water within their borders by the 1866, 1870, and 1877 Acts (including authority over federal uses), the subse­ quent reservation of land for a specific federal purpose impliedly repeals those acts to the extent of the water rights involved. See, e.g.. Grow & Stewart, supra n.36, at 466-67. That argument is subject, however, to the serious objection that implied repeals are highly disfavored, particularly as many reservations may be made simply by executive order or administrative action. See, e.g., TVA v. Hill, 437 U.S. 153, 189-90 (1978); C. Sands, Statutes and Statutory Construction, § 23.09 (4th ed. 1973). We believe that the more tenable explanation is that the Acts gave the states authority only to control and administer private rights to water on federally owned lands, and did not grant away the federal government’s power, if properly and clearly exercised, to use unappropriated water on federal lands without regard to state law. The significance of a reservation of land from the public domain is not that it repeals the effect of the Mining Acts or Desert Land Act, but that it is an exercise by Congress of that power and therefore, by reason of the Supremacy Clause, preempts inconsistent state control of federal uses. B. Statutory Basis for Federal Claims Although we do not believe that Congress ceded its regulatory authority over federal use of unappropriated water on federal lands to the western states by the Mining Acts and the Desert Land Act, Congress clearly recognized and indeed fostered, by those acts and subsequent land management statutes, the develop­ ment of comprehensive state water codes and administrative systems applicable to unappropriated water on federal, as well as privately or state-owned land. It is clear that federal law may displace those state systems, however, at least with respect to unappropriated water on federal lands. See, e.g., United States v. Rio 370 Grande Dam & Irrigation Co., supra. What is not clear—and what we address here— is when and how federal law displaces state water law. Because Congress has seldom directly regulated the acquisition or use of water by federal agencies or their licensees,90 and has not enacted comprehensive legislation dealing with federal water rights in the western states,91 the federal state conflicts that are of primary concern are conflicts between federal uses of water for the management of federal lands and state substantive or procedural law. For example, state law may not recognize certain federal uses as beneficial or in the public interest92 or may deny a priority date to a federal use because of the 90 Exceptions include certain provisions of the reclamation laws, such as § 5 and § 8 of the Reclamation Act of 1902 and § 9 of the Reclamation Project Act of 1939, which prescribe terms upon which the Secretary of the Interior can use or dispose of water from federal reclamation projects {see pp. 22-23 supra); § 9 of the Rivers and Harbors Act of 1899, 33 U.S C. § 401, which requires the consent of Congress to construct dams and other obstructions on navigable waters, and the Federal Power Act, supra n.28, which provides for licensing of hydroelectric dams on navigable and some other waters {see p 23 supra). 91 In the last 30 years, a number of “ water nghts settlement bills” have been introduced into Congress but have not been passed. For the most part, these bills would have given the states considerable control over federal uses of unappropriated water The “ Barrett bill,” introduced in 1956, for example, would have provided that: [A]ll navigable and non-navigable waters are hereby reserved for appropriation and use of the public pursuant to State law, and rights to the use of such waters for beneficial purposes shall be acquired under State laws relating to the appropriation, control, use, and distribution of such waters. Federal agencies and permittees, licensees, and employees of the Government, in the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, shall, as a condition precedent to the use of any such water, acquire rights to the use thereof in conformity with State laws and procedures relating to the control, appropriation, use, or distnbution of such water. S 863, 84th Cong , 2d Sess § 6 (1956), reprinted in Morreale, “ Federal-State Conflicts,” supra n.17, at 514 The “ Kuchel bill,” introduced in the 88th Congress, provided that Any right claimed by the United States to the beneficial diversion, storage, distribution, or consumptive use of water under the laws of any State shall be initiated and perfected in accordance with the procedures established by the laws of that State. S. 1275, 88th Cong., 1st Sess § 3 (1962), reprinted in Morreale, “ Federal-State Conflicts,” supra n. 17, at 494. Sponsors of bills granting control over water resources to the states generally have argued that such provisions would merely “ confirm” the status quo. See id at 446. Hearings were held on various aspects of federal-state relations in the field of water rights in 1950, 1956, 1960-61, and 1964. See Water Rights Settlement Act: Hearings on S 863 Before the Subcomm on Irrigation and Reclamation c f the Senate Comm, on Interior and Insular Affairs, 84th Cong., 2d Sess. (1956); Water Rights Settlement Act c f 1956. Hearings Before the House Comm, on Interior and Insular Affairs, 84th Cong , 2d Sess (1956); Federal-State Relations in the Field o f Water Rights: Hearings Before the Subcomm on Irrigation and Reclamation c f the House Comm on Interior and Insular Affairs, 86th C ong., 1st Sess (1959), Federal-State Water Rights: Hearings Before the Senate Comm, on Interior and Insular Affairs, 87th Cong., 1st Sess. (1961), Federal-State Water Rights• Hearings on S. 1275 Before the Subcomm. on Irrigation and Reclamation c f the Senate Comm, on Interior and Insular Affairs, 88th Cong , 2d Sess. (1964) Fora detailed discussion of vanous water nghts settlement bills, see Morreale. “ Federal-State Conflicts,” supra n. 17, and 2 Clark, supra. § 107. In 1973, the National Water Commission proposed a “ National Water Rights Procedure A ct,” which would have required federal agencies to proceed in conformity with state laws and procedures relating to the appropriation or use of water and the administration and protection of water nghts, except “ where state law would conflict with the accomplislynent of the purposes of a federal program or project ” The Act would also have established a procedure for recording and quantifying existing non-Indian federal water uses and would have eliminated the non­ compensation features of the reserved right doctnne and the navigation servitude See National Water Commission, Water Policies fo r the Future (Water Information Center, Inc. 1973), at 461-64. 92 The Forest Service has expressed concern in the past, for example, that it might not be able to obtain stale recognized nghts for certain instream or in-situ uses such as livestock watenng, recreation, or preservation of fish and wildlife, because applicable state law requires a diversion of water or does not recognize such uses as beneficial See Department of Agnculture Position Statement, submitted to Office of Legal Counsel on Nov. 5, 1981. An analogous problem has been identified by the Department of the Army with respect lo water rights available for Fort Carson, in Colorado, which is located on acquired federal lands Concerns have been raised by the Army that Colorado law would nol recognize the uses of water for military training and emergency preparedness. See Department of the Army, Legal Memorandum, “ Federal Non-Reserved Water Rights” (Nov. 5, 1981). 371 failure of the agency to comply with state procedural or permitting require­ ments.93 The question, therefore, is whether, by authorizing certain uses of federal lands, Congress intended also to authorize acquisition of water for those uses without regard to limitations imposed by state law. As the Supreme Court commented in New Mexico with respect to federal reserved rights, this “ is a question of implied intent and not power.” 438 U.S. at 698 (emphasis added). Under the federal non-reserved right theory articulated by Solicitor Krulitz, the requisite intent to displace state control over the appropriation of unappropri­ ated water could be inferred merely from Congress’ authorization to federal agencies to manage federal lands; no specific congressional intent to displace state control over water would need to be shown. Thus, for example, a federal agency would be entitled to water necessary for preservation of minimum instream flows for stock watering, recreation, and fish and wildlife purposes whether or not state law recognized such uses as beneficial, and would not be bound by state permitting or other procedural requirements, so long as the agency was acting within its congressionally mandated authority. The contrary view is that, unless Congress has set specific conditions on the acquisition or use of water by federal agencies or has reserved the underlying land, federal agencies are limited to water rights obtainable under state substantive and procedural law. If, for example, applicable state law does not recognize minimum instream flows, Congress has not explicitly recognized a federal right to those flows, and the agency cannot claim an implied reserved right to such flows because the underly­ ing land was not reserved from the public domain or the use is not a primary purpose of a reservation, the agency is not entitled to that water.94 Similarly, except when the agency may be able to assert reserved rights (which have a priority date based on the date the land was reserved), the priority date of its water rights must be established in accordance with state substantive arid procedural law. As both Solicitor Krulitz and Solicitor Coldiron recognized, the Supreme Court’s decisions in California v. United States and United States v. New Mexico are highly relevant to an analysis of the federal non-reserved water rights theory, both because those decisions are the most recent pronouncements of the Supreme Court on federal rights to unappropriated water in the western states and because the Court suggested in those opinions that there may be limitations on the federal government’s ability to acquire or use water on federal lands without complying with applicable state laws. It is important to understand, however, that the 93 In many cases federal agencies have failed to apply for permits recognizing state appropriative nghis at the time the water was first put to use because of inadvertence, policy decisions, or legal advice In “ permit” states, which award priority based on the date an application is filed, those agencies nsk having their nghts cut off by a junior appropriator who has complied with state procedural requirements. Assertion of federal non-reserved nghts, if sustained, would allow the federal agencies to antedate their water rights— i e., to get the benefit of a prionty date based on the first actual use of the water 94 The western states have argued that in those states that do not recognize minimum instream flows, the flows may nevertheless be preserved by the acquisition (by purchase or condemnation) and exercise of senior downstream state-awarded water rights, which will ensure the continued upstream flows. See Memorandum to Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, from the Honorable Mike Greely, Attorney General, State of Montana (Apr 1, 1982). 372 holdings in those decisions were relatively narrow, limited to the effect of § 8 of the Reclamation Act of 1902 (California v. United States) and the scope of the Forest Service’s reserved rights under its Organic Administration Act (United States v. New Mexico). Unfortunately, much of the debate about the meaning of California and New Mexico focuses on isolated language used by the Court, which is interpreted by critics of the non-reserved right theory to preclude assertion of any federal non-reserved rights and by proponents of the theory as limited to the narrow holdings in the cases before the Court. As we discuss now, both interpretations of the Court’s language are selective and do not provide an entirely satisfactory rationale for either conclusion. Critics of the non-reserved right theory argue that, in the following three passages from California and New Mexico, the Court definitively disposed of the contention that any federal non-reserved water rights exist: The Court noted [in United States v. Rio Grande Dam & Irriga­ tion Co.] that there are two limitations to the State’s exclusive control of its streams—reserved rights “ so far at least as may be necessary for the beneficial uses of the government property,” and the navigation servitude. The Court, however, was careful to emphasize with respect to these limitations on the States’ power that, except where the reserved rights or navigation servitude of the United States are invoked, the State has total authority over its internal waters. California v. United States, supra, 438 U.S. at 662 (citations omitted). Where water is only valuable for a secondary use of the reserva­ tion . . . there arises the contrary inference that Congress intend­ ed, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator. United States v. New Mexico, supra, 438 U.S. at 702. [T]he “ reserved rights doctrine” is a doctrine built on implication and is an exception to Congress’ explicit deference to state water law in other areas. Id. at 715. None of these statements, however, can be interpreted as conclusively as critics of the non-reserved rights theory urge, when read in context.95 In the language 95 Solicitor Coldiron concluded in his opinion that “ this issue of ‘non-reserved’ federal water rights was definitively and directly addressed on July 3, 1978, by the Supreme Court in two separate opinions regarding the water nghts of the United States [United States v New Mexico and California v. United States] " Coldiron Op at 9. The western states, relying primarily on the “ contrary inference” language from New Mexico, argue that “ New Mexico dictates that when the federal government claims water for a national forest (assuming the navigation servitude does not apply), it has only two mechanisms available to it. the reserved nghts doctnne or the law of the state in which the reservation is located ” See Memorandum to Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, from the Honorable Mike Greely, Attorney General of Montana (Apr 1, 1982) at 8-9 373 quoted from California, for example, the Court was merely characterizing its holding in the Rio Grande case.96 The Court clearly recognized in the remainder of its opinion that there may be circumstances other than the navigation servitude or reserved rights doctrine under which a federal statute would preempt the state’s exclusive control of its stream— i.e., if conditions imposed by state law on the operation or construction of a federal reclamation project are “ inconsistent with clear congressional directives respecting the project.” See 438 U.S. at 672. Consequently, the Court could not have intended, by that language, to establish a rule of law applicable to all water rights that could be asserted by the federal government. Likewise, the often-cited language in New Mexico that a “ contrary inference” arises that the United States must acquire water “ in the same manner as any other public or private appropriator,” if reserved rights are not available, must be considered in context. The only issue before the Court in New Mexico was the scope of the Forest Service’s reserved rights under its Organic Administration Act.97 The Court did not have before it any argument or evidence relevant to rights that might have been asserted by the Forest Service on some other basis, such as appropriation under state law, or relevant to rights arising on public domain lands. Thus, the Court’s statement about the ability of the Forest Service to obtain water in excess of its reserved rights was made only in the context of federal reserved lands; as we discuss infra, even with respect to reserved lands it can be argued that the language does not mean that federal agencies are neces­ sarily bound by state law in acquiring water necessary only for “ secondary” uses of the land. See p. 68 infra. Finally, the Court’s characterization of the reserved rights doctrine as an “ exception” to Congress’ explicit deference to state water law in other areas does not imply that reserved rights are the only exception. The Court clearly recog­ nized in California, as we have discussed, that other exceptions may exist. See Part IIB(3)(b) supra. While we believe that these selected passages from California and New Mexico do not therefore definitively dispose of the federal non-reserved water rights theory, we believe that they reflect the Court’s view and its interpretation of Congress’ intent over the years that substantial deference will be accorded to state water laws. We do not believe, therefore, that the decisions should be read as narrowly as has been suggested by proponents of the non-reserved theory. Solicitor Krulitz, for example, argued that when the Court suggested in New 96 Arguably, this construction mischaracterizes the scope of the language used in Rio Grande, which was that a state cannot “ destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property.,, 174 U S. at 703. It was not until nine years later, in Winters v. United States, supra, that the Court first used the term “ reserved” rights to describe federal water nghts furtherm ore, the Court’s holding in Rio Grande rested on the federal government’s navigation power under the Commerce Clause Hence its holding is somewhat narrower than was descnbed in California v. United States. 97 The Court defined the question before it as “ what quantity of water, if any, the United Stales reserved out of the Rio M imbres when it set aside the Gila National Forest in 1899“ 438 U S at 698. The bnefs before the Court dealt only with the scope of reserved rights available under the Forest Service’s Organic Administration Act, no evidence or argument was advanced to indicate that the Forest Service would not be able to acquire water necessary for the management of the national forests under applicable state law, if it did not have reserved rights to that water. 374 Mexico that, absent a reserved right the Forest Service should acquire water rights “ in the same manner” as other appropriators, it intended only to draw a distinction between the rights that could be obtained by a reservation of land (which have priority as of the date of the reservation and are measured by reasonable present and future uses of the land) and rights obtained by appropria­ tion (which have priority as of the date of actual use and are measured by the extent of that use). That is, when the Court stated that federal agencies must acquire water for secondary uses of federal reservations “ in the same manner” as other appropriators, it meant only that the right must be acquired through “ appropriation,” or actual use of the water, rather than by “ reservation” of the land. If a federal agency had actually appropriated water to fulfill an authorized agency function, Krulitz concluded that the Court would not hold that a state, by application of its substantive or procedural law, could deny a right to that water to the agency. See Krulitz Op. at 577. While there is evidence to suggest that the Court was concerned with the possibility that reserved rights could cut off the rights of private appropriators because of their senior priority date,98 we believe that the Court intended “ in the same manner as any other public or private appropriator” to mean “under applicable state law.” On three occasions, the Court referred expressly to congressional intent that water be acquired under state law. In the sentence immediately following the language quoted above, for example, the Court remarked that “Congress indeed has appropriated funds for the acquisition under state law of water to be used in federal reservations.” 438 U.S. at 702 (emphasis added). Similarly, the Court noted that “ [t]he agencies responsible for admin­ istering the federal reservations have also recognized Congress’ intent to acquire under state law any water not essential to the specific purposes of the reserva­ tion,” and that “ the ‘reserved rights doctrine’ is a doctrine built on implication and is an exception to Congress’ explicit deference to state water law in other areas.” Id. at 703, 715 (emphasis added). Thus, the most logical reading of the Court’s language is that water that is not necessary to carry out the particular primary purposes mandated by Congress for the federal reservation in question must be acquired in compliance with applicable state substantive and procedural law.99 With respect to the effect of California v. United States, Solicitor Krulitz argued that the Court’s recognition that state law must fall if “ inconsistent” with congressional directives supports the federal non-reserved rights theory. Krulitz 98 The Court noted that “ (wjhen, as m the case of the Rio Mimbres, a nver is fully appropriated, federal reserved water rights will frequently require a gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators" and suggested that “ [t]his reality has not escaped the attention of Congress and must be weighed in determining what, if any, water Congress reserved for use in the national forests ” 438 U.S al 705 99 It could be argued that the Court meant only that federal agencies should comply with state procedural law in the filing of claims or applications for water nghts, but would not be bound by limitations imposed by state substantive law on water nghts to carry out secondary uses of the reservation. The Court did not, however, draw any distinction between substantive and procedural law in its discussion. Moreover, the Court rejected a similar argument in California v United States with respect to the language of § 8 of the Reclamation Act, stating that limiting the effect of § 8 to compliance with only the form of state water law “ would tnviahze the broad language and purpose of § 8.” 438 U S. at 675 375 Op. at 576. This argument requires that we construe the mere assignment of a land management function or delegation of responsibility for construction and operation of a federal project to a federal agency as a “ congressional directive” within the Court’s meaning. If so, any state laws or conditions that would prohibit the acquisition of water to carry out those responsibilities would fall. Because the Court in California remanded the proceedings for a determination of whether the conditions imposed by California on the New Melones Dam would be “ inconsistent” with authorization of the dam, it is difficult to speculate as to the type of conditions the Court would have found impermissible. Plainly, if a state-imposed condition would make the entire project impossible, it would be struck down. See First Iowa Cooperative v. Federal Power Commission, 328 U.S. 152 (1946). If Congress specifically authorized construction of a dam of a certain size, placed express conditions on the use of water from the dam, or prescribed particular uses or purposes of the project, it is relatively clear that state-imposed conditions that are inconsistent with those provisions would be preempted. See, e.g., California v. United States, supra, 438 U.S. at 669 n.21; Ivanhoe Irrigation District v. McCracken, supra, and City of Fresno v. Califor­ nia, supra. However, we do not believe the Court intended that any conditions that might interfere with construction or operation of the project must fall. Such an interpretation would be inconsistent with the Court’s analysis in New Mexico, in which the Court contemplated that state law might control some aspects of the operation of federal lands. We believe that, read in context and in light of New Mexico, the Court contemplated in California that “ inconsistent” state condi­ tions include those, for example, that would conflict with explicit statutory provisions directing a federal agency to acquire or dispose of water under certain conditions or limitations (such as the provisions of the reclamation laws dis­ cussed in Ivanhoe, Fresno, and Arizona v. California), conditions, or specifica­ tions established by Congress in the authorizing legislation for a federal project, or conditions that would entirely frustrate the purposes for which the project was authorized. This leaves open the possibility, for example, that the state may place conditions on secondary, or incidental, features of the project, or may impose conditions, for state purposes, that do not frustrate the specific federal purposes for which the project or management of the lands was authorized. The primary importance of the Court’s decisions in California and New Mexico to the federal non-reserved right theory lies in the Court’s mode of analysis, particularly in the significance attributed by the Court to Congress’ history of deference to state water law. As we discussed above, the constitutional basis for federal water rights, however denominated, is the Supremacy Clause coupled with a proper exercise of federal authority. Therefore the issues ad­ dressed by the Court in California and New Mexico are precisely those which must be addressed whenever federal water rights are asserted, whether the asserted rights arise under the Reclamation Act of 1902, the Forest Service’s Organic Administration Act, or some other federal land management statute. The issues are (1) in an exercise of a constitutional grant of power, did Congress intend to preempt state laws governing the acquisition and use of unappropriated 376 water within the western states? and (2) if so, what is the scope of that preemption? The Supreme Court made it clear in California and New Mexico that the existence of federal water rights depends on a finding of congressional intent to preempt state water law. That congressional intent cannot be analyzed without consideration of Congress’ overall role in the development of water law in the western states and the importance to the western states of control over scarce water resources. The Court found the most significant aspect of Congress’ role to be a negative one— i.e.. Congress’ general deference to and acquiescence in the development of comprehensive water codes by the western states. For example, in California the Court interpreted the Reclamation Act of 1902 not only in light of its unique legislative history, but also in light of “ the consistent thread of purposeful and continued deference to state water law by Congress.” 438 U.S. at 653. In New Mexico, both the majority and the dissent agreed that the determina­ tion of reserved rights under a particular statutory scheme, such as the Forest Service’s, requires a “ careful examination” of the asserted right and the specific purpose for which the land was reserved, “ both because the reservation [of water] is implied, rather than expressed, and because of the history of congressional intent in the field of federal-state jurisdiction with respect to allocation of water.” 438 U.S. at 701-02; see also id. at 718 (Powell, J., dissenting). The deference to state water law found relevant by the Court includes both specific instances in which Congress directed federal agencies to abide by state water law, such as § 8 of the 1902 Reclamation Act and—perhaps more impor­ tantly—Congress’ acquiescence in the development by the states of comprehen­ sive procedural and substantive codes to recognize and enforce private rights to water, including water on federal lands. The significance of statutes such as the Mining Acts of 1866 and 1870, the Desert Land Act of 1877, the Reclamation Act of 1902, and the McCarran Amendment is thus not that they directly regulate federal uses of water, but that they demonstrate Congress’ recognition that the allocation of water within the western states is primarily a matter of concern to the states, rather than a subject for uniform comprehensive federal regulation. See United States v. New Mexico, supra, 438 U.S. at 702 & n.5. Although Congress may in specific instances create federal water rights that do not depend on state law, such rights must be seen as the exception, rather than the rule, particularly as they could substantially disrupt or disturb expectations of private appropriators under existing state systems. See United States v. New Mexico, supra, 438 U.S. at 715. The effect of Congress’ deference to state water law can best be understood as establishing a “presumption” to be read into the language and legislative history of federal statutes that authorize the management of federal lands— i.e., that in the absence of evidence to the contrary, it will be presumed that Congress did not intend to alter or affect its policy of deference to state water law. Therefore, as a general rule, it will be assumed that Congress intended federal agencies to acquire water rights in accordance with state law and contemplated that a state 377 could deny some federal uses of water. This is squarely inconsistent with the nonreserved water rights theory advanced by Solicitor Krulitz. Solicitor Krulitz argued that the presumption of deference to state law is an unwarranted exception to the established doctrine that “federal activities are immune from state regulation unless there is a ‘clear congressional mandate,’ or ‘specific congressional action.’ ” Krulitz Op. at 564 (citations omitted). The cases relied upon by Solicitor Krulitz in support of this argument, however, involve federal statutory schemes that are ill-adapted to state law,100 or state statutes that operate to frustrate specific federal purposes.101 If we look at other areas in which the Court has recognized that state rules may apply to federal programs, it is clear that the approach taken and result reached by the Court in California and New Mexico are not aberrations, but rather are consistent with the approach of the Court in those areas. The Court’s recent decision in United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979), is particularly instructive. In that case, the Court considered whether contractual liens arising from certain federal loan programs take precedence over private liens established under state commercial laws. The federal statutes in question, the Small Business Act and the Federal Housing Act, authorized federal agencies to secure certain loans and provided for liens arising out of those loans, but did not establish any priority for the liens. Analyzing the question as one of “ federal common law,” 102 the Court refused to fashion specific federal rules governing the relative priority of private liens and liens arising under the government’s lending program; it held that priorities should be determined under applicable state laws. The Court recognized that federal law governed the rights of the United States arising under the loan programs, because the lending agencies derived their authority from specific acts of Congress passed in the exercise of a constitutional power and “ their rights, [therefore] should derive from a federal source,” but held that application of federal law does not require, in every instance, the creation of uniform federal rules. 440 U.S. at 726, 728.103 100 See, e.g., Hancock v. Train. 426 U S 167 (1976) (Clean Air Act); EPA v. State Water Resources Control Board, 426 U S. 200 (1976) (Clean Water Act); Kleppe v New Mexico, 426 U S. 529 (1976) (Wild Free-Roaming Horses and Burros Act). 101 See. e.g . United States v Little Lake Misere Land Co., 412 U.S. 580, 597 (1973) (Louisiana statute governing mineral rights in land conveyance to the United States is “ hostile” to federal interests under the Migratory Bird Conservation Act and discriminates against federal interests). 102 The Supreme Court has generally not characterized questions of federal water rights as involving federal common law See, e.g.. United States v New Mexico, supra, but see Hinderhder v. LaPlata River & Cherry Creek Ditch Co., 304 U S. 92 (1938) (federal common law applied to reverse a decision of the Colorado Supreme Court concerning the appropriation of water in an interstate stream). However, as at least two commentators have noted, the analogy is apt. See Grow & Stewart, supra n.36; Note, “ Federal Nonreserved Water Rights,” 48 U. Chi. L. Rev. 758 (1981) That is, the task undertaken by the courts in the name of federal common law is to fill interstices left by congressional authorization of a federal program that fails to deal specifically or comprehensively with rights and liabilities that may arise under that program See Clearfield Trust Co v. United States, 318 U.S. 363, 367 (1943) (“In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards”); see generally R Bator, P Mishkin, D Shapiro, and H. Wechsler, The Federal Courts and the Federal System, 691-708 (2d ed. 1973). An analysis of federal water rights similarly requires the courts or administrative agencies to determine what rules should apply to water necessary to carry out congressionally authorized programs, where Congress has expressly authorized only the use of the underlying land 103 The C ourt’s use of the term “ federal law” in this context connotes only that the federal judiciary is competent to determine nghts ansing under the federal programs See 440 U.S. at 727 378 In some cases, federal law may require no more than the adoption or borrowing of rules created by state law: Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy “ dependent upon a variety of consid­ erations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.” 440 U.S. at 728, quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947); see also United States v. Little Lake Misere Land Co., supra, 412 U.S. at 594-95. The Court identified three considerations relevant to the choice of federal or state rules: (1) the need, if any, for uniform nationwide rules governing implementation or administration of federal programs; (2) the extent to which application of state law would frustrate specific objectives of the federal program; and (3) the extent to which application of a federal rule would disrupt relationships predicated on state law. See 440 U.S. at 728-29. In the circumstances presented in Kimbell, the Court concluded that none of these considerations required fashioning of specific federal rules governing the priority of liens under the SB A or FHA. The Court’s reasoning in Kimbell is analogous in several respects to its reasoning in California and New Mexico. For example, in rejecting the govern­ ment’s contention that administration of the SBA and FHA programs required a uniform national rule of priority, the Court found it significant that the practice and policies of the responsible agencies in administering the loan programs were in many respects adapted to state law, with apparently little disruptive effect on the accomplishment of the goals of the program. See 440 U.S. at 730-33. Similarly, in California and New Mexico, the Court found it relevant that the Bureau of Reclamation and the Forest Service had in the past conformed their acquisition of water rights to state law as a matter of administrative practice and interpretation. See California v. United States, supra, 438 U.S. at 675-76; United States v. New Mexico, supra, 438 U.S. at 717 n. 24. In Kimbell, as in New Mexico and California, the Court recognized that creation of special federal rules would substantially disrupt expectations built on established state law. The Court’s comments in Kimbell in that regard are equally applicable to the poten­ tially disruptive effect of federal water rights that could be asserted without regard to state substantive or procedural law: In structuring financial transactions, businessmen depend on state commercial law to provide the stability essential for reliable evaluation of the risks involved. However, subjecting federal contractual liens to the doctrines developed in the lien area 379 [giving such liens priority] could undermine that stability. Cred­ itors who justifiably rely on state law to obtain superior liens would have their expectations thwarted whenever a federal con­ tractual security interest suddenly appeared and took precedence. 440 U.S. at 739 (citations omitted). Most importantly, the Court indicated in Kimbell that it would be willing to fashion special federal rules of priority only if application of state rules would frustrate the specific purposes for which Congress had authorized the loan programs. The Court concluded that the interest of the United States as a “ quasi­ commercial lender” did not require the same sort of extraordinary priority that had been accorded other liens created under federal programs, such as tax liens, which are intended to secure adequate revenues in order that the United States can discharge its obligations. In reaching this conclusion, the Court found it highly relevant that Congress had recognized by statute that state claims may in some instances have priority even over federal tax liens: We do not suggest that Congress’ actions in the tax lien area control our choice of law in the commercial context. But in fashioning federal principles to govern areas left open by Con­ gress, our function is to effectuate congressional policy. To ignore Congress’ disapproval of unrestricted federal priority in an area as important to the Nation’s stability as taxation would be inconsist­ ent with this function. 440 U.S. at 738 (citations omitted). The significance attributed by the Court to such expressions of congressional policy and its unwillingness to create federal rules of priority absent a showing that application of state rules will frustrate specific federal interests echoes the reasoning of the Court in both California and New Mexico. Thus, where application of state law will not frustrate specific federal purposes or interests, where the federal program has been and can be adopted to state law, and where implication of federal rights would substantially disrupt expectations of private individuals based upon an existing comprehensive state regulatory scheme, the teaching of Kimbell, California, and New Mexico is that state law may control federal rights and liabilities arising under federal programs. The next step of the analysis is to determine whether, in a particular statutory scheme authorizing the management of federal lands or federal water projects, Congress intended to carve out an exception in that instance to its general policy of deference to state water law. This is precisely what the Court did in California and New Mexico. In both cases, the Court looked in detail, on a case-by-case basis, at the statutes in question and their legislative history to determine whether, or under what circumstances, Congress intended that the Bureau of Reclamation or the Forest Service could use water without regard to state water laws. Because California and New Mexico dealt only with two particular statutes, they do not provide a definitive answer as to federal rights that can be asserted 380 under other statutes. That determination can be made only by examining each statute in light of its legislative history and the possible conflicts that could be created by application of state law. Nonetheless, the Court’s reasoning in New Mexico and California provides the relevant framework for that examination. We believe that California and New Mexico must be read to limit the bases upon which federal water rights may be asserted without regard to state law to specific congressional directives or authorizations that override inconsistent state law, and the establishment of primary purposes for the management of federal lands or construction and operation of federal projects that would be frustrated by the application of state law. As we noted supra, we believe that specific con­ gressional directives must be construed narrowly, and do not include all author­ ized functions or uses of federal property. The clearest example of such directives would be provisions that place express limitations or conditions on the use or distribution of water from federal projects or express conditions or specifications included in congressional authorizations of federal projects. In the abstract, pending clarification by the Court of its holding in California, however, it is difficult for us to provide more detailed guidance. The determination of whether there has been a sufficient manifestation of federal power in order to invoke the Supremacy Clause is difficult to make in the abstract, and may be clarified only through administrative interpretation or litigation. The starting point, however, is unquestionably the content and the context of the act, usually a statute, but occasionally an executive order, express­ ing the exercise of a constitutional federal power. As we have discussed above, the Court’s analysis of federal-state conflicts in other areas may provide some guidance in determining the validity of the exercise of the power. In particular, the Court has found relevant such factors as: the extent to which federal programs can be or have been adapted to state law;104the role played by the federal government, the significance of the federal interests at stake, and the risk to federal goals and interests posed by application of state law;105 and the extent to which application of federal rules will disrupt private expectations.106See United States v. Kimbell Foods, Inc., supra, 440 U.S. at 728—29; Wilson v. Omaha Indian Tribe, 442 U.S. 653, 671-74 (1979). These factors, together with the legislative history of the statute in question, must be weighed in determining the basis for federal water rights. We do not view the Court’s discussion in New Mexico of primary purposes and secondary uses as necessarily limited to federal lands that have been formally withdrawn from the public domain. We believe, for example, that the implied right analysis used by the Court in New Mexico and other reserved right cases supports a parallel implication on “acquired” lands that have been set aside for specific federal purposes, for example, national forest lands acquired under the 104 See. e g., United States v. Yazell, 382 U S 341, 354-57 (1966), United States v Standard Oil Co., 332 U.S. 301, 311 (1947) 105 See. e g. . RFC v Beaver County, 328 U.S. 204,209-10(1946), United States v Little Lake Misere Land Co., supra n 101, 412 U.S at 595-97, United States v. Yazell. supra n 104, 382 U S. at 352-53 106 See, e.g.. United States v Brosnan, 363 U S. 237, 241—42 (1960), Wallis v Pan American Petroleum Corp . 384 U S 63, 68 (1966) 381 provisions of the Weeks Act, 16U.S.C. § 515.107 Much of the language used by the Court to describe the scope of the reservation doctrine, in fact, is broad enough to cover all lands set aside for a particular federal purpose, regardless of the prior ownership of the land. For example, in Arizona v. California, supra, in which the Court recognized that the reserved right doctrine applies to non-Indian lands, the Court agreed with the conclusion of the Master “that the principle underlying the reservation of water rights for Indian Reservations was equally applicable to other federal establishments such as National Recreation Areas and National Forests.” 373 U.S. at 601 (emphasis added). In Cappaert v. United States, supra, the Court noted that the reserved right doctrine “ applies to Indian reservations and other federal enclaves." 426 U.S. at 138 (emphasis added). Finally, in New Mexico, the Court did not suggest that the reserved right doctrine applies only to lands that may be formally reserved from the public domain; it recognized rather that the doctrine applies to any land that has been set aside as a national forest (which could be reserved or acquired lands). See 438 U.S. at 698-99.108 Similarly, we believe that Congress could establish “ primary purposes” for the management of public domain lands that could be the basis for federal water rights. As we have noted, the reservation of land for a federal purpose does not, in and of itself, create federal water rights. It is rather the specification of particular purposes for which the lands should be maintained and managed and the implicit intent that water be available for those purposes that give rise to those rights.109It may be possible to argue, therefore, that in the relevant statutes Congress intended that the public domain be managed for specific purposes that cannot be accomplished without implication of federal water rights.110 However, as Solic­ itor Martz concluded, given the language and legislative history of the Taylor Grazing Act and FLPMA, it is highly doubtful that those statutes could be read to reflect the requisite congressional intent to displace existing state water laws. See 107 The implied water nghts that could be asserted on acquired federal lands that have been, in effect, “ withdrawn” from the public domain under a particular statutory scheme would theoretically be the same in all respects as reserved nghts that could be asserted under (hat scheme, unless the statute itself sets out different purposes or different conditions for the use of acquired lands Most importantly, a pnority date for implied water rights on such acquired lands could be asserted based on Ihe date the lands were set aside for federal purposes, whether or not the water was actually put to use at that time However, we understand that, in general, pnonty dates for water rights on acquired lands have been claimed in the past only based on the date of first use. As a matter of policy, federal agencies could, of course, continue to assert pnonty for water nghts on acquired lands based on the date of first use, in order to minimize dislocation or disruption of state and private expectations 108 The forest lands comprising the Gila National Forest were, insofar as we are aware, all reserved lands As we pointed out in F^rt IIB (l) supra, in other contexts the Supreme Court and lower federal courts have generally recognized a clear distinction between lands that are open to acquisition, use, and settlement under the public land statutes and lands that have been set aside for particular federal purposes, including lands acquired or reacquired from pnvate ownership. 109 The reservation of land, however, may be probative evidence of congressional intent, because it demonstrates that Congress intended that the land should be managed for particular purposes to the exclusion o f other purposes— a showing which would buttress the argument that Congress did not contemplate that state law could defeat those purposes. 110 Nothing in the recent decision in Sierra C lub v Watt, 659 F.2d 203 (D.C Cir 1981), in which the court held that no federal reserved rights could be created under FLPMA, necessarily precludes this argument, because the court’s conclusion rested only on whether the land in question had been withdrawn from the public domain Since it had not been withdrawn, the court found no reserved rights had been created The court did not consider whether, independent of the reserved rights doctrine, FLPM A provides a basis for other federal water rights 659 F.2d at 205 382 Martz Op. at 257-58; see generally Sierra Club v. Watt, 659F.2d203, 206 (D.C. Cir. 1981). While we believe it is theoretically possible for federal water rights to exist on public domain lands, such rights probably cannot be asserted under the current statutory schemes authorizing management of the public domain. We have not, however, undertaken an independent analysis of those statutes. IV. Conclusion We conclude that the rationale of California and New Mexico must be applied to any assertion of federal water rights in the western states. To the extent the federal non-reserved water rights theory would suggest that federal water rights are created merely by the assignment of land management functions to a federal agency or authorization of a federal project, we believe that it does not have a sound legal or constitutional basis and does not provide an appropriate legal basis for assertion of water rights by federal agencies. New Mexico and California make it clear that the federal constitutional authority to preempt state water law must be clearly and specifically exercised, either expressly or by necessary implication. Otherwise, the presumption is that the western states retain control over the allocation of unappropriated water within their borders. Although we have not undertaken an independent analysis of the various federal land manage­ ment statutes, we believe that, as a practical matter, because statutes authorizing management of the public domain probably do not provide a basis for assertion of federal water rights, the federal rights that can be asserted are limited to federal reserved rights and rights implied from specific congressional directives, if the concept of “ reserved” rights is understood to apply as well to acquired federal lands that are part of a federal reservation. This does not mean that the federal government is helpless to acquire the water it needs to carry out its management functions on federal lands. If that water cannot be acquired under state law or by purchase or condemnation of existing rights, the remedy lies within the power of Congress. The Supremacy Clause provides Congress ample power, when cou­ pled with the commerce power, the Property Clause, or other grants of federal power, to supersede state law. The exercise of such power must be explicit or clearly implied, however, and federal rights to water will not be found simply by virtue of the ownership, occupation, or use of federal land, without more. The next logical step, to the extent it is necessary in order to apply this analysis to particular statutes, lands, or claims, is for the agencies with responsibility for enforcement and administration of the various land management statutes to review their statutory authority and water needs in light of the principles we have outlined here. We have not attempted that task here, because of its scope and because those agencies are more familiar with the scope and administration of those statutes and the possible problems presented by application of state law. T h eo d o re B. O lson Assistant Attorney General Office cf Legal Counsel 383

Write a legal research memo on the following topic.

June 7, 1977 77-34 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT Reprogramming—Legislative Committee Objection This is in response to your request for our opinion on two questions arising out of the administration of the Agency for International Devel­ opment (AID). The first is whether the legislative history o f a provi­ sion in Title I of the Foreign Assistance and Related Programs Appro­ priations Act, 1977, Pub. L. No. 94-441, 90 Stat. 1467, can be read to convert that provision into more than a report-and-wait provision. We believe that the legislative history of the provision cannot be so read, and it is our opinion that the executive branch is in no sense legally bound to abide by an objection of the appropriations committees of Congress with regard to a specific reprogramming. The second question concerns the extent to which the Administrator of your agency might be able to bind the agency, the State Depart­ ment, or the President not to go forward with reprogramming action over the objection of these congressional bodies. We think that the Administrator may give his or her personal assurance to Congress, orally or in writing, of his intention to give the greatest weight to such an objection, and that he may also convey, if authorized to do so, similar assurances by the Secretary of State and the President. But the Administrator may not legally bind himself, his agency, the Secretary of State, or the President to honor the objection, because such an agreement would constitute formal acceptance by the executive branch of a legislative veto that is constitutionally suspect. I. The Effect of the Provision Under the provision in question, your agency may not reprogram funds for fiscal year 1977 “unless the Appropriations Committees of both Houses of the Congress are previously notified fifteen days in advance.” Thus, the provision constitutes a so-called “report and wait” provision of the type that we regard as constitutionally permissible. However, the conference report that deals with this provision discusses 133 the fact that the provision represents a compromise between the House and Senate managers of the bill, the latter having brought into confer­ ence a Senate-passed bill that purported to prevent reprogramming of A ID funds without affirmative approval by the appropriations commit­ tees of the two Houses. T he report states that the compromise “is based on the firm expectation of the conferees that the Executive Branch will follow the historical pattern of honoring objections” to reprogram­ mings. H.R. Rep. No. 1642, 94th Cong., 2d Sess. 8 (1976). The confer­ ence report was approved by both Houses. 122 Cong. Rec. H 11142 (daily ed. Sept. 27, 1976); 122 Cong. Rec. S 16811 (daily ed. Sept. 28, 1976). The question is whether the quoted language, taken together with the language in Title I quoted above, binds your agency or the executive branch to abide by committee “vetoes” of reprogramming decisions as a statutory matter. We think it plain that it does not. W hatever the “firm expectations” o f the conferees might have been in reaching this compromise, their expectations cannot be read as if the Senate version had been enacted into law. As Mr. Justice White recent­ ly w rote for the Supreme Court, “legislative intention, without more, is not legislation.” Train v. City o f New York, 420 U.S. 35, 45 (1975). Thus, even if we were to read into the conference report an intent to bind the executive branch to follow its historical practice, we would nevertheless conclude that the legislation enacted was inadequate to fulfill that purpose. II. Express Agreements Binding the Executive Branch to Abide by Congressional Directives W e think that an express agreement purporting to bind the Adminis­ trator to follow the dictates of congressional committees presents both statutory and constitutional issues. In assessing the validity of such an agreement, we would first characterize it as one in which the Adminis­ trator places his actual decisionmaking authority concerning specific reprogramming in the congressional body. Thus, while the Administra­ tor exercises some discretion in what reprogramming proposals are to be submitted to the cognizant committee, the latter body would exer­ cise the final decisionmaking authority by virtue of the veto power it would have under the agreement. A. The Statutory Question As a statutory matter, therefore, the question is whether the Adminis­ trator possesses the authority to delegate his decisionmaking power to a congressional body. The Adm inistrator’s own power over reprogram­ ming decisions derives from § 101 of Executive Order 10973, 3 CFR 493 (1959-1963 Compilation), by which the President delegated to the Secretary o f State the functions assigned to the President under the Foreign Assistance Act o f 1961, 75 Stat. 424, 22 U.S.C. §§2151 et seq. In that order the President directed the Secretary of State to establish A ID , which the latter did by Public Notice 199, 26 Fed. Reg. 10608. In 134 § 2(a)(1) of the notice, the Secretary of State specifically delegated to the Administrator his § 101 powers. Nothing in the notice would pur­ port to give the Administrator the authority to delegate beyond him­ self, much less to a congressional body, his discretion to administer the provisions of the Foreign Assistance Act involved here. Thus, as a threshhold matter the Administrator does not possess the power to make the kind of delegation of authority contemplated by the proposed agreement. More importantly, we think that if either the order or the public notice attempted to confer such power upon either the Secretary of State or the Administrator, respectively, those docu­ ments would be contrary to § 621(a) of the Foreign Assistance A ct of 1961, as amended, 22 U.S.C. § 2381(a), which states that the “President may exercise any functions conferred upon him by this chapter through such agency or officer of the United States Government as he shall direct.” We believe that § 2381(a) effectively prohibits delegation of reprogramming decisions to any person outside the executive branch, including congressional bodies or individual Members of Congress. We end our discussion of this question by pointing out that, under our analysis in Part I, supra, of the Appropriations Act, nothing in that Act could be said to qualify the express language of § 2381, We there­ fore conclude that the Administrator has no power to make the pro­ posed delegation and that any delegation of such power by him W w i i l d violate § 2381(a). B. The Constitutional Question Although our resolution of the statutory question makes it unneces­ sary to examine the constitutional issue, we briefly address the latter because we think the answer is reasonably well established. As a practi­ cal matter, an agreement purporting to bind the Administrator to follow the dictates of a congressional body, if assumed to be binding, would constitute nothing less than a formal committee veto provision. Such provisions have been considered unconstitutional by former Presi­ dents. See, e.g., Public Papers o f the Presidents: Dwight D. Eisenhower, 1955, at 688-89; John F. Kennedy, 1963, at 6. They have also been declared to be unconstitutional by two former Attorneys General. See 37 Op. A.G. 56 (1933); 41 Op. A.G. 230 (1955). The fact that here the Administrator would be a party to the agreement, constitutionally, does nothing to remove the taint. The Administrator cannot delegate his executive power with respect to reprogramming decisions to the chairman of a congressional commit­ tee. To do so would be to delegate an executive function to the legislative branch in violation of the doctrine of separation of powers. 111. Express Agreements Binding the Executive Branch to Consult with Congressional Bodies Given our view that the Administrator lacks statutory and constitu­ tional authority to enter into an agreement effectively surrendering his 135 decisionmaking authority to a congressional body, the question remains as to what type of agreement the Administrator may enter into and the extent to which he would bind himself and his agency by doing so. We believe that the Administrator may enter into an express agree­ ment by which he would consult with a congressional body prior to making a reprogramming effective and agree to give great deference to the views of that body in reaching a final decision. The crucial point is that the Administrator must retain at all times the authority to make the final decision. We also think that such a commitment on the part of the Administra­ tor could be made binding on AID if published in the Federal Register. See 44 U.S.C. § 1510. A somewhat analogous situation was presented by the action of Acting Attorney General Bork regarding the authority of the W atergate Special Prosecutor to contest an assertion of executive privilege. This commitment was published as a regulation and was said by the Supreme Court to have “the force of law” so long as it was extant. See, United States v. Nixon, 418 U.S. 683, 695 (1974). We also believe that such an agreement, whether or not published as a regulation, could be revoked at will by the Administrator or his successor. As the Court said of the regulation involved in the Nixon case, “it is theoretically possible for the Attorney General to amend or revoke the regulation. . . . ” Id. at 696. Once revoked, the agreement would have no further effect. John M. H arm on Acting Assistant Attorney General Office o f Legal Counsel 136

Write a legal research memo on the following topic.

Authority of USDA to Award Monetary Relief for Discrimination T h e D e p a rtm e n t o f A g ric u ltu re h a s authority to a w a rd m o n e ta ry re lie f, a tto rn e y s ’ fees, and c o sts to a p e rs o n w h o h as b e e n d is c rim in a te d a g a in s t in a p ro g ra m c o n d u c te d by U S D A if a c o u rt c o u ld a w a rd s u c h re lie f in an a c tio n b y the a g g rie v e d p e rso n T h a t q u e stio n is c o n tro lle d b y w h e th e r the a n ti-d is c n m in a tio n p ro v is io n s o f the a p p lic a b le c iv il rig h ts statu te a p p ly to fe d e ra l a g e n c ie s, a n d if so , w h e th e r th e s ta tu te w a iv e s th e so v e re ig n im m u n ity o f the U n ite d S tates a g a in st im p o sitio n o f s u c h re lie f. T h e a n ti-d is c rim in a tio n p ro v is io n s o f Title V I o f th e C iv il R ig h ts A ct o f 1964 do n o t a p p ly to fe d e ra l a g e n c ie s . S o m e a n ti-d is c rim in a tio n p ro v is io n s in e a c h o f th e o th e r c iv il rig h ts s ta tu te s a d d re ss e d in th e o p in io n d o a p p ly to fe d e ra l agencies, b u t o n ly o n e o f th e statu tes, the E qual C re d it O p p o rtu n ity A c t, w a iv e s s o v e re ig n im m u n ity w ith re s p e c t to m o n e ta ry relief, a u th o riz in g im p o sitio n o f c o m p e n ­ s a to ry d a m a g e s . T h e F a ir H o u sin g A ct a n d th e R e h a b ilita tio n A c t d o n o t w a iv e im m u n ity a g a in st m o n e ta ry r e lie f A tto rn e y s ’ fees and c o s ts m a y b e a w a rd e d p u rsu a n t to the w a iv e r o f im m u n ity c o n ta in e d in th e E q u a l A c c e s s to Justice A c t A p ril 18, 1 9 9 4 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 e p a r t m e n t o f A g r ic u l t u r e T his m em orandum responds to your request for our opinion concerning the authority o f the Secretary of Agriculture to award damages and other forms of monetary relief, attorneys’ fees, and costs to individuals who the Department of Agriculture (“U SD A ”) has determined have been discriminated against as appli­ cants for, or participants in, USDA conducted program s.1 You have informed us that the statutes authorizing these program s do not authorize such relief and have asked our opinion whether various civil rights statutes authorize the Secretary to afford such relief. The Secretary has authority to aw ard monetary relief, attorneys’ fees, and costs if a court could award such relief in an action by the aggrieved person. A ccord­ ingly, the dispositive questions regarding your inquiry are whether the antidiscrim ination provisions of the individual civil rights statutes apply to federal agencies, and if so, whether the statutes w aive the sovereign immunity of the United States against imposition o f such relief. In considering your request, we have review ed Title VI o f the Civil Rights A ct o f 1964, the Fair Housing Act, the Rehabilitation Act, and the Equal C redit Opportunity Act. With respect to attor­ neys’ fees and costs, we have also review ed the Equal Access to Justice Act. 1 See Letter for W alter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, from James S. G illilan d , General Counsel, Department of Agriculture (Oct 8, 1993). 52 A u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination We conclude that the anti-discrimination provisions of Title VI do not apply to federal agencies. Some anti-discrimination provisions in each o f the other statutes that we reviewed do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to m one­ tary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys’ fees and costs may be awarded pursuant to the waiver o f immunity contained in the Equal Access to Justice Act. I. B A C K G R O U N D A federal agency must spend its funds only on the objects for which they were appropriated. 31 U.S.C. § 1301(a). Consistent with this requirement,2 appropria­ tions law provides that agencies have authority to provide for monetary relief in a voluntary settlement of a discrimination claim only if the agency would be subject to such relief in a court action regarding such discrimination brought by the ag­ grieved person. This principle has been applied in a number of Comptroller General opinions. For example, the Comptroller General has concluded that agencies have the authority to settle administrative complaints of employment discrimination by awarding back pay because such monetary relief is available in a court proceeding under Title VII of the Civil Rights Act of 1964 (“Title VII”); however, “ [t]he award may not provide for compensatory or punitive damages as they are not per­ mitted under Title VII.” Equal Em ploym ent O pportunity Com m ission, 62 Comp. Gen. 239, 244-45 (1983).3 The Comptroller General has come to the same conclu­ sion with respect to the Age Discrimination in Employment Act o f 1967 (“ADEA”). A lbert D. Parker, 64 Comp. Gen. 349, 352 (1985). The Com ptroller General has applied this appropriations law limitation directly to USDA. See Nina R. M athews, B-237615, 1990 W L 278216, at 1 (C.G. June 4, 1990) (“Employee may not be reimbursed for economic losses pursuant to a resolution agreement made under [ADEA or Title VII] since there is no authority for reimbursement of compensatory damages under either statutory authority.”).4 2 S e e a h o 31 U S C. § 1341(a)(1) (A nti-D eficiency Act) 1 W aiving sovereign im m unity, T itle VII expressly authorizes aw ards o f back pay against federal ag en ­ cies A provision in T itle VII entitled “ Em ploym ent by Federal G overnm ent,'’ 42 U S C 2 0 0 0 e -l6 , p ro ­ hibits discrim ination by federal agencies (subsec (a)); authorizes a civil action in w hich ‘‘the head o f the departm ent, agency, o r unit . . shall be the d efen d an t" (subsec (c)), and incorporates the rem edies p ro v i­ sions o f 42 U .S.C § 2000e-5 for such civil actions (subsec (d)) A w ards o f back pay are expressly au th o r­ ized by 42 U .S.C § 2000e-5(g) Subsequent to issuance o f the C om ptroller G eneral opinions cite d in the text, T itle VII was am ended to provide for com pensator)’ dam age aw ards against all parties, including federal agencies, and punitive dam age aw ards against all non-governm ent parties. 42 U.S C § 19 8 1a(b) 4 T he sam e appropriations lim itation exists for settlem ents o f litigation by the D epartm ent o f Justice as exists for settlem ents o f adm inistrative proceedings by agencies. This O ffice has previously o p in e d that the perm anent appropriation established pursuant to 3 1 U .S.C. & 1304 (“the judgm ent fund”) is available ‘‘for the paym ent o f non-tort settlem ents authorized by the A ttorney G eneral or his designee, w hose paym ent is ‘not 53 Opinions o f th e Office o f L egal C ounsel Therefore, the question you have raised regarding the Secretary’s authority to award m onetary relief in administrative proceedings turns on whether the various civil rights statutes authorize the aw ard of such relief against federal agencies in a court proceeding. That question requires a two-step analysis: whether federal agencies are subject to the discrimination prohibitions of the statute; and, if so, whether the statute waives the sovereign immunity of the United States against monetary relief. See U nited States D e p ’t o f E nergy v. O hio , 503 U.S. 607, 613-14 (1992) (Energy D epartm ent conceded it was subject to procedural requirements of Clean W ater Act and Resource Conservation and Recovery Act and liable for co­ ercive fines under those statutes; therefore, only question presented was whether the statutes waived sovereign immunity from liability for punitive fines).5 The first step o f the analysis requires application of conventional standards of statutory interpretation. The second step, however, requires application of a spe­ cial, “unequivocal expression” interpretive standard that the Supreme Court has established to govern determinations as to whether a statute waives sovereign im­ munity — either the inherent constitutional immunity of the federal government or the Eleventh Amendm ent immunity o f the States: W aivers of the Government’s sovereign immunity, to be effective, m ust be unequivocally expressed. . . . [T]he Governm ent’s consent to be sued m ust be construed strictly in favor of the sovereign, and not enlarge[d] beyond what the language requires . . . . As in the Eleventh Amendm ent context, the unequivocal expression of elim i­ nation of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a com m ittee report. U nited S tates v. N ord ic Village, Inc., 503 U.S. 30, 33-37 (1992) (internal quotation marks and citations omitted). Thus, “[t]here is no doubt that waivers of federal sovereign imm unity must be ‘unequivocally expressed’ in the statutory text.” U nited S tates v. Idaho, ex rel. D ir., D e p ’t. o f W ater Resources, 508 U.S. 1, 6 (1993). The m ethodology required by this “unequivocal expression” standard may be illustrated by the decision in N ordic Village. Seven Justices joined in an opinion for the Court that found that although a provision o f the Bankruptcy Code could be o therw ise pro v id ed fo r,’ i f a n d o n lv i f the cause o f action th a t g a ve rise to the settlem ent co u ld h ave resulted in a fin a l m o n e v ju d g m e n t.” A vailability o f Ju d g m en t F u n d in C ases N ot Involving a M onev J u dgm ent C laim , 13 O p O .L C. 98, 104 (1 9 8 9 ) (em phasis added) (quoting 31 U S.C. § 1304). 5 T h e C o u rt in D ep a rtm en t o f Energy ex p ressly identified the fundam ental difference betw een the su b ­ stantive c o v erag e o f a statute and liability for v io latio n s o f the statute, stating that the C lean W ater A ct co n ­ tains "sep arate statutory reco g n itio n o f three m an ifestatio n s o f governm ental pow er to w hich the U nited Stales is su b jected : su b stan tiv e and procedural requirem ents, adm inistrative authority; and ‘process and sanctions, w h e th er ‘e n fo rc e d ’ in courts or o th erw ise. Su b stan tiv e requirem ents are thus distinguished from ju d ic ia l p ro c e ss." 503 U .S. at 623. 54 A uthority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination read to effect a waiver of sovereign immunity for monetary claims against the United States by a bankruptcy trustee, the provision was “susceptible of at least two interpretations that do not authorize monetary relief.” 503 U.S. at 34. The Court made no effort to apply traditional rules of statutory construction to deter­ mine which was the better reading o f the provision and simply concluded: The foregoing [two alternative interpretations] are assuredly not the only readings of [the provision], but they are plausible ones — which is enough to establish that a reading imposing monetary li­ ability on the Government is not “unambiguous” and therefore should not be adopted. Id. at 37.6 The Court held that sovereign immunity against imposition of monetary relief had not been waived. In consultation with the Civil and Civil Rights Divisions of the Department of Justice, and having received and considered submissions from various interested governmental and nongovernmental parties,7 we have identified four civil rights statutes that may apply to USDA programs: Title VI o f the Civil Rights Act of 1964, the Fair Housing Act, the Rehabilitation Act, and the Equal Credit O pportu­ nity Act. W e will discuss Title VI first. That analysis presents the least difficulty, because it is well established that the anti-discrimination provisions of Title VI do not apply to federal agencies and thus there is no need to discuss whether sovereign immunity has been waived. The remaining three statutes require more discussion. The first step of the analysis is satisfied in each case because federal agencies are covered by the anti-discrimination provisions of each statute, at least to some ex­ tent. Applying the “unequivocal expression” standard required under the second step, however, we have concluded that sovereign immunity has been waived with respect to monetary relief by only one of the statutes: the Equal Credit Opportu­ nity Act. The final section o f the memorandum discusses attorneys’ fees and costs. II. T IT L E VI Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d, pro­ vides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be 6 A pplying us rule that w aivers o f sovereign im m unity m ust be unequivocally expressed in the statutory text, the C ourt declined to consider the legislative history in an attem pt to resolve the am biguity. Id. 7 See Letters from Roberta A chtenberg, A ssistant Secretary fo r Fair H ousing and Equal O pportunity, and N elson Diaz, G eneral C ounsel, U S D epartm ent o f H ousing A nd U rban D evelopm ent (N ov 15, 1993), Elaine R. Jones, D irector-C ounsel, N A A C P Legal D efense and E ducational Fund, Inc. (O ct 28, 1993); Bill Lann Lee, W estern Regional C ounsel, N A A CP Legal D efense and Educational Fund, Inc. (N ov 12, 1993, N ov 24, 1993); Les M endelsohn, Esq , Speiser, Krause, M adole & M endelsohn (Nov 4, 1993), D avid H H am s, J r , Executive D irector, Land Loss P revention Project (N ov. 5, 1993, N ov 8, 1993). 55 O pinions o f the O ffice o f L egal Counsel subjected to discrim ination under any program or activity receiving Federal finan­ cial assistance.” By its terms, this anti-discrim ination provision does not apply to program s conducted directly by a federal agency, but rather applies only to “any program or activity receiving federal financial assistance.” The conclusion that this provision does not include federal agencies is reinforced by the definitions of “program or activity” and “program” contained in 42 U.S.C. § 2000d-4a. That provision specifically identifies the kinds of entities that are covered, including State and local governm ents, but contains no reference to the federal government. The courts have held that Title VI “w as meant to cover only those situations where federal funding is given to a non-federal entity which, in turn, provides financial assistance to the ultimate beneficiary'.” S oberal-P erez v. H eckler , 717 F.2d 36, 38 (2d Cir. 1983), cert, d en ie d , 466 U.S. 929 (1984); Fagan v. U nited States Sm all B usiness A dm in . , 783 F. Supp. 1455, 1465 n.10 (Title VI inapplicable to SBA di­ rect loan program ), a jf ’d, 19 F.3d 684 (D.C. Cir. 1992). In light o f our conclusion that the discrimination prohibition o f Title VI does not apply to federal agencies, there is no need to consider whether Title VI waives sovereign immunity. III. THE F A IR HOUSING A C T A. T he Fair Housing Act, 42 U.S.C. §§ 3601-3619,8 prohibits covered persons and entities from engaging in any “discriminatory housing practice,” which is defined as “an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title.” 42 U.S.C. § 3602(f). Section 3604 prohibits discrimination in the sale or rental of housing. Section 3603(a)(1)(A) of the Act provides that “the prohibitions against discrim ination in the sale or rental o f housing set forth in section 3604 . . . shall apply” to “dw ellings owned or operated by the Federal G overnm ent.” Thus, a fed­ eral agency is subject to the discrimination prohibitions of § 3604 whenever the agency itself is engaged in selling or renting real estate. In contrast to the language explicitly subjecting federal agencies to the discrimi­ nation prohibitions of § 3604, it is unclear whether federal agencies are subject to § 3605(a), which prohibits “any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction.” The definition section of the Act does not include governments or governm ent agencies in the definition of “person,” see § 3602(d), and unless oth­ erwise specified, the term “person” in a statute does not include the federal gov­ ernm ent or a federal agency. U nited States v. U nited M ine W orkers, 330 U.S. 258, 8 T h e F a ir H ousing A ct was originally e n a c te d as T itle V III o f the C ivil R ights A ct o f 1968, Pub L. No. 90-284 , 82 Stat. 73 (1968). 56 A u thority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination 275 (1947) (“In common usage,” the term person “does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”). The term “entity” is not defined at all in the Act. It is not necessary to resolve this question for purposes of this opinion, however, because we conclude in the next section that the Act does not waive the sovereign immunity of the United States against m one­ tary liability.9 B. W hether federal agencies are subject to monetary liability for violations of § 3604 o f the Fair Housing Act turns on application of the “unequivocal expres­ sion” standard for waivers of sovereign immunity discussed in section I of this memorandum. W e conclude that the Act does not waive sovereign immunity be­ cause its text falls well short of satisfying the “unequivocal expression” standard. Section 3613 authorizes aggrieved persons to enforce the Fair Housing A ct’s anti-discrimination prohibitions in court. Although § 3613 is silent as to whom this action may be brought against, it does specify what relief may be awarded. Sub­ section (c)(1) authorizes a court to award an aggrieved person “actual and punitive damages,” as well as injunctive relief. In addition, under subsection (c)(2), the court “may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the sam e extent as a private person.” W e do not believe that § 3613 waives sovereign immunity, except with respect to attorneys’ fees and costs. Although the Fair Housing Act expressly establishes a general cause of action for redress of discriminatory practices, it is silent as to the parties against whom such a cause of action may be brought and it does not contain language expressly subjecting the United States to such a suit. It is possible to infer from the fact that § 3603 expressly subjects the United States to the discrimination provisions of § 3604 that Congress intended that the cause of action established by § 3613 would also apply to the United States. How­ ever, § 3613 does not say so and the Supreme Court has held that subjecting a gov­ ernmental entity to the substantive or procedural requirements of a statute does not necessarily mean that sovereign immunity has been waived or abrogated with re­ spect to claim s for damages. See, e.g., U nited States D e p ’t o f Energy v. Ohio, 503 U.S. 607 (1992) (federal agencies subject to procedural requirements o f Clean W ater Act and Resource Conservation and Recovery Act but immune from actions 9 For the sam e reason it is also unnecessary to resolve w hether the discrim ination prohibitions in §§ 3606 and 3617 apply to federal agencies We note, how ever, that these sections do not appear to be directed at governm ent activities. Section 3606 m akes it unlaw ful to discrim inate w ith respect to “ access to o r m em ber­ ship or p articipation in any m ultiple-listing service, real estate b ro k e rs' organization or other service, o rg an i­ zation, or facility relating to the business o f selling o r renting d w ellin g s.’' Section 3617 m akes it unlaw ful to ■‘coerce, intim idate, threaten, o r interfere w ith any perso n " w ith respect to the exercise o f rights protected by !)§ 3603-3606 o f the Act. 57 O pinions o f the O ffice o f L egal C ounsel for punitive fines); A ta sca d ero State Hosp. v. Scanlon, 473 U.S. 234, 244-46 (1985) (States subject to section 504 o f Rehabilitation Act but immune from ac­ tions for m onetary relief); Em ployees v. M issouri Pub. Health D e p ’t, 411 U.S. 279 (1973) (States subject to Fair Labor Standards Act but immune from actions for monetary relief).10 The Court has stated that additional language in the suit authorization provision is necessary to “indicat[e] in some way by clear language that the constitutional immunity [is being] swept aw ay.” Id. at 285. The only additional relevant language in § 3613 is subsection (c)(2), which authorizes the award o f attorneys’ fees: In a civil action [brought by an aggrieved person under section 3613], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the same extent as a private person. The presence, in a provision authorizing the bringing of suits by private parties, of language indicating that the United States may be liable for attorneys’ fees and costs certainly indicates a recognition that the United States may be subject to suits under the provision. The question rem ains whether that is a sufficient expression o f a w aiver o f sovereign immunity against damages or any other monetary relief except attorneys’ fees and costs. W e recognize that it is a plausible reading of the statute to answer that question in the affirm ative. W e note, however, that the Supreme Court has declined to give such a reading to an attorneys’ fees provision in a State sovereign immunity con­ text. See D ellm uth v. M uth, 491 U.S. 223, 231 (1989) (stating in decision holding State sovereign imm unity not abrogated by Education of the Handicapped Act: “The 1986 am endm ent to the EHA deals only with attorney’s fees, and does not alter or speak to w hat parties are subject to suit.”). In any event, we conclude that the statute does not meet the “unequivocal expression” standard because there is another plausible interpretation of the attorneys’ fees language that would not en­ tail w aiver o f im munity for damages and other monetary relief. Just because the United States is subject to the cause of action does not necessarily mean it is sub­ ject to the full range o f remedies that are set forth in the statute. These remedies include not only compensatory and punitive damages, but also a “permanent or tem porary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such [discriminatory housing] practice or ordering such affirmative action as may be appropriate).” 42 U.S.C. § 3613(c)(1). 10 T h e Suprem e C o u rt has stated that the stan d ard for e stablishing a w aiver o f the federal g o v ern m en t’s sov ereig n im m u n ity is su b stan tially the sam e as the standard for finding congressional abrogation o f state E leven th A m en d m en t im m u n ity S e e Nordic Village, 503 U S at 37. Eleventh A m endm ent cases like A ta s­ ca d ero and M isso u ri P u b lic H ea lth D ep 't are therefore helpful in o u r analysis 58 A u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination The alternative plausible interpretation of the statute is that the attorneys’ fees provision contemplates an action that is limited to seeking relief other than money damages. This reading is based on the fact that the sovereign immunity of the United States against non-monetary relief already has been waived by the Admin­ istrative Procedure Act (the ”A PA”), 5 U.S.C. §§ 701-706 which provides that [a]n action in a court o f the United States seeking relief other than money damages and stating a claim that an agency or an officer or em ployee thereof acted or failed to act in an official capacity or un­ der color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. 5 U.S.C. § 7 0 2 .11 “[T]he caselaw of [the Court of Appeals for the D istrict of C o­ lumbia Circuit] confirms that ‘the [APA] waiver applies to any suit, whether under the APA . . . or any other statute.’” 12 Other Circuits are in accord,13 and the Su­ preme Court has implicitly held that the APA waiver is not limited to actions brought under the APA, see Bowen v. M assachusetts, 487 U.S. 879, 891-901 (1988) (APA waiver applied in action brought under 28 U.S.C. § 1331). Under the Supreme Court’s “unequivocal expression” standard, the availability of this alternative interpretation of the Fair Housing Act attorneys’ fees provision — that it contemplates an action for non-monetary relief based on the APA waiver of sovereign immunity — precludes finding a waiver of sovereign immunity. See N ordic Village, 503 U.S. at 37 (when a provision is subject to more than one plau­ sible interpretation, the “reading imposing monetary liability on the Government is not ‘unam biguous’ and therefore should not be adopted”).14 11 The legislative history o f this APA provision indicates that us purpose was “ to elim inate the defense o f sovereign im m unity w ith respect to any action m a court o f the U nited States seeking relief o ther than money dam ages and based on the assertion o f unlaw ful official action by a Federal officer.’* S Rep. No 94-996, at 2 (1976) S e e a l s o H .R Rep. N o 94-1656, at 9 ( 1976), reprinted m 1976 U S C C A N 6121, 6 1 2 9 C‘[T]he tim e (has] now com e to elim inate the sovereign im m unity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity ") See g enerally K enneth C D avis, A dm in­ istrative Law T rea tise § 23 19, at 192 (2d ed. 1983) (“T he m eaning o f the 1976 legislation is entirely clear on its face, and that m eaning is fully corroborated by the legislative history. T h ai m eaning is very simple. Sovereign im m unity in suits for relief other than money dam ages is no longer a defense.' ). 12 A labam a v B uw sher, 734 F Supp 525, 533 (D D C. 1990), a fj'd , 935 F.2d 332 (D C C ir 1991), t e n d e n ie d , 502 U S 981 (1991) (quoting P B ator, P M ishkin, D. M ellzer & D. S hapiro, H art a n d Wech.sler's The Federal C ourts a n d The F ederal System 1154 (3d ed. 1988), and citing N atio n a l A.s.s’n o f C ounties v B aker, 842 F 2d 369, 373 (D C . Cir. 19S8), cert denied, 488 U S 1005 (1989)), Schnapper v F oley, 667 F 2d 102, 108 (D .C C ir 1981), cert d en ied , 455 U S 948 (1982), S ea-land Service, Inc v A laska R.R , 659 F.2d 243, 244 (D C C ir 1981), cert denied, 455 U S. 919 (1982) n See, e.g., S p e cter v. G a rrett, 995 r.2 d 404, 4 1 0 (3d C ir 1993) (“ the w aiver o f sovereign im m unity contained in [the A PA ] is not lim ited to suits brought under the A PA "), R ed Lake B a n d oj C hippew a Indians v Barlow , 846 F.2d 474, 476 (8th Cir 1988) C‘[T]he w aiver o f sovereign im m unity contained in [the APA] is not dependent on application o f the procedures and review standards o f the A PA It is dependent on the suit against the g o vernm ent being one for non-m onetary re lie f" ) 14 A nother alternative interpretation may also be possible B ecause the U nited States may intervene in private actions b rought under § 3613 in o rder to seek b ro ad er relief, .see 42 U S.C § 3613(e), it is possible that the U nited States could incur liability for attorneys' fees and costs w ithout being a defendant. W e find 59 O pinions o f the O ffice o f L egal C ounsel W e therefore conclude that the text o f the Fair Housing Act as amended does not waive the sovereign immunity of the United States against imposition of monetary relief. The APA waives sovereign immunity as to any non-monetary relief available under the Act. C. The foregoing conclusion is reinforced by consideration o f the text and legisla­ tive history o f the Fair Housing Act when it was originally enacted as Title VIII of the Civil Rights Act of 1968 (“Title V III”), supra, and of the 1988 amendments to the Fair Housing Act (the “ 1988 A m endm ents”), Pub. L. No. 100-430, 102 Stat. 1619 (1988). This is a useful methodology for considering whether the Act waives sovereign immunity because it allows a focused analysis of whether Congress spe­ cifically intended to waive sovereign im m unity.15 As discussed above, the language in the Fair Housing Act that provides the most specific basis for an argum ent that sovereign immunity for monetary liability has been waived is the language in the attorneys’ fees provision authorizing a court to award “the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the same extent as a private person.” 42 U.S.C. § 3613(c)(2). This specific reference to the United States was not contained in the original Fair Housing A ct’s (Title V III’s) attorneys’ fees provision, which authorized the courts to “award to the plaintiff . . . reasonable attorney fees in the case o f a prevailing plaintiff: Provided, [t]hat the said plaintiff in the opinion of the court is not financially able to assume said attor­ ney’s fees.” Pub. L. No. 90-284, § 812(c), 82 Stat. 89, 107 (1968). As with the current version o f the Act, the original provision on enforcement by private per­ sons authorized an award o f damages to an aggrieved person but was silent as to who could be potential defendants in the civil actions. Id. § 812, 82 Stat. at 107. this in terp retatio n to be less plausible than th e non-m onetary re lie f interpretation because the latter gives effect to pro v isio n s in the sam e subsection, w hich is devoted to *‘[r]elief w hich may be g ra n te d /’ 42 U .S.C. § 3 61 3 (c), w h ile the fo rm er requires reading to g eth er separate subsections and inferring that C ongress may have co n tem p lated in su b sectio n (c) that in terv en tio n s by the A tto rney G eneral under subsection (e), in cases where she “certifies that the case is o f general public im p o rtan ce” and seeks broader relief, m ight result in aw ards o f attorneys fees and co sts against th e U nited Stales 15 Ju stice S calia criticized this m ethodology in Pennsylvania v. Union G as Co., 491 U.S. at 29-30 (Scalia, J., co n cu rrin g in part and d isse n tin g in part) ( “T h a t m ethodology is appropriate if one assum es that the task o f a co u rt o f law is to p lu m b the intent o f the particular C ongress that enacted a p articular provision. T hat m ethodology is not m ine . . It is o u r task . . not to e n te r the m inds o f the M em bers o f C ongress . . b u t rath er to give fair and reasonable m ean in g to the text o f the U nited States Code, adopted by various C ong resses at various tim es.") N otw ithstanding this criticism , w e believe the m ethodology is appropriate here W h atev e r the m erit o f Justice Scalia’s em p h asis o f code m eaning ov er congressional intent in other c ontex ts, w e do not think that approach is req u ired or desirable w here the question presented is w hether sovereig n im m u n ity has been w aived and m ore than one statu to ry enactm ent is involved. W e note that no other Ju stic e ex p ressed a g re em en t with J u stic e S c a lia ’s statem en t in U nion G as. M oreover, the C o u rt's m ajority in D ellm u th used this approach S e e 491 U.S. at 227-32 60 Authority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination Thus, the original Fair Housing Act contained no express or implied reference to any cause of action against the United States in its provisions establishing a pri­ vate cause of action and authorizing awards o f attorneys’ fees. The 1988 Amend­ ments to the Act removed the “ability to pay” limitation on attorneys’ fee awards and added language making it clear that the United States was subject to an award of attorneys’ fees and costs. The 1988 Amendments, however, did not add any language suggesting that the United States was subject to damages claims. The legislative history of the 1988 Amendments reinforces the conclusion that the Fair Housing Act does not waive the sovereign immunity of the United States for monetary relief.16 The principal legislative history for those amendments is contained in the report o f the Committee on the Judiciary of the House o f Repre­ sentatives. H.R. Rep. No. 100-711 (1988), reprin ted in 1988 U.S.C.C.A.N. 2173. In a paragraph giving an overview of the purpose of the amendments made by the committee, the report stated that the revision “brings attorney’s fee language in title VIII closer to the model used in other civil rights laws.” Id. at 13, rep rin ted in 1988 U.S.C.C.A.N. at 2174. The committee went on to state later in the report that “[t]he bill strengthens the private enforcement section by expanding the statute of limitations, removing the limitation on punitive damages, and brings [sic] attor­ ney’s fee language in title VIII closer to the model used in other civil rights laws.” Id. at 17, reprin ted in 1988 U.S.C.C.A.N. at 2178.17 The committee report indicates that the thrust of the amendments was to remove limitations on effective private enforcement by changing the statute of limitations, removing the limit on punitive damages, and removing the “ability to pay” limita­ tion on the award o f attorneys’ fees. It also indicates an intent to conform the lan­ guage of the attorneys’ fees provision to that in other civil rights law s.18 There is no discussion whatsoever o f actions against the United States, much less any refer­ 16 A lthough legislative history can n o t be relied upon to provide the “ unequivocal expression” the Su­ prem e C ourt requires, N o rd ic Village, 503 U S at 37, w e believe it is perm issible to cite legislative history to reinforce a text-based conclusion that a statute does not w aive so v ereign im m unity. C onfidence in a c o n clu ­ sion based on the text can be strengthened w here the legislative history reveals no evidence o f intent to w aive sovereign im m unity 17 In the discu ssio n o f section 813(c) in the section-by-section portion o f the report, the com m ittee fo­ cused on rem oving the punitive dam ages lim itation. The follow ing is the entirety o f the discussion o f section 813(c) Section 8 1 3(c) provides for the types o f relief a court m ay grant T his section is intended to c o n ­ tinue the types o f re lie f that are provided u n d e rc u rre n t law , but rem oves the $1000 lim itation on the aw ard o f punitive dam ages The C o m m ittee believes that the lim it on punitive dam ages served as a m ajor im pedim ent to im posing an effective d eterrent on violators and a disincentive for private perso n s to bring suits under existing law T he C om m ittee intends that courts be able to aw ard all rem edies provided under this section. As in Section 812(o), the c ourt may also aw ard a tto rn e y 's fees and costs. H R. Rep. No. 100-711, at 39-40, rep rin ted m 1988 U .S.C C .A .N at 2200-01. 18 For exam ple, the atto rn ey s' fees provision in T itle VII o f the C ivil R ights o f 1964 (em ploym ent dis­ crim ination) co n tain s the follow ing sim ilar language concerning the U nited States. “ [T ]he court . . . m ay allow the prevailing party, other than . . . the U nited States, a reasonable atto rn e y ’s fee (including expert fees) as part o f the costs, and . . the U nited Slates shall be liable for costs the sam e as a private person.” 42 U S.C. § 2 0 0 0e-5(k) 61 O pinions o f the O ffice o f L eg a l Counsel ence to an intent to waive sovereign im munity or to establish monetary liability for the United States. Given the focused nature of the 1988 Am endm ents to the Fair Housing Act, it is not reasonable to infer any intent to waive the sovereign immunity of the United States against imposition of monetary relief. A t most, the amendments can be read to waive sovereign imm unity against awards o f attorneys’ fees. Reading into the am endm ent a broader waiver would be impermissible under the interpretative method required by the Supreme C ourt and would amount to finding an accidental waiver or a waiver by inadvertence. D. Our conclusion regarding waiver o f sovereign immunity under the Fair Housing Act is supported by the case law on other statutes. In D ellmuth v. Muth, 491 U.S. 223 (1989), the Suprem e Court discussed w hether the Education of the Handi­ capped Act (“EH A ”), which, like the Fair Housing Act, had been amended to im­ pose liability for attorneys’ fees on an otherwise immune governmental entity (in that case, the States), subjected the States to suit. Although the textual basis for arguing waiver of sovereign immunity under that statute appears to be stronger than is the case under the Fair Housing Act, the Court declined to find waiver. The EHA “enacts a com prehensive scheme to assure that handicapped children may receive a free public education appropriate to their needs. To achieve these ends, the Act m andates certain procedural requirements for participating state and local educational agencies.” Id. at 225. In D ellm uth, the Supreme Court reversed a decision o f the Third Circuit Court of Appeals that the EHA abrogated the States’ sovereign immunity against suit for damages. According to the Supreme Court, [T]he Court of Appeals rested principally on three textual provi­ sions. The court first cited the A ct’s preamble, which states Con­ gress’ finding that “it is in the national interest that the Federal governm ent assist State and local efforts to provide programs to m eet the education needs o f handicapped children in order to assure equal protection o f the law.” Second, and most important for the Court of Appeals, was the A ct’s judicial review provision, which perm its parties aggrieved by the adm inistrative process to “bring a civil action . . . in any State court o f com petent jurisdiction or in a district court o f the United States w ithout regard to the amount in controversy.” Finally, the Court o f Appeals pointed to a 1986 am endm ent to the EHA, w hich states that the A ct’s provision for a reduction of attorney’s fees shall not apply “if the court finds that the State or local educational agency unreasonably protracted the final resolution o f the action or proceeding or there was a violation 62 A u thority o f USDA to A w a rd M onetary R elie f f o r D iscrim ination o f this section.” In the view of the Court of Appeals, this am end­ ment represented an express statement of Congress’ understanding that States can be parties in civil actions brought under the EHA. Id. at 228 (citations omitted). We quote at length the Supreme C ourt’s rejection of the Court of Appeals’ analysis, because it can be applied directly to the Fair Housing Act: W e cannot agree that the textual provisions on which the Court of Appeals relied, or any other provisions of the EHA, demonstrate with unmistakable clarity that Congress intended to abrogate the States’ immunity from suit. The EHA makes no reference whatso­ ever to either the Eleventh Amendment or the States’ sovereign im ­ munity. Nor does any provision cited by the Court of Appeals address abrogation in even oblique terms, much less with the clarity A tascadero requires. The general statement of legislative purpose in the A ct’s preamble simply has nothing to do with the States’ sov­ ereign immunity. The 1986 amendment to the EHA deals only with attorney’s fees, and does not alter or speak to what parties are sub­ ject to suit. . . . Finally, [the private cause of action provision] pro­ vides judicial review for aggrieved parties, but in no way intimates that the States’ sovereign immunity is abrogated. As we made plain in A tascadero, “ [a] general authorization for suit in federal court is not the kind o f unequivocal statutory language sufficient to abro­ gate the Eleventh Amendment.” . . . W e recognize that the EH A ’s frequent reference to the Slates, and its delineation of the States’ important role in securing an ap­ propriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging viola­ tions o f the EHA. This statutory structure lends fo rce to the infer­ ence that the S tates were intended to be subject to dam ages actions f o r violations o f the EHA. But such a perm issible inference, w hat­ ever its logical force, would remain ju s t that: a p erm issib le infer­ ence. It would not be the unequivocal declaration which . . . is n ecessary before we w ill determ ine that C ongress intended to exer­ cise its pow ers o f abrogation. Id. at 231-32 (emphasis added) (citations omitted). Dellmuth presented a stronger case for waiver of sovereign immunity than the Fair Housing Act because the EHA contains “ frequent reference[s] to the States” and is obviously very much focused on the activities of the States, while the Fair 63 O pinions o f the O ffice o f L egal C ounsel Housing Act is focused on the private sector and has relatively minor relevance to the activities o f federal agencies. Nonetheless, the Supreme Court refused to find that the EHA waived sovereign immunity, relying on specific points that are di­ rectly applicable to the Fair Housing A ct: that an attorneys’ fees provision speaks only to attorneys’ fees and does not address who is subject to suit or what remedies are available; that a general authorization for suit is not an “unequivocal expres­ sion” ; and that legitimate inferences that Congress intended a damages cause of action are not “unequivocal expressions.” 19 The Departm ent o f H ousing and U rban Development (“HUD”) has submitted a letter stating its conclusion that “a federal agency . . . may be required to pay dam ­ ages and other relief . . . [for] violations of the [Fair Housing Act].”20 HUD relies principally on the analysis contained in D oe v. A ttorn ey G eneral o f the U nited S tates, 941 F.2d 780 (9th Cir. 1991), which held that the Rehabilitation Act waives the sovereign immunity o f the United States against damage awards. As discussed in the next section o f this memorandum, we believe that D oe used a method of statutory interpretation that is impermissible under the Supreme Court precedents and that the case was incorrectly decided. IV. R EH ABILITATION A C T W e reach fundamentally the same conclusions with respect to the Rehabilitation Act o f 1973, as amended (the “Rehabilitation A ct”), 29 U.S.C. §§ 794-794c, as we have reached with respect to the Fair Housing Act. A. Section 504 o f the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination on the basis of disability: No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by rea­ son of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance o r under 19 T h e C o u rt's o p in to n in D ellm uth relies h eav ily on A ta sc a d e ro State H osp. v Scanlon, 473 U S 234 (1985). S ee 491 U .S. at 227, 23 0 -3 2 A ta sca d ero also stro n g ly supports the conclusion that the Fair H ous­ ing A ct does not w aive so v ereig n immunity fo r m onetary re lie f A ta sca d ero concerned the discrim ination provisio n s o f the R eh ab ilitatio n A ct o f 1973 a n d is discussed in detail in the next section o f this m em oran­ dum , w hich ad d resses that act. A tascadero h e ld that the R ehabilitation A ct does not abrogate the sovereign im m un ity o f the States W e co n clu d e in the n e x t section that the analysis in that case should apply fully to actions ag ain st the federal g o v ern m en t The c a s e is significant fo r purposes o f the d iscussion in this section because the R eh ab ilitatio n A ct has a structure th a t is sim ilar to the Fair H ousing Act L etter for W alter D ellinger, Assistant A tto rn e y G eneral, O ffice o f Legal Counsel, from R oberta A chtenberg, A ssista n t S ecretary for F air Housing an d Equal O p p o rtu n ity , and N elson Diaz, G eneral C ounsel at I (N ov 15, 1993). 64 A u thority o f USDA to A w ard M onetary R elief f o r D iscrim ination any program o r activity conducted b y any E xecutive agen cy o r by the U nited States P ostal Service. Id. § 794(a) (emphasis added). The italicized language, which was added to sec­ tion 504 in 1978,21 expressly subjects federal agencies to the discrimination prohi­ bitions of the Act. B. Section 505 of the Rehabilitation Act (29 U.S.C. § 794a), which also was added in 1978,22 sets forth the remedies available for violations of the discrimination pro­ hibitions. The following provisions of section 505 are pertinent here:23 (a)(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assis­ tance under section 794 o f this title. (b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable at­ torney’s fee as part of the costs. Id. § 794a(a)(2), (b). Thus, as with the Fair Housing Act, the Rehabilitation Act has had two legisla­ tive enactments that bear on the sovereign immunity question: the original dis­ crimination prohibition and a later amendment that can be argued to effect a waiver of immunity against imposition o f monetary relief because it refers to the United States in a way that recognizes that federal agencies may be defendants in private actions. The history of the Rehabilitation Act enactments would at least initially suggest the possibility of a more plausible argument in favor of waiver, however, because its amendments were more sweeping than the Fair Housing Act am end­ ments: while the Fair Housing Act amendments of 1988 merely made relatively minor changes to an existing cause o f action and modified an attorneys’ fees provi­ sion, the section 504 amendments in 1978 added for the first time a provision authorizing a private action for violations and a provision authorizing attorneys’ fees awards. *' Pub. L No 95-602 119. 92 Stat. 2955, 2982 (1978) " Id. i} 120, 92 Stat at 2982. 21 The only o th er provision o f section 505 (29 U S C <) 794a(a)( I )) c oncerns discrim ination in federal em ploym ent, w hich we do not understand to be co v ered by y our opinion request 65 O pinions o f the O ffice o f L egal C ounsel However, after analyzing the Rehabilitation Act enactments under the Supreme C ourt’s “unequivocal expression” standard, we conclude that there is no waiver of sovereign im m unity for monetary relief. There is no fundamental difference be­ tween the effect o f the Rehabilitation Act enactm ents and the effect of the Fair Housing Act enactments. In both cases, there is no express language authorizing actions against the United States for dam ages or other monetary relief and it is rea­ sonable to read the cause o f action and attorneys’ fees provisions as allowing ac­ tions against the United States for injunctive relief pursuant to the waiver of sovereign im m unity for such relief contained in the Administrative Procedure Act. As the Suprem e C ourt made clear in N ordic Village, where a plausible reading is available that does not authorize m onetary relief, “a reading imposing monetary liability on the G overnm ent is not ‘unam biguous’ and therefore should not be adopted.” 503 U.S. at 37.24 C. O ur conclusion is supported by the case law. The Supreme Court already has held that the Rehabilitation Act does not abrogate the sovereign immunity of the States. In A ta sca d e ro State Hosp. v. Scanlon, 473 U.S. 234 (1985), the Court held that sections 504 and 505 of the Act do not abrogate the States’ Eleventh Am end­ ment sovereign immunity against imposition o f monetary relief. Id. at 244-46. Applying an “unequivocally clear” standard,25 which is substantially the same as the “unequivocal expression” standard governing waiver of federal immunity (N ordic Village, 503 U.S. at 37), the Court held that States that receive federal assistance are clearly subject to the discrim ination prohibition of section 504, [b]ut given their constitutional role, the States are not like any other class of recipients of federal aid. A general authorization for suit in federal court is not the kind o f unequivocal statutory language suffi­ cient to abrogate the Eleventh Amendment. W hen Congress chooses to subject the States to federal jurisdiction, it must do so specifically. Accordingly, w e hold that the Rehabilitation Act does not abrogate the Eleventh A m endm ent bar to suits against the States. "4 As we e x p lain ed in the course of our c o n sid eratio n o f the Fair H ousing Act, we believe it is perm issible to c ite leg islativ e h isto ry 1 0 reinforce a tex t-b ased conclusion th at a statute does not w aive sovereign im m u­ nity W e h ave review ed the legislative h isto ry o f the R ehabilitation A ct am endm ents o f 1978 and have found, as w as the case w ith resp ect to the F air H ousing A ct am endm ents o f 1988, that it does not include any co n sid eratio n o f the su b jects o f sovereign im m u n ity o r o f establishing m onetary liability for the U nited Slates. T h u s, it is c o n siste n t w ith o u r conclusion that those am endm ents do not w aive sovereign im m unity. 23 A ta sc a d e ro e stab lish ed the following stan d a rd ' ‘C o n g ress may abrogate the S ta te s’ constitutionally secured im m u n ity from suit in federal court o n ly by m aking its intention unm istakably clear in the language of the s ta tu te .’’ 473 U S at 242. 66 Authority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination 473 U.S. at 246 (citations om itted )26 The Court did not specifically address the section 505 attorneys’ fees and costs provision, but its holding contains an implicit conclusion that the provision does not waive immunity for any monetary relief other than the attorneys’ fees and costs themselves. The statutory framework with respect to the United States is substantially the same as with respect to the States, and we see no basis for concluding that the language of the Act waives the federal governm ent’s sovereign immunity when it does not abrogate the immunity of the States.27 A panel of the Ninth Circuit Court of Appeals has concluded otherwise, holding that the Rehabilitation Act does indeed waive the sovereign immunity of the United States against imposition of damages. D oe v. A ttorney G eneral o f the U nited States, 941 F.2d 780 (1991). We believe, however, that D oe was incorrectly de­ cided. First, the Ninth Circuit’s analytical approach was inconsistent with the Su­ preme C ourt’s requirement of an “unequivocal expression” in statutory text without resort to legislative history. See N ordic Village, 503 U.S. at 33-37. In the section of its opinion entitled “The Legal Standard for Ascertaining W hether the G overn­ ment has Waived Sovereign Im m unity,” 941 F.2d at 787, the Ninth Circuit incor­ rectly stated that “[t]he key to determining whether there has been a waiver is Congress’s intent as manifested in the statute’s language and legislative history.” Id. at 788. Rather than using the special standard established by the Supreme Court, the Ninth Circuit chose to view the issue as requiring application o f the factors for implying a private right of action under C ort v. Ash, 422 U.S. 66, 78 (1975), with an additional sovereign immunity gloss that “only explicit congres­ sional intent in the statutory language and history will suffice” for implying a pri­ vate right of action against the United States. D oe, 941 F.2d at 788. In addition, the Ninth Circuit’s analysis of the Rehabilitation Act is unpersua­ sive. The court’s conclusion was as follows: In amending section 504, Congress made certain that federal agen­ cies would be liable for violations o f the statute. Congress’s inser­ tion of federal agencies in the pre-existing clause subjecting others to liability and its broad-brush remedy provision indicate that Con­ gress intended that there be no distinction among section 504 de­ fendants. 26 R esponding (o the Suprem e C o u rt's decision in A ta sca d ero, C ongress passed legislation expressly abrogating the sovereign im m unity o f the Slates under the R ehabilitation A ct and other civil rights statutes Pub L No 99-506, § 1003, 100 Stat 1807, 1845 (1986). T hat legislation contained no provisions bearing on the sovereign im m unity o f the U nited States 27 The only treatm ent o f the federal governm ent in section 505 that is different from the treatm ent o f the States (other than the obvious difference that federal agencies are not recipients o f federal assistance) is that the attorneys fees provision (paragraph (b)) does not allow the U nited States as a prevailing party to recover attorney s' fees T hat exception says nothing, o f course, about the liability o f the U nited States for dam ages or other m onetary relief, and the fact that the U nited States may be subject to attorneys fees aw ards d oes not w aive sovereign im m unity for dam ages and other kinds o f m onetary relief. 67 O pinions o f the O ffice o f Legal C ounsel Id. at 794. That conclusion is incorrect in two fundamental respects. First, the addition o f federal agencies to section 504 was not to a “clause subjecting others to lia b ility '' but rather to a clause that im posed a non-discrimination substantive re­ quirem ent and did not address liability in any way; it was not until section 505 was added in 1978 that the Rehabilitation Act addressed remedies. Second, the Su­ preme C ourt has rejected the view that the “broad-brush remedy provision [section 505] indicate[s] that C ongress intended that there be no distinction among section 504 defendants.” Id. As discussed above, the Supreme Court opined in A ta s­ ca d ero State H o sp ita l v. Scanlon that there are indeed distinctions to be made am ong section 504 defendants, holding that given their constitutional role, the States are not like any other class o f recipients o f federal aid. A general authorization for suit in fed­ eral court is not the kind of unequivocal statutory language suffi­ cient to abrogate the Eleventh Amendment. W hen Congress chooses to subject the States to federal jurisdiction, it must do so specifically. 473 U.S. at 246. The United States, of course, also has special constitutional status, and the approach taken in A ta sca d ero requiring an unequivocal specific expression o f intent to waive sovereign immunity is equally applicable in the con­ text of the federal governm ent. N ordic Village, 503 U.S. at 37. V. E Q U AL CRED IT OPPO RTUNITY A C T In contrast to our preceding conclusions, we conclude that the Equal Credit Op­ portunity Act (the “C redit Act”), 15 U.S.C. §§ 169]-1691 f, partially waives the sovereign immunity o f the United States against the imposition o f monetary relief, by authorizing an award of compensatory damages. Although this conclusion is not com pletely free from doubt because it is possible that the Supreme Court would require a more explicit statem ent of waiver, we reach this conclusion be­ cause we can find no reasonable explanation for a provision exempting all govern­ ment creditors from liability for punitive dam ages other than that the provision recognizes that governm ent creditors are liable for compensatory damages. There is no com parable provision in any o f the other civil rights statutes addressed in this memorandum. A. The Credit Act prohibits any creditor from discriminating against any applicant with respect to any aspect of a credit transaction. Id. § 1691(a). The term “creditor” is defined as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continua­ 68 A uthority o f USDA to A w ard M onetary R elie f f o r D iscrim ination tion of credit; or any assignee of an original creditor who participates in the deci­ sion to extend, renew, or continue credit.” Id. § 1691a(e). For purposes o f the Act, a “person” is “a natural person, a corporation, governm ent o r govern m en tal subdivision o r agency, trust, estate, partnership, cooperative, or association.” Id. § 1691 a(f) (emphasis added). Although the Credit Act contains no further indication in its text or legislative history as to whether the governmental references in the definition of “person” were intended to include federal agencies, the natural understanding of the refer­ ences is that the federal government is included, because the language is unre­ stricted and there is no language suggesting any different treatment for different levels o f government. If it were intended that the federal government was to be exempt and the statute limited in its coverage to State and local governments, we would expect that the text of the statute would make such a distinction — or at least the distinction would be identified in legislative history. N either the statute nor the legislative history contain any such suggestion. Our conclusion that the federal government is subject to the discrimination pro­ visions of the Credit Act may be reinforced by reference to another, previously enacted statute that also regulates the extension of credit, the Truth in Lending Act (“TILA ”), 15 U.S.C. §§ 1601 -1681 u. Both the Credit Act and TILA are part o f the Consum er Credit Protection Act.28 Statutes addressing the same subject m atter — that is, statutes “in pari materia” — should be construed together.29 TILA uses the same language as the Credit Act concerning covered government organizations. TILA applies to any “creditor,” which is defined as a “person” who regularly extends certain types of consumer credit. Id. § 1602(f). “Person” is de­ fined as a “natural person” or an “organization.” Id. § 1602(d), and “organization” includes a “government or governmental subdivision or agency.” Id. § 1602(c). As with the Credit Act, there is no further indication of what levels of government are covered. Unlike the Credit Act, however, TILA contains an express assertion of sovereign immunity in the enforcement section of the statute, thus indicating a clear recognition that the federal government is subject to the substantive provi­ sions o f TILA: [N]o civil or criminal penalty provided under this subchapter for any violation thereof may be imposed upon the United States or any departm ent or agency thereof, or upon any State or political subdi­ vision thereof, or any agency o f any State of political subdivision. 211 T IL A w as enacted in 1968 as title I o f the C onsum er C red it Protection A ct, Pub. L. N o 90-321, 82 Stat. 146, and the C red it Act w as added to the C onsum er C redit Protection A ct as title VII in 1974, Pub. L. No. 93-495, tit V, 88 Stat. 1500, 1521. 29 S ee 2B N orm an J Singer, S u th erla n d S ta tu to ry C o n stru ctio n § 51.02, at 121 (5th ed 1992) ( “ It is assum ed that w henever the legislature enacts a provision it has in m ind previous statutes relating to the sam e subject m atter In the absence o f any express repeal or am en d m en t, the new provision is presum ed in accord with the legislative policy em bodied in those prior statutes T h u s, they all should be construed together '*). 69 O pinions o f the O ffice o f L egal C ounsel Id. § 1612(b). It is reasonable to assum e that when Congress defined “person” in the Credit Act to include a “government, governmental subdivision or agency,” it intended those term s to have the same scope as the identical terms used in the pre­ viously enacted TIL A .30 B. O f course, as discussed in prior sections of this memorandum, the fact that fed­ eral agencies are subject to the substantive requirements of the Credit Act does not necessarily mean that there has been a waiver of sovereign immunity against impo­ sition o f m onetary liability for violation of such requirements. The Credit Act sov­ ereign imm unity question is not a sim ple one, because there is no language directly addressing the subject of sovereign immunity or directly stating that the United States may be subject to an award o f monetary relief. However, as discussed be­ low, we find there has been a waiver because the A ct contains a provision that indi­ rectly, but in our view unequivocally, indicates that the United States may be required to pay com pensatory damages. Section 1691e o f the Credit Act provides for a private right of action against creditors who violate the discrimination prohibitions of the Act. Under subsection (a), all creditors are liable for compensatory damages: “[A]ny creditor who fails to comply with any requirem ent imposed under this subchapter shall be liable to the aggrieved applicant for any actual dam ages sustained by such applicant acting ei­ ther in an individual capacity or as a m ember o f a class.” Under subsection (b), all creditors except governm ental creditors are liable for punitive damages: “ [A]ny creditor, other than a government or governmental subdivision or agency . . . shall be liable to the aggrieved applicant for punitive damages . . . .” Equitable relief is authorized under subsection (c).31 Finally, under subsection (d), costs and attor­ neys’ fees may be imposed: “In the case of any successful action under subsection (a), (b), or (c) . . . , the costs of the action, together with a reasonable attorney’s fee as determ ined by the court, shall be added to any damages awarded by the court Subsection (b) of section 1691 e provides the key to finding a partial waiver of sovereign immunity against monetary relief. Com ing immediately after a provision (subsection (a)) that states that all creditors are liable for compensatory damages, a provision exem pting government creditors from liability for punitive damages nec­ essarily implies a recognition that governm ent creditors are otherwise liable for dam ages under the Act and remain liable for com pensatory damages under the pre­ ceding section, which contains no such limitation. “[A] limitation of liability is ,0 S e e id § 51 0 2 , at 122 ( '‘U nless the c o n te x t indicates otherw ise, w ords or phrases in a provision that w ere used in a prioi act p ertain in g to the sam e su b ject m atter will be construed in the sam e sense ") 11 “ U pon a p p licatio n by an aggrieved ap p lican t, the [court] m ay grant such equitable and declaratory relief as is n e ce ssa ry to en fo rce the requirem ents im p o se d under th is s u b c h a p te r.' 1 5 U S C § 16 9 1e(c) 70 A uthority o f USDA to A w a rd M onetary R e lie ffo r D iscrim ination nonsensical unless liability existed in the first place.” P ennsylvania v. Union Gas Co., 491 U.S. 1, 13 (1989) (holding that CERCLA abrogated State sovereign im­ munity based in part on implication of provisions exempting States from liability for certain actions). Thus, the Credit Act is different from the Fair Housing Act and the Rehabilita­ tion Act in the fundamental respect that it contains a provision indicating liability for damages that is susceptible to no other plausible interpretation that would not impose liability. W hereas we concluded that the attorneys’ fees provisions in the Fair Housing Act and the Rehabilitation Act did not satisfy the “unequivocal ex­ pression” standard because there was another plausible interpretation that did not impose monetary liability, see N ordic Village, 503 U.S. at 37, the interpretation of subsections (a) and (b) that subjects government creditors, including the United States, to liability for compensatory damages is the only plausible interpretation. Accordingly, we conclude that the Credit Act waives sovereign immunity with re­ spect to compensatory damages.32 VI. A T T O R N E Y S ’ F E E S A N D C O S T S The analysis for whether attorneys’ fees and costs may be awarded under the civil rights statutes whose anti-discrimination provisions apply to federal agencies is simpler than the foregoing analysis on whether monetary relief may be awarded. There is no need to decide whether the individual civil rights statutes waive sover­ eign immunity for attorneys’ fees and costs, because the Equal Access to Justice Act (the “EAJA”) expressly waives sovereign immunity. Immunity for costs is waived by 28 U.S.C. § 2412(a), and immunity for attorneys’ fees is waived by 28 U.S.C. §§ 2412(b) and 2412(d). Each o f these sections contains language author­ izing an award of attorneys’ fees or expenses to “the prevailing party in any civil action brought by or against the United States.” The EAJA also specifically addresses the extent of the United States’ liability for attorneys’ fees and costs. There are two separate attorneys’ fees regimes under the EAJA. Under 28 U.S.C. § 2412(b), a court may award attorneys’ fees against the United States, and if it does, “[t]he United States shall be liable for [attorneys’] fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such 12 O ur conclusion w ith respect lo (he w aiver o f sovereign im m unity under the C redit A ct has im plications w ith respect to claim s alleging violations o f the Fair H ousing A ct A lthough the latter statute does not w aive sovereign im m unity, conduct violative o f that statute may also violate the C redit Act T he fact that the tw o statutes are, to som e extent, coextensive is acknow ledged in the C redit A c t's provision that ”‘fn]o person aggrieved by a violation o f this subchapter and by a violation o f section 3605 o f [the Fair H ousing Act] shall recover under this subchapter and section 3612 o f [the Fair H ousing Act], if such violation is based on the sam e transaction " 15 U S C § 16 9 1e(i) Thus, w here a federal agency is discrim inating in the extension o f credit, that conduct may violate both statutes. If it does, the agency w ould have authority pursuant to the C redit A ct's w aiv er o f sovereign im m unity to provide m onetary relief in settlem ent of a claim , even if the claim cites only the Fair Housing Act, to the extent allow ed by the C redit Act 71 O pinions o f the O ffice o f L egal Counsel an aw ard.”33 Because the common law applies the “American Rule,” which pro­ vides that each litigant must ordinarily pay his or her own lawyer, A lyeska Pipeline S ervice Co. v. W ilderness Society , 421 U.S. 240, 247 (1975), the extent of liability for attorneys’ fees under the individual civil rights statutes should generally be governed by the specific fee-shifting language o f the statutes, each of which authorizes the court to award “a reasonable attorneys’ fee.”34 As an alternative to an award of attorneys’ fees under § 2412(b), the EAJA pro­ vides in § 2412(d) for a mandatory award o f attorneys’ fees against the United States (upon application by the prevailing party), except when the United States’ position was substantially justified o r when special circumstances would make an award o f fees unjust. U nder subsection (d), attorneys’ fees are capped at the rate o f $75 per hour, absent a special judicial finding that special factors justify higher fees, § 2412(d)(2)(A), and parties m ay only recover if they have incomes or net worths below certain levels, § 2412(d)(2)(B). The EA JA also provides for the extent of the United States’ liability for costs: “A judgm ent for costs when taxed against the United States shall . . . be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.” 28 U.S.C. § 2412(a)(1). Because this provision begins with the caveat “[ejxcept as otherwise specifically provided by statute,” it is neces­ sary to decide whether the civil rights statutes provide differently with respect to costs. The Rehabilitation Act and the Equal Credit Opportunity Act do not contain language specifically addressing the liability of the United States for costs. See 29 U.S.C. § 794a(b); 15 U.S.C. § 1691e(d). Therefore, the EAJA provision applies under those two statutes. The Fair H ousing Act, however, does contain a specific provision that displaces the EAJA provision. It provides that “[t]he United States shall be liable for . . . costs to the same extent as a private person.” 42 U.S.C. § 3613(c)(2). VII. C O N C L U S IO N S The Suprem e Court has established a strict “unequivocal expression” standard for determ inations on whether a statute waives the sovereign immunity of the United States against imposition of monetary relief. One of the civil rights statutes that we have been asked to review, Title VI o f the Civil Rights Act of 1964, does not prohibit discrim ination by federal agencies. Anti-discrimination provisions in the rem aining statutes do apply to federal agencies, but only one of them, the Equal Credit O pportunity Act, contains a waiver of sovereign immunity regarding mone­ tary relief, and that w aiver is limited to compensatory damages. Agencies there­ 31 B ecause § 2 4 1 2 (b ) b eg in s w ith the c av eat “ [u]nless expressly prohibited by statute,” we have review ed the c ivil rig h ts statu tes to determ in e w hether th e y “ex p ressly prohibit" an aw ard o f a tto rn e y s’ fees against the U nited Slates. T h e y do not. 14 S e e F air H ousing Act, 4 2 U.S C § 3 6 1 3 (c)(2 ), R ehabilitation A ct, 29 U S.C. § 794a(b), Equal C redit O pportu n ity A ct, 15 U S C. § 1 6 9 1e(d). 72 A u thority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination fore have authority to provide compensatory damages to the extent allowed by the Credit Act in their voluntary settlement of discrimination claims if the conduct complained of violates the Credit Act. In addition, the Equal Access to Justice Act authorizes awards of attorneys’ fees and costs against federal agencies. W ALTER DELLINGER A ssistan t A ttorn ey G en eral Office o f L egal C ounsel 73

Write a legal research memo on the following topic.

Authority of USDA to Award Monetary Relief for Discrimination T h e D e p a rtm e n t o f A g ric u ltu re h a s authority to a w a rd m o n e ta ry re lie f, a tto rn e y s ’ fees, and c o sts to a p e rs o n w h o h as b e e n d is c rim in a te d a g a in s t in a p ro g ra m c o n d u c te d by U S D A if a c o u rt c o u ld a w a rd s u c h re lie f in an a c tio n b y the a g g rie v e d p e rso n T h a t q u e stio n is c o n tro lle d b y w h e th e r the a n ti-d is c n m in a tio n p ro v is io n s o f the a p p lic a b le c iv il rig h ts statu te a p p ly to fe d e ra l a g e n c ie s, a n d if so , w h e th e r th e s ta tu te w a iv e s th e so v e re ig n im m u n ity o f the U n ite d S tates a g a in st im p o sitio n o f s u c h re lie f. T h e a n ti-d is c rim in a tio n p ro v is io n s o f Title V I o f th e C iv il R ig h ts A ct o f 1964 do n o t a p p ly to fe d e ra l a g e n c ie s . S o m e a n ti-d is c rim in a tio n p ro v is io n s in e a c h o f th e o th e r c iv il rig h ts s ta tu te s a d d re ss e d in th e o p in io n d o a p p ly to fe d e ra l agencies, b u t o n ly o n e o f th e statu tes, the E qual C re d it O p p o rtu n ity A c t, w a iv e s s o v e re ig n im m u n ity w ith re s p e c t to m o n e ta ry relief, a u th o riz in g im p o sitio n o f c o m p e n ­ s a to ry d a m a g e s . T h e F a ir H o u sin g A ct a n d th e R e h a b ilita tio n A c t d o n o t w a iv e im m u n ity a g a in st m o n e ta ry r e lie f A tto rn e y s ’ fees and c o s ts m a y b e a w a rd e d p u rsu a n t to the w a iv e r o f im m u n ity c o n ta in e d in th e E q u a l A c c e s s to Justice A c t A p ril 18, 1 9 9 4 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 e p a r t m e n t o f A g r ic u l t u r e T his m em orandum responds to your request for our opinion concerning the authority o f the Secretary of Agriculture to award damages and other forms of monetary relief, attorneys’ fees, and costs to individuals who the Department of Agriculture (“U SD A ”) has determined have been discriminated against as appli­ cants for, or participants in, USDA conducted program s.1 You have informed us that the statutes authorizing these program s do not authorize such relief and have asked our opinion whether various civil rights statutes authorize the Secretary to afford such relief. The Secretary has authority to aw ard monetary relief, attorneys’ fees, and costs if a court could award such relief in an action by the aggrieved person. A ccord­ ingly, the dispositive questions regarding your inquiry are whether the antidiscrim ination provisions of the individual civil rights statutes apply to federal agencies, and if so, whether the statutes w aive the sovereign immunity of the United States against imposition o f such relief. In considering your request, we have review ed Title VI o f the Civil Rights A ct o f 1964, the Fair Housing Act, the Rehabilitation Act, and the Equal C redit Opportunity Act. With respect to attor­ neys’ fees and costs, we have also review ed the Equal Access to Justice Act. 1 See Letter for W alter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, from James S. G illilan d , General Counsel, Department of Agriculture (Oct 8, 1993). 52 A u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination We conclude that the anti-discrimination provisions of Title VI do not apply to federal agencies. Some anti-discrimination provisions in each o f the other statutes that we reviewed do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to m one­ tary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys’ fees and costs may be awarded pursuant to the waiver o f immunity contained in the Equal Access to Justice Act. I. B A C K G R O U N D A federal agency must spend its funds only on the objects for which they were appropriated. 31 U.S.C. § 1301(a). Consistent with this requirement,2 appropria­ tions law provides that agencies have authority to provide for monetary relief in a voluntary settlement of a discrimination claim only if the agency would be subject to such relief in a court action regarding such discrimination brought by the ag­ grieved person. This principle has been applied in a number of Comptroller General opinions. For example, the Comptroller General has concluded that agencies have the authority to settle administrative complaints of employment discrimination by awarding back pay because such monetary relief is available in a court proceeding under Title VII of the Civil Rights Act of 1964 (“Title VII”); however, “ [t]he award may not provide for compensatory or punitive damages as they are not per­ mitted under Title VII.” Equal Em ploym ent O pportunity Com m ission, 62 Comp. Gen. 239, 244-45 (1983).3 The Comptroller General has come to the same conclu­ sion with respect to the Age Discrimination in Employment Act o f 1967 (“ADEA”). A lbert D. Parker, 64 Comp. Gen. 349, 352 (1985). The Com ptroller General has applied this appropriations law limitation directly to USDA. See Nina R. M athews, B-237615, 1990 W L 278216, at 1 (C.G. June 4, 1990) (“Employee may not be reimbursed for economic losses pursuant to a resolution agreement made under [ADEA or Title VII] since there is no authority for reimbursement of compensatory damages under either statutory authority.”).4 2 S e e a h o 31 U S C. § 1341(a)(1) (A nti-D eficiency Act) 1 W aiving sovereign im m unity, T itle VII expressly authorizes aw ards o f back pay against federal ag en ­ cies A provision in T itle VII entitled “ Em ploym ent by Federal G overnm ent,'’ 42 U S C 2 0 0 0 e -l6 , p ro ­ hibits discrim ination by federal agencies (subsec (a)); authorizes a civil action in w hich ‘‘the head o f the departm ent, agency, o r unit . . shall be the d efen d an t" (subsec (c)), and incorporates the rem edies p ro v i­ sions o f 42 U .S.C § 2000e-5 for such civil actions (subsec (d)) A w ards o f back pay are expressly au th o r­ ized by 42 U .S.C § 2000e-5(g) Subsequent to issuance o f the C om ptroller G eneral opinions cite d in the text, T itle VII was am ended to provide for com pensator)’ dam age aw ards against all parties, including federal agencies, and punitive dam age aw ards against all non-governm ent parties. 42 U.S C § 19 8 1a(b) 4 T he sam e appropriations lim itation exists for settlem ents o f litigation by the D epartm ent o f Justice as exists for settlem ents o f adm inistrative proceedings by agencies. This O ffice has previously o p in e d that the perm anent appropriation established pursuant to 3 1 U .S.C. & 1304 (“the judgm ent fund”) is available ‘‘for the paym ent o f non-tort settlem ents authorized by the A ttorney G eneral or his designee, w hose paym ent is ‘not 53 Opinions o f th e Office o f L egal C ounsel Therefore, the question you have raised regarding the Secretary’s authority to award m onetary relief in administrative proceedings turns on whether the various civil rights statutes authorize the aw ard of such relief against federal agencies in a court proceeding. That question requires a two-step analysis: whether federal agencies are subject to the discrimination prohibitions of the statute; and, if so, whether the statute waives the sovereign immunity of the United States against monetary relief. See U nited States D e p ’t o f E nergy v. O hio , 503 U.S. 607, 613-14 (1992) (Energy D epartm ent conceded it was subject to procedural requirements of Clean W ater Act and Resource Conservation and Recovery Act and liable for co­ ercive fines under those statutes; therefore, only question presented was whether the statutes waived sovereign immunity from liability for punitive fines).5 The first step o f the analysis requires application of conventional standards of statutory interpretation. The second step, however, requires application of a spe­ cial, “unequivocal expression” interpretive standard that the Supreme Court has established to govern determinations as to whether a statute waives sovereign im­ munity — either the inherent constitutional immunity of the federal government or the Eleventh Amendm ent immunity o f the States: W aivers of the Government’s sovereign immunity, to be effective, m ust be unequivocally expressed. . . . [T]he Governm ent’s consent to be sued m ust be construed strictly in favor of the sovereign, and not enlarge[d] beyond what the language requires . . . . As in the Eleventh Amendm ent context, the unequivocal expression of elim i­ nation of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a com m ittee report. U nited S tates v. N ord ic Village, Inc., 503 U.S. 30, 33-37 (1992) (internal quotation marks and citations omitted). Thus, “[t]here is no doubt that waivers of federal sovereign imm unity must be ‘unequivocally expressed’ in the statutory text.” U nited S tates v. Idaho, ex rel. D ir., D e p ’t. o f W ater Resources, 508 U.S. 1, 6 (1993). The m ethodology required by this “unequivocal expression” standard may be illustrated by the decision in N ordic Village. Seven Justices joined in an opinion for the Court that found that although a provision o f the Bankruptcy Code could be o therw ise pro v id ed fo r,’ i f a n d o n lv i f the cause o f action th a t g a ve rise to the settlem ent co u ld h ave resulted in a fin a l m o n e v ju d g m e n t.” A vailability o f Ju d g m en t F u n d in C ases N ot Involving a M onev J u dgm ent C laim , 13 O p O .L C. 98, 104 (1 9 8 9 ) (em phasis added) (quoting 31 U S.C. § 1304). 5 T h e C o u rt in D ep a rtm en t o f Energy ex p ressly identified the fundam ental difference betw een the su b ­ stantive c o v erag e o f a statute and liability for v io latio n s o f the statute, stating that the C lean W ater A ct co n ­ tains "sep arate statutory reco g n itio n o f three m an ifestatio n s o f governm ental pow er to w hich the U nited Stales is su b jected : su b stan tiv e and procedural requirem ents, adm inistrative authority; and ‘process and sanctions, w h e th er ‘e n fo rc e d ’ in courts or o th erw ise. Su b stan tiv e requirem ents are thus distinguished from ju d ic ia l p ro c e ss." 503 U .S. at 623. 54 A uthority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination read to effect a waiver of sovereign immunity for monetary claims against the United States by a bankruptcy trustee, the provision was “susceptible of at least two interpretations that do not authorize monetary relief.” 503 U.S. at 34. The Court made no effort to apply traditional rules of statutory construction to deter­ mine which was the better reading o f the provision and simply concluded: The foregoing [two alternative interpretations] are assuredly not the only readings of [the provision], but they are plausible ones — which is enough to establish that a reading imposing monetary li­ ability on the Government is not “unambiguous” and therefore should not be adopted. Id. at 37.6 The Court held that sovereign immunity against imposition of monetary relief had not been waived. In consultation with the Civil and Civil Rights Divisions of the Department of Justice, and having received and considered submissions from various interested governmental and nongovernmental parties,7 we have identified four civil rights statutes that may apply to USDA programs: Title VI o f the Civil Rights Act of 1964, the Fair Housing Act, the Rehabilitation Act, and the Equal Credit O pportu­ nity Act. W e will discuss Title VI first. That analysis presents the least difficulty, because it is well established that the anti-discrimination provisions of Title VI do not apply to federal agencies and thus there is no need to discuss whether sovereign immunity has been waived. The remaining three statutes require more discussion. The first step of the analysis is satisfied in each case because federal agencies are covered by the anti-discrimination provisions of each statute, at least to some ex­ tent. Applying the “unequivocal expression” standard required under the second step, however, we have concluded that sovereign immunity has been waived with respect to monetary relief by only one of the statutes: the Equal Credit Opportu­ nity Act. The final section o f the memorandum discusses attorneys’ fees and costs. II. T IT L E VI Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d, pro­ vides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be 6 A pplying us rule that w aivers o f sovereign im m unity m ust be unequivocally expressed in the statutory text, the C ourt declined to consider the legislative history in an attem pt to resolve the am biguity. Id. 7 See Letters from Roberta A chtenberg, A ssistant Secretary fo r Fair H ousing and Equal O pportunity, and N elson Diaz, G eneral C ounsel, U S D epartm ent o f H ousing A nd U rban D evelopm ent (N ov 15, 1993), Elaine R. Jones, D irector-C ounsel, N A A C P Legal D efense and E ducational Fund, Inc. (O ct 28, 1993); Bill Lann Lee, W estern Regional C ounsel, N A A CP Legal D efense and Educational Fund, Inc. (N ov 12, 1993, N ov 24, 1993); Les M endelsohn, Esq , Speiser, Krause, M adole & M endelsohn (Nov 4, 1993), D avid H H am s, J r , Executive D irector, Land Loss P revention Project (N ov. 5, 1993, N ov 8, 1993). 55 O pinions o f the O ffice o f L egal Counsel subjected to discrim ination under any program or activity receiving Federal finan­ cial assistance.” By its terms, this anti-discrim ination provision does not apply to program s conducted directly by a federal agency, but rather applies only to “any program or activity receiving federal financial assistance.” The conclusion that this provision does not include federal agencies is reinforced by the definitions of “program or activity” and “program” contained in 42 U.S.C. § 2000d-4a. That provision specifically identifies the kinds of entities that are covered, including State and local governm ents, but contains no reference to the federal government. The courts have held that Title VI “w as meant to cover only those situations where federal funding is given to a non-federal entity which, in turn, provides financial assistance to the ultimate beneficiary'.” S oberal-P erez v. H eckler , 717 F.2d 36, 38 (2d Cir. 1983), cert, d en ie d , 466 U.S. 929 (1984); Fagan v. U nited States Sm all B usiness A dm in . , 783 F. Supp. 1455, 1465 n.10 (Title VI inapplicable to SBA di­ rect loan program ), a jf ’d, 19 F.3d 684 (D.C. Cir. 1992). In light o f our conclusion that the discrimination prohibition o f Title VI does not apply to federal agencies, there is no need to consider whether Title VI waives sovereign immunity. III. THE F A IR HOUSING A C T A. T he Fair Housing Act, 42 U.S.C. §§ 3601-3619,8 prohibits covered persons and entities from engaging in any “discriminatory housing practice,” which is defined as “an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title.” 42 U.S.C. § 3602(f). Section 3604 prohibits discrimination in the sale or rental of housing. Section 3603(a)(1)(A) of the Act provides that “the prohibitions against discrim ination in the sale or rental o f housing set forth in section 3604 . . . shall apply” to “dw ellings owned or operated by the Federal G overnm ent.” Thus, a fed­ eral agency is subject to the discrimination prohibitions of § 3604 whenever the agency itself is engaged in selling or renting real estate. In contrast to the language explicitly subjecting federal agencies to the discrimi­ nation prohibitions of § 3604, it is unclear whether federal agencies are subject to § 3605(a), which prohibits “any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction.” The definition section of the Act does not include governments or governm ent agencies in the definition of “person,” see § 3602(d), and unless oth­ erwise specified, the term “person” in a statute does not include the federal gov­ ernm ent or a federal agency. U nited States v. U nited M ine W orkers, 330 U.S. 258, 8 T h e F a ir H ousing A ct was originally e n a c te d as T itle V III o f the C ivil R ights A ct o f 1968, Pub L. No. 90-284 , 82 Stat. 73 (1968). 56 A u thority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination 275 (1947) (“In common usage,” the term person “does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”). The term “entity” is not defined at all in the Act. It is not necessary to resolve this question for purposes of this opinion, however, because we conclude in the next section that the Act does not waive the sovereign immunity of the United States against m one­ tary liability.9 B. W hether federal agencies are subject to monetary liability for violations of § 3604 o f the Fair Housing Act turns on application of the “unequivocal expres­ sion” standard for waivers of sovereign immunity discussed in section I of this memorandum. W e conclude that the Act does not waive sovereign immunity be­ cause its text falls well short of satisfying the “unequivocal expression” standard. Section 3613 authorizes aggrieved persons to enforce the Fair Housing A ct’s anti-discrimination prohibitions in court. Although § 3613 is silent as to whom this action may be brought against, it does specify what relief may be awarded. Sub­ section (c)(1) authorizes a court to award an aggrieved person “actual and punitive damages,” as well as injunctive relief. In addition, under subsection (c)(2), the court “may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the sam e extent as a private person.” W e do not believe that § 3613 waives sovereign immunity, except with respect to attorneys’ fees and costs. Although the Fair Housing Act expressly establishes a general cause of action for redress of discriminatory practices, it is silent as to the parties against whom such a cause of action may be brought and it does not contain language expressly subjecting the United States to such a suit. It is possible to infer from the fact that § 3603 expressly subjects the United States to the discrimination provisions of § 3604 that Congress intended that the cause of action established by § 3613 would also apply to the United States. How­ ever, § 3613 does not say so and the Supreme Court has held that subjecting a gov­ ernmental entity to the substantive or procedural requirements of a statute does not necessarily mean that sovereign immunity has been waived or abrogated with re­ spect to claim s for damages. See, e.g., U nited States D e p ’t o f Energy v. Ohio, 503 U.S. 607 (1992) (federal agencies subject to procedural requirements o f Clean W ater Act and Resource Conservation and Recovery Act but immune from actions 9 For the sam e reason it is also unnecessary to resolve w hether the discrim ination prohibitions in §§ 3606 and 3617 apply to federal agencies We note, how ever, that these sections do not appear to be directed at governm ent activities. Section 3606 m akes it unlaw ful to discrim inate w ith respect to “ access to o r m em ber­ ship or p articipation in any m ultiple-listing service, real estate b ro k e rs' organization or other service, o rg an i­ zation, or facility relating to the business o f selling o r renting d w ellin g s.’' Section 3617 m akes it unlaw ful to ■‘coerce, intim idate, threaten, o r interfere w ith any perso n " w ith respect to the exercise o f rights protected by !)§ 3603-3606 o f the Act. 57 O pinions o f the O ffice o f L egal C ounsel for punitive fines); A ta sca d ero State Hosp. v. Scanlon, 473 U.S. 234, 244-46 (1985) (States subject to section 504 o f Rehabilitation Act but immune from ac­ tions for m onetary relief); Em ployees v. M issouri Pub. Health D e p ’t, 411 U.S. 279 (1973) (States subject to Fair Labor Standards Act but immune from actions for monetary relief).10 The Court has stated that additional language in the suit authorization provision is necessary to “indicat[e] in some way by clear language that the constitutional immunity [is being] swept aw ay.” Id. at 285. The only additional relevant language in § 3613 is subsection (c)(2), which authorizes the award o f attorneys’ fees: In a civil action [brought by an aggrieved person under section 3613], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the same extent as a private person. The presence, in a provision authorizing the bringing of suits by private parties, of language indicating that the United States may be liable for attorneys’ fees and costs certainly indicates a recognition that the United States may be subject to suits under the provision. The question rem ains whether that is a sufficient expression o f a w aiver o f sovereign immunity against damages or any other monetary relief except attorneys’ fees and costs. W e recognize that it is a plausible reading of the statute to answer that question in the affirm ative. W e note, however, that the Supreme Court has declined to give such a reading to an attorneys’ fees provision in a State sovereign immunity con­ text. See D ellm uth v. M uth, 491 U.S. 223, 231 (1989) (stating in decision holding State sovereign imm unity not abrogated by Education of the Handicapped Act: “The 1986 am endm ent to the EHA deals only with attorney’s fees, and does not alter or speak to w hat parties are subject to suit.”). In any event, we conclude that the statute does not meet the “unequivocal expression” standard because there is another plausible interpretation of the attorneys’ fees language that would not en­ tail w aiver o f im munity for damages and other monetary relief. Just because the United States is subject to the cause of action does not necessarily mean it is sub­ ject to the full range o f remedies that are set forth in the statute. These remedies include not only compensatory and punitive damages, but also a “permanent or tem porary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such [discriminatory housing] practice or ordering such affirmative action as may be appropriate).” 42 U.S.C. § 3613(c)(1). 10 T h e Suprem e C o u rt has stated that the stan d ard for e stablishing a w aiver o f the federal g o v ern m en t’s sov ereig n im m u n ity is su b stan tially the sam e as the standard for finding congressional abrogation o f state E leven th A m en d m en t im m u n ity S e e Nordic Village, 503 U S at 37. Eleventh A m endm ent cases like A ta s­ ca d ero and M isso u ri P u b lic H ea lth D ep 't are therefore helpful in o u r analysis 58 A u thority o f USDA to A w ard M onetary R e lie f f o r D iscrim ination The alternative plausible interpretation of the statute is that the attorneys’ fees provision contemplates an action that is limited to seeking relief other than money damages. This reading is based on the fact that the sovereign immunity of the United States against non-monetary relief already has been waived by the Admin­ istrative Procedure Act (the ”A PA”), 5 U.S.C. §§ 701-706 which provides that [a]n action in a court o f the United States seeking relief other than money damages and stating a claim that an agency or an officer or em ployee thereof acted or failed to act in an official capacity or un­ der color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. 5 U.S.C. § 7 0 2 .11 “[T]he caselaw of [the Court of Appeals for the D istrict of C o­ lumbia Circuit] confirms that ‘the [APA] waiver applies to any suit, whether under the APA . . . or any other statute.’” 12 Other Circuits are in accord,13 and the Su­ preme Court has implicitly held that the APA waiver is not limited to actions brought under the APA, see Bowen v. M assachusetts, 487 U.S. 879, 891-901 (1988) (APA waiver applied in action brought under 28 U.S.C. § 1331). Under the Supreme Court’s “unequivocal expression” standard, the availability of this alternative interpretation of the Fair Housing Act attorneys’ fees provision — that it contemplates an action for non-monetary relief based on the APA waiver of sovereign immunity — precludes finding a waiver of sovereign immunity. See N ordic Village, 503 U.S. at 37 (when a provision is subject to more than one plau­ sible interpretation, the “reading imposing monetary liability on the Government is not ‘unam biguous’ and therefore should not be adopted”).14 11 The legislative history o f this APA provision indicates that us purpose was “ to elim inate the defense o f sovereign im m unity w ith respect to any action m a court o f the U nited States seeking relief o ther than money dam ages and based on the assertion o f unlaw ful official action by a Federal officer.’* S Rep. No 94-996, at 2 (1976) S e e a l s o H .R Rep. N o 94-1656, at 9 ( 1976), reprinted m 1976 U S C C A N 6121, 6 1 2 9 C‘[T]he tim e (has] now com e to elim inate the sovereign im m unity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity ") See g enerally K enneth C D avis, A dm in­ istrative Law T rea tise § 23 19, at 192 (2d ed. 1983) (“T he m eaning o f the 1976 legislation is entirely clear on its face, and that m eaning is fully corroborated by the legislative history. T h ai m eaning is very simple. Sovereign im m unity in suits for relief other than money dam ages is no longer a defense.' ). 12 A labam a v B uw sher, 734 F Supp 525, 533 (D D C. 1990), a fj'd , 935 F.2d 332 (D C C ir 1991), t e n d e n ie d , 502 U S 981 (1991) (quoting P B ator, P M ishkin, D. M ellzer & D. S hapiro, H art a n d Wech.sler's The Federal C ourts a n d The F ederal System 1154 (3d ed. 1988), and citing N atio n a l A.s.s’n o f C ounties v B aker, 842 F 2d 369, 373 (D C . Cir. 19S8), cert denied, 488 U S 1005 (1989)), Schnapper v F oley, 667 F 2d 102, 108 (D .C C ir 1981), cert d en ied , 455 U S 948 (1982), S ea-land Service, Inc v A laska R.R , 659 F.2d 243, 244 (D C C ir 1981), cert denied, 455 U S. 919 (1982) n See, e.g., S p e cter v. G a rrett, 995 r.2 d 404, 4 1 0 (3d C ir 1993) (“ the w aiver o f sovereign im m unity contained in [the A PA ] is not lim ited to suits brought under the A PA "), R ed Lake B a n d oj C hippew a Indians v Barlow , 846 F.2d 474, 476 (8th Cir 1988) C‘[T]he w aiver o f sovereign im m unity contained in [the APA] is not dependent on application o f the procedures and review standards o f the A PA It is dependent on the suit against the g o vernm ent being one for non-m onetary re lie f" ) 14 A nother alternative interpretation may also be possible B ecause the U nited States may intervene in private actions b rought under § 3613 in o rder to seek b ro ad er relief, .see 42 U S.C § 3613(e), it is possible that the U nited States could incur liability for attorneys' fees and costs w ithout being a defendant. W e find 59 O pinions o f the O ffice o f L egal C ounsel W e therefore conclude that the text o f the Fair Housing Act as amended does not waive the sovereign immunity of the United States against imposition of monetary relief. The APA waives sovereign immunity as to any non-monetary relief available under the Act. C. The foregoing conclusion is reinforced by consideration o f the text and legisla­ tive history o f the Fair Housing Act when it was originally enacted as Title VIII of the Civil Rights Act of 1968 (“Title V III”), supra, and of the 1988 amendments to the Fair Housing Act (the “ 1988 A m endm ents”), Pub. L. No. 100-430, 102 Stat. 1619 (1988). This is a useful methodology for considering whether the Act waives sovereign immunity because it allows a focused analysis of whether Congress spe­ cifically intended to waive sovereign im m unity.15 As discussed above, the language in the Fair Housing Act that provides the most specific basis for an argum ent that sovereign immunity for monetary liability has been waived is the language in the attorneys’ fees provision authorizing a court to award “the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the same extent as a private person.” 42 U.S.C. § 3613(c)(2). This specific reference to the United States was not contained in the original Fair Housing A ct’s (Title V III’s) attorneys’ fees provision, which authorized the courts to “award to the plaintiff . . . reasonable attorney fees in the case o f a prevailing plaintiff: Provided, [t]hat the said plaintiff in the opinion of the court is not financially able to assume said attor­ ney’s fees.” Pub. L. No. 90-284, § 812(c), 82 Stat. 89, 107 (1968). As with the current version o f the Act, the original provision on enforcement by private per­ sons authorized an award o f damages to an aggrieved person but was silent as to who could be potential defendants in the civil actions. Id. § 812, 82 Stat. at 107. this in terp retatio n to be less plausible than th e non-m onetary re lie f interpretation because the latter gives effect to pro v isio n s in the sam e subsection, w hich is devoted to *‘[r]elief w hich may be g ra n te d /’ 42 U .S.C. § 3 61 3 (c), w h ile the fo rm er requires reading to g eth er separate subsections and inferring that C ongress may have co n tem p lated in su b sectio n (c) that in terv en tio n s by the A tto rney G eneral under subsection (e), in cases where she “certifies that the case is o f general public im p o rtan ce” and seeks broader relief, m ight result in aw ards o f attorneys fees and co sts against th e U nited Stales 15 Ju stice S calia criticized this m ethodology in Pennsylvania v. Union G as Co., 491 U.S. at 29-30 (Scalia, J., co n cu rrin g in part and d isse n tin g in part) ( “T h a t m ethodology is appropriate if one assum es that the task o f a co u rt o f law is to p lu m b the intent o f the particular C ongress that enacted a p articular provision. T hat m ethodology is not m ine . . It is o u r task . . not to e n te r the m inds o f the M em bers o f C ongress . . b u t rath er to give fair and reasonable m ean in g to the text o f the U nited States Code, adopted by various C ong resses at various tim es.") N otw ithstanding this criticism , w e believe the m ethodology is appropriate here W h atev e r the m erit o f Justice Scalia’s em p h asis o f code m eaning ov er congressional intent in other c ontex ts, w e do not think that approach is req u ired or desirable w here the question presented is w hether sovereig n im m u n ity has been w aived and m ore than one statu to ry enactm ent is involved. W e note that no other Ju stic e ex p ressed a g re em en t with J u stic e S c a lia ’s statem en t in U nion G as. M oreover, the C o u rt's m ajority in D ellm u th used this approach S e e 491 U.S. at 227-32 60 Authority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination Thus, the original Fair Housing Act contained no express or implied reference to any cause of action against the United States in its provisions establishing a pri­ vate cause of action and authorizing awards o f attorneys’ fees. The 1988 Amend­ ments to the Act removed the “ability to pay” limitation on attorneys’ fee awards and added language making it clear that the United States was subject to an award of attorneys’ fees and costs. The 1988 Amendments, however, did not add any language suggesting that the United States was subject to damages claims. The legislative history of the 1988 Amendments reinforces the conclusion that the Fair Housing Act does not waive the sovereign immunity of the United States for monetary relief.16 The principal legislative history for those amendments is contained in the report o f the Committee on the Judiciary of the House o f Repre­ sentatives. H.R. Rep. No. 100-711 (1988), reprin ted in 1988 U.S.C.C.A.N. 2173. In a paragraph giving an overview of the purpose of the amendments made by the committee, the report stated that the revision “brings attorney’s fee language in title VIII closer to the model used in other civil rights laws.” Id. at 13, rep rin ted in 1988 U.S.C.C.A.N. at 2174. The committee went on to state later in the report that “[t]he bill strengthens the private enforcement section by expanding the statute of limitations, removing the limitation on punitive damages, and brings [sic] attor­ ney’s fee language in title VIII closer to the model used in other civil rights laws.” Id. at 17, reprin ted in 1988 U.S.C.C.A.N. at 2178.17 The committee report indicates that the thrust of the amendments was to remove limitations on effective private enforcement by changing the statute of limitations, removing the limit on punitive damages, and removing the “ability to pay” limita­ tion on the award o f attorneys’ fees. It also indicates an intent to conform the lan­ guage of the attorneys’ fees provision to that in other civil rights law s.18 There is no discussion whatsoever o f actions against the United States, much less any refer­ 16 A lthough legislative history can n o t be relied upon to provide the “ unequivocal expression” the Su­ prem e C ourt requires, N o rd ic Village, 503 U S at 37, w e believe it is perm issible to cite legislative history to reinforce a text-based conclusion that a statute does not w aive so v ereign im m unity. C onfidence in a c o n clu ­ sion based on the text can be strengthened w here the legislative history reveals no evidence o f intent to w aive sovereign im m unity 17 In the discu ssio n o f section 813(c) in the section-by-section portion o f the report, the com m ittee fo­ cused on rem oving the punitive dam ages lim itation. The follow ing is the entirety o f the discussion o f section 813(c) Section 8 1 3(c) provides for the types o f relief a court m ay grant T his section is intended to c o n ­ tinue the types o f re lie f that are provided u n d e rc u rre n t law , but rem oves the $1000 lim itation on the aw ard o f punitive dam ages The C o m m ittee believes that the lim it on punitive dam ages served as a m ajor im pedim ent to im posing an effective d eterrent on violators and a disincentive for private perso n s to bring suits under existing law T he C om m ittee intends that courts be able to aw ard all rem edies provided under this section. As in Section 812(o), the c ourt may also aw ard a tto rn e y 's fees and costs. H R. Rep. No. 100-711, at 39-40, rep rin ted m 1988 U .S.C C .A .N at 2200-01. 18 For exam ple, the atto rn ey s' fees provision in T itle VII o f the C ivil R ights o f 1964 (em ploym ent dis­ crim ination) co n tain s the follow ing sim ilar language concerning the U nited States. “ [T ]he court . . . m ay allow the prevailing party, other than . . . the U nited States, a reasonable atto rn e y ’s fee (including expert fees) as part o f the costs, and . . the U nited Slates shall be liable for costs the sam e as a private person.” 42 U S.C. § 2 0 0 0e-5(k) 61 O pinions o f the O ffice o f L eg a l Counsel ence to an intent to waive sovereign im munity or to establish monetary liability for the United States. Given the focused nature of the 1988 Am endm ents to the Fair Housing Act, it is not reasonable to infer any intent to waive the sovereign immunity of the United States against imposition of monetary relief. A t most, the amendments can be read to waive sovereign imm unity against awards o f attorneys’ fees. Reading into the am endm ent a broader waiver would be impermissible under the interpretative method required by the Supreme C ourt and would amount to finding an accidental waiver or a waiver by inadvertence. D. Our conclusion regarding waiver o f sovereign immunity under the Fair Housing Act is supported by the case law on other statutes. In D ellmuth v. Muth, 491 U.S. 223 (1989), the Suprem e Court discussed w hether the Education of the Handi­ capped Act (“EH A ”), which, like the Fair Housing Act, had been amended to im­ pose liability for attorneys’ fees on an otherwise immune governmental entity (in that case, the States), subjected the States to suit. Although the textual basis for arguing waiver of sovereign immunity under that statute appears to be stronger than is the case under the Fair Housing Act, the Court declined to find waiver. The EHA “enacts a com prehensive scheme to assure that handicapped children may receive a free public education appropriate to their needs. To achieve these ends, the Act m andates certain procedural requirements for participating state and local educational agencies.” Id. at 225. In D ellm uth, the Supreme Court reversed a decision o f the Third Circuit Court of Appeals that the EHA abrogated the States’ sovereign immunity against suit for damages. According to the Supreme Court, [T]he Court of Appeals rested principally on three textual provi­ sions. The court first cited the A ct’s preamble, which states Con­ gress’ finding that “it is in the national interest that the Federal governm ent assist State and local efforts to provide programs to m eet the education needs o f handicapped children in order to assure equal protection o f the law.” Second, and most important for the Court of Appeals, was the A ct’s judicial review provision, which perm its parties aggrieved by the adm inistrative process to “bring a civil action . . . in any State court o f com petent jurisdiction or in a district court o f the United States w ithout regard to the amount in controversy.” Finally, the Court o f Appeals pointed to a 1986 am endm ent to the EHA, w hich states that the A ct’s provision for a reduction of attorney’s fees shall not apply “if the court finds that the State or local educational agency unreasonably protracted the final resolution o f the action or proceeding or there was a violation 62 A u thority o f USDA to A w a rd M onetary R elie f f o r D iscrim ination o f this section.” In the view of the Court of Appeals, this am end­ ment represented an express statement of Congress’ understanding that States can be parties in civil actions brought under the EHA. Id. at 228 (citations omitted). We quote at length the Supreme C ourt’s rejection of the Court of Appeals’ analysis, because it can be applied directly to the Fair Housing Act: W e cannot agree that the textual provisions on which the Court of Appeals relied, or any other provisions of the EHA, demonstrate with unmistakable clarity that Congress intended to abrogate the States’ immunity from suit. The EHA makes no reference whatso­ ever to either the Eleventh Amendment or the States’ sovereign im ­ munity. Nor does any provision cited by the Court of Appeals address abrogation in even oblique terms, much less with the clarity A tascadero requires. The general statement of legislative purpose in the A ct’s preamble simply has nothing to do with the States’ sov­ ereign immunity. The 1986 amendment to the EHA deals only with attorney’s fees, and does not alter or speak to what parties are sub­ ject to suit. . . . Finally, [the private cause of action provision] pro­ vides judicial review for aggrieved parties, but in no way intimates that the States’ sovereign immunity is abrogated. As we made plain in A tascadero, “ [a] general authorization for suit in federal court is not the kind o f unequivocal statutory language sufficient to abro­ gate the Eleventh Amendment.” . . . W e recognize that the EH A ’s frequent reference to the Slates, and its delineation of the States’ important role in securing an ap­ propriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging viola­ tions o f the EHA. This statutory structure lends fo rce to the infer­ ence that the S tates were intended to be subject to dam ages actions f o r violations o f the EHA. But such a perm issible inference, w hat­ ever its logical force, would remain ju s t that: a p erm issib le infer­ ence. It would not be the unequivocal declaration which . . . is n ecessary before we w ill determ ine that C ongress intended to exer­ cise its pow ers o f abrogation. Id. at 231-32 (emphasis added) (citations omitted). Dellmuth presented a stronger case for waiver of sovereign immunity than the Fair Housing Act because the EHA contains “ frequent reference[s] to the States” and is obviously very much focused on the activities of the States, while the Fair 63 O pinions o f the O ffice o f L egal C ounsel Housing Act is focused on the private sector and has relatively minor relevance to the activities o f federal agencies. Nonetheless, the Supreme Court refused to find that the EHA waived sovereign immunity, relying on specific points that are di­ rectly applicable to the Fair Housing A ct: that an attorneys’ fees provision speaks only to attorneys’ fees and does not address who is subject to suit or what remedies are available; that a general authorization for suit is not an “unequivocal expres­ sion” ; and that legitimate inferences that Congress intended a damages cause of action are not “unequivocal expressions.” 19 The Departm ent o f H ousing and U rban Development (“HUD”) has submitted a letter stating its conclusion that “a federal agency . . . may be required to pay dam ­ ages and other relief . . . [for] violations of the [Fair Housing Act].”20 HUD relies principally on the analysis contained in D oe v. A ttorn ey G eneral o f the U nited S tates, 941 F.2d 780 (9th Cir. 1991), which held that the Rehabilitation Act waives the sovereign immunity o f the United States against damage awards. As discussed in the next section o f this memorandum, we believe that D oe used a method of statutory interpretation that is impermissible under the Supreme Court precedents and that the case was incorrectly decided. IV. R EH ABILITATION A C T W e reach fundamentally the same conclusions with respect to the Rehabilitation Act o f 1973, as amended (the “Rehabilitation A ct”), 29 U.S.C. §§ 794-794c, as we have reached with respect to the Fair Housing Act. A. Section 504 o f the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination on the basis of disability: No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by rea­ son of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance o r under 19 T h e C o u rt's o p in to n in D ellm uth relies h eav ily on A ta sc a d e ro State H osp. v Scanlon, 473 U S 234 (1985). S ee 491 U .S. at 227, 23 0 -3 2 A ta sca d ero also stro n g ly supports the conclusion that the Fair H ous­ ing A ct does not w aive so v ereig n immunity fo r m onetary re lie f A ta sca d ero concerned the discrim ination provisio n s o f the R eh ab ilitatio n A ct o f 1973 a n d is discussed in detail in the next section o f this m em oran­ dum , w hich ad d resses that act. A tascadero h e ld that the R ehabilitation A ct does not abrogate the sovereign im m un ity o f the States W e co n clu d e in the n e x t section that the analysis in that case should apply fully to actions ag ain st the federal g o v ern m en t The c a s e is significant fo r purposes o f the d iscussion in this section because the R eh ab ilitatio n A ct has a structure th a t is sim ilar to the Fair H ousing Act L etter for W alter D ellinger, Assistant A tto rn e y G eneral, O ffice o f Legal Counsel, from R oberta A chtenberg, A ssista n t S ecretary for F air Housing an d Equal O p p o rtu n ity , and N elson Diaz, G eneral C ounsel at I (N ov 15, 1993). 64 A u thority o f USDA to A w ard M onetary R elief f o r D iscrim ination any program o r activity conducted b y any E xecutive agen cy o r by the U nited States P ostal Service. Id. § 794(a) (emphasis added). The italicized language, which was added to sec­ tion 504 in 1978,21 expressly subjects federal agencies to the discrimination prohi­ bitions of the Act. B. Section 505 of the Rehabilitation Act (29 U.S.C. § 794a), which also was added in 1978,22 sets forth the remedies available for violations of the discrimination pro­ hibitions. The following provisions of section 505 are pertinent here:23 (a)(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assis­ tance under section 794 o f this title. (b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable at­ torney’s fee as part of the costs. Id. § 794a(a)(2), (b). Thus, as with the Fair Housing Act, the Rehabilitation Act has had two legisla­ tive enactments that bear on the sovereign immunity question: the original dis­ crimination prohibition and a later amendment that can be argued to effect a waiver of immunity against imposition o f monetary relief because it refers to the United States in a way that recognizes that federal agencies may be defendants in private actions. The history of the Rehabilitation Act enactments would at least initially suggest the possibility of a more plausible argument in favor of waiver, however, because its amendments were more sweeping than the Fair Housing Act am end­ ments: while the Fair Housing Act amendments of 1988 merely made relatively minor changes to an existing cause o f action and modified an attorneys’ fees provi­ sion, the section 504 amendments in 1978 added for the first time a provision authorizing a private action for violations and a provision authorizing attorneys’ fees awards. *' Pub. L No 95-602 119. 92 Stat. 2955, 2982 (1978) " Id. i} 120, 92 Stat at 2982. 21 The only o th er provision o f section 505 (29 U S C <) 794a(a)( I )) c oncerns discrim ination in federal em ploym ent, w hich we do not understand to be co v ered by y our opinion request 65 O pinions o f the O ffice o f L egal C ounsel However, after analyzing the Rehabilitation Act enactments under the Supreme C ourt’s “unequivocal expression” standard, we conclude that there is no waiver of sovereign im m unity for monetary relief. There is no fundamental difference be­ tween the effect o f the Rehabilitation Act enactm ents and the effect of the Fair Housing Act enactments. In both cases, there is no express language authorizing actions against the United States for dam ages or other monetary relief and it is rea­ sonable to read the cause o f action and attorneys’ fees provisions as allowing ac­ tions against the United States for injunctive relief pursuant to the waiver of sovereign im m unity for such relief contained in the Administrative Procedure Act. As the Suprem e C ourt made clear in N ordic Village, where a plausible reading is available that does not authorize m onetary relief, “a reading imposing monetary liability on the G overnm ent is not ‘unam biguous’ and therefore should not be adopted.” 503 U.S. at 37.24 C. O ur conclusion is supported by the case law. The Supreme Court already has held that the Rehabilitation Act does not abrogate the sovereign immunity of the States. In A ta sca d e ro State Hosp. v. Scanlon, 473 U.S. 234 (1985), the Court held that sections 504 and 505 of the Act do not abrogate the States’ Eleventh Am end­ ment sovereign immunity against imposition o f monetary relief. Id. at 244-46. Applying an “unequivocally clear” standard,25 which is substantially the same as the “unequivocal expression” standard governing waiver of federal immunity (N ordic Village, 503 U.S. at 37), the Court held that States that receive federal assistance are clearly subject to the discrim ination prohibition of section 504, [b]ut given their constitutional role, the States are not like any other class of recipients of federal aid. A general authorization for suit in federal court is not the kind o f unequivocal statutory language suffi­ cient to abrogate the Eleventh Amendment. W hen Congress chooses to subject the States to federal jurisdiction, it must do so specifically. Accordingly, w e hold that the Rehabilitation Act does not abrogate the Eleventh A m endm ent bar to suits against the States. "4 As we e x p lain ed in the course of our c o n sid eratio n o f the Fair H ousing Act, we believe it is perm issible to c ite leg islativ e h isto ry 1 0 reinforce a tex t-b ased conclusion th at a statute does not w aive sovereign im m u­ nity W e h ave review ed the legislative h isto ry o f the R ehabilitation A ct am endm ents o f 1978 and have found, as w as the case w ith resp ect to the F air H ousing A ct am endm ents o f 1988, that it does not include any co n sid eratio n o f the su b jects o f sovereign im m u n ity o r o f establishing m onetary liability for the U nited Slates. T h u s, it is c o n siste n t w ith o u r conclusion that those am endm ents do not w aive sovereign im m unity. 23 A ta sc a d e ro e stab lish ed the following stan d a rd ' ‘C o n g ress may abrogate the S ta te s’ constitutionally secured im m u n ity from suit in federal court o n ly by m aking its intention unm istakably clear in the language of the s ta tu te .’’ 473 U S at 242. 66 Authority o f USDA to A w a rd M onetary R e lie f f o r D iscrim ination 473 U.S. at 246 (citations om itted )26 The Court did not specifically address the section 505 attorneys’ fees and costs provision, but its holding contains an implicit conclusion that the provision does not waive immunity for any monetary relief other than the attorneys’ fees and costs themselves. The statutory framework with respect to the United States is substantially the same as with respect to the States, and we see no basis for concluding that the language of the Act waives the federal governm ent’s sovereign immunity when it does not abrogate the immunity of the States.27 A panel of the Ninth Circuit Court of Appeals has concluded otherwise, holding that the Rehabilitation Act does indeed waive the sovereign immunity of the United States against imposition of damages. D oe v. A ttorney G eneral o f the U nited States, 941 F.2d 780 (1991). We believe, however, that D oe was incorrectly de­ cided. First, the Ninth Circuit’s analytical approach was inconsistent with the Su­ preme C ourt’s requirement of an “unequivocal expression” in statutory text without resort to legislative history. See N ordic Village, 503 U.S. at 33-37. In the section of its opinion entitled “The Legal Standard for Ascertaining W hether the G overn­ ment has Waived Sovereign Im m unity,” 941 F.2d at 787, the Ninth Circuit incor­ rectly stated that “[t]he key to determining whether there has been a waiver is Congress’s intent as manifested in the statute’s language and legislative history.” Id. at 788. Rather than using the special standard established by the Supreme Court, the Ninth Circuit chose to view the issue as requiring application o f the factors for implying a private right of action under C ort v. Ash, 422 U.S. 66, 78 (1975), with an additional sovereign immunity gloss that “only explicit congres­ sional intent in the statutory language and history will suffice” for implying a pri­ vate right of action against the United States. D oe, 941 F.2d at 788. In addition, the Ninth Circuit’s analysis of the Rehabilitation Act is unpersua­ sive. The court’s conclusion was as follows: In amending section 504, Congress made certain that federal agen­ cies would be liable for violations o f the statute. Congress’s inser­ tion of federal agencies in the pre-existing clause subjecting others to liability and its broad-brush remedy provision indicate that Con­ gress intended that there be no distinction among section 504 de­ fendants. 26 R esponding (o the Suprem e C o u rt's decision in A ta sca d ero, C ongress passed legislation expressly abrogating the sovereign im m unity o f the Slates under the R ehabilitation A ct and other civil rights statutes Pub L No 99-506, § 1003, 100 Stat 1807, 1845 (1986). T hat legislation contained no provisions bearing on the sovereign im m unity o f the U nited States 27 The only treatm ent o f the federal governm ent in section 505 that is different from the treatm ent o f the States (other than the obvious difference that federal agencies are not recipients o f federal assistance) is that the attorneys fees provision (paragraph (b)) does not allow the U nited States as a prevailing party to recover attorney s' fees T hat exception says nothing, o f course, about the liability o f the U nited States for dam ages or other m onetary relief, and the fact that the U nited States may be subject to attorneys fees aw ards d oes not w aive sovereign im m unity for dam ages and other kinds o f m onetary relief. 67 O pinions o f the O ffice o f Legal C ounsel Id. at 794. That conclusion is incorrect in two fundamental respects. First, the addition o f federal agencies to section 504 was not to a “clause subjecting others to lia b ility '' but rather to a clause that im posed a non-discrimination substantive re­ quirem ent and did not address liability in any way; it was not until section 505 was added in 1978 that the Rehabilitation Act addressed remedies. Second, the Su­ preme C ourt has rejected the view that the “broad-brush remedy provision [section 505] indicate[s] that C ongress intended that there be no distinction among section 504 defendants.” Id. As discussed above, the Supreme Court opined in A ta s­ ca d ero State H o sp ita l v. Scanlon that there are indeed distinctions to be made am ong section 504 defendants, holding that given their constitutional role, the States are not like any other class o f recipients o f federal aid. A general authorization for suit in fed­ eral court is not the kind of unequivocal statutory language suffi­ cient to abrogate the Eleventh Amendment. W hen Congress chooses to subject the States to federal jurisdiction, it must do so specifically. 473 U.S. at 246. The United States, of course, also has special constitutional status, and the approach taken in A ta sca d ero requiring an unequivocal specific expression o f intent to waive sovereign immunity is equally applicable in the con­ text of the federal governm ent. N ordic Village, 503 U.S. at 37. V. E Q U AL CRED IT OPPO RTUNITY A C T In contrast to our preceding conclusions, we conclude that the Equal Credit Op­ portunity Act (the “C redit Act”), 15 U.S.C. §§ 169]-1691 f, partially waives the sovereign immunity o f the United States against the imposition o f monetary relief, by authorizing an award of compensatory damages. Although this conclusion is not com pletely free from doubt because it is possible that the Supreme Court would require a more explicit statem ent of waiver, we reach this conclusion be­ cause we can find no reasonable explanation for a provision exempting all govern­ ment creditors from liability for punitive dam ages other than that the provision recognizes that governm ent creditors are liable for compensatory damages. There is no com parable provision in any o f the other civil rights statutes addressed in this memorandum. A. The Credit Act prohibits any creditor from discriminating against any applicant with respect to any aspect of a credit transaction. Id. § 1691(a). The term “creditor” is defined as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continua­ 68 A uthority o f USDA to A w ard M onetary R elie f f o r D iscrim ination tion of credit; or any assignee of an original creditor who participates in the deci­ sion to extend, renew, or continue credit.” Id. § 1691a(e). For purposes o f the Act, a “person” is “a natural person, a corporation, governm ent o r govern m en tal subdivision o r agency, trust, estate, partnership, cooperative, or association.” Id. § 1691 a(f) (emphasis added). Although the Credit Act contains no further indication in its text or legislative history as to whether the governmental references in the definition of “person” were intended to include federal agencies, the natural understanding of the refer­ ences is that the federal government is included, because the language is unre­ stricted and there is no language suggesting any different treatment for different levels o f government. If it were intended that the federal government was to be exempt and the statute limited in its coverage to State and local governments, we would expect that the text of the statute would make such a distinction — or at least the distinction would be identified in legislative history. N either the statute nor the legislative history contain any such suggestion. Our conclusion that the federal government is subject to the discrimination pro­ visions of the Credit Act may be reinforced by reference to another, previously enacted statute that also regulates the extension of credit, the Truth in Lending Act (“TILA ”), 15 U.S.C. §§ 1601 -1681 u. Both the Credit Act and TILA are part o f the Consum er Credit Protection Act.28 Statutes addressing the same subject m atter — that is, statutes “in pari materia” — should be construed together.29 TILA uses the same language as the Credit Act concerning covered government organizations. TILA applies to any “creditor,” which is defined as a “person” who regularly extends certain types of consumer credit. Id. § 1602(f). “Person” is de­ fined as a “natural person” or an “organization.” Id. § 1602(d), and “organization” includes a “government or governmental subdivision or agency.” Id. § 1602(c). As with the Credit Act, there is no further indication of what levels of government are covered. Unlike the Credit Act, however, TILA contains an express assertion of sovereign immunity in the enforcement section of the statute, thus indicating a clear recognition that the federal government is subject to the substantive provi­ sions o f TILA: [N]o civil or criminal penalty provided under this subchapter for any violation thereof may be imposed upon the United States or any departm ent or agency thereof, or upon any State or political subdi­ vision thereof, or any agency o f any State of political subdivision. 211 T IL A w as enacted in 1968 as title I o f the C onsum er C red it Protection A ct, Pub. L. N o 90-321, 82 Stat. 146, and the C red it Act w as added to the C onsum er C redit Protection A ct as title VII in 1974, Pub. L. No. 93-495, tit V, 88 Stat. 1500, 1521. 29 S ee 2B N orm an J Singer, S u th erla n d S ta tu to ry C o n stru ctio n § 51.02, at 121 (5th ed 1992) ( “ It is assum ed that w henever the legislature enacts a provision it has in m ind previous statutes relating to the sam e subject m atter In the absence o f any express repeal or am en d m en t, the new provision is presum ed in accord with the legislative policy em bodied in those prior statutes T h u s, they all should be construed together '*). 69 O pinions o f the O ffice o f L egal C ounsel Id. § 1612(b). It is reasonable to assum e that when Congress defined “person” in the Credit Act to include a “government, governmental subdivision or agency,” it intended those term s to have the same scope as the identical terms used in the pre­ viously enacted TIL A .30 B. O f course, as discussed in prior sections of this memorandum, the fact that fed­ eral agencies are subject to the substantive requirements of the Credit Act does not necessarily mean that there has been a waiver of sovereign immunity against impo­ sition o f m onetary liability for violation of such requirements. The Credit Act sov­ ereign imm unity question is not a sim ple one, because there is no language directly addressing the subject of sovereign immunity or directly stating that the United States may be subject to an award o f monetary relief. However, as discussed be­ low, we find there has been a waiver because the A ct contains a provision that indi­ rectly, but in our view unequivocally, indicates that the United States may be required to pay com pensatory damages. Section 1691e o f the Credit Act provides for a private right of action against creditors who violate the discrimination prohibitions of the Act. Under subsection (a), all creditors are liable for compensatory damages: “[A]ny creditor who fails to comply with any requirem ent imposed under this subchapter shall be liable to the aggrieved applicant for any actual dam ages sustained by such applicant acting ei­ ther in an individual capacity or as a m ember o f a class.” Under subsection (b), all creditors except governm ental creditors are liable for punitive damages: “ [A]ny creditor, other than a government or governmental subdivision or agency . . . shall be liable to the aggrieved applicant for punitive damages . . . .” Equitable relief is authorized under subsection (c).31 Finally, under subsection (d), costs and attor­ neys’ fees may be imposed: “In the case of any successful action under subsection (a), (b), or (c) . . . , the costs of the action, together with a reasonable attorney’s fee as determ ined by the court, shall be added to any damages awarded by the court Subsection (b) of section 1691 e provides the key to finding a partial waiver of sovereign immunity against monetary relief. Com ing immediately after a provision (subsection (a)) that states that all creditors are liable for compensatory damages, a provision exem pting government creditors from liability for punitive damages nec­ essarily implies a recognition that governm ent creditors are otherwise liable for dam ages under the Act and remain liable for com pensatory damages under the pre­ ceding section, which contains no such limitation. “[A] limitation of liability is ,0 S e e id § 51 0 2 , at 122 ( '‘U nless the c o n te x t indicates otherw ise, w ords or phrases in a provision that w ere used in a prioi act p ertain in g to the sam e su b ject m atter will be construed in the sam e sense ") 11 “ U pon a p p licatio n by an aggrieved ap p lican t, the [court] m ay grant such equitable and declaratory relief as is n e ce ssa ry to en fo rce the requirem ents im p o se d under th is s u b c h a p te r.' 1 5 U S C § 16 9 1e(c) 70 A uthority o f USDA to A w a rd M onetary R e lie ffo r D iscrim ination nonsensical unless liability existed in the first place.” P ennsylvania v. Union Gas Co., 491 U.S. 1, 13 (1989) (holding that CERCLA abrogated State sovereign im­ munity based in part on implication of provisions exempting States from liability for certain actions). Thus, the Credit Act is different from the Fair Housing Act and the Rehabilita­ tion Act in the fundamental respect that it contains a provision indicating liability for damages that is susceptible to no other plausible interpretation that would not impose liability. W hereas we concluded that the attorneys’ fees provisions in the Fair Housing Act and the Rehabilitation Act did not satisfy the “unequivocal ex­ pression” standard because there was another plausible interpretation that did not impose monetary liability, see N ordic Village, 503 U.S. at 37, the interpretation of subsections (a) and (b) that subjects government creditors, including the United States, to liability for compensatory damages is the only plausible interpretation. Accordingly, we conclude that the Credit Act waives sovereign immunity with re­ spect to compensatory damages.32 VI. A T T O R N E Y S ’ F E E S A N D C O S T S The analysis for whether attorneys’ fees and costs may be awarded under the civil rights statutes whose anti-discrimination provisions apply to federal agencies is simpler than the foregoing analysis on whether monetary relief may be awarded. There is no need to decide whether the individual civil rights statutes waive sover­ eign immunity for attorneys’ fees and costs, because the Equal Access to Justice Act (the “EAJA”) expressly waives sovereign immunity. Immunity for costs is waived by 28 U.S.C. § 2412(a), and immunity for attorneys’ fees is waived by 28 U.S.C. §§ 2412(b) and 2412(d). Each o f these sections contains language author­ izing an award of attorneys’ fees or expenses to “the prevailing party in any civil action brought by or against the United States.” The EAJA also specifically addresses the extent of the United States’ liability for attorneys’ fees and costs. There are two separate attorneys’ fees regimes under the EAJA. Under 28 U.S.C. § 2412(b), a court may award attorneys’ fees against the United States, and if it does, “[t]he United States shall be liable for [attorneys’] fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such 12 O ur conclusion w ith respect lo (he w aiver o f sovereign im m unity under the C redit A ct has im plications w ith respect to claim s alleging violations o f the Fair H ousing A ct A lthough the latter statute does not w aive sovereign im m unity, conduct violative o f that statute may also violate the C redit Act T he fact that the tw o statutes are, to som e extent, coextensive is acknow ledged in the C redit A c t's provision that ”‘fn]o person aggrieved by a violation o f this subchapter and by a violation o f section 3605 o f [the Fair H ousing Act] shall recover under this subchapter and section 3612 o f [the Fair H ousing Act], if such violation is based on the sam e transaction " 15 U S C § 16 9 1e(i) Thus, w here a federal agency is discrim inating in the extension o f credit, that conduct may violate both statutes. If it does, the agency w ould have authority pursuant to the C redit A ct's w aiv er o f sovereign im m unity to provide m onetary relief in settlem ent of a claim , even if the claim cites only the Fair Housing Act, to the extent allow ed by the C redit Act 71 O pinions o f the O ffice o f L egal Counsel an aw ard.”33 Because the common law applies the “American Rule,” which pro­ vides that each litigant must ordinarily pay his or her own lawyer, A lyeska Pipeline S ervice Co. v. W ilderness Society , 421 U.S. 240, 247 (1975), the extent of liability for attorneys’ fees under the individual civil rights statutes should generally be governed by the specific fee-shifting language o f the statutes, each of which authorizes the court to award “a reasonable attorneys’ fee.”34 As an alternative to an award of attorneys’ fees under § 2412(b), the EAJA pro­ vides in § 2412(d) for a mandatory award o f attorneys’ fees against the United States (upon application by the prevailing party), except when the United States’ position was substantially justified o r when special circumstances would make an award o f fees unjust. U nder subsection (d), attorneys’ fees are capped at the rate o f $75 per hour, absent a special judicial finding that special factors justify higher fees, § 2412(d)(2)(A), and parties m ay only recover if they have incomes or net worths below certain levels, § 2412(d)(2)(B). The EA JA also provides for the extent of the United States’ liability for costs: “A judgm ent for costs when taxed against the United States shall . . . be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.” 28 U.S.C. § 2412(a)(1). Because this provision begins with the caveat “[ejxcept as otherwise specifically provided by statute,” it is neces­ sary to decide whether the civil rights statutes provide differently with respect to costs. The Rehabilitation Act and the Equal Credit Opportunity Act do not contain language specifically addressing the liability of the United States for costs. See 29 U.S.C. § 794a(b); 15 U.S.C. § 1691e(d). Therefore, the EAJA provision applies under those two statutes. The Fair H ousing Act, however, does contain a specific provision that displaces the EAJA provision. It provides that “[t]he United States shall be liable for . . . costs to the same extent as a private person.” 42 U.S.C. § 3613(c)(2). VII. C O N C L U S IO N S The Suprem e Court has established a strict “unequivocal expression” standard for determ inations on whether a statute waives the sovereign immunity of the United States against imposition of monetary relief. One of the civil rights statutes that we have been asked to review, Title VI o f the Civil Rights Act of 1964, does not prohibit discrim ination by federal agencies. Anti-discrimination provisions in the rem aining statutes do apply to federal agencies, but only one of them, the Equal Credit O pportunity Act, contains a waiver of sovereign immunity regarding mone­ tary relief, and that w aiver is limited to compensatory damages. Agencies there­ 31 B ecause § 2 4 1 2 (b ) b eg in s w ith the c av eat “ [u]nless expressly prohibited by statute,” we have review ed the c ivil rig h ts statu tes to determ in e w hether th e y “ex p ressly prohibit" an aw ard o f a tto rn e y s’ fees against the U nited Slates. T h e y do not. 14 S e e F air H ousing Act, 4 2 U.S C § 3 6 1 3 (c)(2 ), R ehabilitation A ct, 29 U S.C. § 794a(b), Equal C redit O pportu n ity A ct, 15 U S C. § 1 6 9 1e(d). 72 A u thority o f USDA to A w a rd M onetary R e lie f fo r D iscrim ination fore have authority to provide compensatory damages to the extent allowed by the Credit Act in their voluntary settlement of discrimination claims if the conduct complained of violates the Credit Act. In addition, the Equal Access to Justice Act authorizes awards of attorneys’ fees and costs against federal agencies. W ALTER DELLINGER A ssistan t A ttorn ey G en eral Office o f L egal C ounsel 73

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VA’s Authority to Fill Certain Prescriptions Written by Non-VA Physicians The Department of Veterans Affairs is authorized to fill prescriptions written by non-VA physicians for veterans placed on VA waiting lists. July 3, 2003 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF VETERAN AFFAIRS You have asked us whether the Department of Veterans Affairs (“VA”) is barred by statute from generally filling prescriptions written by non-VA physicians for veterans on VA’s lengthy waiting list. For the reasons stated below, we conclude that VA is not so barred. I. You have advised us that the number of veterans who have requested care from the VA is greatly in excess of the number that VA can care for at the present time. As a result, the number of veterans who have to wait more than six months before they can receive care in a VA facility has recently been above 200,000 and remains very high. Some of these veterans have received care from non-VA physicians and then sought to obtain the prescription medication benefits included in VA’s uniform benefit package. But in light of legal opinions of VA’s Office of General Counsel dating back to 1983, VA has generally declined to fill prescriptions written by non-VA physicians. Instead, VA has required veterans with such prescriptions to schedule examinations in the backlogged VA facilities. Such examinations typically involve a months-long wait and impose additional burdens on the VA system. In 1991, VA’s Office of General Counsel reissued as a “Precedent Opinion” an opinion that it had previously issued in 1983. In that opinion, your Office determined that the provision then codified at 38 U.S.C. § 612(h) (1982)—and now revised and codified at 38 U.S.C. § 1712(d) (2000)—was “the exclusive legal authority for providing a veteran with drugs and medicines prescribed by the veteran’s private physician, when the VA has no involvement, fee basis or otherwise, in the treatment of the veteran.” Vet. Aff. Op. Gen. Couns. Prec. 41-91 (Mar. 11, 1991), 1991 VAOPGCPREC LEXIS 1183, at *14 (“1991 VA Opinion”). In 2002, your Office considered whether intervening changes in the law— particularly, the Veterans’ Health Care Eligibility Reform Act of 1996, Pub. L. No. 104-262, 110 Stat. 3177 (1996) (“Eligibility Reform Act”)—altered the conclusion of your 1991 opinion and determined that they did not. Your Office reaffirmed its position that “VA does not have legal authority to furnish veterans with medications prescribed by private physicians when VA has no other in- 126 VA’s Authority to Fill Certain Prescriptions Written by Non-VA Physicians volvement in the care of the veteran.” Vet. Aff. Op. Gen. Couns. Adv. 19-02 (2002) (“2002 VA Opinion”). II. Title 38 confers on the VA Secretary broad authority to determine the services provided to veterans. Paragraphs (1) and (2) of section 1710(a) provide that the Secretary “shall furnish” to particular classes of veterans those “medical services” “which the Secretary determines to be needed.” 38 U.S.C. § 1710(a)(1), (2) (2000). Paragraph (3) further provides that for any veteran not covered by paragraphs (1) and (2), the Secretary “may . . . furnish . . . medical services . . . which the Secretary determines to be needed.” Id. § 1710(a)(3). The statutory definition of “medical services” includes, among other things, “medical examination, treatment, and rehabilitative services,” 38 U.S.C. § 1701(6) (Supp. I 2002). We believe that, except insofar as otherwise barred, the Secretary’s general statutory authority is plainly broad enough to enable VA to fill prescriptions written by non-VA physicians for veterans who have been placed on VA’s waiting list for examinations. First, the filling of prescriptions is, or can reasonably be determined to be, a “medical service” because it constitutes “treatment.” Companion provisions in this same statutory scheme recognize that medications are “furnished . . . for the treatment of” disabilities and conditions, 38 U.S.C. § 1722A(a)(1) (2000), and that “such drugs and medicines as may be ordered on prescription of a duly licensed physician” are part of the “treatment of [an] illness or injury,” id. § 1712(d). Indeed, VA’s Office of General Counsel has itself stated that “provision of drugs and medicines is medical treatment.” 1991 VA Opinion at *6.1 Second, the Secretary has discretion to determine “to be needed” the filling of prescriptions written by non-VA physicians for those veterans on VA’s waiting list. Such a determination would (in the absence of any other bar) trigger the Secretary’s duty under paragraphs (1) and (2) of section 1710(a), and his power under paragraph (3) of that section, to have VA fill the prescriptions. Third, in light of the existing backlog of veterans seeking VA care, a decision by the Secretary to authorize VA to fill prescriptions written by non-VA physicians for those veterans on VA’s waiting list would be consistent with the statutory directive that “the Secretary shall, to the extent feasible, design, establish and manage health care programs in such a manner as to promote cost-effective delivery of health care services in the most clinically appropriate setting.” 38 U.S.C. § 1706(a) (2000). Your Office has suggested several possible reasons why this result might not follow. First, invoking the maxim expressio unius est exclusio alterius, your Of1 Notwithstanding this statement, the 1991 VA Opinion relied on the absence of legislative history and the expressio unius maxim discussed below to conclude that provision of drugs and medicines ordered by private non-VA physicians is not medical treatment. 127 Opinions of the Office of Legal Counsel in Volume 27 fice has read section 1712(d) as providing “the exclusive legal authority for providing a veteran with drugs and medicines prescribed by the veteran’s private physician, when the VA has no involvement, fee basis or otherwise, in the treatment of the veteran.” 1991 VA Opinion at *6–*7, *14. We do not believe that this is the best reading of section 1712(d). Section 1712(d) provides in part: The Secretary shall furnish to each veteran who is receiving additional compensation or allowance under chapter 11 of this title, or increased pension as a veteran of a period of war, by reason of being permanently housebound or in need of regular aid and attendance, such drugs and medicines as may be ordered on prescription of a duly licensed physician as specific therapy in the treatment of any illness or injury suffered by such veteran. 38 U.S.C. § 1712(d). In short, section 1712(d) specifically requires the filling of prescriptions written by private physicians for certain classes of veterans. We note, however, that it does not expressly provide that it sets forth the exclusive circumstances in which the Secretary is required to fill such prescriptions, much less the exclusive circumstances in which the Secretary is allowed to fill such prescriptions. Moreover, given the broad authority that section 1710(a) confers on the Secretary, we do not think that the expressio unius canon applies here to require that section 1712(d) be read as somehow implicitly limiting that broad authority.2 Second, your Office has pointed to legislative history associated with the Eligibility Reform Act—specifically, to a statement in the committee report of the House bill that was merged with a Senate bill when the Act was passed. In the context of refuting projections by the Congressional Budget Office (“CBO”) that provisions of the bill would result in substantial new demand for VA medical services and benefits, the House report stated: “It is critical to note that H.R. 3118, like existing law, would not permit VA simply to serve as a veterans’ ‘drug store’, providing medications, prosthetic devices, or other medical supplies prescribed by a private physician who has no affiliation or contractual relationship with the VA.” H.R. Rep. No. 104-690, at 17 (1996). This legislative history might be thought to indicate that Congress did not intend section 1710(a) to authorize the Secretary to provide the prescription services at issue. We do not find this legislative history probative of the meaning of section 1710(a). Insofar as it might be thought to mean that the Secretary may not provide the prescription services at issue, we do not think that it can be squared with the expansive text of section 1710(a). See Circuit City Stores, Inc. v. Adams, 532 U.S. 2 The fact that section 1712(d), unlike section 1710(a), appears to require filling of prescriptions whether or not the Secretary determines the filling of the prescriptions to be necessary further suggests that the obligation imposed under section 1712(d) is not of the same class or type as the obligations and powers under section 1710(a). This would provide an additional reason why the expressio unius canon would not apply. 128 VA’s Authority to Fill Certain Prescriptions Written by Non-VA Physicians 105, 119 (2001) (“As the conclusion we reach today is directed by the text of § 1, we need not assess the legislative history of the exclusion provision.”); Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“we do not resort to legislative history to cloud a statutory text that is clear”). We note, further, that the statement in the House report is not specifically addressed to section 1710(a) (or to any other provision of the Act) but is instead designed to counter CBO’s $3 billion projections of the House bill’s costs. See H.R. Rep. No. 104-690, at 15, 17, 19. We therefore consider it especially suspect. In any event, the prescription authorization at issue here does not fit the “drug store” analogy. The prescription services at issue here would be authorized only for “waiting list” veterans and only for drugs “which the Secretary determines to be needed,” not for any veteran who wanted to fill a prescription. Third, the 2002 opinion argues that the provision of law stating that the “primary function of the [Veterans Health] Administration is to provide a complete medical and hospital service for the medical care and treatment of veterans,” 38 U.S.C. § 7301(b) (2000), “has historically been interpreted to mean that Congress intended VA to furnish services needed to treat an eligible veteran through VA facilities and personnel.” 2002 VA Opinion ¶ 8. Because VA would be providing the “medical service” at issue—i.e., filling the prescriptions—through VA facilities and personnel, we do not see how this argument has any bearing here. Finally, your Office has suggested that it would be anomalous for the Secretary to be required to charge a copayment amount for medication furnished the veteran “on an outpatient basis for the treatment of a non-service-connected disability or condition,” 38 U.S.C. § 1722A(a)(1), but not to be required to be charged a copayment for medication prescribed by a non-VA physician for such a disability or condition. But any such anomaly vanishes if, as seems to us permissible,3 the Secretary may regard the VA’s filling of a prescription issued by a non-VA physician to be service “on an outpatient basis” for which a copayment would be required under section 1722A(a)(1). In any event, even if that anomaly were to remain, we would not see it as providing a sufficient basis for overriding our reading of section 1710(a). M. EDWARD WHELAN III Acting Assistant Attorney General Office of Legal Counsel 3 The VA regulations appear to contemplate only two broad categories of care or service: “inpatient hospital care” and “outpatient medical care.” See 38 C.F.R. § 17.108(a)–(c). Since VA clearly would not be furnishing the prescriptions in question on an “inpatient” basis, it is reasonable to conclude that they are furnished on an “outpatient” basis. 129

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Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 The President is required to make a determination that would trigger sanctions under the Chemical and Biological W eapons Control and Warfare Elimination Act of 1991 if he is presented with sufficient evidence to compel the determination. The President may delay making a determination that would trigger sanctions under the Act when the delay is necessary to protect intelligence sources or methods used in counter-proliferation activi­ ties. The President may delay making a determination that would trigger sanctions under the Act when no reasonable alternative means exist to protect the life of an intelligence source. November 16, 1995 M e m o r a n d u m O p in io n fo r t h e S p e c ia l A s s is t a n t t o t h e P r e s id e n t a n d L e g a l A d v is e r t o t h e N a t io n a l S e c u r it y C o u n c il You have asked for our opinion concerning the scope, if any, of the President’s discretion to delay making the determinations that are prerequisite to imposing mandatory sanctions under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, Pub. L. No. 102-182, § 305(b), 105 Stat. 1245, 1250 (the “ CBW Act” ), codified in part as an amendment to the Export Adminis­ tration Act. See 50 U.S.C. app. § 2410c.1 We conclude that the CBW Act permits the President to delay making determinations that would trigger sanctions under this section, when the delay is necessary to protect intelligence sources or methods used for acquiring intelligence relating to CBW proliferation. You have also asked whether the President has any greater ability to delay a determination when the life of an intelligence source would be placed at substan­ tial risk by the imposition of sanctions and no alternative reasonable means exists to exfiltrate or otherwise protect the source. This extreme case creates a conflict with the President’s constitutional obligations and various of his statutory duties. In such circumstances, we conclude that the President can delay making a deter­ mination to protect the life of the source. I. Section 2410c of title 50 appendix reads in part as follows: •V irtually identical provisions were also codified as amendments 10 the Arms Export Control Act ( “ A ECA ” ). See 22 U.S.C. §2798. For convenience, the citations herein are only to the Export Administration Act provisions. O ur opinion, however, applies equally to both sets o f provisions. 306 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 Except as provided in subsection (b)(2), the President shall impose both of the sanctions described in subsection (c) if the Presi­ dent determines that a foreign person, on or after the date of enact­ ment of this section,[2] has knowingly and materially contributed— (A) through the export from the United States of any goods or technology that are subject to the jurisdiction o f the United States under this Act, . . . or (B) through the export from any other country of any goods or technology that would be, if they were United States goods or technology, subject to the jurisdiction of the United States under this Act . . . to the efforts by any foreign country, project, or entity described in paragraph (2) to use, develop, produce, stockpile, or otherwise acquire chemical or biological weapons. 50 U.S.C. app. §2410c(a)(l).3 The “ foreign countries]” to which subsection (a)(1) refers include any foreign country that the President determines to have used chemical or biological weapons in violation of international law, used lethal chemical or biological weapons against its own nationals, or made substantial preparations to engage in either of those two activities; any foreign country whose government is determined to have repeatedly supported acts of international terrorism; or any other foreign country, project, or entity designated by the President. Id. §2410c(a)(2). Once a determination has been made, both procurement and import sanctions are liable to be imposed. Id. §2410c(c)(2). Congress “ urges” the President, before imposing sanctions, to engage in consultations “ immediately” with the foreign government with primary jurisdiction over the person subject to the sanctions. Id. §2410c(b)(l). In order to pursue such consultations, the President may delay imposing sanctions for up to 90 days. Id. §2410c(b)(2). Following these consulta­ tions, the President “ shall” impose sanctions unless he determines and certifies to Congress that the government has taken “ specific and effective actions” to end the involvement of the subject person in the sanctionable activities. Id. A further delay of up to 90 days is authorized if the President determines and cer­ 2 The effective date o f the statute was O ctober 28, 1991. 3 The comparable provision o f the AECA is virtually identical, except for the addition o f a third basis for the President's determination. Under AECA, the imposition o f sanctions can also be based on a determination that a foreign person contributed to a foreign country’s use or acquisition o f chemical or biological weapons “ through any other transaction not subject to sanctions pursuant to the Export Administration Act o f 1979.” 22 U.S.C. §2798(a)(l)(C ). 307 Opinions o f the Office o f Legal Counsel in Volume 19 tifies to Congress that the foreign government is “ in the process” of taking the appropriate actions. Id. The President is authorized not to apply or maintain sanctions in certain speci­ fied circumstances. Id. §2410c(c)(2). Thus, the President is not required to impose sanctions in certain cases of procurement of defense articles or defense services (e.g., those articles or services that the President determines are “ essential to the national security under defense coproduction agreements” ). Id. Any sanction that is imposed shall apply for at least 12 months, and shall cease only upon a deter­ mination by the President, and certification to Congress, that reliable information indicates that the foreign person under sanction has ceased to aid and abet the activities described in subsection (a)(1). Id. §2410c(d). Twelve months after imposing sanctions, the President may also waive further application of the sanc­ tions, if he determines and certifies to Congress that such a waiver is “ important to the national security interests o f the United States.” Id. §2410c(e)(l). We believe that § 2410c permits the President to delay making a determination that would trigger sanctions. The statute permits a delay, however, only when a delay is necessary to advance the policy of the statute by protecting intelligence sources or methods used in counterproliferation activities. We begin by considering whether § 2410c requires the President to make a determination leading to the imposition o f sanctions when presented with appro­ priate facts, or merely grants him the discretion to make or to decline to make such a determination in those circumstances. We conclude that §2410 does impose a mandate that requires the President to make a determination when presented with the appropriate facts. We then consider whether § 2410c permits the President to delay making a determination required by the statute. We first review the text and structure of § 2410c and related statutes. Finding that evidence inconclusive, we turn to the legislative history and administrative construction of the statute. Our review of that history establishes that the President has some discretion to delay making the statutory determinations, if such a delay is necessary to protect intelligence sources or methods used in detecting or preventing CBW proliferation. II. Our first question is whether § 2410c requires the President to make a deter­ mination that a foreign person has “ knowingly and materially contributed” to prohibited CBW efforts if his subordinates present him with evidence that estab­ lishes that such a state of affairs exists, or whether the President has the discretion to make or decline to make that determination in those circumstances. We believe that the statute requires the President to make the determination. It is often the case that “Congress may feel itself unable conveniently to deter­ mine exactly when its exercise o f the legislative power should become effective, because dependent on future conditions, and it may leave the determination of 308 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination A ct o f 1991 such time to the decision of an Executive.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928). When it delegates the power, and prescribes the duty, to make such determinations, the President may be considered “ the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.” Id. at 411. We believe that § 2410c casts the President in such a role, and requires him to make a determination if the facts available to him establish that the conditions described in the statute exist.4 The language and purpose of the CBW Act demonstrate that the President has a duty to make determinations, not merely the discretion to do so. Section 2410c(a)(l) states that the President “ shall impose” the specified sanctions “ if [he] determines” that the predicate facts exist (emphasis added). As discussed at length in Part IV below, the legislative history confirms that this language man­ dates that sanctions be imposed (once the appropriate determinations are made).5 We have advised the National Security Council (“ NSC” ) that similar language in a closely related export control statute gave the President very limited, if any, discretion to delay or withhold making the predicate determination. See Memo­ randum to Files from Paul P. Colbom, Acting Deputy Assistant Attorney General and Jacques deLisle, Attomey-Adviser, Office of Legal Counsel, Re: Presidential Discretion to Make “Determinations” Concerning Foreign Countries (July 22, 1993) (the “ July 1993 Memo” ). In the July 1993 Memo, we construed the missile technology control provisions of the Export Administration Act (“ EAA” ), 50 U.S.C. app. §2410b(b), which state that the President “ shall impose” sanctions “ if the President determines” that a foreign person is engaged in the activities covered by the statute. We advised that “ [r]eading the arguably indeterminate phrases ‘if the President deter­ mines’ and ‘if the President has made a determination’ as doing no more than authorizing a discretionary determination would nearly make a nullity of Congress’s apparently mandatory ‘shall impose’ language later in the section.” July 1993 Memo at 3-4. Similarly here, it would defeat Congress’s fundamental intent of ensuring that sanctions are imposed on foreign persons who are deter­ mined to be CBW Act proliferators,6 if the President could simply refuse to make *Cf. Field v. Clark, 143 U.S. 649, 692-93 (1892); Florsheim Shoe Co. v. United States, 744 F.2d 787, 79394 (Fed. Cir. 1984) (construing statutes to mandate, not merely to authorize, presidential determinations o f fact). 5 In brief, the legislative record shows that, in 1990, President Bush pocket-vetoed a precursor o f the present CBW Act, H.R. 4653, 101st Cong. (1990), on the ground that it left him with insufficient discretion to delay or withhold sanctions. State Department officials in testimony before Congress emphasized the President's concerns with a regime o f mandatory sanctions. Congress, however, was plainly unpersuaded that the President should have discretion to withhold sanctions on foreign persons (i.e., companies) found to be CBW proliferators. At least three Senators responded to President Bush's pocket veto o f H.R. 4653 by firmly rejecting the notion that “ automatic” sanctions were potentially harmful. The final bill that passed Congress, H.R. 1415, 102d Cong. (1991), embodied the Senators', rather than the President’s, policy preferences: it included provisions for mandatory sanctions. A suc­ cessor bill enacted soon thereafter, H.R. 1724, 102d Cong. (1991), which is now codified in relevant part as the CBW Act, also mandated sanctions if the appropriate determinations were made. 6 As further discussed below, § 2410c permits the President to engage in consultations with the foreign country having jurisdiction over the proliferator, before the sanctions must com e into effect. This provision qualifies, but does not negate, the mandatory nature o f the sanctions. 309 Opinions o f the Office o f Legal Counsel in Volume 19 sanction-triggering determinations at all. Accordingly, we believe that the Presi­ dent has a duty to make the determinations specified in the statute if he is pre­ sented with sufficient evidence to compel that conclusion.7 III. We next consider whether, notwithstanding that it imposes a mandatory duty on the President to make the determination described in that section when pre­ sented with appropriate facts, § 2410c nonetheless affords the President with discretion to delay making the determination when the delay is necessary to pro­ tect intelligence sources or methods used in counterproliferation. In this Part, we analyze the text and structure o f the statute and related provisions, and find that, without more, such analysis cannot decide the issue. In Parts IV and V, we review the legislative and administrative history. We conclude that § 2410c does provide such discretion, subject to the constraints explicated in Part VI. A. Section 2410c delegates to the President the power (and imposes the duty) to make the determination that a foreign person has “ knowingly and materially” contributed through exports to a proscribed country’s CBW efforts and to sanction the foreign person for that conduct. Because the President possesses varied and substantial constitutional powers in his own right in the field o f foreign affairs,8 congressional delegations of power to the President to act in that area are under­ stood to give him unusually wide-ranging powers.9 Moreover, the special institu­ tional capabilities of the executive branch — including its ability to respond 7 In construing the missile technology control statute at issue in the July 1993 Memo, we noted that the presence o f a broad w aiver provision in that statute confirm ed o ur view that the statute contained a mandate rather than a grant o f discretion. The CBW Act we construe here lacks a correspondingly broad w aiver provision. While such a provision would certainly support our analysis, we find that in light o f the text o f the CBW Act and the persuasive evidence o f congressional intent, the lack o f a waiver provision does not affect our conclusion that the President, w ith limited exceptions, is required to make the determination prescribed under the CBW Act when presented with appropriate facts. 8 See, e.g., Department o f the Navy v. Egan , 484 U.S. 518, 529 (1988) (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, 2 9 3 -9 4 (1981)); Alfred DunhiU o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705 n.18 (1976) ( “ [T]he conduct o f [foreign policy] is committed primarily to the Executive Branch. . . .” ); United States v. Lou­ isiana, 363 U.S. 1, 35 (1960) (President is “ the constitutional representative o f the United States in its dealings with foreign nations.” ); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109 (1948). R elatedly, the President possesses significant constitutional powers to safeguard sensitive national security informa­ tion. See, e.g., Webster v. Doe, 486 U.S. 592, 605-06 (1988) (O ’Connor, J., concurring in part and dissenting in part); Department o f the Navy v. Egon, 484 U .S. at 527; Haig v. Agee, 453 U.S. at 307-08; New York Times Co. v. United States, 403 U.S. 713, 728-29 (1971) (Stewart, J., joined by W hite, J., concurring); Hill v. Department o f Air Force, 844 F.2d 1407, 1411 (10th Cir.), cert, denied, 488 U.S. 825 (1988). He also possesses some measure o f inherent pow er with respect to foreign commerce, see Barclays Bank PLC v. Franchise Tax B d , 512 U.S. 298, 329 (1994); see also Diversion o f Water From Niagara River, 30 Op. A tt’y Gen. 217, 221-22 (1913) (opining that in absence o f legislation, the President m ay determine the conditions o f the importation of electrical power from Canada). 9 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 & n.2 (1952) (Jackson, J., concurring). 310 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination A ct o f 1991 flexibly to unforeseen contingencies and its access to sensitive information 10— have provided practical reasons for Congress to confer broad delegations of power over the conduct of foreign affairs to the President. “ [B]ecause of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress— in giving the Executive authority over matters of foreign affairs — must of necessity paint with a brush broader than that it customarily wields in domestic areas.” Zemel v. Rusk, 381 U.S. 1, 17 (1965).11 Thus, “ [b]oth Congress and the courts have traditionally sought to avoid restricting the Executive unduly in matters affecting foreign rela­ tions because of the need for flexibility in this area and the fact that the Constitu­ tion entrusts the external affairs of the Nation primarily to the Executive.” Export Sales o f Agricultural Commodities to Soviet Union and Eastern European Bloc Countries, 42 Op. Att’y Gen. 229, 237-38 (1963). In light of these considerations, we would not presume that, in delegating power under § 2410c, Congress has sought to limit the President’s otherwise broad discretion, absent clear evidence of such a congressional intent.12 The reasoning that supports the inference that Congress typically accords the President broad discretion when it authorizes him to act in the field of foreign affairs is equally applicable to the issue of timing. The “ changeable and explosive nature of contemporary international relations,” Zemel v. Rusk, 381 U.S. at 17, renders it difficult and sometimes impossible for Congress to gauge in advance the immediate consequences of actions that it permits or requires the President to take. In general, moreover, the authority “ to consider the foreign affairs rami­ 10See Chicago & Southern Air Lines, Inc., 333 U.S. at 111 ( “ The President, both as Com m ander-in-Chief and as the N ation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the w orld.” ); see also Harold H. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L.J. 1255, 1292 (1988). 11Accord Haig v. Agee , 453 U.S. at 292, United States v. Cuniss-Wrighi Export Corp., 299 U.S. 304, 320 (1936) ( “ [C ongressional legislation which is to be made effective through negotiation and inquiry w ithin the international field must often accord to the President a degree o f discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” ); Palestine Info. Office v. Shultz, 853 F.2d 932, 937 (D.C. Cir. 1988) (Mikva, J.), Sordino v. Federal Reserve Bank, 361 F.2d 106, 110 (2d Cir.) (Friendly, J.), cert, denied , 385 U.S. 898(1966). Relying on such reasons, the Ninth Circuit has upheld, against a nondelegation challenge, the authority o f the executive branch to punish the unlicensed export o f goods under the EAA, despite the preclusion o f judiciai review of administrative action. The fact that the EAA involves matters o f foreign policy and national security also counsels in favor o f upholding the A ct's preclusion o f judicial review. . . . Permitting Congress broadly to delegate decisions about controlled exports to an agency makes sense; it would be impossible for Congress to revise the [Commodity Control List] quickly enough to respond to the fast-paced developments in the foreign policy arena. . . . [T]he Supreme Court has consistently emphasized that broad delegations are appropriate in the foreign policy arena. . . . United Stales v. Bozarov, 974 F.2d 1037, 1044 (9th Cir. 1992), cert, denied , 507 U.S. 917 (1993); see also Duracell, Inc. v. U.S. Int’l Trade Commn, 778 F.2d 1578, 1582 & n.13 (Fed. Cir. 1985). 12 See Presidential Authority to Adjust Ferroalloy Imports Under §232(b) o f the Trade Expansion Act o f 1962, 6 Op. O.L.C. 557, 562 (1982) (A statutory requirement that the President, after receiving a Report from the Secretary o f Commerce that imports o f materials into United States threatened national security, either adjust imports or reject the Secretary’s findings, allowed the President to defer decision by “ retain[ing] the Report for further consideration,” because “ [n]o time frame constrains the President.” )- 311 Opinions o f the Office o f Legal Counsel in Volume 19 fications of a particular mode of [statutory] enforcement and to suspend implementation [of the statute] to avoid a confrontation,” is, “ [i]n the absence of a statutory mandate or express prohibition,” to “ be found in the inherent and well recognized powers of the executive branch.” Olegario v. United States, 629 F.2d 204, 226 (2d Cir. 1980), cert, denied, 450 U.S. 980 (1981). A rule of construction that accords the President reasonable discretion over timing, in the absence of evidence of contrary legislative intent, is thus most consistent with the ordinary relationship between the President and Congress in foreign affairs. Furthermore, as a general rule of administrative law, an agency may be under a statutory mandate to perform a certain act, and yet retain some discretion over the timing o f the performance o f that act: the rule is that it must proceed in a reasonably timely manner. Furthermore, an agency may be operating under a statu­ tory provision that regulates the timing o f its performance, and yet not be wholly devoid o f statutory discretion to delay the performance beyond the statutory dead­ line.13 A nondiscretionary duty of timeliness ordinarily exists only when the statute “ ‘categorically mandates]’ that all specified action be taken by a datecertain deadline.” Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987) (quoting NRDC v. Train, 510 F.2d 692, 712 (D.C. Cir. 1974)). “ [I]t is highly improbable that a deadline will ever be nondiscretionary, i.e. clear-cut, if it exists only by reason of an inference drawn from the overall statutory framework.” Id. at 791. To be sure, if “ the statutory language itself contained] [a] direction to the [President] automatically and regardless of the circumstances” to make the deter­ mination upon a certain event, Japan Whaling A ss’n v. American Cetacean Soc’y, 478 U.S. 221, 233 (1986), then the President might well be unable to delay making the determination.14 Assuming, however, that Congress chose not to dictate the timing o f the determinations that trigger sanctions, then § 2410c could be con­ strued to permit the President some discretion in the timing of a determination, at least in certain cases. In light o f these general considerations — that delegations of foreign policy powers to the President must be construed broadly, and that in the absence of a specific duty to make determinations within a fixed time-frame, the President has discretion to delay a determination for a reasonable period— we would not, absent countervailing reasons, read § 2410c to impose a duty on the President 13 See, e.g.. Cutler v. Hayes, 818 F.2d 879, 896-98 (D.C. Cir. 1987); Presidential Authority to Extend Deadline fo r Submission o f an Emergency Board Report Under the Railway Labor Act, 14 Op. O.L.C. 57, 59-60 (1990) (discussing interpretation o f current statutory timeliness requirements). u The statute at issue in Japan Whaling Association required the Secretary of Commerce to “ periodically monitor the activities o f foreign nationals that may affect [international fishery conservation program s]," id. at 226 (alteration in original) (quoting 22 U.S.C. § 1978(a)(3)(A)), “ promptly investigate any activity by foreign nationals that . . . may be cause for certification [that a foreign country’s actions had diminished the effectiveness of an international whaling c o n v en tio n ]/’ id. (quoting 22 U.S.C. § 1978(a)(3)(B)), and “ promptly conclude; and reach a decision with respect to; [that] investigation.” Id. (alteration in original) (quoting 22 U.S.C. § 1978(a)(3)(C)). The Court had no difficulty in concluding that this language required the Secretary to make a certification decision promptly. Id. at 232. 312 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 to act other than in a reasonably timely manner. But the analysis cannot end there. The text of § 2410c and related statutes, coupled with the legislative history, clearly imply that there are some constraints on the President’s discretion to delay making a determination. We begin by reviewing the textual and structural argu­ ments for the view that § 2410c in fact gives the President little or no discretion to delay making determinations. B. First, as we have already noted, §2410c(a)(l) clearly imposes a duty: it states that the President “ shall impose” the specified sanctions “ if [he] determines” that the predicate facts exist (emphasis added). “ Shall” here undoubtedly expresses a mandate.15 The duty to impose sanctions after a determination has been made suggests that there are limits on the President’s authority to postpone making the determination, once the facts relevant to the determination are before him. Second, the remainder of § 2410c confirms that Congress did seek to limit, in fact rather sharply, the President’s discretion over the timing of his determinations. The section expresses the sense of Congress that the President, after making a determination, “ immediately” consult with the foreign country that has jurisdic­ tion over the proliferator, and authorizes a 90-day delay in imposing sanctions to permit consultations with that country to go forward. A further 90-day delay is permitted upon an appropriate certification to Congress that the consultations are going forward. The fact that consultations are to occur “ immediately” after the determination, and that there can be delays in imposing sanctions for up to 180 post-determination days to allow the consultations to proceed, suggests that Congress intended to accommodate, structure and delimit the President’s ability to conduct diplomacy and to take account of foreign policy concerns before being bound to impose sanctions. Outside that statutory framework, however, it appears that discretion to withhold sanctions— and to postpone making the determinations that triggered them — was to be limited or non-existent. Given the breadth of Congress’s power over foreign commerce, such limitations on the President’s discretion are not on their face invalid. Third, in 1991, Congress codified CBW sanctions not only in the provisions at issue in title 50 appendix, but also in title 22.16 Thus, § 2 4 10c is in pari materia with the title 22 provisions. The latter provisions deal both with foreign govern­ ments and foreign persons. As noted earlier, the provisions of § 2798 of title 22, 15 See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 (1995); id. at 438-39 (Souter, J., dissenting). The legislative history (reviewed more fully in Part HI below) underscores the nondiscretionary nature of the sanctions that the language o f § 2410c conveys. 16 Indeed, the relevant provisions in title 22, like those in title 50 appendix, were enacted as part of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, Pub. L. No. 102-138, §505, 105 Stat. 647, 724 (“ FRA ” ), and superseded by virtually identical provisions in the CBW , Pub. L. No. 102-182, §305(b), 105 Stat. at 1250. These tw o 1991 enactments are discussed further in Part IV below. 313 Opinions o f the Office o f Legal Counsel in Volume 19 dealing with foreign persons, are virtually identical to the provisions of § 2410c o f title 50 appendix.17 Section 5604(a)(1) of title 22,18 which deals with the con­ duct of foreign governments, sets a specific, 60-day time limit for making presi­ dential determinations after “ persuasive information” becomes available to the executive branch that a foreign government is or has engaged in prescribed CBW uses.19 Nothing nearly so stringent was written into § 2410c, inviting the inference that the President is less time-constrained in making determinations under that section. On the other hand, 22 U.S.C. § 5605(d) authorizes the waiver of most of the sanctions imposed under that section if the President certifies to Congress that such waiver “ is essential to the national security interests of the United States.” Id. §5605(d)(l)(A)(i). N o such waiver authority is given in the case of foreign person sanctions under title 50 appendix.20 Thus, in the companion statutes to § 2410c, Congress limited the President’s discretion over the timing of sanctiontriggering determinations much more closely and explicitly, but also gave the President far broader power to waive sanctions. Overall, it appears to us, the Presi­ dent has broader discretion under the title 22 CBW provisions than under those in title 50 appendix. This outcome, we believe, reflects Congress’s judgment that the President’s constitutional foreign policy prerogatives are more deeply implicated, and so must be left less closely regulated, when country sanctions, rather than foreign person sanctions, are to be applied. C. The textual and structural analysis of § 2410c and related statutes is inconclu­ sive. On the one hand, there are strong arguments that the President is not wholly without discretion to delay making such determinations: the rule o f statutory construction relating to delegations of foreign policy power, coupled with the absence of a detailed time-frame in § 2410c for making determinations, and the general rule that administering agencies are allowed reasonable delays in such matters, suggest that the President’s discretion is by no means non-existent. On the other hand, there are also strong arguments for concluding that the statute leaves the President with little or no discretion to delay making § 2410c determina­ tions. 17 See supra notes 1,3. l8This section originated as section 506 o f the FRA, Pub. L. No. 102-138, 105 Stat. at 730, and was replaced by section 306 o f the CBW , Pub. L. No. 102-182, 105 Stat. at 1252. 19 The suggested dichotomy between foreign persons and foreign governments may operate imprecisely when the actions o f foreign parastata) entities are at issue. W hether either o r both sanctions’ regime? should be invoked in response to the conduct o f such entities will depend on the particular facts and circumstances o f each case. “ Section 2410c does not, in terms, include any “ w aiver” authority until after sanctions have been applied for at least 12 months. Implicit w aiver authority may be found in §2410c(c)(2), entitled “ Exceptions,” which states that the President “ shall not be required to apply or m aintain” sanctions if certain conditions hold. 314 Presidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 Given the uncertainty that remains after this examination of the statutory text and structure, we tum in the next Part to a consideration of the legislative and administrative history of § 2410c. IV. Section 2410c codifies section 305 of the CBW, 105 Stat. at 1247. It is virtually identical to a statute adopted very shortly before by the same Congress, the For­ eign Relations Authorization Act, Fiscal Years 1992 and 1993, Pub. L. No. 102138, § 505(a), 105 Stat. at 724.21 Section 309(a) of Pub. L. No. 102-182 repealed the earlier version. See CBW, 105 Stat. at 1258. Both Congress and the Bush Administration had desired the adoption of CBW nonproliferation legislation even before 1991, but differed sharply over particular proposals. In 1990, Congress passed H.R. 4653, title IV of which (the Omnibus Export Amendments Act of 1990), was substantially the same as both current § 2410c and that section’s immediate (but short-lived) precursor, title V of Pub. L. No. 102-138.22 President Bush pocket-vetoed H.R. 4653.23 In his memorandum of disapproval of November 16, 1990, President Bush declared his support for the “ principal goals” of H.R. 4653, but objected to provisions that, in his judg­ ment, “ unduly interfere[d] with the President’s constitutional responsibilities for carrying out foreign policy.” 24 He identified as “ [t]he major flaw” in H.R. 4653 “ not the requirement of sanctions, but the rigid way in which they are imposed.” 25 In lieu of signing H.R. 4653, President Bush issued an executive 21 Although there were minor differences, Pub. L. No. 102-138 closely resembled the successor statute, Pub. L. No. 102-182. See Statement on Signing Legislation on Trade and Unemployment Benefits, 2 Pub. Papers o f G eorge Bush 1543, 1544 (Dec. 4, 1991) ( “ This Act is virtually identical to Title V o f Public Law 102-138, which I signed into law on October 28, 1991. The only significant difference is the addition o f import sanctions to the list o f sanctions that are to be imposed and corresponding additions to the Presidential waiver provisions.'*); 137 Cong. Rec. 35,408 (1991) (remarks o f Rep. McCurdy) ( “ [T]he conference report on H.R. 1724 contains virtually all o f the provisions on chemical and biological weapons proliferations found in the conference report on H.R. 1415, the State Department authorization for fiscal years 1992 and 1993.” )22 Section 423(a) o f H.R. 4653, as enrolled and presented to the President, was virtually identical to § 2410c. Section 423(a) differed from what is now current law only in two minor respects. First, it did not provide that among the foreign countries, projects, o r entities whose CBW efforts it was sanctionable to assist were those des­ ignated by the President, as under §2410c(a)(2)(C). Second, it did not authorize an additional 90-day delay period for consultation with the foreign government o f jurisdiction before sanctions had to be imposed, as in §2410c(b)(2). 23 See H.R. Conf. Rep. No. 102-238, at 154 (1990), reprinted in 1991 U.S.C.C.A.N. 439, 496. 24Memorandum o f Disapproval for the Omnibus Export Amendments Act o f 1990, 2 Pub. Papers o f George Bush 1619 (Nov. 16, 1990). 25Id. The State Department had expressed objections to nondiscretionary sanctions early in the Bush A dministra­ tion, during hearings in 1989 before the House Foreign Affaire Committee. See Chemical Weapons Proliferation: Hearing and Markup o f H.R. 3033 Before the House Comm, on Foreign Affairs and its Subcomms. on Arms Control, International Security and Science, and on International Economic Policy and Trade, 101st Cong. 18 (1989) (col­ loquy between Chairman Dante Fascell and Assistant Secretary o f State H. Allen Holmes). The State Department repeated its objections in a letter from Secretary o f State James Baker to Senator Jesse Helms, relating to the Senate CBW bill, S. 195, 101st Cong. (1989). See Letter for Senator Jesse Helms from James D. Baker, Secretary of State (Oct. 16, 1990), reprinted in 136 Cong. Rec. 35,688 (1990). In response. Senator Helms defended the Senate bill’s provisions (which resemble later-enacted law) for nondis­ cretionary sanctions against foreign corporate CBW proliferators. He argued that “ the Senate version is very tightly Continued 315 Opinions o f the Office o f Legal Counsel in Volume 19 order, Executive Order No. 12735,26 that directed the imposition of the sanctions contained in H.R. 4653, and that implemented new chemical and biological weapon export controls.27 Early the following year, during the debate on S. 320, 102d Cong. (1991) the “ Omnibus Export Administration Act of 1991,” several Senators criticized Presi­ dent Bush’s pocket-veto of H.R. 4653. Senator Riegle, for example, disagreed with President Bush’s position in the pocket-veto message “ that imposing nonwaivable sanctions on companies that knowingly and materially assist in the development of chemical or biological weapons for use by countries that use them in violation o f international law is unjustifiable.” 137 Cong. Rec. 3777 (1991). He stated that “ [w]e simply must take a tough stand if we are to rid the world o f the threat o f such weapons.” Id.2S Later in 1991, Congress adopted H.R. 1415 which, as noted, was in all relevant respects the same as both the earlier, pocket-vetoed bill, H.R. 4653, and current § 2410c. President Bush signed H.R. 1415 into law as Pub. L. No. 102-138 on October 28, 1991. President Bush issued a signing statement on that occasion 29 As to the chemical and biological weapons provision in the legislation, the Presi­ dent stated: Title V, Chemical and Biological Weapons (CBW), raises con­ cerns with respect to both the President’s control over negotiations with foreign governments and the possible disclosure of sensitive information. Title V’s provisions establish sanctions against foreign companies and countries involved in the spread or use of chemical and biological weapons. Title V demonstrates that the Congress endorses my goal of stemming dangerous CBW proliferation. In draw n so that it applies sanctions only to violators who meet specific norms. I cannot imagine why my good friend, the Secretary, o r the President, would ever w ant the flexibility to exempt a corporation that is guilty o f proliferation o f chem ical and biological weapons and technology.’* 136 Cong. Rec. at 35,690. Senator Helms also explained, in a m anner that sheds some light on the existing statute, the procedure for making presidential determinations: “ [u]nder both the House and Senate bills, before sanctions can be imposed upon a foreign company, the President m ust first determ ine that the company had knowingly and either materially or substantially assisted the chemical or biological w eapons program of Iraq o r certain other outlaw nations. This is not an easy standard, and whether a com pany has met this standard is left to the discretion and judgm ent of the President.” Id. at 35,689. 26 See Exec. O rder No. 12735, 3 C.F.R. 313 (1991) reprinted in 50 U.S C § 1701 note (1994). 27 As President Bush characterized it, E xec. Order No. 12735 “ sets forth a clear set o f stringent sanctions, while encouraging negotiations with our friends and allies. It imposes an economic penalty on companies that contribute to the spread o f these weapons and on countries that actually use such weapons or are making preparations to do so. A t the sam e time, it allows the President necessary flexibility in implementing these sanctions and penalties.” 2 Pub. Papers o f G eorge Bush at 1619-20 (N ov. 16, 1990). 28 Senator Helms and Senator Heinz also criticized the pocket veto. See J 37 Cong. Rec. at 3780 (1991) (remarks o f Sen. H elms); id. at 3781 (remarks of Sen. Heinz). An Administration witness before the Senate Foreign Relations Com m ittee in M ay, 1991, reiterated the A dm inistration’s constitutional and foreign policy objections to specific m andatory sanctions. See Status of 1990 Bilateral Chemical Weapons Agreement and Multilateral Negotiation on Chemical Weapons Ban: Hearing Before the Senate Comm, on Foreign Relations, 102d Cong. 19 (1991) (remarks o f A m bassador Ronald F. Lehman, Director, U.S. Arms Control and Disarmament Agency). Nonetheless, the Presi­ dent did ultim ately sign a bill that provided only limited w aiver authority. 29 Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, 2 Pub. Papers o f G eorge Bush 1344 (Oct. 28, 1991). 316 Presidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 signing this Act, it is my understanding, as reflected in the legisla­ tive history, that title V gives me the flexibility to protect intel­ ligence sources and methods essential to the acquisition o f intel­ ligence about CBW proliferation. In part, such flexibility is avail­ able because title V does not dictate the timing o f determinations that would lead to sanctions against foreign persons.30 The legislative history to which President Bush referred appears to be a col­ loquy of October 8, 1991, between Representatives McCurdy and Berman.31 Rep­ resentative McCurdy was, at the time, Chair of the House Permanent Select Com­ mittee on Intelligence; Representative Berman was Chair of the Subcommittee on International Operations of the House Committee on Foreign Affairs. Because of its importance, the colloquy must be quoted at some length: Mr. McCURDY . . . I would like to clarify the provisions in H.R. 1415 that amend the Export Administration Act and the Arms Export Control Act to provide for sanctions against foreign compa­ nies involved in the development or production of chemical and biological weapons. These provisions mandate sanctions once the President makes a determination that a foreign person has “ know­ ingly and materially” contributed to the efforts by any foreign country to develop or use biological or chemical weapons. I strongly endorse this effort to sanction foreign companies involved in the proliferation o f chemical and biological weapons. I rise to clarify one point concerning the Presidential determinations called for in these provisions. It has come to my attention that, in rare circumstances, a premature determination might inhibit the flow of information which is necessary to the full imposition of sanctions against all violators. It seems to me that the President should be allowed to delay such a determination where it is nec­ essary to protect intelligence sources and methods which are being 30Id. at 1345 (emphasis added). 31 We note also that Congress had been advised in 1989, when considering earlier legislative proposals to sanction CBW proliferation, o f the need to protect intelligence methods and sources. Testifying before the Senate Foreign Relations Committee, the Director o f the Central Intelligence Agency, William Webster, answered a question from Senator Helms by saying, in part: 1 think we have to find a way o f using our intelligence, protecting our sources and our methods, so that we continue to collect intelligence, but to form a basis on which those laws [c]an be triggered, if they are passed. I do not mean to be too obscure in what 1 am saying. You can develop sanctions, but the proof o f the sanctions will depend upon some form o f evidence, and some o f the intelligence that we have is not readily convertible into evidence. Chemical and Biological Weapons Threat: The Urgent Need for Remedies: Hearings Before the Senate Comm. on Foreign Relations, 101st Cong. 45 (1989). 317 Opinions o f the Office o f Legal Counsel in Volume 19 used to acquire further, possibly more important, information on CBW proliferation. Is it your understanding that the protection o f intelligence sources or methods for the stated purpose may be a factor in deciding on the timing of a Presidential determination that a foreign person is contributing to CBW proliferation? Mr. BERMAN . . . [I]t is my understanding that the President, in rare circumstances, could delay a determination that a foreign person has knowingly and materially contributed to CBW prolifera­ tion if such a delay is necessary to protect intelligence sources or methods essential to the acquisition of further intelligence about CBW proliferation. Such a delay would be appropriate, for example, where the United States is using the sensitive intelligence sources or methods to gather information on other CBW proliferators, or where additional time is needed to develop nonsen­ sitive information that could be used to explain publicly the imposi­ tion o f sanctions. However, such a delay should not be indefinite, because the ultimate purpose of these provisions is to sanction those foreign persons that w e know to be knowingly and materially involved in CBW proliferation. Moreover, the delay should only be for the purpose of furthering our policy o f sanctioning those proliferators. A delayed determination would not be justified to fur­ ther any other policy. 137 Cong. Rec. 25,841 (1991). Very shortly afterward, Congress enacted substantially the same chemical and biological weapons provision by passing H.R. 1724 (signed into law as Pub. L. No. 102-182 on December 4, 1991). On November 26, 1991, after the submission o f the Conference Report on that legislation to the House of Representatives, Rep­ resentative McCurdy inserted into the record the entirety of his October 8, 1991, colloquy with Representative Berman, to clarify that the President would have the same authority under H.R. 1724 to protect intelligence sources or methods that he had under Pub. L. No. 102-138. See 137 Cong. Rec. 35,408 (1991). President Bush signed H.R. 1724 on December 4, 1991. In his signing statement, he pointed out that “ [t]his Act is virtually identical to Title V of Public Law 102-138, which I signed into law on October 28, 1991,” and affirmed that “ [t]he observations regarding Title V of Public Law 102-138 that I made upon signing that bill into law are equally applicable to the Act I am signing today.” 32 32 2 Pub. Papers o f George Bush at 1544 (Dec. 4, 1991). 318 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 We believe that this legislative and administrative history establishes that Con­ gress intended to give the President discretion to delay, temporarily, the making of § 2410c determinations, when such a delay is necessary to protect intelligence sources or methods used to further CBW nonproliferation activities. When the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 was enacted into law as part of the Foreign Relations Authorization Act, the President’s signing statement pointedly construed the statute, in light of its legislative history, to give him “ the flexibility to protect intelligence sources and methods essential to the acquisition of intelligence about CBW prolifera­ tion.” 33 Only a few weeks after the President had published this administrative construction, Congress enacted a virtually identical statute as part of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, Pub. L. No. 102-182. On signing the latter Act, the President reiterated the construction he had placed upon its immediate precursor.34 Although Congress had the oppor­ tunity to override or modify the President’s construction, it chose instead to enact a virtually identical measure. The President’s October 28, 1991, construction of §2410c is, under the par­ ticular circumstances of this case, authoritative. Congress was undoubtedly aware of this interpretation, which was prominently set forth in the President’s signing statement of that date. Moreover, the October 8, 1991, colloquy between Rep­ resentative McCurdy and Representative Berman, and the republication of that colloquy by Representative McCurdy on November 26, 1991, establish that Con­ gress acted in the belief that the President would retain some measure of discretion to delay making the statutory determinations. In our judgment, Congress’s decision to enact the CBW provision of Pub. L. No. 102-182 in November 1991, without in any way disturbing the interpretation set out by the President and by Represent­ atives McCurdy and Berman in October 1991, constitutes a ratification of that interpretation.35 33 2 Pub. Papers o f George Bush at 1345 (Oct. 28, 1991). M 2 Pub. Papers o f George Bush at 1543-44 (Dec. 4, 1991). 35 See, e.g., North Haven Bd. o f Educ. v. Bell, 456 U.S. 512, 535 (1982); FEA v. Algonquin SNG, Inc., 426 U.S. 548, 567-68, 570-71 (1976). Moreover, even apart from the earlier legislative and executive branch pronouncements, the President’s December 9, 1991, signing statement would be entitled to some weight in construing § 2 4 10c. “ The President, after all, has a part in the legislative process, too, except as to bills passed over his veto, and his intent m ust be considered relevant to determining the meaning o f a law in close cases.” United States v. Tharp , 892 F.2d 691, 695 (8th Cir. 1989) (Arnold, J.). See generally The Legal Significance o f Presidential Signing Statements 17 Op. O.L.C. 131 (1993). Reliance on a presidential signing statement may be particularly appropriate when (as here) the executive branch has played a significant role in developing the legislation. See, e.g., United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989); cf. Miller v. Youakim, 440 U.S. 125, 144 (1979). As a general matter, of course, the contempora­ neous construction o f a statute by the administering officials — in this case, the President — is to be accorded substan­ tial deference. See, e.g.. Power Reactor Dev. Co. v. International Union o f Elec., Radio and Mach. Workers, 367 U.S. 396, 408(1961). 319 O pinions o f the Office o f Legal Counsel in Volume 19 V. We are mindful of the fact that not all of the legislative history o f § 2410c supports our conclusion. We understand that the CIA made several attempts through informal communications with the House and Senate Foreign Affairs Committees to include a waiver provision or other mechanism for protecting intel­ ligence sources and methods in the bill. These efforts ultimately were unsuccess­ ful. Though we give due weight to the fact that Congress was aware of the issue, the House Foreign Affairs Committee’s failure or refusal to include in H.R. 1415 (or, for that matter, in the successor bill, H.R. 1724) the specific language that the CIA requested does not, in our view, undercut the claim that the President may temporarily delay making a determination to protect counterproliferation sources or methods. As the courts have said, any inferences based on congres­ sional silence of this kind are highly problematic. “ The advocacy of legislation by an administrative agency — and even the assertion of the need for it to accom­ plish a desired result— is an unsure and unreliable, and not a highly desirable, guide to statutory construction.” American Trucking Ass’ns v. Atchison, T. & S.F. Ry., 387 U.S. 397, 418 (1967); see also Rastelli v. Warden, Metro. Correctional Ctr., 782 F.2d 17, 24 n.3 (2d Cir. 1986). Moreover, the evidence indicates that Congress did not reject the CIA’s concept, even if it did not write the CIA’s language into the bill.36 The McCurdy-Berman colloquy reflects Congress’s intent in passing H.R. 1415, and we are aware of nothing in the record that contradicts it. Beyond that, the enactment o f H.R. 1724 after Representatives McCurdy and Berman had clarified the President’s authority to protect counterproliferation sources or methods and after President Bush’s October 28 signing statement had affirmed that he had such authority demonstrates clearly, in our view, that Con­ gress accepted such an interpretation as correct. VI. Although we have concluded that the President has some discretion to delay a determination under §2410c(a)(l), we emphasize that this discretion is not unlimited. In our judgment, the legislative history and administrative construction o f the CBW Act, reviewed above, make clear that, except in extreme cir­ cumstances as discussed below, the President may delay making a § 2410c deter­ mination only for the purpose o f advancing the counterproliferation policy of the statute (and not, e.g., for other foreign policy or intelligence-related reasons). More specifically, again with the exception noted below, we think that any delay is permissible only if the delay is necessary to protect intelligence sources or methods used in counterproliferation activities. These limitations are reflected both 36 W e note that neither H ouse o f Congress voted on and rejected the proposed language. 320 o Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 in President Bush’s signing statement and in the colloquy between Representatives McCurdy and Berman, which apparently informed President Bush’s interpretation of the statute.37 VII. We have also been asked to consider whether the President can delay making a sanctions determination when no reasonable alternative means exist to protect the life of an intelligence source. We conclude that he can. We believe that the President has the right, and indeed the duty, to protect the life of an intelligence source in such circumstances. This responsibility is rooted both in statutory law and in the President’s constitutional authority to pro­ tect national security.38 The President’s obligations towards any intelligence source whose life would be at risk in this case if a determination were made are thus in direct conflict with the President’s obligations under the CBW Act not to delay making a determination indefinitely, once the evidence establishes that a violation has taken place. Faced with such unavoidably conflicting obliga­ tions, we believe that the President may reasonably and lawfully conclude that the obligation to preserve the life of the source should prevail. As a constitutional matter, the President, as Commander in Chief, has the inherent authority to employ sources for gathering intelligence needed to protect the national security of the United States.39 The Executive’s authority to gather intelligence information, and the related authority to protect the sources and methods used in gathering it,40 were codified in the National Security Act of 1947, ch. 343, 61 Stat. 495 (codified as amended at 50 U.S.C. §§401-441d) (“ NSA” ). The NSA established the CIA and prescribed its responsibilities. In its current form, the statute declares that “ the Director of Central Intelligence shall be responsible for providing national intelligence . . . to the President” and to other high-ranking civilian and military officers in the executive branch. 50 U.S.C. §403-3(a)(l)(A ), (B). Furthermore, the Director “ shall . . . protect intelligence 37 The colloquy is quoted ui full supra pp. 16-17. 38 In situations in which the lives o f American citizens are in peril, indeed, the Supreme Court has suggested that the President has a constitutional duty to rescue them. See Slaughter-House Cases, 83 U.S. (16 W all.) 36, 79 (1872). Under the so-called Hostages Act, 22 U.S.C. §1732, the President also has a statutory duty in some circumstances to rescue American citizens held abroad. See Worthy v. Herter, 270 F.2d 905, 910 (D.C. C ir.) cert, denied, 361 U.S. 918 (1959). 39 See Totten v. United States, 92 U.S. 105, 106 (1876) (The President “ was undoubtedly authorized during (he [Civil] war, as commander-in-chief of the armies o f the United States, to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements o f the enemy.” ). Warrantless Foreign Intelligence Surveillance— Use o f Television— Beepers, 2 Op. O.L.C. 14, 15 (1978) (The President has the “ constitu­ tional power to gather foreign intelligence.” ). 40See New York Times Co. v. United States, 403 U.S. 713, 729-30 (1971) (Stewart, J., joined by W hite, J., concurring) (It is the executive branch’s “ constitutional duty” to “ protect the confidentiality necessary to carry out its responsibilities in the fields o f international relations and national defense.” ). 321 Opinions o f the Office o f Legal Counsel in Volume 19 sources and methods from unauthorized disclosure.” Id. § 403-3(c)(6). The Director is specifically charged to provide overall direction for the collection of national intelligence through human sources by elements of the intelligence community authorized to undertake such collection and, in coordination with other agencies of the Government which are authorized to under­ take such collection, ensure that . . . the risks to the United States and those involved in such collection are minimized. Id. § 403-3(d)(2) (emphasis added).41 In CIA v. Sims, 471 U.S. 159 (1985), a case decided before the National Security Act was amended to include the language quoted immediately above, the Supreme Court considered the nature and scope of the Agency’s responsibilities to protect its intelligence sources. Sims was an action under the Freedom of Information Act (“ FOIA” ) to compel the Agency to disclose the names of individual researchers who had worked on an Agency-funded project. In declining to make such disclosure, the Agency relied on section 102(d)(3) of the NSA, a precursor of current 50 U.S.C. § 403-3(c)(6). That section, formerly codified as 50 U.S.C. § 403(d)(3), provided that the Director “ shall be responsible for protecting intel­ ligence sources and methods from unauthorized disclosure.” NSA, § 102(d)(3), 61 Stat. at 498. The Court held that the Director was indeed authorized to withhold the identities o f the researchers from disclosure under FOIA. Sims, 471 U.S. at 177. In reaching that conclusion, the Court repeatedly emphasized the breadth of the Agency’s power and responsibility to protect the identities of its sources. It stated that: Congress chartered the Agency with the responsibility of coordi­ nating intelligence activities relating to national security. In order to carry out its mission, the Agency was expressly entrusted with protecting the heart of all intelligence operations— “ sources and methods.” Id. at 167 (footnote omitted). Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure. 41 The duties and powers o f the Director under the National Security Act are generally subject to the control o f the President and exercised under the President's authority as C hief Executive. See generally Steven G. Calabresi and Saikrishna B. Prakash, The President’s Power to Execute the Laws , 104 Yale L.J 541, 595-96 (1994). 322 Presidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination A ct o f 1991 Id. at 168-69. Congress entrusted this Agency with sweeping power to protect its “ intelligence sources and methods.” Id. at 169. Section 102(d)(3) specifically authorizes the Director of Central Intelligence to protect “ intelligence sources and methods” from disclosure. Plainly the broad sweep of this statutory language com­ ports with the nature of the Agency’s unique responsibilities. . . . [T]he Director must have the authority to shield those Agency activities and sources from any disclosures that would unnecessarily compromise the Agency’s efforts. Id. The “ statutory mandate” of § 102(d)(3) is clear: Congress gave the Director wide-ranging authority to “ protec[t] intelligence sources and methods from unauthorized disclosure.” Id. at 177 (alteration in original). The Court also found substantial support in the legislative and administrative history of the Act for its view that the Director had “ broad power to protect the secrecy and integrity of the intelligence process,” because “ without such protections the Agency would be virtually impotent.” Id. at 170. It stated: Congress was . . . well aware of the importance of secrecy in the intelligence field. Both General Vandenberg and Allen Dulles testified about the grim consequences facing intelligence sources whose identities became known. Moreover, Dulles explained that even American citizens who freely supply intelligence information “ close up like a clam” unless they can hold the Government “ responsible to keep the complete security of the information they turnover. . . . ” Against this background highlighting the requirements of effec­ tive intelligence operations, Congress expressly made the Director of Central Intelligence responsible for “ protecting intelligence sources and methods from unauthorized disclosure.” This language stemmed from President Truman’s Directive of January 22, 1946, 11 Fed. Reg. 1337, in which he established the National Intelligence Authority and the Central Intelligence Group, the Agency’s prede- 323 Opinions o f the Office o f Legal Counsel in Volume 19 cessors. . . . The fact that the mandate of § 102(d)(3) derives from this Presidential Directive reinforces our reading of the legislative history that Congress gave the Agency broad power to control the disclosure of intelligence sources. Id. at 172-73 (citation omitted). Finally, in rejecting the court of appeals’ position that the Agency’s authority to protect sources applied only to sources who provided information unobtainable without a guarantee of confidentiality, the Court underscored the “ harsh realities” o f intelligence-gathering and the “ dangerous consequences” of a more permissive disclosure rule. Id. at 174. This forced disclosure o f the identities of its intelligence sources could well have a devastating impact on the Agency’s ability to carry out its mission. “ The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” Snepp v. United States, 444 U.S. 507, 509, n.3 (1980) (per curiam). See Haig v. Agee, 453 U.S. 280, 307 (1981). If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relationship to them, many could well refuse to supply information to the Agency in the first place. Id. at 175. As stated above, the National Security Act has been amended since Sims was decided. The Intelligence Organization Act o f 1992, Pub. L. No. 102-496, §§701706, 106 Stat. 3180, 3188, added a new section 103 to the National Security Act. Id. sec. 705(a), § 103, 106 Stat. at 3190. New section 103(c)(6) of the NSA, see 50 U.S.C. §403-3(c)(6), states that the Director “ shall . . . protect intelligence sources and methods from unauthorized disclosure.” Former, section 102(d)(3), see 50 U.S.C. §403, the provision construed in Sims, had stated in virtually iden­ tical terms that the Director “ shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” The language of the current statute, if anything, demonstrates even more clearly that the Director has an affirmative obligation to protect sources: it states that the Director “ shall” protect such sources, not that he only “ shall be responsible” for their protection.42 Thus, 42 M oreover, the legislative history of th e 1992 provision reveals that Congress was aware o f the Sims decision and, while not expressly ratifying it, also d id not intend to disturb it. In explaining the current provision, the House C onference Report stated that the conferees wish to m ake clear that by including w ithin the responsibilities o f the Director of Central Intelligence the responsibility to protect intelligence sources and methods from unauthorized disclosure, 324 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act o f 1991 we believe that the duty to protect intelligence sources is at least as stringent under the current statute as it was under its predecessor.43 Moreover, the Intelligence Organization Act altered the National Security Act in another important and relevant respect. Under section 103(d)(2) o f the National Security Act, as amended in 1992, see 50 U.S.C. § 403-3(d)(2), the Director is required to ‘ ‘ensure that. . . the risks to . . . those involved in such [intelligence] collection are minimized.” This new language, which had no counterpart in the prior version o f the National Security Act, heightens the Director’s protective responsibilities towards the “ human sources,” id., who are engaged in intelligence-gathering on the Agency’s behalf. Under the National Security Act, then, the President has an obligation to protect any intelligence source whose life would be endangered if the President deter­ mined that the foreign firm that employed the source had engaged in unlawful CBW proliferation. The President’s statutory responsibilities under the two statutes are therefore in conflict in the particular circumstances of this case. In general, if the President’s legal obligations appear to conflict, we believe that his overriding duty to “ take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3 , cl. 3, requires him to attempt to discover some reasonable means by which the conflict could be resolved and both duties discharged. In considering the possibly conflicting obligations imposed by the two statutes at issue here, due weight must be given to the fact that Congress was aware of the executive branch’s concern that strict compliance with the terms of the CBW Act might compromise the protection of intelligence sources in some circumstances, yet failed to afford the President explicit authority to delay a determination or waive sanctions if necessary to protect intelligence sources and methods except to the extent necessary to continue to gather intelligence related to the proliferation activities sanctioned under the Act. That Congress afforded only a limited excep­ tion for the protection of intelligence sources and methods obligates the President to make determinations even when there is some risk that intelligence sources and methods will be compromised, and to take other reasonable measures to pro­ tect intelligence sources and methods from disclosure. We are informed that in some circumstances, however, if the President can secure the life o f the intelligence source at all, he can do so only by means that would expose the lives and safety of American personnel to substantial risk. We do not believe that the President’s duty of rescue requires him to make such extraordinary efforts.44 Short of taking such action, however, we understand that the conferees take no position with respect to the interpretation o f similar language in existing law in CIA v. Sims, 471 U.S. 159 (1985). H.R. Conf. Rep. No. 102-963, at 88 (1992), reprinted in 1992 U.S.C.C.A.N. 2605, 2614. 43 We note that the Supreme Court considered even the prior section to be a “ m andate.” Sims, 471 U.S. at 177. 44 W hen a statute imposes a duty, it “ authorizes by implication all reasonable and necessary m eans to effectuate the duty.” Supremacy Clause (Art. VI, cl. 2)— Central Intelligence Agency— Polygraph Examinations o f Employee o f CIA Contracts, 2 Op. O.L.C. 426, 427 (1978). The President could properly conclude that the risks to the lives Continued 325 Opinions o f the Office o f Legal Counsel in Volume 19 the President can protect the life of the source by forbearing to make the deter­ mination, otherwise required by the CBW Act, that the source’s employer is sub­ ject to sanctions. There is no evidence that Congress considered the possibility of this extreme dilemma when it passed the CBW Act. In these highly unusual circumstances, we believe that the President has the legal discretion to defer making the CBW Act determination, for so long as such a deferral is necessary to protect the life of the source. Conclusion The President may delay making CBW Act determinations if a delay is nec­ essary to protect intelligence sources or methods needed to acquire intelligence relating to CBW proliferation. He may also delay making such a determination when no other reasonable means exists for protecting the life of an intelligence source.45 Application of these legal standards to particular intelligence-gathering oper­ ations may prove to be difficult or complex, and will undoubtedly require careful assessments of the specific facts in each case. Please let us know if further advice from our Office on particular applications would be helpful. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel o f the G overnm ent agents o r military personnel who would be used in a rescue attempt would make such a course o f action unreasonable. See Durand v. Hollins , 8 F. Cas. I l l , 112 (C.C.S.D.N.Y 1860) (No. 4186) (Nelson, J., sitting as C ircuit Justice) (W hether the President had a duty to protect American citizens whose lives and property were threatened in a foreign tumult “ was a public political question . . . which belonged to the executive to deter* m ine.” ). 45 W e do not mean to exclude the possibility that the President may be legally able to delay making a determination in other circum stances that have not yet been presented to us for consideration. 326

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Starting Date for Calculating the Term of an Interim United States Attorney Under 28 U.S.C. § 546(c)(2), the 120-day term of an interim U nited States A ttorney appointed by the Attorney G eneral is calculated from the date o f the appointm ent, rather than the date on which the vacancy occurred. March 10, 2000 M em orandum O p in io n f o r t h e D eputy A tto rney G en era l You have asked for our opinion whether the 120-day term of an interim United States Attorney appointed by the Attorney General begins to run on the date of the vacancy or on the date of the appointment. See 28 U.S.C. §546 (1994). Although under a number of statutes the term of service is calculated from the date of the vacancy,1 the 120-day period in § 546(c)(2) is calculated from the date of the appointment by the Attorney General. Subsection 546(a) provides that the Attorney General may, subject to certain limitations, “ appoint a United States attorney for the district in which the office of United States attorney is vacant.” Subsection 546(c), in turn, delimits the term during which such a United States Attorney may serve. Under that provision, a United States Attorney appointed by the Attorney General may serve until the earlier of (1) the qualification of a United States Attorney appointed by the Presi­ dent under 28 U.S.C. §541 or (2) “ the expiration of 120 days after appointment by the Attorney General under this section.” 28 U.S.C. § 546(c).2 Our conclusion that the 120 days begins upon appointment by the Attorney General is based first and foremost on the plain language of § 546(c)(2). See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“ Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” (internal citation omitted)). The 120-day time period, by the terms of the statute, unambiguously begins with the Attorney General’s appointment: “ the expiration of 120 days after appointment by the Attorney General under this section.” 28 U.S.C. § 546(c)(2) (emphasis added). The language, moreover, is consistent with the nature of the appointment under § 546. Unlike statutes providing for the designation of an acting officer, § 546 provides for the appointment of a full fledged United States Attorney. See United 1See. e.g., 5 U.S.C. §3346(a)(l) (Supp IV 1998) (“ may serve in the office — (1) for no longer than 210 days beginning on the date the vacancy occurs” ), 28 U.S.C §992(a) (1994) (six year staggered terms for members of the United States Sentencing Commission). 2 In addition to appointment by the Attorney General, § 546 provides a second mechanism for appointing an interim United States Attorney If the 120-day term o f a United States Attorney appointed by the Attorney General expires, the district court “ may appoint a United States attorney to serve until the vacancy is filled ” 28 U .SC § 546(d). 31 Opinions o f the Office o f Legal Counsel in Volume 24 States v. Gantt, 194 F.3d 987, 999 n.5 (9th Cir. 1999) ( “ Section 546(d) appoint­ ments are fully-empowered United States Attorneys, albeit with a specially limited term, not subordinates assuming the role of ‘Acting’ United States Attorney.” ). As a general rule, “ when a statute provides for an [officer] to serve a term of years, the specified time of service begins with the appointment,” except for a multi-member body with staggered terms, in which case the term is calculated from the expiration of the prior term in order to maintain the stagger. Term o f a M em ber o f the M ississippi River Commission, 23 Op. O.L.C. 123, 123 (1999). Since there is no issue regarding staggered terms here, the general rule would apply. In addition, while we are unaware of any cases specifically addressing when the 120-day period begins, courts have generally assumed that that period is cal­ culated from the date of the appointment, rather than from the date of the vacancy. When explaining that the 120-day period under § 546(c)(2) has expired in par­ ticular cases, courts have usually identified the date on which the appointment was made and the date 120 days after the appointment, without referring to when the vacancy itself first arose. See, e.g., United States v. Colon-Munoz, 192 F.3d 210, 216 (1st Cir. 1999), cert, denied, 529 U.S. 1055 (2000); In re Grand Jury Proceedings, 673 F. Supp. 1138, 1139 (D. Mass. 1987). Finally, because the authority for the Attorney General to appoint a United States Attorney was added to § 546 as a late amendment to more general legisla­ tion, there is very little legislative history on the provision. The legislative history that exists, however, is consistent with the conclusion that the 120-day period is to be calculated from the date of the appointment, rather than from the date of the vacancy: “ a person appointed by the Attorney General serves only fo r 120 days, or until a person appointed to the office by the President has qualified, if that is earlier.” 132 Cong. Rec. 32,806 (1986) (statement of Rep. Berman) (emphasis added). The focus is on the length of the interim United States Attor­ ney’s service, rather than the length of time since the vacancy arose. Cf. Doolin Sec. Sav. Bank v. Office o f Thrift Supervision, 139 F.3d 203, 209 (D.C. Cir. 1998) (concluding that the language of the Vacancies Act supports calculating its time limits from the President’s designation, rather than the vacancy, because the Act speaks in terms of “ how long the position may be ‘filled,’ not when the President must do the filling” ). For these reasons, we conclude that the 120-day period in § 546(c)(2) is cal­ culated from the date of the appointment by the Attorney General. RANDOLPH D. MOSS Acting Assistant Attorney General Office o f Legal Counsel 32

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O ctober 18, 1977 77-59 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Members of Congress Holding Reserve Commissions This responds to your request for our opinion respecting the matter of Members of Congress holding commissions as officers in the Armed Forces Reserves. The m atter originated in a letter from a Member of Congress to the President. That letter requests the President to stop the practice of allowing Members of Congress who hold reserve commis­ sions to receive pay, earn retirement credit, or advance in rank while serving. The letter alluded to the implicit pressure on the Armed Forces to prom ote these officers as a source o f impropriety, and stated that the “provision of the Constitution preventing Congressmen from holding any other office” has not yet been brought to bear on the problem. W e have been informed that your principal concern is whether this constitutional provision, th e Incompatibility Clause,1 requires the Presi­ dent to take action with respect to the reserve commissions currently held by Members of Congress. It is our opinion that the exclusive responsibility for interpreting and enforcing the Incompatibility Clause rests w ith Congress. Background We are informed by the Departm ent of Defense that 25 Members of Congress now hold commissions in the reserves: one in the Ready Reserve, 11 in the Standby Reserve in active status, and 13 in the Standby Reserve in inactive status. (a) Reserve officers below the rank o f lieutenant colonel or com­ m ander are appointed by the President alone; those above, with the Senate’s advice and consent. All serve at the President’s pleasure.2 (b) Members of the Ready Reserve are required to attend a minimum amount o f annual training, for which they receive pay and retirement 1 A rt. I, § 6, Cl. 2, quoted infra. * 10 U.S.C. § 593(aMb). 242 credits.3 They may be called to active duty for up to 24 months during a national emergency declared by the President.4 (c) Members of the Standby Reserve on active status are not required to attend training but may voluntarily do so for promotion and retire­ ment credits.5 They may be called to active duty in time of war or national emergency declared by Congress if the Selective Service System determines that they are available.6 Members on inactive status do not train, do not receive either pay or pension credits, and are ineligible for promotion.7 (d) In addition to their other active duty obligations, members of the Ready and Standby Reserves in active status may be ordered to active duty for up to IS days per year at any time.8 Current Department of Defense regulations require Members o f Con­ gress in the Ready Reserve to be transferred to the Standby Reserve.9 Once transferred, they may volunteer for active status in the Standby Reserve.10 Members who were on inactive status when they entered Congress apparently remain there. Thus, at least 12 Members o f Con­ gress are eligible to earn promotion and retirement credits by voluntary participation in military training. The others who hold commissions derive no formal benefits from them. One attempt was made to end this practice by litigation. In Reservists Committee to Stop the War v. Laird, 323 F. Supp. 833 (D. D.C., 1971), a ffd without opinion, 495 F. 2d 1075 (D.C. Cir. 1974), the District Court held that a reserve commission was an office under the United States within the meaning of the Incompatibility Clause and entered a declara­ tory judgment that a Member of Congress was ineligible to hold a commission during his continuance in office. The Supreme Court re­ versed on the ground that plaintiffs, as members of the general public, lacked standing to sue. It did not reach the merits. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216-27 (1975). The Constitutional Provisions Involved Article I, § 6, Cl. 2, of the Constitution provides: No Senator or Representative shall, during the time for which he was elected, be appointed to any Civil Office under the Authority of the United States, which shall have been created, or the Emolu­ • See 10 U.S.C. §§ 1331-32; 37 U.S.C. §§ 204(aX2), 206(a). 4 10 U.S.C. §§ 673(a), 674(a). Members o f the Ready Reserve may also be called to active duty for the duration of any war or national emergency declared by Congress. 10 U.S.C. § 672(a). • 10 U.S.C. § 273(a); 32 CFR § 102.3(c); D O D Dir. 1215.6, para. V. C. 2.a.(4). • 10 U.S.C. §§ 672(a), 674(a). ’ See 10 U.S.C. § 273(c); 32 C FR § 136.3(b)(1); D O D Dir. 1215.6, para. V.C. 2.b. • 10 U.S.C. § 672(b). The statue does not apply to reserves on inactive status, but Department of Defense regulations allow an inactive reservist to be restored to active status and called up. See 32 CFR § 136.3(bX3). • 32 C FR § 125.4(cX2). 32 C FR § 102.3(0. 243 ments whereof shall have been increased during such time; and no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office. Article I, § 5, Cl. 1, provides: Each House shall be the Judge of the Elections, Returns and Qualifications of its own members. A rticle II, § 2, Cl. 2, provides: He [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 Appointments 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 Heads of Departments. Discussion It should be noted that the first portion of Article I, § 6, Cl. 2, restricts the President’s pow er to appoint Members o f Congress to civil offices, while the second portion of the clause declares that no person w ho holds any office shall be a Member o f Congress while he or she retains that office. It has long been settled within the executive branch that the President, in exercising his powers of appointment under Arti­ cle II, § 2, Cl. 2, will not make an appointment in violation of the first portion of the clause. See, e.g., 42 Op. Atty. Gen. No. 36; 17 Op. Atty. Gen. 365 (1882). On the other hand, as far as we know, the President has never undertaken to enforce the second portion of the clause, which disqualifies individuals who have already been appointed from assuming or retaining seats in Congress.11 In* his brief to the Supreme Court in the Reservists Committee Case, the Solicitor General argued that “ [b]y its terms, history, and long Congressional construction, the clause constitutes a qualification for membership in Congress— no one occupying such an office may serve as a Senator or Representative. . . .” And, he continued, the determi­ nation o f w hether the clause is violated is “a determination which under Article I, § 5, clause 1 of the Constitution, only the Congress can make.” 12 11 In 40 Op. A tty. Gen. 301 (1943), A ttorney General Biddle advised President Roose­ velt that the pow er to enforce A rt. I, § 6, Cl. 2, rested w ith Congress and that the House o f Representatives had in the past disqualified Members w ho accepted military commis­ sions for active service. He concluded that it would be a “sound and reasonable policy” for the President to avoid any possible conflict with the clause by not permitting Members o f Congress to serve o n active duty. We do not know what action, if any, the President took in response to the opinion. 12 Brief for Petitioner at 8, O.T. 1973, No. 72-1188. 244 Moreover, we suggest that it would be undesirable for the President himself to attempt to confront the problem. If he were to inform the Congressman that in his view the holding o f reserve commissions by Members of Congress did violate Article I, § 6, clause 2, that determi­ nation certainly would not bind the Congress. Conversely, if he stated that the practice was permitted by the Constitution, Congress could enforce the clause against its Members notwithstanding.13 L eon U lm an Deputy Assistant Attorney General Office o f Legal Counsel “ The Solicitor General argued for the executive branch at length that a commission in the Armed Forces reserves is not an “Office under the United States” within the meaning of Article I, § 6, Clause 2. The details of the argument appear at pages 31-42 o f the brief. As we have pointed out above, the Supreme Court did not reach the question. 245

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White House Communications Agency Expenses Incurred on Political or Personal Travel by the President W h e n th e W h ite H o u s e C o m m u n ic a tio n s A g e n c y a c c o m p a n ie s th e P re s id e n t o n tra v e l, it m a y (a n d s h o u ld ) u se a p p ro p ria te d fu n d s to p a y fo r a n y e x p e n s e in c u rre d f o r a c tiv itie s in f u r th e r­ a n c e o f its o ffic ia l m issio n to p ro v id e a c o n tin u o u s c o m m u n ic a tio n s c a p a b ility to th e P re s id e n t a n d h is a d v is o r s , re g a rd le ss o f w h e th e r the travel is fo r o fficial, political, o r perso n al p u rp o se s. T h e W h ite H o u s e C o m m u n ic a tio n s A g e n c y m a y u s e a p p ro p ria te d fu n d s to p a y fo r e x p e n s e s in c u r r e d in c o n n e c tio n with th e p ro v is io n o f c o m m u n ic a tio n s fa c ilitie s a n d s e rv ic e s f o r the o f f ic ia l u s e o f th e P resid e n t a n d h is s ta ff d u rin g P re s id e n tia l travel. A p p r o p r ia te d fu n d s m a y be e x p e n d e d to fa c ilita te o fficial, b u t no t p o litic a l, c o m m u n ic a tio n b e tw e e n th e P r e s id e n t and the p re s s. October 22, 1990 M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t This memorandum responds to your request for our opinion on which expenses of the White House Communications Agency (“WHCA”), if any, may be paid from appropriated funds when the President travels for political or other non-official purposes. We conclude for the reasons set forth below that virtually all of the activities which you have informed us that WHCA undertakes in connection with travel by the President are in furtherance of WHCA’s official mission, and thus may be - indeed, should be — paid for out of appropriated monies, whether the President’s trip is official, political, or personal in nature.1 I. WHCA is a component o f the White House Military Office, responsible for providing continuous communications services to the President, his se­ nior staff, and the Secret Service, both at the White House and during presidential travel, domestic or international. Your memorandum of March 1 W e a d d re sse d in tw o p rio r opinions the general q u e stio n o f the allocation o f expenses for political trip s tak en by th e P resid e n t. See Payment o f Expenses Associated with Travel by the President and Vice President, 6 O p. O .L C . 214 (1982) (“ O lso n M em o ran d u m ” ); M em orandum fo r R obert J. L ip sh u tz, C o u n se l to th e P resid e n t, from John M . H arm on, A cting A ssistant A ttorney G en eral, O ffice o f Legal C o u n se l (M ar. 15, 1977) (“ Harmon M em o ran d u m "). 144 28, 1990, details the principal functions performed by WHCA in connection with a routine presidential trip.2 Approximately one week prior to a presi­ dential visit, WHCA travels to the site, establishes staff offices, and installs telephone lines, satellite terminals, and other equipment necessary for con­ tinuous communications capability. These facilities and equipment are then used during the President’s trip for communications between the President, his senior advisers, and the Secret Service, and the other departments and agencies of government and the general public. Staff telephones are gener­ ally provided “to permit staff and trip coordination.” Nelson Memorandum at 2. The White House staff has been advised repeatedly, however, that it may not use WHCA communications equipment “for direct political pur­ poses such as campaign fundraising and crowd-building.” Id. WHCA, as one of its communications functions, also arranges for the President’s access to and communication with the press. One or two WHCA officers “provide services used in routine press advance work” for each site. Id. WHCA establishes an emergency press briefing center at each site for use if required. For official presidential events, WHCA provides lighting and sound equip­ ment. At political events, these services are procured from private sources, with WHCA merely providing technical advice. At all events, “WHCA controls the ‘feed’ to the sound system and shuts down power to the micro­ phones at the appropriate conclusion of remarks.” Id. WHCA furnishes a teleprompter whenever required, regardless of the nature of the event. Certain WHCA communications functions also serve a security purpose. For instance, WHCA provies a bullet-proof podium for presidential events. WHCA also “sets up emergency public address system speakers at each site, primarily for purposes of crowd control in case of an emergency.” M 3 II. The legal principles governing payment of WHCA expenses are set forth in the Olson Memorandum. In that memorandum, we identified two “major principles” of appropriations law applicable in this and similar contexts. First, “appropriated funds may be spent only for the purposes for which they have been appropriated.” Olson Memorandum at 215. Second, “in general, official activities should be paid for only from funds appropriated for such 2 See M em orandum fo r M ike L u ttig , D eputy A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, from F red erick D. N elson, A ssociate C o u n sel to the P resident (M ar. 28, 1990) (“ N elson M em orandum ” ). J W e un d erstan d th a t the W H C A fu n ctio n s d e ta iled in th is m em o ran d um m ay not be e x h a u stiv e a n d th a t you m ay need to retu rn to th is O ffice fo r a d v ice on th e p ro p e r tre a tm e n t o f ex p en se s in cu rred in c o n n e c tio n w ith fu n c tio n s not id en tified herein. 145 purposes, unless Congress has authorized the support of such activities by other means.” Id. at 216.4 Over the years, this Office has considered against the backdrop of these twin principles a variety of issues arising out of presidential trips on which political business is conducted.5 We have consistently concluded with respect to these so-called “mixed” trips that while political activities must be paid for by political organizations,6 appropriated funds must be used to pay ex­ penses incurred in connection with the performance of official duties during presidential travel, regardless of the purpose of the travel. We have specifi­ cally noted that certain individuals are required in the performance of their official duties to accompany the President whenever he travels, and that expenses of such individuals should be paid from official sources: [T]here are some persons whose official duties require them to be with the President, whether or not the President himself is on official business. . . . A similar group would exist for the Vice President. Expenses incurred during travel with the Presi­ dent or Vice President by this group of individuals should be considered official regardless of the character of the event that may be involved in a given trip. Id. at 217-18 (footnotes omitted); see also id. at 218, 221. The President’s military aide and doctor, for example, accompany the President on all of his travel, but we have said that their expenses should be paid from appropriated monies. See id. at 217-18. The official nature of the responsibilities performed by these persons does not change depending upon whether the trip is official, political, or personal. All of these persons are, when performing the duties described, engaged in the official business of the United States, and thus their expenses must be paid from public funds. WHCA is an obvious example of a group that, like the military aide and the President’s doctor, performs official responsibilities for the President when he travels, regardless of whether the travel is official, personal, or political. We have never squarely addressed whether expenses incurred in the performance of these responsibilities may be paid from appropriated 4T h e first p rin c ip le d e riv e s from th e statutory re q u ire m e n ts o f 31 U .S .C . § 1301(a). T he second p rin ­ c ip le , u n d e r w h ich th e executive b ranch m ay not au g m en t its appropriations, is asserted by the C o m p tro l­ le r G e n e ra l to be a c o ro lla ry o f C o n g ress’ co n stitu tio n al p o w e r to co n tro l the T reasury. See U .S . G eneral A c co u n tin g O ffice, O ffice o f G eneral C o u n sel, P rinciples o f Federal Appropriations Law 5-62 to 5-63 (1 st ed. 1982) (e x p la in in g the non-augm entation p rin cip le). 5See, e.g.. M em o ran d u m for Fred F. F ield in g , C ounsel to the President, from T h eo d o re B. O lson, A ssis­ tan t A tto rn e y G en eral, O ffice of Legal C o u n sel (Apr. 21, 1982); M em orandum for the H on. M yer Feldm an, S p e c ia l C o u n se l to th e President, fro m N o rb ert A. S ch lei, A ssistant A ttorney G en eral, O ffice o f Legal C o u n se l (A u g . 2 0 , 1964). 6See, e.g., M em o ran d u m for the H o n . Lloyd N . C u tler, C ounsel to the P resident, from L eon U lm an, D e p u ty A ssista n t A tto rn e y General, O ffice o f L egal C o u n se l (Sept. 17, 1980). 146 funds when the travel is for personal or political purposes, but we have always assumed that they should be. For example, we observed in 1977 that, [n]o reimbursement to the Government should be required, even on non-official travel, for accompanying staff and sup­ port personnel required for the President and Vice President to perform their official duties. This would include the Secret Service, military aides and support personnel, communications personnel, and whatever other staff the President and Vice President require for advice and assistance in transacting the public business. Harmon Memorandum at 9 (emphasis added).7 Now that we are directly confronted with the question, we conclude that WHCA may — and indeed should — use appropriated funds to pay for any expense incurred for activi­ ties in furtherance of its official mission when it accompanies the President on travel for either personal or political purposes. Our conclusion that these expenses should be paid from appropriated funds is consistent with the treatment of such expenses under the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-456 and the Presidential Election Campaign Fund Act (“PECFA”), 26 U.S.C. §§ 9001-9013.8 Generally, Secret Service, WHCA, or other official expenses are not campaign “expendi­ tures” under the FECA or “qualified campaign expenses” under the PECFA.9 Under the regulations promulgated pursuant to the FECA, if a candidate for federal office, other than a candidate for President or Vice President who receives federal funds under the PECFA, “uses government conveyance or accommodations for travel which is campaign-related,” then the candidate must report as an “expenditure” under the FECA “the rate for comparable ’ See also H arm on M em o ran d u m at 15-16: T h e P resid en t and Vice P resid en t should be p ro v id ed all staff and o th e r a ssistan c e as req u ired fo r su p p o rt o f the official responsibilities o f th o se officers regardless o f location. T h is w o u ld o rd in a rily include . . . communications facilities fo r control and administration o f the armed fo rces and other agencies o f the Government[.] (E m phasis added). ’ T he H arm on M em o ran d u m did not reference the Federal E lectio n C o m m ission (“ FE C ” ) re g u la tio n s in force at the tim e. See H arm on M em orandum at 20-21. The O lson M em orandum exp licitly d e clin ed to a ddress FE C rules ap p licab le d uring federal elections. O lson M em orandum a t 214. ’ T he treatm en t o f W H C A expenses under the FE C A o r the PECFA is not n ecessarily d isp o sitiv e o f w h eth er such e x p en ses m ay be paid from appropriations. W hile it likely w ill often be the case th a t o fficial e xp en ses p ro p erly payable from appropriations w ould not be cam paign "ex p en d itu re s” o r “ q u a li­ fied c am paig n e x p en se s” fo r the purposes o f these Acts, and conversely that expenses that are “e x p e n ­ d itu res” o r “ q u alified cam p aig n e x p en ses" w ithin th e m eaning o f those A cts w ould not be pay ab le fro m a p p ropriatio n s, th is n e ed not be true. See, e.g.. 11 C F.R. § 900 4 .6 (1981) (S ecret S e rv ic e tra n sp o rta ­ tion paid by an au th o riz e d com m ittee “ shall be qualified cam paign ex p en ses,” a lthough to the ex te n t that the g ov ern m en t reim b u rses such expenses, they are not “ ex p en d itu res" under the F E C A ), am ended by 4 8 Fed. R eg. 3 1 ,8 2 2 , 31,822 (1983) (deleting language referrin g to S ecret Service e x penses); see discussion infra p. 150. 147 commercial conveyance or accommodation.” 11 C.F.R. § 106.3(e) (1981).10 The regulations make clear, however, that expenses associated with staff and equipment authorized by law or necessary for national security are not “ex­ penditures” reportable under this section: In the case o f a candidate authorized by law or required by national security to be accompanied by staff and equipment, the allocable expenditures are the costs of facilities sufficient to accommodate the party, less authorized or required person­ nel and equipment. Id. (emphasis added). Accordingly, the expenses associated with such au­ thorized or required personnel are not included in calculating the amount that must be reported as an “expenditure” under this regulation. A sim ilar rule applies to travel of the President when, as a participating candidate under the PECFA, he campaigns for his own renomination or reelection or when he is campaigning on behalf of other federal candidates. The regulation governing presidential campaign travel during the general presidential election campaign11 states that [i]f any individual, including a candidate, uses government conveyance or accommodations paid for by a government en­ tity f o r campaign related travel, the candidate’s authorized com m ittee shall pay the appropriate government entity an amount [calculated according to a specified formula], 11 C.F.R. § 9004.7(b)(5) (1981) (emphasis added).12 Any such repayable expenses are defined as “qualified campaign expenses” under the PECFA and must be reported as “expenditures” under the FECA. Id. § 9004.7(a). However, an individual’s travel is a campaign expenditure only if that in d ivid u a l’s travel is “campaign-related.” 13 Because personnel, like Secret Service agents and WHCA employees, accompany the President for official, l0B y its te rm s, th is re g u la tio n only a p p lie s to the P resid en t w hen he is a candidate and is not p a rtic ip a t­ in g in th e p u b lic fin a n c in g system o f th e PE C FA . See 11 C .F R . § 106.3(a) (1981). 11A n id e n tic a l p ro v isio n governs p re sid en tial travel d u rin g the p rim aries. Id. § 9034.7(b)(5). 12T h e re im b u rse m e n t fo rm u la specifies th at the c an d id ate m ust pay an am ount equal to: (i) T h e first c la ss com m ercial a ir fare plus the c o st o f o th e r services, in the case o f travel to a c ity s erv ed by a regularly sch e d u le d com m ercial service; or (ii) T h e c o m m e rc ial charter rate p lu s the c o st o f o th e r services, in the case o f travel to a c ity n o t serv ed by a regularly sch e d u le d com m ercial service. 11 C .F .R . § 9 0 3 4 .7 (b )(5 ) (1983). 13 T h e re g u la tio n re c o g n iz e s that w h e th e r o r not an in d iv id u a l’s tra v e l w ith the P resid e n t is “ cam p a ig n -re la te d " is n o t d e p en d e n t upon th e p u rp o ses fo r w h ic h the P resid e n t is tra v e lin g , b u t u p o n the p u rp o s e s o f th e p a rtic u la r in d iv id u al’s tra v e l. S u b sectio n (b )(4 ) states thAt, “ [f]o r trip s by g o v e rn m e n t c o n v e y a n c e o r b y c h a p te r,” the can d id ate m u st m ake a v a ila b le to the F E C “a list o f all p a sse n g ers on s u c h trip , along with a designation o f w hich passengers are and which are not campaign related.” 11 C .F .R . § 9 0 0 4 .7 (b )(4 ) (1 9 8 1 ) (em phasis a d d ed ). See also id § 9 0 3 4 .7 (b )(4 ) (1981) (id en tical p ro v isio n f o r p rim a ry c a m p a ig n tra v e l). 148 governmental purposes, their travel is not “campaign-related,” and therefore is not a reimbursable “expenditure” or “qualified campaign expense” under the regulation.14 Similarly, under the regulation applicable to individuals, including the President, who campaign on behalf of candidates for federal office, expenses for Secret Service protection and other such personnel who travel with that individual in the performance of their official duties would not be campaign “expenditures” under the FECA. The regulation states: [w]here an individual, other than a candidate, conducts campaign-related activities on a trip, the portion of the trip attributed to each candidate shall be allocated on a reasonable basis. 11 C.F.R. § 106.3(c)(1) (1981) (emphasis added). This regulation requires an individual campaigning on behalf of another “to allocate their mixed campaign/non-campaign travel expenses on a reasonable basis.” 1 Federal Election Campaign Financing Guide (CCH) f 807, at 1537-8 (1989) (repro­ ducing FEC “Explanation and Justification of Part 106”); Federal Election Commission, Campaign Guide fo r Congressional Candidates and Commit­ tees 21 (1988) (same comment). Under this regulation, the expenses of Secret Service or other such personnel clearly would not be considered to be an allocable portion of the President’s total expenditures in making the cam­ paign trip. Since expenses for Secret Service and other such personnel are not campaign “expenditures” under the FECA when a federal candidate cam­ paigns for him self or herself, considering such costs to be noncampaign expenses when such an individual campaigns for someone else certainly allocates the campaign and noncampaign costs “on a reasonable basis.” Fur­ thermore. applying the regulation directly to each individual member of the President’s support staff would also lead to the conclusion that no portion of 14 A n e a rlie r v e rsio n o f th is reg u latio n included an ex p lic it ex em p tio n fo r p e rso n n el a u th o riz e d by law o r re q u ire d by n a tio n a l secu rity to acco m p an y the can d id ate. See 11 C .F .R . § 9 0 0 4 .7 (b )(3 )(iii) (1981) ("In the case o f can d id ate s a u th o rized by law o r required b y n ational sec u rity to b e a c c o m p a ­ n ied by staff, such sta ff sh all not be c o n sid e re d to be trav ellin g fo r c am paign p u rp o se s u n le ss such s ta ff en g ag e s in cam p aig n a c tiv ity d u rin g a trip ."). T h e re is no in d icatio n that, by d e le tin g th is s e n te n c e in the la te r re g u la tio n , th e FE C in ten d ed fo r such e x p en ses to be c o n sid e re d c am p aig n “ e x p e n d itu re s ” u n d e r the FE C A . T h e c h an g e , w hich w as m ade sh o rtly after th e FE C issued co m p a ra b le re g u la tio n s g o v e rn in g p re sid en tial p rim ary c am p aig n s, w as m ade p rim arily to co n fo rm sec tio n 9 0 0 4 .7 to the new prim ary re g u la tio n s. 4 8 F ed . R eg. 3 1 ,8 2 2 , 31,822 (1 9 8 3 ). As e x p la in ed fu rth e r below , see infra p. ISO, the prim ary c a m p aig n reg u latio n s d e le ted refe re n c es to S ecret Service and o th e r s u c h p erso n n el b e ca u se the p ay m en t o f th e ir e x p en ses w as g en erally ad d ressed u n d e r the fe d e ra l travel re g u la tio n s. T h a t the F E C did not in te n d d eletio n o f th e referen ce to su ch p e rso n n el in sec tio n 9 0 04.7 o r its prim ary e le c tio n c o u n te rp a rt, s e c tio n 90 3 4.7, to affect the tre a tm e n t o f S e c re t S erv ice an d o th e r s u c h e x p en se s is e v id e n ce d by the fact th a t the F E C , in its e x p la n ato ry c o m m en ts, did no t iden tify th e ch an g e as s ig n ific a n t; the FE C id e n tifie d only “one sig n ifican t c h an g e ,” n am ely that c an d id ate s u s in g g o v e rn ­ m e n t co n v ey an ce w ere re q u ire d to pay a h ig h er rate than un d er the p revious re g u la tio n . 4 8 Fed. R eg. 5 2 2 4 , 5229 (1 9 8 3 ) (e m p h a sis ad d ed ) (d iscu ssin g sectio n 9 0 3 4 .7 ); see also 4 8 Fed. R eg . a t 3 1 ,8 2 4 (id e n tic a l co m m en t on sec tio n 90 0 4 .7 ). 149 the cost of the travel of Secret Service or other such personnel need be allocated to any candidate as an expenditure. Even though they may accom­ pany the President on a campaign trip he makes on behalf o f various federal candidates, Secret Service and similar personnel do not “conduct[] cam­ p a ig n -re la te d a c tiv itie s” w hen they m erely perform th eir o fficial responsibilities.15 Secret Service and other such personnel expenses thus have consistently been considered not to be “expenditures” under the FECA, and generally have been considered not to be “qualified campaign expenses” under the PECFA. We are aware of only one regulation under which expenses for Secret Service agents and other such personnel would have been considered to be “qualified campaign expenses” under the PECFA. Under a previous version o f 11 C.F.R. § 9004.6 (1981), expenses incurred by an authorized com m ittee of a participating presidential candidate for transportation and ground services provided to “ Secret Service or other staff authorized by law or required by national security” were considered to be “qualified campaign expenses.” See 11 C.F.R. § 9004.6(a) (1981). This regulation, however, simply allowed Secret Service travel and similar expenses, when incurred by the authorized committee, to be paid from federal funds received under the PECFA; it did not require committees to treat these expenses as campaign “expenditures” under the FECA. The regulation, which permitted an autho­ rized com m ittee to receive reimbursement for such expenses up to an established limit, id. required the committee to report such reimbursements only as “[o]ffsets to operating expenditures” under 11 C.F.R. § 104.3(a)(3)(ix) (1981). See id. § 9004.6(c). The FEC comments explaining this provision made clear that these offsets were not “expenditures” for purposes of the presidential spending limit in the FECA, 2 U.S.C. § 441a(b). See 45 Fed. Reg. 43,371, 43,376 (1980) (“Pursuant to Part 104, the reimbursements will be subtracted from the com m ittee’s total expenditures to produce the com m ittee’s net expenditures. It is the net expenditures which will count against the candidate’s expenditure limit.”). The classification of such costs as “qualified campaign expenses” was of little practical significance. The regulation by its terms did not apply where the governm ent provided the transportation for these individuals and where, under section 9004.7(b)(5), the committee incurred no costs for such trans­ portation. It applied only when “an authorized committee incur[red] expenses for transportation made available [to such persons],” 11 C.F.R. § 9004.6(a) (1981) (emphasis added). However, when a committee had paid the travel expenses of Secret Service agents or other such personnel and the regulation therefore applied, the committee’s expenses were generally reimbursable un­ der regulations providing for government reimbursement of employees who travel on official business. See 41 C.F.R. ch. 301 (1990). Accordingly, in 15 O f c o u rs e , w ere su ch personnel to p erform any cam p aig n function distinct from th eir official fu n c ­ tio n s, th e y w o u ld be req u ired to a llo c a te th eir m ix ed c am p aign/non-cam paign travel e x p en se s on a re a so n a b le b asis. 150 most situations, the regulation was either inapplicable or irrelevant. It was apparently for this reason that the FEC deleted as superfluous the reference to such personnel when it revised this regulation.16 Because of this deletion, such expenses would not in any event be considered “qualified campaign expenses” under the current regulations. Furthermore, and more significant, nothing in the current or previous FEC regulations governing presidential campaign expenses would require that expenses for Secret Service and other such personnel be classified as “expenditures” under the FECA. In sum, we adhere to the conclusion of the Olson and Harmon Memo­ randa that expenses incurred for official purposes during travel with the President should be paid from appropriated funds, even if the purpose for the President’s trip is not official. Accordingly, expenses incurred by WHCA for services in furtherance of its official mission that are performed in con­ nection with presidential travel should be paid from appropriated funds. III. We now turn to the question of whether the particular WHCA functions described in your memorandum further the agency’s official mission. The resolution of this question ultimately turns on whether the funds used to pay WHCA’s expenses are being used for the purposes for which they were provided by Congress. Congress has not detailed the purposes for which funds appropriated for WHCA may be used.17 WHCA officials therefore have a substantial mea­ sure of discretion in defining the precise scope of the agency’s official mission, and whether a given expenditure is an authorized use of the funds appropri­ ated by Congress is in the first instance a question for those officials. An expenditure, however, of course must be reasonably related to the official mission of the agency. The primary responsibilities of WHCA during presidential travel are to install, maintain, and operate the communications facilities and equipment that permit the President and his entourage to have continuous communica­ tions capabilities, and the lion’s share of expenses incurred by WHCA during 16T h e referen ce w as d eleted from section 900 4 .6 in o rd e r to co n fo rm to the co rresp o n d in g prim ary cam paign reg u latio n , 11 C.F.R . § 9034 6. See 48 Fed R eg. 31,822 (1983). T h e FEC ex p la in ed th a t it d e le ted the referen ce to travel expenses o f Secret S erv ice and o th e r such personnel from the prim ary c am p aig n reg u latio n because "o th e r g o v ernm ent reg u latio n s g o v ern p aym ent for those e x p e n d itu re s.” 48 F ed R eg. at 5 2 2 9 (discussing section 9034.6); 48 Fed. Reg. at 3 1,824 (identical co m m en t on sectio n 9004.6). 17You have in fo rm ed us that W H CA ’s expenses are paid from accounts o f the D efense C o m m u n icatio n s A gency (“ D C A ” ), o n e o f the “ D efense A gencies" included in the an n u al D epartm ent o f D e fe n se a p p ro ­ pria tio n s le g islatio n . See generally N ational D efense A u th o rizatio n A ct fo r F iscal Years 1990 and 1991, P ub. L. N o. 101-189, §§ 104, 201, 301, 2 4 0 1 -2422, 103 Stat. 1352, 1370, 1393, 1407, 1639-44 (19 8 9 ) (th e “ A uth o rizatio n A ct” ); D epartm ent o f D efense A p p ro p riatio n s A ct, 1990, Pub. L. N o. 101-165, 103 S tat. 1112, 1116, 1124, 1126 (1989) (the “ A pp ro p riatio n s A ct”). T he A uthorization A ct and the A p p ro ­ p ria tio n s A ct d o not provide specific d irectio n s co n cern in g the use o f appropriated funds fo r W H C A e x p en ses, and w e are aw are o f no relevant lim itation on the use o f D efense A gencies ap p ro p riatio n s. 151 and in connection with presidential travel are associated with the discharge o f these responsibilities. As Commander in Chief, as well as in his other official roles, the President requires dependable means by which to commu­ nicate instantly with individuals anywhere in the world at any moment. In an age when conflict may develop and escalate to crisis proportions in min­ utes, the President cannot be expected to rely on unpredictable and variable private communications facilities. Indeed, it was precisely to eliminate the need for reliance upon such non-governmental facilities that WHCA was created. The provision o f these communications facilities and services for the official use of the President and his staff is WHCA’s official mission. There­ fore, provided that these facilities and services are used for official government purposes, WHCA may expend appropriated funds to pay for the expenses incurred in connection with the provision of such facilities and services, regardless where and for what reason the President travels.18 W HCA also provides facilities and services for communication with the media. We believe that funds appropriated for WHCA’s use may also per­ missibly be expended to facilitate official, as distinguished from political, communication between the President and the press. The press is indispens­ able to the effective and proper functioning of the presidency — indeed to government as a whole. As Commander in Chief and in his other official roles, the President must communicate with the public. Such communica­ tion may on occasion even be necessary for reasons of national defense. Direct communication with the public is, as a practical matter, only possible with the assistance o f private news media. Facilitation of such contact thus furthers important governmental interests, regardless of the purpose for which the President may be traveling.19 " T h e re s p o n sib ilitie s an d duties p erfo rm ed by the P resident and those serving the P resident c an n o t a lw ay s be sa tisfa c to rily characterized as w holly “o fficial,” “ p o litic a l,” or “p e rso n al.” W e noted, fo r e x a m p le , in th e O lso n M em orandum : [I]t is sim p ly n o t p o ssib le to d iv id e m any o f the actio n s o f the P resident and Vice P resident in to u tte rly o fficial o r purely p o litic a l categ o ries. To a ttem pt to do so in m ost cases w ould ig n o re th e n a tu re o f o u r political system an d the stru ctu re o f o u r governm ent. A ccordingly, effo rts to e sta b lish such divisions m ust be ap p ro ach ed w ith com m on sense and a good faith e ffo rt to ap p ly th e sp irit o f the p rin c ip le s w e d iscu ss in this m em orandum , and they m ust be ju d g e d w ith c o n sid e ra b le d eferen ce to th e d ecisio n s o f the persons d irectly involved in m ak­ in g th e d eterm in atio n s. O lso n M em o ran d u m at 215. T h u s, th e re w ill a lw ay s be particular instances w hen it w ill no t be evident (and certain ly not in ad ­ v a n c e ) w h e th e r use o f a W H CA fa c ility will b e in fu rth eran ce o f the P resid e n t's official, as d is tin ­ g u is h e d fro m his p o litic a l, responsibilities. F o r ex am p le, a p residential aide w ho retu rn s a re p o rte r’s te le p h o n e c all w ill n o t k n o w until the c o n v ersa tio n is o v e r w h ether the reporter is in terested in p o litical o r o ffic ia l m a tte rs, o r b o th . We believ e that ev en w hen it e v entuates that the re p o rte r’s inquiry relates m o re to th e P re s id e n t’s po litical than to h is o fficial resp o n sib ilities, W H C A m ay pay for su ch de m ini­ m is u se o f its fa c ilitie s, an d that sp ec ia l logs n eed not be m aintained nor o th e r m o nitoring m ethods e m p lo y e d . W e h av e rep eated ly em p h asized th a t co m m on sense m ust be the to u chstone in m any o f the p a rtic u la r a p p lic a tio n s o f th e broadly d ra w n ru les in th is area. 19 T h e re w ill n o d o u b t b e occasions w h e n there are ad d itio nal c o sts fo r press o r o th e r third -p arty c o m ­ m u n ic a tio n s b e y o n d th o se ordinarily asso ciated w ith th e P resid e n t’s travel. If the costs are incurred fo r ite m s o r s erv ice s th at are attrib u tab le to the special needs a n d /o r requests o f such th ird p arties, W H C A sh o u ld seek reim bursem ent fro m the third parties. 152 The same governmental interests are served by the incidental security func­ tions performed by WHCA, such as provision of a bullet-proof podium or an emergency sound system. Danger to the President’s life does not vary de­ pending on the purpose of a public appearance.20 Appropriated monies therefore may be used to pay the expenses associated with these services as well. CONCLUSION We conclude that virtually all of the functions that you have informed us are performed by WHCA in connection with presidential travel are in fur­ therance of WHCA’s official mission to provide a continuous communications capability to the President and his advisers. As a consequence, the expenses incurred for these activities may be paid with appropriated funds, regardless of whether the travel is for official, political, or personal purposes. J. MICHAEL LUTTIG Assistant Attorney General Office o f Legal Counsel “ T he official p u rp o se beh in d tw o o th er W H C A activities — c o n tro lling the “ feed” to the sound sy stem (in clu d in g tu rn in g o ff the m icrophones at the end o f a speech) and furnishing a telep ro m p ter w henever req u ired — is not as e asily discernible. We sim ply h ave not b een provided sufficient in fo rm atio n c o n ­ cerning the p u rp o ses fo r having W H C A perform these functions to enable us to conclude w hether they m ay be paid for w ith a p p ro p riated funds. 153

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Equitable Transfers of Forfeited Monies or Property W h e n th e fe d e ra l g o v e rn m e n t m a k e s an e q u ita b le tra n s fe r o f fo rfe ite d m o n ies o r p ro p e rty to a s ta te o r local la w e n fo rc e m e n t a g e n c y , th a t transfer is m o re a p p ro p ria te ly c h a ra c te riz e d as a c o n d itio n a l gift to th e a g e n c y ra th e r th a n as a fo rm al c o n tract b e tw e e n th e fe d e ra l g o v e rn m e n t a n d the a g en c y . If the s ta te o r lo c a l a g e n c y fa ils to u se the tra n s fe rre d p ro p e rty fo r law e n fo rc e m e n t p u rp o se s, th e fe d ­ eral g o v e rn m e n t m a y b e a b le to p u rsu e re s titu tio n o f th e p ro p e rly . April 19, 1994 M e m o r a n d u m O p t i o n f o r t h e D ir e c t o r a n d C h ie f C o u n s e l E x e c u t iv e O f f ic e f o r A s s e t F o r f e it u r e You have requested our assistance in determ ining whether equitable transfers of forfeited property to state and local law enforcem ent agencies should be viewed as contracts or as conditional gifts. Pursuant to 21 U .S.C ’ § 881 and 19 U.S.C. § 1616a, the Attorney General has the authority to share forfeited monies or tangi­ ble property with any state or local law enforcem ent agency which participated directly in the investigative or prosecutorial efforts leading to the seizure and for­ feiture o f the property. The local agency wishing to share in the forfeited property m ust apply by subm itting an “Application for Transfer of Federally Forfeited Property — Form D A G -71” (“DAG-71”) within sixty days of the seizure. See A G uide to E qu itable Sharing o f F ederally F orfeited P ro p erty f o r State an d L ocal Law E nforcem ent A gen cies, December 1990, at 3 (“Guide”). Both the shared property and any income generated from it “m ust be used for the law enforcement purposes” specified by the requesting agency in its DAG-71 form. Id. at 4; see a lso The A ttorn ey G e n e ra l’s G uidelines on S eized an d F orfeited P roperty, July 1990, at 8 (“G uidelines”).1 Permissible law enforcem ent purposes include, but are not limited to, the purchase of vehicles, weapons, or protective equipment and the paym ent o f salaries and other expenses. Guide at 4. The question about the appropriate characterization of equitable transfers has arisen because o f the failure of some local agencies to comply with the Guidelines. Specifically, a 1992 audit by the Inspector General revealed that some agencies have failed to use transferred monies and property for permissible law enforcement purposes. The General Counsel o f the Office of the Inspector General concluded that the Justice Departm ent could seek to recover these misspent monies through restitution because the equitable transfer created a contractual relationship.2 See 1 B oth the D AG-71 form and its accom panying in stru ctio n s also state that all assets transferred m ust be used for the law en fo rcem en t pu rp o se specified in the request. " T h e G en eral C ounsel also concluded th at th e D epartm ent co u ld act to preclude future disbursem ents to an ag en cy m isu sin g funds T h e availability o f th is rem edy has not been questioned 74 Equitable T ransfers o f F orfeited M onies or Property' Memorandum for Guy Zimmerman, Assistant Inspector General for Audit, from Howard L. Sribnick, General Counsel, Office of the Inspector General (Sept. 9, 1992). The Executive Office of Asset Forfeiture, however, has stated that it is more inclined to view equitable transfers as conditional gifts rather than contractual relationships and thus believes the Department is powerless to seek restitution of transferred funds. See M emorandum for W alter Dellinger, Assistant Attorney General, Office o f Legal Counsel, from Cary H. Copeland, Director and C hief Counsel, Executive Office for Asset Forfeiture (Dec. 17, 1993). We believe that the equitable transfers at issue here are more analogous to a conditional gift than to a formal contractual relationship. Although it is true that the Guide states that the DAG-71 should be “treated as a contract” between the requesting agency and the Department of Justice, see Guide at 4, we believe that this language is better read as signifying that the conditions placed on the transfer are binding on the local agency rather than as creating a formal contract. A formal contract is not created for three reasons. First, the language o f both the Guide and the Guidelines suggests that the intent of the program is to reward local law enforcement agencies for their valuable past assistance in securing the prop­ erty, rather than to create a bargained-for exchange o f the agency’s promise to use the money for law enforcement in return for a share in the forfeited property. For example, the amount of the equitable share awarded depends in part on the degree of direct participation in the law enforcement effort by the local agency and on whether the local agency provided unique or indispensable assistance. Guidelines at 9. A promise to reward past conduct is not sufficient to create a contract under settled principles of contract law. R estatem ent (Second) o f C ontracts § 86 (1981). Second, the absence of bargained-for legal detriment on the part o f the requesting agency suggests that the relationship created is that of a conditional gift rather than a formal contractual relationship. Even though the requesting agency promises not to use the money for any purpose other than that specified in the request, this is not an example of a promise not to do something the agency would otherwise have the right to do. Finally, neither the DAG-71 form nor the Guidelines suggest that the federal government is ever bound to make the requested transfer. See, e.g., G uide­ lines at 1 (Guidelines are not intended to create any rights on behalf of claim ants or petitioners). It is also our belief, however, that the conclusion that an equitable transfer is a conditional gift does not necessarily preclude the federal government from seek­ ing restitution of transferred funds being used for non-law-enforcement purposes. As an initial matter, it is clear that a promise to use the transferred property for ' The legislative history o f the am endm ents to 21 U S C. § 881 and 19 U S C § 1616a also m akes plain that the purpose o f allow ing the A ttorney G eneral to transfer funds to local agencies was to recognize the assistance o f those agencies in securing the forfeiture and to enhance cooperation betw een local and federal law enforcem ent agencies H R Rep. No 98-1030, at 216, 219 (1984), rep rin ted in 1984 U S C C A N 3 1 8 2 ,3 3 9 9 , 3402 75 O pinions o f the O ffice o f L egal C ounsel law enforcement purposes is in fact a condition of receiving an equitable share from the federal government. See, e.g., DAG-71 (requiring requestor to certify that property will be used for law enforcement purpose stated); Guidelines at 8 (stating that all property transferred shall be used for law enforcement pur­ poses). The DAG-71 further reinforces the interest of the federal government in ensuring that the money is used for law enforcement purposes by requiring the lo­ cal agency to certify that it will report on the actual use of equitably shared prop­ erty upon request. In addition, the Guidelines make plain that “the integrity of the entire forfeiture program depends upon the faithful stewardship of forfeited prop­ erty and the proceeds thereof.” Guidelines at 1. Permitting local agencies to use the proceeds of forfeited property for any purpose whatsoever would undermine the integrity of the program. The fact that the Department has placed such a clear condition on the use of funds received under the equitable sharing program and has reserved the right to confirm that an agency uses transferred funds as promised suggests that the Department did not intend to pass unconditional control of the funds to the local agency. Instead, it appears that the Department intended to make a condi­ tional gift, which remains in effect only so long as the gift is being used for its intended purpose. “A gift may be conditioned upon the donee’s performance of specified obligations . . . If the obligation is not performed, the donor is entitled to restitution.” Ball v. Hall, 274 A .2d 516, 520 (Vt. 1971). In the analogous context of federal grants to state and local agencies, courts have stated that the federal government may use principles of restitution to recover monies that were granted for specific purposes and then used in contravention of those purposes, even in the absence of statutory authority expressly permitting such recovery. See, e.g., West Virginia v. Secretary o f Educ., 667 F.2d 417, 419 (4th Cir. 1981) (per curiam); Mount Sinai Hosp. v. Weinberger, 517 F.2d 329 (5th Cir. 1975), cert, denied, 425 U.S. 935 (1976). But see 2 Richard B. Cappalli, Federal Grants and Cooperative Agreements § 8:15, at 80-82 (1982) (suggesting that federal agency may have forfeited its right to recover improperly used funds if it has not established a right to recovery in the grant agreement or in duly promul­ gated regulations). Restitutionary remedies are available because, although not a formal contractual relationship, federal grant programs are nonetheless “much in the nature of a contract: in return for federal funds, the [grantee] agree[s] to com­ ply with federally imposed conditions.” Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981). W hether to pursue restitution against local agencies misusing funds transferred to them under the equitable sharing program is a policy question not suited for 4 T h e S u p rem e C o u rt has not yet resolved th e question w h eth er the federal governm ent has a com m on law right to re c o v er funds w h en ev er a grant recip ien t fails to co m p ly w ith the conditions of the grant. Bell v. N ew J e r s e y , 461 U .S. 773, 782 n 7 (1983) 76 E quitable T ra n tfers o f F orfeited M onies o r Properry resolution by this office. We mean to suggest only that a right to recover misspent funds on a restitution theory may well be supportable under current case law. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 77

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Authorization o f Immigration Emergency Fund Reimbursements The continuing resolution enacted on September 30, 1995, does not limit or suspend the authority that would otherwise exist for the obligation or expenditure o f an Immigration Emergency Fund reimbursement pursuant to section 404(b) of the Immigration and Nationality Act. T he Immigration Emergency Fund m ay be used to reimburse the State o f Florida for its increase in social service and health expenses deriving from the influx o f Cuban immigrants resulting from a presidential decision. November 8, 1995 M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l f o r A d m in is t r a t io n Section 404(b) of the Immigration and Nationality Act (“ INA” ) established the Immigration Emergency Fund (“ IEF” ). See INA § 404(b), 8 U.S.C. §1101 note. On September 28, 1995, President Clinton determined that an immigration emergency existed within the meaning of section 404(b) and that a $6,000,000 reimbursement should be made available from the IEF to reimburse those who assisted in the enforcement of immigration laws in connection with the repatriation of aliens interdicted en route to the United States and being smuggled by orga­ nized international syndicates. As required by section 404(b)(1), the President cer­ tified his determination to the Judiciary Committees of the House of Representa­ tives and the Senate on October 3, 1995. On September 28, 1995, the Deputy Attorney General, addressing a separate matter, but also acting pursuant to section 404(b) of the INA, authorized an $18,000,000 reimbursement to the State of Florida.1 On September 30, 1995, just prior to the October 1, 1995, commence­ ment of the new fiscal year, Pub. L. No. 104-31, 109 Stat. 278 (1995) (“ Con­ tinuing Resolution” ) was approved. The Continuing Resolution provides funds and authority to continue various government programs, operations, and activities that would otherwise have experienced a lapse in appropriations and remains in effect until November 13, 1995, at the latest. You have asked for our opinion on two questions raised by the authorization of these reimbursements. First, you have asked whether they are prohibited from being made under the terms of the Continuing Resolution. Second, you have asked whether the terms of the IEF permit the $18,000,000 reimbursement authorized to Florida. We answer these questions in turn. 1 Because the Deputy Attorney General authorized the reimbursement pursuant to section 404(b)(2)(A), a presi­ dential determination o f em ergency and certification to Congress were not required. See id. §404(b)(2)(C) ( “ [f|or purposes o f subparagraph (A), the requirement o f paragraph (1) that an immigration emergency be determined shall not apply” ). This reimbursement was thus obligated on September 28,1995, during fiscal year 1995. 278 Authorization o f Immigration Emergency Fund Reimbursements I. The IEF is a “ no year fund” — that is, Congress did not limit the appropriations it made to the IEF to a specific fiscal year or set of fiscal years, nor did it establish that the authority granted by section 404(b) would expire. Instead, Congress at irregular intervals appropriates funds to the IEF to “ remain available until expended.” The Administration did not submit a request for IEF funds in its fiscal year 1996 appropriations request.2 The act creating the IEF authorizes reimbursements in two different cir­ cumstances. When the President declares an immigration emergency and certifies that determination to the Judiciary Committees of the House and Senate, IEF funds can be used to increase border patrols or other enforcement activities of the Immigration and Naturalization Service (“ INS” ) or to reimburse states and local­ ities in providing assistance requested by the Attorney General. See INA § 404(b), 8 U.S.C. §1101 note. The authorization to use up to $6 million of the IEF to reimburse third countries was made pursuant to this authority. IEF funds can also be used to reimburse states and localities providing assist­ ance to the Attorney General under certain specified conditions, or under any other circumstance determined by the Attorney General. Id. The authorization to use up to $18,000,000 of the IEF to make reimbursements to Florida was issued pursu­ ant to this authority.3 As we understand it, there is concern that the Continuing Resolution limits or suspends the authority that would otherwise exist for the obligation or expenditure of these monies pursuant to section 404(b) of the INA. This concern rests on the belief that the Continuing Resolution prohibits all obligations or expenditures except those expressly provided for in the Continuing Resolution itself. This is a misunderstanding of the Continuing Resolution. Many of the federal government’s continuing programs, projects, and activities are funded through one of the thirteen appropriations bills that are enacted annually. Those programs, projects, and activities may only continue after the conclusion of a fiscal year if the relevant appropriations bill has been enacted for the following fiscal year.4 On the occasions when Congress has failed to enact any or all of these annual appropriations bills by the end of the preceding fiscal year, Congress has typically enacted a continuing resolution to allow those pro­ grams that would otherwise lapse to continue until an annual appropriation is 2 In 1989, Congress appropriated $35,000,000 lo the IEF. See Pub. L. No. 101-162, tit. II, 103 Stat. 988, 1000 (1989). It did not appropriate money to the IEF again until October 1993, when it appropriated $6,000,000. See Pub. L. No. 103-121, tit. I, 107 Stat. 1153, 1161 (1993). Most recently, Congress appropriated $75,000,000 for the IEF in August 1994. See Pub. L. No. 103-317, tit. I, 108 Stat. 1724, 1732 (1994). 3 The Deputy Attorney General is authorized to exercise all o f the authority of the Attorney General. See 28 C.F.R. §0.15(a) (1995). 4 This generally applicable statement is subject to statutory exceptions, most notably those contained in the Antideficiency Act. See 31 U.S.C. §§ 1341-1342. 279 Opinions o f the Office o f Legal Counsel in Volume 19 enacted. See 2 Office of the General Counsel, United States General Accounting Office, Principles o f Federal Appropriations Law 8-2 (2d ed. 1992). Under this usual practice, a continuing resolution does not apply to obligations validly incurred during the preceding fiscal year. The $18,000,000 grant to Florida was validly obligated in fiscal year 1995, and so would not be covered under a standard continuing resolution.5 There also are programs, projects, and activi­ ties— such as the IEF— that are not dependent upon annual appropriations bills for appropriations or authority. Traditionally, continuing resolutions do not apply to these programs, projects, or activities. Of course, Congress could, if it chose, extend the coverage of a continuing resolution to include all programs, projects, and activities; however, we find nothing in the Continuing Resolution’s text to suggest that Congress altered its usual practice in a way that affects the IEF. We understand the contention that the current Continuing Resolution limits or suspends the authority and prior authorization otherwise applicable to the IEF to be based on section 107, which provides: “ Appropriations made and authority granted pursuant to this joint resolution shall cover all obligations or expenditures incurred for any program, project, or activity during the period for which funds or authority for such project or activity are available under this joint resolution.” Id. § 107, 109 Stat. at 280. The natural reading of this section is that it contains a term that defines the scope of coverage of the appropriations made and authority granted by the Continuing Resolution (“ all obligations or expenditures incurred for any program, project, or activity” ), as well as a term that defines the duration of the time period during which that scope of coverage applies (“ during the period for which funds or authority for such project or activity are available under this joint resolution” ). In addition to specifying scope of coverage and duration of coverage for programs, projects or activities for which the Continuing Resolution does contain appropriations and authority, however, it has also been suggested that this section applies to programs, projects or activities for which the Con­ tinuing Resolution does not contain appropriations or authority. In other words, the suggestion is that there is a negative implication to this section that any pro­ gram, project or activity not affirmatively provided funding or authority by the Continuing Resolution is thereby denied appropriations and authority, notwith­ standing any other provisions o f law. Perhaps this suggestion rests in part on the belief that the use of the expression “ any program, project, or activity” within the scope of coverage term extends the applicability of section 107 to all programs, projects or activities of the government. As we have indicated already, this reading would be inconsistent with the usual practice and understanding of Continuing Resolutions. More importantly, it simply 5 It is not clear w hether the $6,000,000 reimbursement was obligated in fiscal year 1995 or 1996. The IEF requires the President to determ ine that an immigration emergency exists and to certify that fact to Congress. Because the President did not certify the immigration emergency to Congress until O ctober 3, 1995, it is arguable that the $6,000,000 reim bursem ent was not obligated until fiscal year 1996. W e need not resolve this question because, as w e dem onstrate infra, the Continuing Resolution does not apply to the IEF. 280 Authorization o f Immigration Emergency F und Reimbursements is not possible to read section 107 in a way that supports such a negative implica­ tion. Interpreting “ any” in the scope of coverage term to encompass “ all” government programs, so as to deny appropriations or authority to programs, projects or activities not affirmatively granted funds or authorization by the Con­ tinuing Resolution, does not produce the result of withholding authority from such programs. Instead, the duration of coverage of this section with respect to a pro­ gram for which the Continuing Resolution does not appropriate monies or grant authority equals zero, because the “ period for which funds or authority for such project or activity are available under this joint resolution” is zero. In other words, section 107 would have the effect of covering all obligations or expenditures for such a program for a time period of zero moments— which is tantamount to saying that the section does not cover such a program. Rather than giving the section this self-abnegating reading, it makes far more sense to understand that the limitation to programs affirmatively covered by appropriations or authorities in the Continuing Resolution that is the natural reading of the subject of the sec­ tion (“ [appropriations made and authority granted pursuant to this joint resolu­ tion” ), and that is expressed in the durational term (“ for which funds or authority for such project or activity are available under this joint resolution” ) also applies to the phrase “ any program, project or activity” in the scope of coverage term, so that the entire section is read to apply only to programs, projects or activities that are affirmatively covered by appropriations or authorities in the Continuing Resolution. Nevertheless, the operative result of the section is the same whether “ any program, project or activity” is viewed as limited in this way or not: section 107 by its terms does not withdraw appropriations or authorities otherwise pro­ vided by law when those programs are not affirmatively covered by the Con­ tinuing Resolution. Accordingly, the authorization of section 404(b) to obligate and expend avail­ able IEF appropriations would only be affected by the Continuing Resolution if some express provision of the Continuing Resolution applies to it. None does. The only two sections of the Continuing Resolution that might conceivably cover the obligations from the IEF are sections 101 and 111. Neither of these sections, however, actually does. The Continuing Resolution provides appropriations and authority for “ con­ tinuing projects or activities” covered in the appropriations bills listed in section 101. As already indicated, none of these bills authorizes or appropriates for the IEF. The Continuing Resolution also provides authority and appropriations for three categories of ongoing projects or activities in section 111, but none of these categories applies to the IEF. First, it applies “ whenever an Act listed in section 101 as passed by both the House and Senate as of October 1, 1995, does not include funding for an ongoing project or activity for which there is a budget request.” Id. § 111, 109 Stat. at 280. This category is inapplicable, as the Adminis­ tration made no budget request for the IEF. Second, section 111 applies “ when­ 281 Opinions o f the Office o f Legal Counsel in Volume 19 ever an Act listed in section 101 has been passed by only the House or only the Senate as of October 1, 1995 and an item funded in fiscal year 1995 is not included in the version passed by the one House.” Id. This category does not describe the IEF, for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1996, Pub. L. No. 104-134, 110 Stat. 1321, had passed both houses of Congress by October I, 1995. Finally, section 111 applies “ whenever the rate for operations for an ongoing project or activity provided by section 101 for which there is a budget request would result in the project or activity being significantly reduced.” Continuing Resolution, §111, 109 Stat. at 280. This category does not apply to the IEF both because the IEF is not covered by section 101 and because there is no budget request for the IEF. Finally, section 111 provides that “ [n]o new contracts or grants shall be awarded in excess of an amount that bears the same ratio to the rate for oper­ ations provided by this section as the number of days covered by this resolution bears to 366.” Id. (Emphasis added.) Because the IEF’s rate for operations is not provided by section 111 or any other provision of the Continuing Resolution, but rather is provided by section 404(b) of the INA, section 111 does not apply to the IEF. II. Your second question relates to an $18,000,000 allocation to Florida for that state’s expenses deriving from the influx of Cuban immigrants resulting from the President’s decision to “ bring into the United States the Cuban population on Guantanamo and to repatriate Cuban migrants apprehended at sea in the future.” Memorandum for the Deputy Attorney General, from Amy Jeffress, Special Assistant to the Deputy Attorney General at 1 (Aug. 30, 1995) (“ Jeffress Memo” ). Specifically, you have asked (a) whether the IEF may be used to offset the increase in social service and health care costs that Florida will bear as a result of the President’s decision and (b) if so, whether the allocation may be disbursed prospectively— that is, before Florida actually has incurred the antici­ pated increased social service and health care expenses. For the reasons set forth below, we believe that the purposes for which the allocation is to be made are permissible under the statute and implementing regulations; however, we do not believe that the payments may be made prospectively. A. In 1986, Congress established the IEF to be available in case of a presidentially declared immigration emergency. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603 §113, 100 Stat. 3359, 3383.6 Congress specifically 6 Date corrected and citation added by editors. 282 Authorization o f Immigration Emergency Fund Reimbursements had in mind the Mariel boatlift. See, e.g., H.R. Rep. No. 99-682(1), at 65 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5669. In 1990, Congress added a section permitting the Attorney General to use up to $20,000,000 to reimburse states for immigration-related expenses that were not incurred in a presidentially declared immigration emergency. Immigration Act of 1990, Pub. L. No. 101-649, §705, 104 Stat. 4978, 50877 (“ [T]he requirement . . . that an immigration emergency be determined shall not apply.” ). That section allows the Attorney General to reimburse states for their assistance to the Attorney General whenever the number of asylum claims for a calendar quarter exceeds by 1,000 the applications received in the previous quarter; the lives, property, safety, or welfare of the state’s resi­ dents are endangered; or “ in any other circumstances as determined by the Attorney General.” INA § 404(b)(2)(A), 8 U.S.C. §1101 note. Congress thus expressed, and enacted, its intent to grant the Attorney General broad discretion to determine when the IEF should be used to reimburse states. Consistent with this statutory scheme, Congress authorized the Attorney General to promulgate regulations to implement the IEF and to “ delineat[e] . . . ‘other circumstances.’ ” See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1992, Pub. L. No. 102-140, § 610(b), 105 Stat. 782, 832 (1991). Pursuant to this statutory authorization, the Attorney General has issued regula­ tions to govern administration of the IEF and delineate the “ other circumstances” in which the IEF will be available to reimburse states. The regulations state, “ [o]ther circumstances means a situation that, as determined by the Attorney Gen­ eral, requires the resources of a State or local government to ensure the proper administration of the immigration laws of the United States or to meet urgent demands arising from the presence of aliens in a State or local government’s juris­ diction.” 28 C.F.R. §65.81 (1995). The Attorney General promulgated this delin­ eation of “ other circumstances” along with an explanatory note in which she observed that costs such as those relating to social services and health care do not typically fall within this delineation. She also made clear, however, that “ in limited circumstances” such services could in fact “ assist the Attorney General” and so would be reimbursable. 59 Fed. Reg. 30,520, 30,521 (1994). The Deputy Attorney General, who is authorized to discharge the Attorney Gen­ eral’s functions under the IEF, see 28 U.S.C. §510; 28 C.F.R. § 0.15(a), has deter­ mined that Florida’s request represents one of the limited circumstances in which the regulations and statute allow the IEF to be used to reimburse states for the cost of social services provided to aliens. See Executive Summary and Request for Decision (Aug. 30, 1995). The Deputy Attorney General reached her decision after concluding that the costs Florida has borne, and continues to bear, constitute urgent assistance to the Attorney General and the federal government generally 7 Date and citation corrected by editors. As issued in 1995, the Opinion cited Pub. L. No. 99-603, 100 Stat. 3359 (1986). 283 Opinions o f the Office o f Legal Counsel in Volume 19 in implementing and enforcing federal immigration law. See id;, Jeffress Memo at 2-3. We defer to the Deputy Attorney General’s determination. B. The $18,000,000 allocation is meant to reimburse Florida for a variety of obliga­ tions, some of which apparently have not yet been incurred but which are antici­ pated. The regulations that the Attorney General promulgated to implement the legislation establishing the IEF provide for disbursements in the form of a “ reimbursement agreement, grant, or cooperative agreement.” 28 C.F.R. §§65.84, 65.85 (1995). Generally, we would interpret the term “ grant” as encompassing payments for purposes in addition to reimbursements and including prospective payments. Regulations, however, must be interpreted in light of the statutory authority on which they are based, as a regulation may not expand the authority granted by its authorizing statute. See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). In this instance, the statute establishing the IEF only provides for reimbursements. The statute ordains that, “ [fjunds . . . shall be avail­ able, by application for the reimbursement of States and localities providing assist­ ance as required by the Attorney General, to States and localities.” INA § 404(b)(2)(A), 8 U.S.C. § 1101 note. The statute thus provides only for “ reimbursement.” The ordinary meaning of ‘‘reimbursement’’ is a repayment or ex post facto compensation for an obligation already incurred. See, e.g., Webster’s Third New International Dictionary 1914 (1993) (defining “ reimburse” to mean “ to pay back (an equivalent for something taken, lost, or expended) to someone” ). “ Reimbursement,” at least in its ordinary usage, does not cover a prospective or advance payment for obligations that have not yet been incurred but which merely are anticipated. Congress, of course, may give any meaning it wishes to the terms it uses in statutes, and if it had indicated that it meant reimbursement to include prospective payments, then such payments would be permissible. See United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989). There is nothing in the statute or in its legislative history, however, that addresses the meaning of reimbursement generally or the specific matter of whether that term might refer to prospective payments. In contrast, there are at least thirty-four8 statutes that create grants that can be used for either payment “ in advance or by way of reimbursement.” 9 We take these frequent disjunctive “ C orrected by editors. As issued in 1995, the opinion read “ at least forty statutes." 9 See 22 U .S.C. § 4025(a); 42 U.S.C. § 254b(d)(4)(B); 42 U.S.C. § 254c(d)(4)(B); 42 U.S.C. § 254f(b)(2)(B); 42 U.S.C. § 286b-8(a); 42 U.S.C. §287a-2(e)(2); 42 U.S.C. §2 9 1 j-1 0 ; 42 U.S.C. §295o(f)(lX A ); 42 U.S.C. § 3 0 0 e 16(a)(4); 42 U .S.C. § 3 0 0 j-9 (d )(l); 42 U .S.C . §1394; 42 U.S.C. §3057m ; 42 U.S.C. 5022; 42 U.S.C. §6082(e); 42 U.S.C. § 6978(a); 42 U.S.C. 7601(c), 42 U.S.C. § 10904(b), 42 U.S.C. § 12651d(b)(2)(B); see also 21 U.S.C. § 1177(e); 25 U.S.C. §450j(b); 25 U.S.C. § 1612(b)(2); 25 U.S.C. § 1656(b); 29 U.S.C. § 1579(c); 38 U.S.C. § 8 2 0 1(d); 42 U.S.C. §242a(c); 42 U S.C. §242m (e)(l); 42 U.S.C. §626(c); 42 U.S.C. § 1310(a)(3); 42 U.S.C. § 139 5 b -l(a)(l)(K )(2 ); 42 U.S.C. §2000c-5; 42 U.S.C. §3029(a); 42 U.S.C. §3037a(b); 42 U.S.C. §5657(a); 42 U.S.C. §9832(3). 284 Authorization o f Immigration Emergency Fund Reimbursements references to reimbursement, on the one hand, and prospective payments, on the other, as strong evidence that Congress does not ordinarily understand the term “ reimbursement” to include prospective payments or payment “ in advance.” We therefore adhere to the ordinary meaning of “ reimbursement,” see Bums v. Alcala, 420 U.S. 575, 580-81 (1975); Banks v. Chicago Grain Trimmers A ss’n, 390 U.S. 459, 465 (1968), and conclude that the IEF may not be used to cover prospective costs. Consequently, we interpret the term “ grant” in the regulations as referring only to grants that reimburse states for obligations already incurred. This conclusion is not at odds with the meaning or usage of the term “ grant.” There are at least three statutes that establish grant funds that, by their terms, are available exclusively for reimbursements. See 10 U.S.C. § 1152(d)(1); 20 U.S.C. § 8004(a); 49 U.S.C. §31103. The statutes discussed above that provide for either reimbursement or payment in advance also demonstrate that reimburse­ ment is not a payment method that is antithetical to grantmaking. This narrower construction of the term “ grant” also finds support in the explanatory material accompanying the regulation, which sets forth that “ [t]he rule has been amended to allow the Attorney General to use the grant or cooperative agreement process to provide funding, in addition to negotiating a separate reimbursement agreement. Accordingly, State and local governments may also use standard grant applica­ tions.” 59 Fed. Reg. at 30,521 (emphasis added). By adding the term “ grant” the Attorney General apparently meant to make available an additional process for seeking disbursements from the IEF and to utilize standard forms with which applicants were already familiar. All of this may be accomplished even though grants that are issued from the IEF are available to grantees only for the purpose of reimbursing obligations that grantees have already incurred. This narrower construction of grant, then, does not undermine the stated purposes of the Attorney General in allowing grants to be made from the IEF. This construction of the statutory term “ reimbursement” and the regulatory term “ grant” does not deny the authority of the Attorney General to commit a certain portion of the IEF for reimbursement to a state before the state has incurred obligations in the full amount. Rather, our construction merely would prohibit full disbursement of the grant amount before the recipient state has incurred obligations in the full amount of the grant. CHRISTOPHER SCHROEDER Deputy Assistant Attorney General Office o f Legal Counsel 285

Write a legal research memo on the following topic.

Emergency Statutes That Do Not Expressly Require a National Emergency Declaration The National Emergencies Act’s coverage is not limited to statutes that expressly require the President to declare a national emergency, but rather extends to any statute “conferring powers and authorities to be exercised during a national emergency,” unless Congress has exempted such a statute from the Act. August 24, 2016 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT The National Emergencies Act (“NEA”), Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601–1651), states that “[a]ny provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect . . . only when the President . . . specifically declares a national emergency.” 50 U.S.C. § 1621(b). You have asked whether this and other provisions of the NEA apply to statutes that grant powers and authorities in a national emergency, but do not expressly require the President to declare such an emergency. 1 We have previously issued conflicting guidance on this question. In a 1978 opinion, we stated that the NEA applied to—and thus that the President was required to declare a national emergency before invoking— section 6 of the Davis-Bacon Act, 40 U.S.C. § 276a-5 (1976), a statute 1 In considering this question, we requested and received the views of the Department of Defense, the Department of Energy, the Department of Homeland Security, and the Department of Commerce. See E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Robert S. Taylor, Acting General Counsel, Department of Defense, Re: OLC Opinion on National Emergencies Act, att. (May 17, 2016, 1:09 PM); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Eric Fygi, Deputy General Counsel, Department of Energy, Re: OLC Opinion on National Emergencies Act (May 3, 2016, 10:34 AM); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Joseph Maher, Principal Deputy General Counsel, Department of Homeland Security, Re: OLC Opinion on National Emergencies Act, att. (May 3, 2016, 10:34 AM); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Lauren Sun, Counsel to the General Counsel, Department of Commerce, Re: Department of Commerce Response on National Emergencies Act (Apr. 15, 2016, 4:28 PM). 54 Emergency Statutes That Do Not Expressly Require a National Emergency Declaration that granted powers “[i]n the event of a national emergency” but did not expressly require the President to declare the emergency. Wage and Price Standards in Government Procurement, 2 Op. O.L.C. 239, 243 (1978) (“Wage and Price Standards”). In 1982, in contrast, in footnote 78 of an opinion entitled Legal Authorities Available to the President to Respond to a Severe Energy Supply Interruption or Other Substantial Reduction in Available Petroleum Products, we advised that section 710(e) of the Defense Production Act, 50 U.S.C. app. § 2160(e) (1982), was “not subject to the provisions of the National Emergencies Act” because it did not “expressly require the President to declare a national emergency in order to” exercise the powers it granted. 6 Op. O.L.C. 644, 674 n.78 (1982) (“Severe Energy Supply Interruption”). For the reasons set forth below, we conclude that the NEA’s coverage is not limited to statutes that expressly require the President to declare a national emergency, but rather extends to any statute “conferring powers and authorities to be exercised during a national emergency,” unless Congress has exempted such a statute from the Act. 50 U.S.C. § 1621(b). To the extent that footnote 78 of our 1982 Severe Energy Supply Interruption opinion is inconsistent with this conclusion, we no longer adhere to it. I. The NEA, enacted in 1976, consists of five titles. Title I is backwardlooking: It terminated most powers and authorities that the Executive possessed “as a result of the existence of any declaration of national emergency in effect on September 14, 1976,” the date of the statute’s enactment. 50 U.S.C. § 1601. Title I thus has limited continuing application. Title II of the NEA—which consists of 50 U.S.C. §§ 1621 and 1622— prescribes rules for the declaration and termination of national emergencies. Section 1621(a) grants the President authority to “declare [a] national emergency” with respect to statutes “authorizing the exercise, during the period of a national emergency, of any special or extraordinary power.” Id. § 1621(a); see also id. (requiring that such a declaration be transmitted to Congress and published in the Federal Register). Section 1621(b) states that “[a]ny provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and 55 40 Op. O.L.C. 54 (2016) remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with [the NEA].” Id. § 1621(b). Section 1622 provides that the President or Congress may terminate “[a]ny national emergency declared by the President in accordance with [the NEA],” and that such an emergency shall in any event “terminate on the anniversary of the declaration of that emergency,” unless the President timely issues “a notice stating that such emergency is to continue in effect.” Id. § 1622(a), (d). Once a national emergency declared by the President terminates, “any powers or authorities exercised by reason of said emergency shall cease to be exercised.” Id. § 1622(a); see also id. (listing three exceptions to this requirement). Titles III and IV—which consist of 50 U.S.C. §§ 1631 and 1641 respectively—set forth requirements that the President and other officers must follow once the President has declared a national emergency. Section 1631 provides that “[w]hen the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” Id. § 1631. Section 1641 states that “[w]hen the President declares a national emergency, or Congress declares war,” the President and each executive agency must maintain a file and index of, and transmit to Congress, certain orders, rules, and regulations “issued during such emergency or war issued pursuant to such declarations.” Id. § 1641(a)–(b). In addition, the President must periodically transmit to Congress “a report on the total expenditures incurred by the United States Government . . . which are directly attributable to the exercise of powers and authorities conferred by such declaration.” Id. § 1641(c). Last, title V exempts several listed statutes from the NEA’s requirements. See id. § 1651(a). It also directs congressional committees to issue a report and recommendations within nine months of the NEA’s enactment. Id. § 1651(b). At least two types of statutes grant powers or authorities to the Executive during national emergencies. Some statutes provide that certain specified powers or authorities may be exercised during a “national emergency” that has been “declared by the President” or “proclaimed by the President.” See, e.g., 10 U.S.C. § 12302(a) (authorizing the secretaries of 56 Emergency Statutes That Do Not Expressly Require a National Emergency Declaration the military departments and the Coast Guard to order units in the Ready Reserve to active duty “[i]n time of national emergency declared by the President”); 14 U.S.C. § 367(3) (authorizing the Coast Guard temporarily to retain enlisted personnel beyond their terms of enlistment “during a period of . . . national emergency as proclaimed by the President”). We will refer to these statutes as declared national emergency statutes. Other statutes provide that particular powers or authorities may be exercised during a “national emergency,” without expressly requiring that the emergency be declared or proclaimed by the President or any other officer or entity. See, e.g., 10 U.S.C. § 871(b) (permitting the commutation of certain court-martial sentences “[i]n time of . . . national emergency”); 14 U.S.C. § 331 (authorizing the secretary of the department in which the Coast Guard is operating to order any regular officer on the retired list to active duty “[i]n time of . . . national emergency”). We will refer to these statutes as national emergency statutes. 2 As noted above, we have previously issued conflicting statements concerning whether the NEA’s requirements are applicable only to declared national emergency statutes, or to both declared national emergency statutes and national emergency statutes. In our 1978 Wage and Price Standards opinion, we stated that “under Title II of the [NEA], a Presidential declaration of national emergency [was] required in order to” invoke section 6 of the Davis-Bacon Act, a national emergency statute. 2 Op. O.L.C. at 243; see 40 U.S.C. § 276a-5 (1976) (granting the President authority to suspend provisions of the Davis-Bacon Act “[i]n the event of a national emergency”). In 1982, in contrast, we indicated that only those statutes that “expressly require the President to declare a national emergency”—that is, declared national emergency statutes—are “subject to the provisions of the [NEA].” Severe Energy Supply Interruption, 6 Op. O.L.C. at 674 n.78. II. To resolve the conflict in our prior opinions, we now consider whether the NEA’s provisions apply only to declared national emergency statutes or to both declared national emergency statutes and national emergency 2 We do not address whether the NEA applies to statutes other than declared national emergency statutes and national emergency statutes. 57 40 Op. O.L.C. 54 (2016) statutes. In Part II.A, we conclude that the NEA’s text unambiguously extends to both types of statutes. In Part II.B, we consider the NEA’s legislative history and find that it reinforces that conclusion. A. We begin with the text of the NEA. See Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013) (“As in any statutory construction case, ‘[w]e start, of course, with the statutory text.’” (alteration in original) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006))). As we noted earlier, the NEA’s first forward-looking provision, 50 U.S.C. § 1621, contains two subsections: subsection (a) states that “[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency,” 50 U.S.C. § 1621(a) (emphasis added); and subsection (b) states that “[a]ny provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect . . . only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency,” id. § 1621(b) (emphasis added). The language of each of these subsections straightforwardly extends to national emergency statutes. National emergency statutes are both “Acts of Congress authorizing the exercise, during the period of a national emergency, of . . . special or extraordinary power[s]” and “provisions of law conferring powers and authorities to be exercised during a national emergency”—indeed, they often use precisely or nearly those terms. See, e.g., 10 U.S.C. § 2208(l )(2) (authorizing the Secretary of Defense to waive certain notification requirements “during a period of . . . national emergency”); 7 U.S.C. § 4208 (waiving certain provisions with respect to the acquisition or use of farmland for national defense purposes “during a national emergency”). And neither subsection of section 1621 contains any language limiting section 1621’s coverage to statutes that themselves require a presidential declaration of emergency: section 1621(a) does not state, for instance, that it applies only to statutes granting powers “during the period of a national emergency declared by the President,” and section 1621(b) does not state that it applies to provisions of law conferring powers and authorities to be exercised “during a national emergency declared by the President.” 58 Emergency Statutes That Do Not Expressly Require a National Emergency Declaration This straightforward reading of section 1621(a) and (b) is reinforced by the fact that both subsections would be almost entirely superfluous if they extended only to declared national emergency statutes. There would be no need for subsection (a) to “authorize[]” the President to declare national emergencies only with respect to declared national emergency statutes, because statutes that apply “during a national emergency declared by the President” already implicitly authorize such declarations. (If they did not, they would have been inoperative prior to the NEA’s enactment.) Similarly, there would be no need for subsection (b) to prohibit the President from exercising powers or authorities granted by declared national emergency statutes except “when the President . . . specifically declares a national emergency,” because those statutes already require a presidential declaration of national emergency as a precondition to their operation. See, e.g., 10 U.S.C. § 155(f )(4) (suspending limitations on tours of duty “during a national emergency declared by the President”). To interpret the provisions of section 1621 as limited to declared national emergency statutes would thus violate the basic principle that “‘[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’” Corley v. United States, 556 U.S. 303, 314 (2009) (alteration in original) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). By their plain terms, then, both subsections of 50 U.S.C. § 1621 apply to national emergency statutes. Subsection (a) authorizes the President to declare a national emergency “[w]ith respect to” national emergency statutes, 50 U.S.C. § 1621(a), and subsection (b) requires the President to declare a national emergency “in accordance with subsection (a)” before any “powers and authorities” conferred by a national emergency statute for use in the event of a national emergency may be exercised, id. § 1621(b). It follows from this conclusion that the other forward-looking provisions of the NEA also apply to national emergency statutes. This is because each of those provisions is expressly tied to the declaration of a national emergency under section 1621 or to the statutory powers or authorities triggered by such a declaration. The first additional forwardlooking provision, 50 U.S.C. § 1622, states that the President or Congress may terminate “[a]ny national emergency declared by the President in accordance with” title II of the NEA, and that upon such termination “any 59 40 Op. O.L.C. 54 (2016) powers or authorities exercised by reason of said emergency shall cease to be exercised.” Id. § 1622(a). Section 1621 forms part of title II of the NEA, and, as we have just discussed, section 1621(b) requires the President to “declare[]” a national emergency “in accordance with” section 1621(a) before any powers and authorities conferred by a national emergency statute for use in the event of a national emergency may be exercised. As a result, such powers and authorities can only be exercised “by reason of ” an emergency declared under title II of the NEA. Id. § 1622(a). Section 1622 thus authorizes the President or Congress to terminate any emergency triggering the exercise of powers and authorities conferred by a national emergency statute, thereby causing those powers and authorities to “cease to be exercised.” Id. The next provision of the NEA, 50 U.S.C. § 1631, provides that “[w]hen the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” Id. § 1631. National emergency statues make “powers or authorities . . . available . . . for use in the event of an emergency,” see, e.g., 10 U.S.C. § 871(b) (permitting the commutation of certain court-martial sentences “[i]n time of . . . national emergency”); and (as we have said), under section 1621(b) of the NEA, the President must “declare[] a national emergency” in order to invoke a national emergency statute. Accordingly, section 1631 provides that the President and other officers cannot exercise powers or authorities conferred by a national emergency statute “unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” 50 U.S.C. § 1631. Finally, 50 U.S.C. § 1641 states that “[w]hen the President declares a national emergency, or Congress declares war,” the President and executive agencies must maintain and transmit to Congress all rules, regulations, and significant orders “issued during such emergency or war . . . pursuant to such declarations.” Id. § 1641(a)–(b). It also provides that the President must periodically report to Congress any federal expenditures “directly attributable to the exercise of powers and authorities conferred by such declaration.” Id. § 1641(c). Because the President must declare a national emergency in order to exercise powers or authorities conferred by a national emergency statute for use in the event of a national emergency, 60 Emergency Statutes That Do Not Expressly Require a National Emergency Declaration any rules, regulations, or significant orders issued in reliance on those powers or authorities are issued “pursuant to” such a declaration. Id. § 1641(a); see Webster’s Third New International Dictionary 1848 (1966) (defining “pursuant to” to mean “in the course of carrying out; in conformance to or agreement with”). And, for the same reason, any expenditures incurred by the United States Government when exercising such powers and authorities are “directly attributable to the exercise of powers and authorities conferred by such declaration.” 50 U.S.C. § 1641(c). The President and executive agencies therefore must report such orders, regulations, rules, and expenditures in accordance with the requirements of section 1641. In sum, the plain language of section 1621 makes clear that the NEA applies to national emergency statutes, as well as declared national emergency statutes. As a result, each forward-looking provision of the NEA unambiguously extends to both types of statutes as well. If it chooses, of course, Congress can exempt particular national emergency statutes or declared national emergency statutes from the scope of the NEA. However, we have no occasion to consider here whether any particular statute is so exempt. B. Because the NEA’s provisions unambiguously apply to national emergency statutes, it is unnecessary for us to examine the statute’s legislative history. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms.”). But to the extent the legislative history is relevant, it too indicates that Congress intended the NEA’s provisions to apply to national emergency statutes. Both the NEA’s House report and testimony delivered prior to its enactment by Antonin Scalia, who was then the Assistant Attorney General for the Office of Legal Counsel, indicate that Congress intended titles II and III of the NEA to apply to national emergency statutes. The House report states: [Title II] of the bill provides, for the first time, explicit provision for the President to make the declaration of national emergency which 61 40 Op. O.L.C. 54 (2016) certain statutes require. . . . This clarifies an existing problem as to emergency statutes. At present this power can be implied with respect to some statutes—for example, those which state that certain laws are deemed to be in effect “during any . . . period of national emergency declared by the President[” provide], in so many words, [that the President] may declare such an emergency; and some statutes dependent upon the existence of states of emergency do not specifically say who shall declare them. . . . When the Act fully takes effect, emergency provisions will only be implemented by the President in accordance with the terms of Title II and Title III of the amended bill. H.R. Rep. No. 94-238, at 6 (1975) (second ellipsis in original) (emphasis added). This passage, which repeats almost verbatim testimony that Assistant Attorney General Scalia had delivered one month earlier, makes clear that Congress did not intend for the NEA to be limited to statutes “which state that certain laws are deemed to be in effect ‘during any . . . period of national emergency declared by the President’”—that is, declared national emergency statutes. Id.; see National Emergencies Act: Hearings Before the Subcomm. on Admin. Law & Governmental Relations of the H. Comm. on the Judiciary on H.R. 3884, 94th Cong. 91 (1975) (“NEA Hearings”) (statement of Assistant Attorney General Scalia) (similar). Rather, as the House report also explains, the NEA was designed to ensure that “statutes dependent upon the existence of states of emergency [that] do not specifically say who shall declare them”—that is, national emergency statutes— “will only be implemented by the President in accordance with the terms of Title II and Title III” of the NEA. H.R. Rep. No. 94-238, at 6 (emphasis added); see NEA Hearings at 91. The House report and Assistant Attorney General Scalia’s testimony thus indicate that Congress intended that the President would implement national emergency statutes “only . . . in accordance with” titles II and III of the NEA. A subsequent passage from the House report reaffirms this intention. That passage (which again borrows nearly verbatim from Assistant Attorney General Scalia’s testimony) explains that in some cases, “changes in law automatically take effect during times of national emergency,” but that title III of the NEA would “change this by establishing that no provision of law shall be triggered by a declaration of national emergency unless and until the President specifies that provision as one of those 62 Emergency Statutes That Do Not Expressly Require a National Emergency Declaration under which he or other officers will act.” H.R. Rep. No. 94-238, at 7–8 (emphasis added); see NEA Hearings at 93 (similar). The report (and Assistant Attorney General Scalia’s testimony) cite two statutes as “[e]xamples” of the provisions that would be affected by title III of the NEA in this manner, and one of those statutes—37 U.S.C. § 202(e)—was a national emergency statute. H.R. Rep. No. 94-238, at 8 n.3; see NEA Hearings at 93; 37 U.S.C. § 202(e) (1970) (altering the pay of certain rear admirals who served in active duty “in time of . . . national emergency”). The inclusion of this statute as one of two such examples strongly suggests that the drafters expected the NEA to apply to national emergency statutes. In footnote 78 of our Severe Energy Supply Interruption opinion, we identified two pieces of legislative history as supporting the contrary view that statutes that do not “expressly require the President to declare a national emergency” are “not subject to the provisions of ” the NEA. 6 Op. O.L.C. at 674 n.78. On closer examination, however, we do not think either of these passages from the legislative history supports such a conclusion. First, the Severe Energy Supply Interruption opinion quoted a sentence from Assistant Attorney General Scalia’s testimony, repeated in both the NEA’s House report and its principal Senate report, stating that “[l]aws like the Defense Production Act of 1950, which do not require a Presidential declaration of emergency for their use, are not affected by this title [i.e., Title I]—even though they may be referred to in a lay sense as ‘emergency’ statutes.” Id. (second alteration in original) (quoting NEA Hearings at 91); see H.R. Rep. No. 94-238, at 5; S. Rep. No. 94-1168, at 4 (1976). The opinion recognized that this statement “refers only to Title I of the NEA,” but nevertheless appears to have inferred from it that laws that “do not require a Presidential declaration of emergency for their use” are categorically exempt from the NEA. Severe Energy Supply Interruption, 6 Op. O.L.C. at 674 n.78. The basis for this inference, however, is unclear. As Assistant Attorney General Scalia explained in the sentence preceding the passage quoted in the Severe Energy Supply Interruption opinion, his statement was based on the particular terms of title I, which at the time he delivered his testimony expressly stated that title I applied only to those statutes relying on “‘a general declaration of emergency made by the President pursuant to a statute authorizing him to declare a 63 40 Op. O.L.C. 54 (2016) national emergency.’” NEA Hearings at 90–91 (emphasis added) (quoting H.R. 3884, 94th Cong. § 101(b) (as introduced in House, Feb. 27, 1975)). 3 That language was removed from the NEA before it was enacted, however, see 50 U.S.C. § 1601(a)–(b) (terminating powers and authorities exercised pursuant to “a general declaration of emergency made by the President”), and even in the draft discussed by Assistant Attorney General Scalia it was applicable to title I alone. This passage thus sheds no light on whether the enacted versions of titles II, III, and IV— the forwardlooking parts of the NEA with which we are concerned—apply to national emergency statutes. Second, the Severe Energy Supply Interruption opinion quoted and relied upon two sentences from the NEA’s Senate report to support its conclusion. The first sentence states that “‘[t]he provisions of Title II . . . are designed to insure congressional oversight of Presidential actions pursuant to declarations of a national emergency authorized by an act of Congress.’” 6 Op. O.L.C. at 674 n.78 (emphasis and alterations in original) (quoting S. Rep. No. 94-1168, at 4). This statement remains true, however, even if the NEA applies to national emergency statutes, because by the Act’s terms, any statute that falls within the scope of 50 U.S.C. § 1621 may be invoked only “‘pursuant to declarations of a national emergency authorized by an act of Congress.’” Id. (emphasis removed); see 50 U.S.C. § 1621(b) (prohibiting the President from invoking statutes Indeed, Assistant Attorney General Scalia made this statement in part to draw a contrast between titles I and II of the draft bill. The relevant portion of his testimony reads, in full: 3 Any emergency declared after the date of enactment of this legislation would not be terminated by title I, but would instead fall under the limiting scheme created by title II. Moreover, title I would only affect those statutes whose conferral of powers is expressly conditioned upon a Presidential declaration of national emergency. This is made clear by section 101(b), which defines the phrase “any national emergency in effect” to mean only “a general declaration of emergency made by the President pursuant to a statute authorizing him to declare a national emergency.” Thus, laws like the Defense Production Act of 1950, which do not require a Presidential declaration of emergency for their use, are not affected by this title—even though they may be referred to in a lay sense as “emergency” statutes. NEA Hearings at 90–91. Furthermore, one paragraph after this discussion of title I, Assistant Attorney General Scalia proceeded to separately describe the provisions and effects of title II. See id. at 91. 64 Emergency Statutes That Do Not Expressly Require a National Emergency Declaration unless he “specifically declares a national emergency” in accordance with the NEA). The opinion also quoted a sentence from the Senate report stating that the NEA “‘is directed solely to Presidential declarations of emergency.’” Severe Energy Supply Interruption, 6 Op. O.L.C. at 674 n.78 (emphasis in original) (quoting S. Rep. No. 94 -1168, at 4). But in context, this sentence only clarifies that the NEA does not apply to or limit authorizations based on national emergencies declared by Congress: the immediately preceding sentence explains that “[t]he provisions of this bill are not meant to supersede existing provisions of law which authorize declarations of emergency by the Congress.” S. Rep. No. 94 -1168, at 4. The NEA’s legislative history, then, contains two strong indications that Congress intended the Act to extend to national emergency statutes. Neither of the passages cited in our 1982 Severe Energy Supply Interruption opinion suggests that Congress intended to limit the NEA to declared national emergency statutes, and we have not found any other legislative history that supports such a reading. The NEA’s legislative history thus reinforces what its text plainly provides: that the provisions of the NEA extend to declared national emergency statutes and national emergency statutes alike. 4 III. For the foregoing reasons, we conclude that the NEA’s coverage is not limited to statutes that expressly require the President to declare a national emergency. Rather, the NEA applies to any statute “conferring powers and authorities to be exercised during a national emergency,” unless Congress has exempted such a statute from the Act. 50 U.S.C. § 1621(b). KARL R. THOMPSON Principal Deputy Assistant Attorney General Office of Legal Counsel We note that neither we nor any of the agencies with which we consulted in preparing this opinion identified any administrative practice conducted in reliance on the interpretation of the NEA set forth in our Severe Energy Supply Interruption opinion. See supra note 1. We also have not found any basis for concluding that Congress acquiesced in or ratified that interpretation. 4 65

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Sixth Amendment Implications of Law Enforcement Contact with Corporate Executives Law enforcem ent contacts with high-ranking executives o f a corporation without the presence o f coun­ sel after crim inal charges have been filed against the corporation violate the corporation’s Sixth A m endm ent right to counsel No Sixth Am endm ent violation occurs when such law enforcem ent contacts with high-ranking ex ecu ­ tives occur while civil penalty proceedings are in progress against the corporation A pril 15, 1994 M e m o r a n d u m O p in io n f o r t h e P r in c ip a l A s s o c ia t e D e p u t y A t t o r n e y G e n e r a l You have asked us to consider the Sixth Amendment implications o f law enforcement contacts with high-ranking corporate executives while criminal or civil penalty proceedings are pending against the corporation that em ploys the ex­ ecutives.1 We conclude that such contacts outside the presence of counsel violate the Sixth Amendment when criminal charges have been filed, but that law en­ forcement contacts of this nature do not contravene the Sixth Amendment when civil penalty proceedings are in progress. I. The Sixth Am endm ent as a Restriction on Interrogation The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the ac­ cused shall enjoy the right . . . to have the assistance of counsel for his defence.” U.S. Const, amend. VI. This constitutional safeguard comes into play concom i­ tantly with the “first formal charging proceeding,”2 M oran v. Burbine, 475 U.S. 412, 428 (1986), and encompasses the right to the assistance of counsel during all forms of interrogation. See, e.g., B rew er v. W illiams, 430 U.S. 387, 400-01 (1977) 1 M em orandum for W alter Dellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Irvin B. N athan, Principal A ssociate D eputy A ttorney G eneral (Feb 24, 1994) We also received and considered com m ents contained in a M em orandum for M ary Jo W hite, U nited States A ttorney, Southern D istrict o f N ew York, from D avid B Fein, D eputy Chief, C rim inal D ivision, Southern D istrict o f New York (M ar. 11, 1994). 2 In 1980, w e explained that, “[gjenerally, no infringem ent o f the Sixth A m endm ent can occur prior to the initiation o f form al judicial proceedings " E thical R estraints o j the AB A C ode o j P rofessional R espo n sib ility on F ederal C rim inal Investigations, 4B Op. O L.C 576, 581 (1980) A lthough the Suprem e C ourt had previously h eld that the Sixth A m endm ent right to counsel could attach prior to indictm ent, we noted that the C o u rt’s d ecisio n in that case — Escobedo v Illinois, 378 U S 478 (1964) — “has been lim ited to its facts ” 4B O p O .L C at 581 n 10 (citing Johnson v N ew J ersev. 384 U S. 7 19, 733-34 (1966), and K trbv v. Illinois, 406 U S. 682, 6 9 0 (1 9 7 2 )). 47 O pinions o f the O ffice o f L egal C ounsel (confession elicited by so-called Christian burial speech); M assiah v. U nited S ta tes , 377 U.S. 201, 206 (1964) (surreptitious interrogation). M ost judicial decisions interpreting the right to counsel involve individual defendants, but the Sixth Amendment also affords corporations the right to coun­ sel. U nited S tates v. Rad-O -Lite o f P hiladelphia, Inc., 612 F.2d 740, 743 (3d Cir. 1979); see also U nited States v. Unimex, Inc., 991 F.2d 546, 549 (9th Cir. 1993) (holding that “a corporation has a Sixth Amendment right to be represented by counsel” at trial); U nited States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir. 1982) (accused corporation can avail itself of guarantees provided to “an ‘accused’” by Sixth Amendment), cert, denied, 459 U.S. 825 (1982). Because a corporation ‘“ is an artificial entity that can only act through agents,” ’ Am erican A irw a ys C harters, Inc. v. Regan, 746 F.2d 865, 873 n.14 (D.C. Cir. 1984) (quoting Jones v. N ia g a ra F rontier Transp. A uth., 722 F.2d 20, 22 (2d Cir. 1983)), the pro­ scription o f interrogation in the absence of counsel after the commencement of adversary judicial proceedings engenders some confusion when a corporation is named as a defendant. Nevertheless, the contours of the Sixth Amendment right to counsel available to corporations can be defined in both the criminal and civil contexts. II. C rim inal Proceedings Involving Corporations Once the governm ent files criminal charges against a corporation, the Sixth Am endm ent forecloses interrogation of the corporation outside the presence of corporate counsel. U nited States v. K ilpatrick, 594 F. Supp. 1324, 1350 (D. Colo. 1984), re v 'd on o th er grounds, 821 F.2d 1456 (10th Cir. 1987), a jf ’d sub nom. Bank o f N ova S cotia v. U nited States, 487 U.S. 250 (1988). Although the district court opinion in Kilpatrick provides the only direct affirmation o f this proposition, Sixth Amendment precedent bolsters the conclusion reached in K il­ p a trick. The Suprem e C ourt has em phasized that the Sixth Amendment “provides the right to counsel at postarraignment interrogations.” M ichigan v. Jackson, 475 U.S. 625, 629 (1986). Because the Sixth Am endm ent right to counsel applies to corporations as well as individuals, Unimex, 991 F.2d at 549; R ad-O -L ite, 612 F.2d at 743, corporations — like individuals — cannot be subjected to interroga­ tion outside the presence of counsel after the initiation of criminal proceedings. See M aine v. M oulton, 474 U.S. 159, 170 (1985); 4B Op. O.L.C. at 580 (“Once the right to counsel has attached, the governm ent may not elicit incriminating statem ents from the [defendant] unless it has obtained a waiver o f his Sixth A m endm ent right.”). The question, then, is whether interrogation of high-level corporate executives amounts to contact with the corporation itself. The relationship between corpora­ tions and their high-level executives provides the answer to this question. Corpo­ rate executives possess the power to invoke a corporation’s right to counsel. 48 Sixth A m endm ent Im plications o f Law E nforcem ent C ontact with C orporate E xecutives Potashnick v. P ort C ity Constr. Co., 609 F.2d 1101, 1119 & n.12 (5th Cir.), cert, denied, 449 U.S. 820 (1980). M oreover, statements made by high-level corporate executives can be imputed to the corporation itself as admissions. M iano v. A C & R A dvertising, Inc., 148 F.R.D. 68, 76-77 (S.D.N.Y.) (Katz, M agistrate J.), adopted, 834 F. Supp. 632 (S.D.N.Y. 1993). In sum, a corporation can invoke constitutional rights and make binding inculpatory statements through its highranking executives. Thus, interrogation o f corporate executives constitutes inter­ rogation of the corporation itself.3 Id. (collecting cases holding that contact with high-level executives amounts to contact with corporation itself). Accordingly, when law enforcement officials question high-ranking corporate executives outside the presence of counsel after the initiation of formal criminal proceedings, the Sixth Amendment dictates that — absent a valid waiver of the right to counsel — all statements made by corporate executives are inadmissible against the corpora­ tion at a criminal trial.4 See M oulton, 474 U.S. at 180. III. Civil Penalty Actions A gainst Corporations Courts traditionally have rejected assertions of the Sixth Amendment right to counsel in civil penalty proceedings on the assumption that the Sixth Amendment applies only after the filing of criminal charges. See, e.g., W illiams v. U nited S tates D e p ’t o f Transp., 781 F.2d 1573, 1578 n.6 (11th Cir. 1986); C ollins v. Com m odity Futures Trading C om m ’n, 737 F. Supp. 1467, 1482-83 (N.D. 111. 1990). One commentator has suggested, however, that the Supreme C ourt’s ruling in U nited States v. H alper, 490 U.S. 435 (1989), may have rendered this assum p­ tion obsolete. Linda S. Eads, Separating Crim e From Punishment: The C on stitu ­ tional Im plications o f U nited S tates v. H alper, 68 Wash U.L.Q. 929, 971-72 (1990). Consequently, you have asked us to address the effect — if any — of the H alper decision upon the notion that the Sixth Amendment right to counsel does not apply in civil penalty proceedings. The H alper case involved a Double Jeopardy Clause challenge to a $130,000 civil penalty imposed upon an individual who had previously been convicted on felony charges for the same conduct that led to the civil penalty. H alper, 490 U.S. at 437-38. The Supreme Court found that the $130,000 civil penalty served re­ tributive or deterrent purposes, rather than merely remedial purposes, because the penalty bore “no rational relation to the goal of compensating the Governm ent” for 3 T he New Jersey Suprem e Court has even suggested that a ''c o rp o ra tio n 's Sixth A m endm ent right to counsel may be im plicated if governm ent prosecutors m ight, after indictm ent, unqualifiedly interview [a low er-level em ployee] w hose conduct establishes the guilt o f the corporation *' M a tter o f O pinion 6 6 8 o f the A d viso ry Com m on P rofessional Ethics, 633 A .2d 959, 963 (N J. 1993) 4 If the executives them selves have not been form ally charged, how ever, the statem ents they m ake can be introduced in a subsequent crim inal proceeding against the executives See M o u lto n , 474 U.S at 180 C‘[T]o exclude evidence pertaining to charges as to w hich the Sixth A m endm ent right to counsel had not attached at the tim e the evidence was obtained, sim ply because other charges w ere pending at that tim e, w ould unneces­ sarily frustrate the p u b lic's in terest in the investigation o f c n m in al activities ") 49 O pinions o f the O ffice o f L egal C ounsel the $585 loss caused by H alper’s conduct. Id. at 449. Therefore, the civil penalty amounted to “punishm ent” as contemplated by the Double Jeopardy Clause. Id. at 452. The H a lp er Court unmistakably extended the reach of the Fifth Amendment, but the C ourt carefully distinguished the Double Jeopardy Clause from “the proce­ dural protections o f the Sixth A m endm ent” and other constitutional safeguards traditionally confined to criminal proceedings. H a lp er , 490 U.S. at 447. Specifi­ cally, the C ourt reaffirm ed that the application o f such constitutional guarantees turns upon the “abstract approach” prescribed in U nited States v. Ward, 448 U.S. 242, 248-51 (1980), rather than the “ intrinsically personal” approach devised by the H alper Court to assess the availability of Double Jeopardy Clause protection. H alper, 490 U.S. at 447. In the wake of H alper, the lower courts have agreed that the availability o f Sixth Amendment protections in civil penalty actions depends upon the W ard test, rather than the H a lp e r standard. See U nited States v. 38 W hal­ ers C ove D rive, 954 F.2d 29, 35 (2d Cir.), cert, denied, 506 U.S. 815 (1992); U nited S tates v. N evada P ow er Co., 31 E nv’t Rep. Cas. (BNA) 1878, 1882 (D. Nev. 1990). A ccording to Ward, a civil penalty action ordinarily should not be viewed as a criminal case with all the attendant Fifth and Sixth Amendment guarantees. Ward, 448 U.S. at 248-51. When a litigant in a civil penalty proceeding invokes Sixth A m endm ent rights by characterizing the action as a criminal prosecution, the court must engage in a two-part inquiry. Id. at 248. First, the court must “set out to determ ine whether Congress, in establishing the penalizing mechanism, indicated expressly or impliedly a preference for one label or the other.” Id. Second, “where Congress has indicated an intention to establish a civil penalty,” the court m ust “inquire[] further w hether the statutory scheme [is] so punitive ei­ ther in purpose or effect as to negate that intention.” Id. at 248-49. ‘“ Only the clearest p ro o f that the purpose and effect of the [civil penalty] are punitive will suffice to override C ongress’ manifest preference for a civil sanction.” U nited S tates v. One A ssortm en t o f 89 F irearm s, 465 U.S. 354, 365 (1984). Because the “protections provided by the Sixth A m endm ent are explicitly confined to ‘criminal prosecutions,” ’ Austin v. U nited S tates, 509 U.S. 602, 608 (1993), and civil pen­ alty actions generally cannot be characterized as “criminal prosecutions,” see W ard, 448 U.S. at 248-51, the Sixth Amendm ent does not foreclose interrogation o f a corporation’s executives while a civil penalty action is pending against the corporation. IV. C on clusion Law enforcem ent contact with high-ranking corporate executives must be judged by the same Sixth Amendment standards that govern individual defendants’ right to counsel. Thus, contact with corporate executives outside the presence of 50 Sixth A m endm ent Im plications o f Law E nforcem ent C ontact with C orporate E xecutives counsel is impermissible after the initiation of criminal proceedings against a cor­ poration, but such contact passes muster under the Sixth Amendment when civil penalty proceedings are in progress. W ALTER DELLINGER A ssistan t A ttorney G eneral Office o f Legal Counsel 51

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June 21, 1977 77-39 MEMORANDUM OPINION FOR THE UNITED STATES ATTORNEY, JUDICIAL DISTRICT OF MAINE Borrowing Practices of Bank Examiners O ur opinion has been requested whether the provisions of 18 U.S.C. §§212-13 are violated if (1) the spouse of a bank examiner borrows money from a federally insured State bank, or (2) a bank examiner borrow s money from such a bank where the State superintendent of banking has first revoked the examiner’s authority to examine that bank. For the reasons that follow, it is our conclusion that no violation of 18 U.S.C. §§212-13 would be presented by the second approach; the first approach, however, poses problems that we believe are best avoided. W e shall first discuss the problems presented under 18 U.S.C. §§21213 by a loan to the spouse of a bank examiner. Section 212 prohibits bank officers of any federally insured bank, under penalty of criminal sanction, from making or granting “any loan or gratuity . . . to any examiner or assistant examiner who examines o r has authority to exam­ ine such bank.” Section 213 provides for a corresponding prohibition on bank examiners from accepting “a loan or gratuity from any bank . . . examined by him or from any person connected therewith.” It is quite apparent that neither of these provisions explicitly imposes any restrictions on the spouses o f bank examiners. According to the general rule requiring strict construction of criminal statutes, the activities of a spouse would not normally come within the provisions of such laws. H ow ever, we question w hether this result will always follow. Our problem here stems from the decision in United States v. Bristol, 343 F. Supp. 1262 (S.D. Tex. 1972), affirmed, 473 F. 2d 439 (5th Cir. 1973). In that case it was held that a bank officer’s loan funneled through an entity not subject to 18 U.S.C. 213, nevertheless came within the provisions o f that statute. T h e courts reasoned that, even though crimi­ nal statutes must be strictly construed, §213 should not be interpreted so as to depart from the evident congressional intent “to proscribe certain financial transactions which could lead to a bank examiner 154 carrying out his duties with less than total, unbiased objectivity.” 473 F. 2d at 442. We believe that this same reasoning would apply to at least some loans made to spouses of bank examiners. In the most egregious case, the loan to the spouse may in actuality be a loan to the bank examiner. Even if the transaction did not partake o f this type of fraudulent behavior, it seems to us that, in certain circumstances, a loan to the spouse of a bank examiner could easily cause that examiner to perform his or her duties with respect to the particular bank in less than an unbiased and objective manner. In both sorts of situations the courts might then adopt the approach in Bristol and apply 18 U.S.C. §§ 212-13 to such loans. The Federal Deposit Insurance Corporation apparently shares this view, for it has laid down criteria that must be met before the spouse of an examiner may borrow from an uninsured bank. These criteria gener­ ally mandate that the loan be based entirely on the spouse’s credit, be supported by the spouse’s own income or assets, and be employed for the spouse’s own personal use. While these criteria largely alleviate our concerns here, they do not entirely eliminate them. For example, it is possible that the borrowed funds could allow the examiner’s income to be used for purposes for which they might not otherwise be available. A default on the loan, although theoretically enforceable only against the spouse, could also bear on the examiner’s standard of living and might even end up being paid out of the examiner’s own funds. It thus seems that a bank examiner cannot be entirely insulated from the effects o f his spouse’s loan transactions in every circumstance. We therefore cannot conclude that the purposes underlying 18 U.S.C. §§212-13 would not encompass a loan to a bank examiner’s spouse in every situation, and that the courts would not follow Bristol and apply those statutes to such situations. While this may not often occur, we do believe that this prospect poses significant problems and precludes the view that loans to the spouse of a bank examiner will never violate 18 U.S.C. §§212-13. We would therefore recommend that this practice be followed, if at all, with extreme caution. We have no problem, however, with the second alternative of revok­ ing a bank examiner’s authority to examine particular banks and allow­ ing him to obtain loans from those banks.1 We do not believe it appropriate for this Office to comment on the authority of the superin­ tendent of banking to take this action; this is a question of State law and should therefore be decided by the State authorities. However, assuming that this authority exists, we believe that the revocation of an examiner’s authority to examine certain banks would meet the purposes served by 18 U.S.C. §§212-13. The examiner would, then, never be in ■We note here that 18 U.S.C. §213 does not expressly refer to those banks that the exam iner has authority to examine, but only includes banks “exam ined” by the examiner. N o such lim itation appears in 18 U.S.C. §212, how ever, and so the question o f the exam iner’s authority is at least relevant to the bank officers’ liability. 155 a position o f having dealings with a bank he could examine, and this would serve to guarantee the examiner’s unbiased objectivity in the performance of his duties. W e would caution, however, that 18 U.S.C. §213 would still prohibit any dealings with a bank that the examiner has already “examined.” L eon U lm an Deputy Assistant Attorney General Office o f Legal Counsel 156

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June 21, 1977 77-39 MEMORANDUM OPINION FOR THE UNITED STATES ATTORNEY, JUDICIAL DISTRICT OF MAINE Borrowing Practices of Bank Examiners O ur opinion has been requested whether the provisions of 18 U.S.C. §§212-13 are violated if (1) the spouse of a bank examiner borrows money from a federally insured State bank, or (2) a bank examiner borrow s money from such a bank where the State superintendent of banking has first revoked the examiner’s authority to examine that bank. For the reasons that follow, it is our conclusion that no violation of 18 U.S.C. §§212-13 would be presented by the second approach; the first approach, however, poses problems that we believe are best avoided. W e shall first discuss the problems presented under 18 U.S.C. §§21213 by a loan to the spouse of a bank examiner. Section 212 prohibits bank officers of any federally insured bank, under penalty of criminal sanction, from making or granting “any loan or gratuity . . . to any examiner or assistant examiner who examines o r has authority to exam­ ine such bank.” Section 213 provides for a corresponding prohibition on bank examiners from accepting “a loan or gratuity from any bank . . . examined by him or from any person connected therewith.” It is quite apparent that neither of these provisions explicitly imposes any restrictions on the spouses o f bank examiners. According to the general rule requiring strict construction of criminal statutes, the activities of a spouse would not normally come within the provisions of such laws. H ow ever, we question w hether this result will always follow. Our problem here stems from the decision in United States v. Bristol, 343 F. Supp. 1262 (S.D. Tex. 1972), affirmed, 473 F. 2d 439 (5th Cir. 1973). In that case it was held that a bank officer’s loan funneled through an entity not subject to 18 U.S.C. 213, nevertheless came within the provisions o f that statute. T h e courts reasoned that, even though crimi­ nal statutes must be strictly construed, §213 should not be interpreted so as to depart from the evident congressional intent “to proscribe certain financial transactions which could lead to a bank examiner 154 carrying out his duties with less than total, unbiased objectivity.” 473 F. 2d at 442. We believe that this same reasoning would apply to at least some loans made to spouses of bank examiners. In the most egregious case, the loan to the spouse may in actuality be a loan to the bank examiner. Even if the transaction did not partake o f this type of fraudulent behavior, it seems to us that, in certain circumstances, a loan to the spouse of a bank examiner could easily cause that examiner to perform his or her duties with respect to the particular bank in less than an unbiased and objective manner. In both sorts of situations the courts might then adopt the approach in Bristol and apply 18 U.S.C. §§ 212-13 to such loans. The Federal Deposit Insurance Corporation apparently shares this view, for it has laid down criteria that must be met before the spouse of an examiner may borrow from an uninsured bank. These criteria gener­ ally mandate that the loan be based entirely on the spouse’s credit, be supported by the spouse’s own income or assets, and be employed for the spouse’s own personal use. While these criteria largely alleviate our concerns here, they do not entirely eliminate them. For example, it is possible that the borrowed funds could allow the examiner’s income to be used for purposes for which they might not otherwise be available. A default on the loan, although theoretically enforceable only against the spouse, could also bear on the examiner’s standard of living and might even end up being paid out of the examiner’s own funds. It thus seems that a bank examiner cannot be entirely insulated from the effects o f his spouse’s loan transactions in every circumstance. We therefore cannot conclude that the purposes underlying 18 U.S.C. §§212-13 would not encompass a loan to a bank examiner’s spouse in every situation, and that the courts would not follow Bristol and apply those statutes to such situations. While this may not often occur, we do believe that this prospect poses significant problems and precludes the view that loans to the spouse of a bank examiner will never violate 18 U.S.C. §§212-13. We would therefore recommend that this practice be followed, if at all, with extreme caution. We have no problem, however, with the second alternative of revok­ ing a bank examiner’s authority to examine particular banks and allow­ ing him to obtain loans from those banks.1 We do not believe it appropriate for this Office to comment on the authority of the superin­ tendent of banking to take this action; this is a question of State law and should therefore be decided by the State authorities. However, assuming that this authority exists, we believe that the revocation of an examiner’s authority to examine certain banks would meet the purposes served by 18 U.S.C. §§212-13. The examiner would, then, never be in ■We note here that 18 U.S.C. §213 does not expressly refer to those banks that the exam iner has authority to examine, but only includes banks “exam ined” by the examiner. N o such lim itation appears in 18 U.S.C. §212, how ever, and so the question o f the exam iner’s authority is at least relevant to the bank officers’ liability. 155 a position o f having dealings with a bank he could examine, and this would serve to guarantee the examiner’s unbiased objectivity in the performance of his duties. W e would caution, however, that 18 U.S.C. §213 would still prohibit any dealings with a bank that the examiner has already “examined.” L eon U lm an Deputy Assistant Attorney General Office o f Legal Counsel 156

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Applicability of the Presidential Records Act to the White House Usher’s Office Because the White House Usher’s Office is part of the President’s “immediate staff” or, alternatively, would be “a unit . . . of the Executive Office of the President whose function is to advise and assist the President,” any documentary materials “created or received [by the Office] in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President” constitute “Presidential records” under the Presidential Records Act, 44 U.S.C. § 2201(2). July 13, 2007 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether the Usher’s Office is subject to the recordkeeping requirements of the Presidential Records Act (“PRA” or “Act”), 44 U.S.C. §§ 2201– 2207 (2006). As discussed below, we believe that, for the purposes of the PRA, the Usher’s Office is either part of the “immediate staff” of the President or is “a unit . . . of the Executive Office of the President whose function is to advise and assist the President.” Id. § 2201(2). Therefore, records of the Usher’s Office are subject to the Act to the extent that they are “created or received . . . in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.” Id. I. You have informed us that the Usher’s Office is generally responsible for managing and operating the Executive Residence of the President—a function that includes preparing and serving meals to the First Family and their guests, performing housekeeping and maintenance services on the Executive Residence, providing curatorial services, greeting visitors, and assisting the President in his performance of certain official and ceremonial duties. Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Fred F. Fielding, Counsel to the President at 1 (June 6, 2007). In performing its functions, the Usher’s Office generates and receives various paper and electronic materials, including “the daily diary of the First Family, First Family personal access lists, event guest lists, equipment, staffing, and food/beverage orders and invoices, and Executive Residence project work orders and invoices.” Id. Furthermore, the Usher’s Office is operationally part of the Executive Residence and supervises the staff of the Executive Residence. Because the Executive Residence is an entity within the Executive Office of the President, see Memorandum for Gary Walters, Chief Usher of the Executive Residence, from Andrew H. Card, Jr., White House Chief of Staff (June 11, 2002), the Usher’s Office is as well. 194 Applicability of the Presidential Records Act to the White House Usher’s Office Congress enacted the PRA in 1978 in order to preserve and make publicly available certain official records generated or received by the President and certain individuals in his service. See H.R. Rep. No. 95-1487, at 2 (1978). Accordingly, the Act mandates the preservation of “Presidential records,” which are defined as: documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President. 44 U.S.C. § 2201(2). Excluded from the definition of presidential records are “diaries, journals, or other personal notes . . . which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.” Id. § 2201(3)(A). Also excluded are “materials relating to private political associations,” id. § 2201(3)(B), “materials relating exclusively to the President’s own election[,] . . . and materials directly relating to the election of a particular individual or individuals,” id. § 2201(3)(C), that have “no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President,” id. § 2201(3)(B), (3)(C). The PRA also explicitly excludes from its coverage any “documentary materials” that are “official records of an agency,” as the term “agency” is defined in the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(f)(1) (2006). 44 U.S.C. § 2201(2)(B)(i). Such records are covered instead by FOIA and the Federal Records Act (“FRA”), 44 U.S.C. §§ 3101–3107, 3301–3314 (2006), which operate in tandem to complement the PRA. Specifically, the FRA requires federal agencies to preserve certain agency records and FOIA requires federal agencies to make such records publicly available subject to application of various statutory exemptions. As the Court of Appeals for the D.C. Circuit has explained, “the coverage of the FRA is coextensive with the definition of ‘agency’ in the FOIA . . . . As a result, . . . ‘[t]he FRA describes a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different . . . regime.’” Armstrong v. Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996) (quoting Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. 1993)). Congress applied the PRA to the President and those Executive Office of the President (“EOP”) entities that are not “agencies” subject to FOIA and the FRA, see H.R. Rep. No. 95-1487, at 3 (1978), and the Supreme Court has held that FOIA—and by implication the FRA—does not apply to “‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.’” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. No. 93-1380, at 15 195 Opinions of the Office of Legal Counsel in Volume 31 (1974)) (legislative history of 1974 amendments to FOIA); Armstrong, 1 F.3d at 1295; see also Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993). II. As discussed below, we conclude that records created or received by the Usher’s Office are covered by the PRA because the Usher’s Office must be viewed either as part of the “immediate staff” of the President or as “a unit . . . of the Executive Office of the President whose function is to advise and assist the President.” 44 U.S.C. § 2201(2). A. The PRA provides no definition of the President’s “immediate staff,” and we are aware of no judicial decisions interpreting the term in the context of the PRA. In enacting the PRA, however, Congress specifically relied upon and incorporated the conference report on the 1974 amendments to FOIA, which had become law only four years earlier. See H.R. Rep. No. 95-1487, at 11 (1978) (the term “Executive Office of the President,” to which FOIA applies, “‘is not interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’”) (quoting H.R. Conf. Rep. No. 93-1380, at 15 (1974)). Thus, in determining whether the Usher’s Office is part of the President’s “immediate staff” for purposes of the PRA, we look to how courts have interpreted the phrase “immediate personal staff” of the President in cases involving the applicability of FOIA. See Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (“[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.”). No court has precisely described the composition of the President’s “immediate staff” or “immediate personal staff.” The D.C. Circuit, however, has indicated that in the FOIA context “immediate personal staff” includes “at least those . . . individuals employed in the White House Office.” Meyer, 981 F.2d at 1293 n.3. The court explained that “[p]roximity to the President, in the sense of continuing interaction, is surely in part what Congress had in mind when it exempted the President’s ‘immediate personal staff’ [from FOIA’s requirements] without requiring a careful examination of its function.” Id. at 1293. Like the White House Office staff, employees of the Usher’s Office directly interact with the President on a continuing basis. The Usher’s Office manages the President’s official residence and is closely involved in various daily activities—including preparing the President’s food, greeting his guests, and helping him perform certain official and ceremonial functions. 196 Applicability of the Presidential Records Act to the White House Usher’s Office Moreover, the Executive Residence—which includes the Usher’s Office—and the White House Office are treated similarly under federal law. Congress has granted the President broad discretion in hiring the employees of both units. The President is specifically authorized to “appoint and fix the pay of employees” in the White House Office and the Executive Residence “without regard to any other provision of law regulating the employment or compensation of persons in the Government service.” 3 U.S.C. §§ 105(a)(1), (b)(1) (2006). These provisions reflect Congress’s judgment that the President should have complete discretion in hiring staff with whom he interacts on a continuing basis. See Haddon v. Walters, 836 F. Supp. 1, 3 (D.D.C. 1993) (“Attempts to limit the President’s power to hire and fire those who work in his own home must be carefully and thoughtfully drawn. We speak here of individuals who occupy positions in close physical proximity to the President.”); see also S. Rep. No. 95-868, at 7 (1978) (explaining that section 105 of title 3 grants the President “total discretion in the employment, removal, and compensation (within the limits established by this bill) of all employees” in both the White House Office and the Executive Residence). In addition, employees of both the White House Office and the Executive Residence must “perform such official duties as the President may prescribe.” 3 U.S.C. §§ 105(a)(1) & (b)(1). Due to the similar proximity to the President shared by the White House Office and the Usher’s Office, we conclude that the Usher’s Office falls within the President’s “immediate staff” for purposes of the PRA. B. Alternatively, if the staff of the Usher’s Office were not viewed as part of the “immediate staff” of the President, we believe that it would constitute a “unit . . . of the Executive Office of the President whose function is to advise and assist the President.” 44 U.S.C. § 2201(2). This phrase, too, stems from the conference report on the 1974 Freedom of Information Act Amendments, upon which Congress specifically relied when it enacted the PRA. See H.R. Conf. Rep. No. 951487, at 11 (1978) (FOIA “‘is not interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’”) (quoting H.R. Rep. No. 93-1380, at 15 (1974)). Congress intended for the PRA to apply to “all White House and Executive Office records, except those of a purely private or nonpublic nature, which, as a consequence of the Conference Report language, fall outside the scope of the FOIA because they are not agency records.” H.R. Conf. Rep. No. 95-1487, at 11. The D.C. Circuit has held that the staff of the Executive Residence is not an agency under FOIA because the sole function of the Executive Residence is to advise and assist the President. See Sweetland v. Walters, 60 F.3d 852, 853–55 (D.C. Cir. 1995). The court explained that it reached this decision based on the fact that the Executive Residence did not exercise any substantial authority 197 Opinions of the Office of Legal Counsel in Volume 31 independent of the President. Id. at 854 (“[E]very one of the EOP units that we found to be subject to FOIA has wielded substantial authority independently of the President. . . . The staff of the Executive Residence exercises none of the independent authority that we found to be critical . . . .”). Because the Executive Residence includes the Usher’s Office, under Sweetland the Usher’s Office is likewise exempt from FOIA as part of an EOP unit whose sole function is to advise and assist the President. The decision in Sweetland contains no discussion of whether the staff of the Executive Residence functions to “advise” the President, strongly suggesting that as long as a unit of the EOP exercises no substantial authority independently of the President, it should be classified as a unit that functions to advise and assist the President for purposes of being exempt from the FRA and FOIA—and, by implication, being subject to the PRA—regardless of whether the unit in fact “advises” the President on official or ceremonial matters. However, even if the PRA requires that a unit of the EOP both “advise” and “assist” the President in order to be covered by the Act, the Usher’s Office would still satisfy this test. First, the Usher’s Office certainly assists the President. The core functions of the Usher’s Office include “assisting the President in maintaining his home and carrying out his various ceremonial duties.” Sweetland, 60 F.3d at 854. Second, the Usher’s Office also advises the President in carrying out his ceremonial duties. For example, the Usher’s Office advises the President on what food to serve and what formalities to follow at an official White House state dinner depending, for example, on cultural sensitivities and differences. Furthermore, the Chief Usher advises the President by serving on the Committee for the Preservation of the White House, which reports to the President recommendations regarding, inter alia, the articles of furniture, fixtures, and decorative objects which shall be used or displayed in certain areas of the White House. Exec. Order No. 11145, §§ 2–3, 3 C.F.R. 123, 123–24 (1964 Supp.). III. Because the Usher’s Office is thus part of the President’s “immediate staff” or, alternatively, would be “a unit . . . of the Executive Office of the President whose function is to advise and assist the President,” any documentary materials “created or received [by the Office] in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President” constitute “Presidential records.” 44 U.S.C. § 2201(2). As noted above, we understand that the Usher’s Office does create and receive documentary materials in the course of conducting activities related to the President’s various official and ceremonial duties. Such materials constitute “Presidential records” under the PRA, and, consequently, the Usher’s Office is 198 Applicability of the Presidential Records Act to the White House Usher’s Office responsible for complying with the relevant recordkeeping provisions of the Act with respect to those materials. See id. § 2203. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 199

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Applicability of the Presidential Records Act to the White House Usher’s Office Because the White House Usher’s Office is part of the President’s “immediate staff” or, alternatively, would be “a unit . . . of the Executive Office of the President whose function is to advise and assist the President,” any documentary materials “created or received [by the Office] in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President” constitute “Presidential records” under the Presidential Records Act, 44 U.S.C. § 2201(2). July 13, 2007 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether the Usher’s Office is subject to the recordkeeping requirements of the Presidential Records Act (“PRA” or “Act”), 44 U.S.C. §§ 2201– 2207 (2006). As discussed below, we believe that, for the purposes of the PRA, the Usher’s Office is either part of the “immediate staff” of the President or is “a unit . . . of the Executive Office of the President whose function is to advise and assist the President.” Id. § 2201(2). Therefore, records of the Usher’s Office are subject to the Act to the extent that they are “created or received . . . in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.” Id. I. You have informed us that the Usher’s Office is generally responsible for managing and operating the Executive Residence of the President—a function that includes preparing and serving meals to the First Family and their guests, performing housekeeping and maintenance services on the Executive Residence, providing curatorial services, greeting visitors, and assisting the President in his performance of certain official and ceremonial duties. Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Fred F. Fielding, Counsel to the President at 1 (June 6, 2007). In performing its functions, the Usher’s Office generates and receives various paper and electronic materials, including “the daily diary of the First Family, First Family personal access lists, event guest lists, equipment, staffing, and food/beverage orders and invoices, and Executive Residence project work orders and invoices.” Id. Furthermore, the Usher’s Office is operationally part of the Executive Residence and supervises the staff of the Executive Residence. Because the Executive Residence is an entity within the Executive Office of the President, see Memorandum for Gary Walters, Chief Usher of the Executive Residence, from Andrew H. Card, Jr., White House Chief of Staff (June 11, 2002), the Usher’s Office is as well. 194 Applicability of the Presidential Records Act to the White House Usher’s Office Congress enacted the PRA in 1978 in order to preserve and make publicly available certain official records generated or received by the President and certain individuals in his service. See H.R. Rep. No. 95-1487, at 2 (1978). Accordingly, the Act mandates the preservation of “Presidential records,” which are defined as: documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President. 44 U.S.C. § 2201(2). Excluded from the definition of presidential records are “diaries, journals, or other personal notes . . . which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.” Id. § 2201(3)(A). Also excluded are “materials relating to private political associations,” id. § 2201(3)(B), “materials relating exclusively to the President’s own election[,] . . . and materials directly relating to the election of a particular individual or individuals,” id. § 2201(3)(C), that have “no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President,” id. § 2201(3)(B), (3)(C). The PRA also explicitly excludes from its coverage any “documentary materials” that are “official records of an agency,” as the term “agency” is defined in the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(f)(1) (2006). 44 U.S.C. § 2201(2)(B)(i). Such records are covered instead by FOIA and the Federal Records Act (“FRA”), 44 U.S.C. §§ 3101–3107, 3301–3314 (2006), which operate in tandem to complement the PRA. Specifically, the FRA requires federal agencies to preserve certain agency records and FOIA requires federal agencies to make such records publicly available subject to application of various statutory exemptions. As the Court of Appeals for the D.C. Circuit has explained, “the coverage of the FRA is coextensive with the definition of ‘agency’ in the FOIA . . . . As a result, . . . ‘[t]he FRA describes a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different . . . regime.’” Armstrong v. Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996) (quoting Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1293 (D.C. Cir. 1993)). Congress applied the PRA to the President and those Executive Office of the President (“EOP”) entities that are not “agencies” subject to FOIA and the FRA, see H.R. Rep. No. 95-1487, at 3 (1978), and the Supreme Court has held that FOIA—and by implication the FRA—does not apply to “‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.’” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. No. 93-1380, at 15 195 Opinions of the Office of Legal Counsel in Volume 31 (1974)) (legislative history of 1974 amendments to FOIA); Armstrong, 1 F.3d at 1295; see also Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993). II. As discussed below, we conclude that records created or received by the Usher’s Office are covered by the PRA because the Usher’s Office must be viewed either as part of the “immediate staff” of the President or as “a unit . . . of the Executive Office of the President whose function is to advise and assist the President.” 44 U.S.C. § 2201(2). A. The PRA provides no definition of the President’s “immediate staff,” and we are aware of no judicial decisions interpreting the term in the context of the PRA. In enacting the PRA, however, Congress specifically relied upon and incorporated the conference report on the 1974 amendments to FOIA, which had become law only four years earlier. See H.R. Rep. No. 95-1487, at 11 (1978) (the term “Executive Office of the President,” to which FOIA applies, “‘is not interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’”) (quoting H.R. Conf. Rep. No. 93-1380, at 15 (1974)). Thus, in determining whether the Usher’s Office is part of the President’s “immediate staff” for purposes of the PRA, we look to how courts have interpreted the phrase “immediate personal staff” of the President in cases involving the applicability of FOIA. See Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (“[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.”). No court has precisely described the composition of the President’s “immediate staff” or “immediate personal staff.” The D.C. Circuit, however, has indicated that in the FOIA context “immediate personal staff” includes “at least those . . . individuals employed in the White House Office.” Meyer, 981 F.2d at 1293 n.3. The court explained that “[p]roximity to the President, in the sense of continuing interaction, is surely in part what Congress had in mind when it exempted the President’s ‘immediate personal staff’ [from FOIA’s requirements] without requiring a careful examination of its function.” Id. at 1293. Like the White House Office staff, employees of the Usher’s Office directly interact with the President on a continuing basis. The Usher’s Office manages the President’s official residence and is closely involved in various daily activities—including preparing the President’s food, greeting his guests, and helping him perform certain official and ceremonial functions. 196 Applicability of the Presidential Records Act to the White House Usher’s Office Moreover, the Executive Residence—which includes the Usher’s Office—and the White House Office are treated similarly under federal law. Congress has granted the President broad discretion in hiring the employees of both units. The President is specifically authorized to “appoint and fix the pay of employees” in the White House Office and the Executive Residence “without regard to any other provision of law regulating the employment or compensation of persons in the Government service.” 3 U.S.C. §§ 105(a)(1), (b)(1) (2006). These provisions reflect Congress’s judgment that the President should have complete discretion in hiring staff with whom he interacts on a continuing basis. See Haddon v. Walters, 836 F. Supp. 1, 3 (D.D.C. 1993) (“Attempts to limit the President’s power to hire and fire those who work in his own home must be carefully and thoughtfully drawn. We speak here of individuals who occupy positions in close physical proximity to the President.”); see also S. Rep. No. 95-868, at 7 (1978) (explaining that section 105 of title 3 grants the President “total discretion in the employment, removal, and compensation (within the limits established by this bill) of all employees” in both the White House Office and the Executive Residence). In addition, employees of both the White House Office and the Executive Residence must “perform such official duties as the President may prescribe.” 3 U.S.C. §§ 105(a)(1) & (b)(1). Due to the similar proximity to the President shared by the White House Office and the Usher’s Office, we conclude that the Usher’s Office falls within the President’s “immediate staff” for purposes of the PRA. B. Alternatively, if the staff of the Usher’s Office were not viewed as part of the “immediate staff” of the President, we believe that it would constitute a “unit . . . of the Executive Office of the President whose function is to advise and assist the President.” 44 U.S.C. § 2201(2). This phrase, too, stems from the conference report on the 1974 Freedom of Information Act Amendments, upon which Congress specifically relied when it enacted the PRA. See H.R. Conf. Rep. No. 951487, at 11 (1978) (FOIA “‘is not interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’”) (quoting H.R. Rep. No. 93-1380, at 15 (1974)). Congress intended for the PRA to apply to “all White House and Executive Office records, except those of a purely private or nonpublic nature, which, as a consequence of the Conference Report language, fall outside the scope of the FOIA because they are not agency records.” H.R. Conf. Rep. No. 95-1487, at 11. The D.C. Circuit has held that the staff of the Executive Residence is not an agency under FOIA because the sole function of the Executive Residence is to advise and assist the President. See Sweetland v. Walters, 60 F.3d 852, 853–55 (D.C. Cir. 1995). The court explained that it reached this decision based on the fact that the Executive Residence did not exercise any substantial authority 197 Opinions of the Office of Legal Counsel in Volume 31 independent of the President. Id. at 854 (“[E]very one of the EOP units that we found to be subject to FOIA has wielded substantial authority independently of the President. . . . The staff of the Executive Residence exercises none of the independent authority that we found to be critical . . . .”). Because the Executive Residence includes the Usher’s Office, under Sweetland the Usher’s Office is likewise exempt from FOIA as part of an EOP unit whose sole function is to advise and assist the President. The decision in Sweetland contains no discussion of whether the staff of the Executive Residence functions to “advise” the President, strongly suggesting that as long as a unit of the EOP exercises no substantial authority independently of the President, it should be classified as a unit that functions to advise and assist the President for purposes of being exempt from the FRA and FOIA—and, by implication, being subject to the PRA—regardless of whether the unit in fact “advises” the President on official or ceremonial matters. However, even if the PRA requires that a unit of the EOP both “advise” and “assist” the President in order to be covered by the Act, the Usher’s Office would still satisfy this test. First, the Usher’s Office certainly assists the President. The core functions of the Usher’s Office include “assisting the President in maintaining his home and carrying out his various ceremonial duties.” Sweetland, 60 F.3d at 854. Second, the Usher’s Office also advises the President in carrying out his ceremonial duties. For example, the Usher’s Office advises the President on what food to serve and what formalities to follow at an official White House state dinner depending, for example, on cultural sensitivities and differences. Furthermore, the Chief Usher advises the President by serving on the Committee for the Preservation of the White House, which reports to the President recommendations regarding, inter alia, the articles of furniture, fixtures, and decorative objects which shall be used or displayed in certain areas of the White House. Exec. Order No. 11145, §§ 2–3, 3 C.F.R. 123, 123–24 (1964 Supp.). III. Because the Usher’s Office is thus part of the President’s “immediate staff” or, alternatively, would be “a unit . . . of the Executive Office of the President whose function is to advise and assist the President,” any documentary materials “created or received [by the Office] in the course of conducting activities which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President” constitute “Presidential records.” 44 U.S.C. § 2201(2). As noted above, we understand that the Usher’s Office does create and receive documentary materials in the course of conducting activities related to the President’s various official and ceremonial duties. Such materials constitute “Presidential records” under the PRA, and, consequently, the Usher’s Office is 198 Applicability of the Presidential Records Act to the White House Usher’s Office responsible for complying with the relevant recordkeeping provisions of the Act with respect to those materials. See id. § 2203. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 199

Write a legal research memo on the following topic.

Centralizing Border Control Policy Under the Supervision of the Attorney General In general, the President may not transfer the functions of an agency statutorily created within one Cabinet department to another Cabinet department without an act of Congress. The President may not delegate his presidential authority to supervise and control the executive departments to a particular member of the Cabinet where no statutory authority exists to do so. The President may exercise his own power to establish a comprehensive border control policy for the federal government and direct a single Cabinet member to lead and coordinate the efforts of all Cabinet agencies to implement that policy. March 20, 2002 LETTER OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT You have asked us to provide our views concerning what actions the President can take unilaterally and without congressional consent towards centralizing border control policy for the United States Government under the supervision of the Attorney General of the United States. Under current law, * the federal government’s control over the flow of people and goods into and out of the United States is divided among several agencies in different Cabinet departments, rather than centralized in a single department. The Immigration and Naturalization Service (“INS”) is statutorily housed in the Department of Justice, the U.S. Customs Service in the Department of the Treasury, and the U.S. Coast Guard in the Department of Transportation. Thus, each agency is headed by a different Cabinet secretary, each of whom, as principal officers of the federal government, reports directly to the President. In general, the President may not transfer the functions of an agency statutorily created within one Cabinet department to another Cabinet department without an act of Congress. We likewise believe that the President may not effectuate that very same transfer simply by delegating his presidential authority to supervise and control the executive departments to a particular member of the Cabinet, at least where no statutory authority exists to do so. However, the President may exercise his own power to establish a comprehensive border control policy for the federal * Editor’s Note: The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, established the Department of Homeland Security (“DHS”) as a Cabinet-level department and reorganized the allocation of statutory duties respecting border control policy that were the subject of this opinion. See 6 U.S.C. § 111(a) (Supp. II 2002) (establishing DHS); id. § 202(2)-(6) (listing DHS’s border control responsibilities); id. § 211(a) (establishing within DHS the United States Customs Service); id. § 251 (transferring to DHS certain functions of the Immigration and Naturalization Service); id. § 291(a) (abolishing the Immigration and Naturalization Service); id. § 468(b) (transferring to DHS the functions of the Coast Guard). 22 227-329 VOL_26_PROOF.pdf 32 10/22/12 11:13 AM Centralizing Border Control Policy Under the Attorney General government, and then direct a single Cabinet member to lead and coordinate the efforts of all Cabinet agencies to implement that policy. I. The Constitution expressly provides that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1, cl. 1. He alone is charged with the power to nominate the principal officers, id. art. II, § 2, cl. 2, and to “take Care that the Laws be faithfully executed,” id. art. II, § 3. It is thus well established that the President is “not only the depositary of the executive power, but the responsible executive minister of the United States.” Relation of the President to the Executive Departments, 7 Op. Att’y Gen. 453, 463 (1855). The scope of the President’s executive power is limited, however, by the terms of all valid acts of Congress. Under the Constitution, it is Congress, not the President, that “make[s] all Laws which shall be necessary and proper for carrying into Execution . . . all . . . 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. Accordingly, Congress may prescribe that a particular executive function may be performed only by a designated official within the Executive Branch, and not by the President. The executive power confers upon the President the authority to supervise and control that official in the performance of those duties, but the President is not constitutionally entitled to perform those tasks himself. It has long been established that, “[i]f the laws . . . require a particular officer by name to perform a duty, not only is that officer bound to perform it, but no other officer can perform it without a violation of the law; and were the President to perform it, he would not only be not taking care that the laws were faithfully executed, but he would be violating them himself.” The President and Accounting Officers, 1 Op. Att’y Gen. 624, 625 (1823). Instead the President may control the officer through various means such as the threat of removal. See, e.g., The Jewels of the Princess of Orange, 2 Op. Att’y Gen. 482, 489 (1831) (although the President “could only act through his subordinate officer . . . who is responsible to him, and who holds his office at his pleasure,” the power of “removal of the disobedient officer, and the substitution of one more worthy in his place, would enable the President, through him, faithfully to execute the law”). We therefore conclude that the President may not transfer the statutory duties and functions of a bureau in one Cabinet department to another Cabinet department without an act of Congress. This Office has long held that transfers of statutory authority from one department to another “may normally be accomplished only by legislation or by executive reorganization under the Reorganization Act.” Litigating Authority of the Office of Federal Inspector, Alaska Natural Gas Transportation System, 4B Op. O.L.C. 820, 823 (1980); see also Department 23 227-329 VOL_26_PROOF.pdf 33 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 of Labor Jurisdiction to Investigate Certain Criminal Matters, 10 Op. O.L.C. 130, 132 (1986) (same). The Reorganization Act, 5 U.S.C. §§ 901 et seq., once provided the President with a mechanism for instituting “executive reorganization” plans, subject to congressional veto, but Congress retired that authority at the end of 1984, see 5 U.S.C. § 905(b). II. It has been suggested that the President might reorganize government operations without running afoul of the law simply by delegating to a particular individual the President’s own constitutionally based executive power to supervise and control certain executive functions. Under this theory, the President could effectively transfer power over a particular matter from one Cabinet department to another by delegating to the head of that department the President’s power to supervise and control the actions of a subCabinet official in another department, and to enforce that control through the removal power. We believe that courts could well decide, however, that the President’s delegation powers do not extend so far because some “specific things must be done by the President himself.” Executive Departments, 7 Op. Att’y Gen. at 464. Moreover, we caution that an unlawful delegation of power could present serious consequences for law enforcement in future cases. See, e.g., United States v. SotoSoto, 598 F.2d 545, 549-50 (9th Cir. 1979) (where FBI agent was not authorized by statute to search trucks at border, customs authority had not been delegated to agent, and agent conducted search to discover if truck was stolen rather than to enforce importation law, agent’s warrantless search of truck was improper and evidence seized from search was inadmissible under exclusionary rule). With regard to the President’s statutory duties, “it is well settled that there exists in the President an inherent right of delegation.” Memorandum for the Files, Office of Legal Counsel, Re: Delegation of Presidential Functions at ii (Sept. 1, 1955) (“1955 Memo”). As stated in Myers v. United States, 272 U.S. 52 (1926), “[t]he vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.” Id. at 117; see also 3 U.S.C. § 301 (authorizing President to delegate “any function which is vested in the President by law” or “any function which [an] officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President”). Generally speaking, however, “acts performable by the President[] as prescribed by the Constitution are not susceptible of delegation.” 1955 Memo at ii (emphasis added). As the Supreme Court has noted, 24 227-329 VOL_26_PROOF.pdf 34 10/22/12 11:13 AM Centralizing Border Control Policy Under the Attorney General [t]here are, undoubtedly, official acts which the Constitution and laws require to be performed by the President personally, and the performance of which may not be delegated to heads of departments, or to other officers in the executive branch of the Government. McElrath v. United States, 102 U.S. 426, 436 (1880). Thus, the Executive Branch has always understood that the President may not delegate his pardon power to “another man, the Attorney General or anybody else.” Executive Departments, 7 Op. Att’y Gen. at 464-65. Nor can the President delegate his power to appoint and remove Executive Branch officials. See id. at 465; 1955 Memo at 1-2 (listing “[o]rders removing Government Officials from office” among those “actions not delegable”). To be sure, “[w]hether a particular act belongs to one or the other of these classes may sometimes be very difficult to determine.” McElrath, 102 U.S. at 436. We think it likely, however, that the President’s authority to control and supervise Executive Branch officials in one Cabinet department could not be delegated to a separate Cabinet department. After all, such authority rests substantially on the President’s removal power, a power that has long been understood not to be delegable. In addition, further support for our conclusion is found in our earlier opinion in which we raised doubts about the President’s ability to delegate his power to issue “Directives and Memorandums to Heads of Executive Departments and Agencies.” In that opinion, we stated that “[i]t is certainly questionable whether any one [sic] but the President personally could issue such a directive.” 1955 Memo at *65-66. Likewise, we have opined that, where “the head of a department or agency is authorized to take [a particular action] by law but . . . does not wish to take the action . . . without the President’s approval or advice[,] the situation is one that normally calls for the personal attention of the President” and is therefore nondelegable. Id. at *67. * We see no meaningful difference between these presidential authorities and the supervisory power over executive departments sought to be delegated in the present circumstance. III. We believe that there are other ways, however, for the President to take steps to centralize and coordinate the border control policy of the United States or to direct * Editor’s Note: We refer here to star pages in the 1955 Memo because the original memo preserved in our day books is missing some pages at the end. The star pages that we cite in text are from a digitized copy that we used to replace the missing pages in our day books. It should be noted that the 1955 Memo does not appear to have been a formal opinion or advice issued to a client but an internal reference. The Memo was also equivocal in its bottom-line assessment of whether the head of a department could actually delegate a statutory authority to the President. The question, the Memo said, was “too indefinite in nature to permit any conclusion to be made.” Id. 25 227-329 VOL_26_PROOF.pdf 35 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 the Attorney General to lead that effort. That the President’s constitutional authority to supervise all Executive Branch agencies engaged in border control operations is probably not subject to delegation does not necessarily mean that the President may not formally and publicly designate certain Cabinet officers to assist him in that effort. The President may tap advisers within the White House or even outside the Executive Office of the President to work on his behalf. See Memorandum for Margaret McKenna, Deputy Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers at 2 (Aug. 11, 1977) (“1977 Memo”) (unlike “heads of departments or agencies,” who “have statutory obligations” and “can and do act independently” of the President, the “sole function” of certain White House advisers “is to advise the President relative to his statutory and constitutional responsibilities,” and such advisers only “act at the direction of the President”). Although they carry no formal legal authority, in practice such advisers may exercise substantial authority over Executive Branch officials if it is well understood that they speak on behalf of the President. Cf. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993) (recognizing “[t]he President’s implicit authority to enlist his spouse in aid of the discharge of his federal duties”). The President similarly may designate Cabinet officers to advise him on his execution of nondelegable presidential duties. We have previously noted that individuals “who . . . have statutory obligations” as “heads of departments or agencies” may also be called upon to “advise the president and act at his direction.” 1977 Memo at 2. See also Am. Physicians, 997 F.2d at 908 (noting that “Presidents have created advisory groups composed of . . . Government officials . . . to meet periodically and advise them . . . on matters such as the conduct of a war”). Thus, the President may designate the Attorney General to serve as his chief adviser on issues relating to border control and instruct all other departments that the Attorney General speaks for him with respect to such policies. To be sure, the Attorney General could not exercise any nondelegable, presidential legal power over such agencies. For example, an official of that agency would not be subject to removal by the Attorney General. But the President could inform the heads of relevant agencies that he has directed the Attorney General to coordinate the implementation of specific border policies that the President has developed upon the advice of the Attorney General. There is precedent for formalizing such informal arrangements through the issuance of an executive order. Such orders make no explicit delegations of legal power, but instead implicitly announce allocations of authority by designating a particular Cabinet official as a presidential adviser or leader and coordinator of presidential policy. Executive Order 12250 of November 2, 1980, styled “Leadership and Coordination of Nondiscrimination Laws,” delegated certain statutory 26 227-329 VOL_26_PROOF.pdf 36 10/22/12 11:13 AM Centralizing Border Control Policy Under the Attorney General presidential powers to the Attorney General. Id. § 1-1. But the Order also directed the Attorney General to “coordinate the implementation and enforcement by Executive agencies of various nondiscrimination provisions” contained in federal law, in order to further the President’s policy of “consistent and effective implementation of various laws prohibiting discriminatory practices in Federal programs and programs receiving Federal Financial assistance.” Id. § 1-201, pmbl. The Order further directed all agencies to cooperate with the Attorney General and to issue only regulations that are “consistent with the requirements prescribed by the Attorney General pursuant to this Order” to the extent permitted by law. Id. § 1-402. Another model is Executive Order 13228 of October 8, 2001, which established the Office of Homeland Security within the Executive Office of the President. Although that office has no statutory approval, the President directed the office to “develop and coordinate the implementation of a comprehensive national strategy to secure the United States from terrorist threats or attacks” and to “work with executive departments and agencies, State and local governments, and private entities to ensure the adequacy of the national strategy.” Id. §§ 2, 3(a). Moreover, the order expressly states that it “does not alter the existing authorities of United States Government departments and agencies.” Id. § 7. These orders thus merely create informal arrangements through which presidential policies are developed; they do nothing to disturb the statutory allocation of authorities amongst different agencies. Cf. Proposed Executive Order Entitled “Federal Regulation,” 5 Op. O.L.C. 59, 63 (1981) (approving executive order authorizing Director of the Office of Management and Budget to take certain oversight actions with regard to the administrative process and noting that “[t]he order does not empower the Director . . . to displace the relevant agencies in discharging their statutory functions or in assessing and weighing the costs and benefits of proposed actions”). Accordingly, the President could issue an executive order that announces the President’s intention to develop a comprehensive national strategy to control the flow of people and goods across United States borders. This order would be undertaken to protect the national security and promote enforcement of federal law. The order could state the President’s intention to develop and maintain his border control policy only in close consultation with the Attorney General. The order could further require the Attorney General to lead and coordinate the effort of all federal agencies to comply with the President’s evolving policy, and direct all agencies to cooperate with the Attorney General. Such an order would not vest the Attorney General with legal authority to control the actions of, for example, the Customs Service. The Customs Service would still take its orders from the Secretary of the Treasury, who in turn would receive policy direction from the President, acting through the Attorney General. If the Commissioner of the Customs Service or the Treasury Secretary were to refuse to carry out a specific directive from the Attorney General, the Attorney General 27 227-329 VOL_26_PROOF.pdf 37 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 would have no authority to remove them or otherwise compel their acquiescence. At the same time, however, they would be contravening a presidential order and could be subject to presidential removal or other sanction. We believe that if the Commissioner or the Treasury Secretary disagreed with a policy communication from the Attorney General, the more likely course of action would be to appeal to the President to seek a clarification or modification of policy. Finally, we note the existence of certain statutory authorities for improving coordination between border control agencies which the order might direct the Attorney General to utilize. For example, under 8 U.S.C. § 1103(a)(6), the Attorney General may, with the consent of the head of another department, use an employee of that department to assist in performing the border control functions of the INS. The order thus could direct certain agencies to consent to such an arrangement. Similarly, 14 U.S.C. § 141 authorizes the Coast Guard both to lend its services and facilities to other agencies, and to avail itself of the resources of other agencies. The order might direct such cooperation between the Coast Guard and the Attorney General. We are not aware of any such authorities with respect to the Customs Service, however. JOHN C. YOO Deputy Assistant Attorney General Office of Legal Counsel 28 227-329 VOL_26_PROOF.pdf 38 10/22/12 11:13 AM

Write a legal research memo on the following topic.

Applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission T he Native Hawaiians Study Commission is an “ Executive agency” whose employees are covered by the H atch A ct, even though its functions are by statute confined to advising Congress. The parttim e C hairm an o f the Commission is covered by the Hatch Act on the days she is paid to perform governm ent services, June 3, 1982 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, LAND AND NATURAL RESOURCES DIVISION This responds to your request regarding the applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission (Commission). Based on the memorandum accompanying your request, and on subsequent con­ versations with attorneys in the Lands Division, it is our understanding that the Chairman intends to announce her candidacy for Lieutenant Governor of Hawaii. She currently serves as a delegate to the State Legislature of Hawaii. The Commission was established in 1980 pursuant to the Native Hawaiians Study Commission Act (NHSCA). Pub. L. No. 96-565, Title III, 94 Stat. 3321, 3324-3327 (1980), 42 U.S.C. § 2991a note (Supp. V 1981). The NHSCA directs the Commission to “ conduct a study of the culture, needs, and concerns of Native Hawaiians.” § 303(a). The Commission is to publish “ a draft report of the findings of the Study,” to distribute the draft to “ appropriate” federal and state agencies, native Hawaiian organizations, and the interested public, and to solicit their written comments. § 303(c). The Commission is also directed to issue a “ final report of the results of this Study” and to send copies to the President and to two congressional committees.1 § 303(d). Finally the NHSCA directs the Commission to “ make recommendations to the Congress based on its findings and conclusions [from the Study].” § 303(e). See generally Memorandum Opin­ ion for the Chairman, Native Hawaiians Study Commission, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel (Jan. 4, 1982).* 1 The two committees are the Committee on Energy and Natural Resources of the Senate and the Committee on Interior and Insular Affairs of the House o f Representatives * N o t e - The January 4, 1982, opinion (“Applicability of the Federal Advisory Committee Act and the Govern­ ment in the Sunshine Act to the Native Hawaiians Study Commission” ) appears in this volume at p. 39, supra. Ed. 292 The members of the Commission were appointed by the President, who designated the Chairman and Vice Chairman. These appointments were not subject to the advice and consent of the Senate. § 302(b), (c). Commission members who are not otherwise fulltime officers or employees of the United States receive $100 for each day they are engaged in performing Commission duties. § 302(g). All Commission members also receive travel expenses. § 302(h). Based on our review of the materials forwarded to us and the NHSCA, we conclude that the Commission Chairman is subject to the Hatch Act on the days she is compensated for Commission business. We note, however, that the Special Counsel, Office of Personnel Management, is charged with primary jurisdiction over the Hatch Act, and that more particular advice regarding application of the Hatch Act to Commission members may be obtained from that Office. We have also addressed briefly certain other statutory or regulatory provisions that may be applicable. I. The Hatch Act The Hatch Act, 5 U.S.C. § 7324 (1976), provides in relevant part: (a) An employee in an Executive agency . . . may not— (1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or (2) take an active part in political management or in political campaigns. Two initial questions are raised by this provision: (1) Is the Commission an “ Executive agency” within the meaning of the Act; and (2) Is the Chairman a covered employee? A. Is the Commission an "Executive Agency” ? An “Executive agency” is defined in 5 U.S.C. § 105 (1976) as “ an Executive department, a Government Corporation, or an independent establishment.” The Commission is neither an executive department, see 5 U.S.C. § 101 (1976), nor a government corporation, see 5 U.S.C. § 103 (1976). However, an “ independ­ ent establishment” is essentially any other organization within the Executive Branch. See 5 U.S.C. § 104 (1976).2Thus, if the Commission is an entity within the Executive Branch, it is an “ Executive agency” within the meaning of the Hatch Act. 2 5 U S C. § 104 provides For the purposes of this title, “ independent establishment” means— (1) an establishment m the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Govern­ ment corporation, or part thereof, or part of an independent establishment, and (2) the General Accounting Office. 293 Whether the Commission falls within the Executive Branch or the Legislative Branch is a difficult question because of the Commission’s hybrid nature. Several factors point to its being non-executive. First, the Commission was established to advise Congress rather than the President or executive agencies. See Gannett News Service, Inc. v. Native Hawaiians Study Commission, Civ. No. 82-0163, slip op. at 5 (D.D.C. June 1, 1982) (holding that the Commission is not advisory to the Executive and is therefore not subject to the Federal Advisory Committee Act); January 4, 1982 Memorandum Opinion, supra. Second, the Commission was initially funded from the contingent fund of the Senate, § 307(a), thus indicating its close ties with the Legislative Branch. Our prior conclusion that the Commission was not “ established” to advise the President or federal agencies pointed out that the Commission would nonetheless be subject to the Federal Advisory Committee Act (FACA) were it so utilized by the President or federal agencies. See January 4, 1982 Memorandum Opinion, supra. In other words, the Commission could become advisory to the Executive by its actions or the ways in which it was used in the Executive Branch. This possibility serves to point out that there is not always a bright line dividing the Legislative and Executive Branches, and that an advisory function to one branch does not preclude a similar function to another. Thus, while the fact that the Commission was established as advisory to Congress deserves special weight in assessing whether the Commission falls within the Executive Branch, this factor alone need not be conclusive. Other factors, in fact, suggest that the Commission is in the Executive Branch. First, the members of the Commission are appointed solely by the President, § 302(b), who also designates the Chairman and Vice Chairman, § 302(c), and who is responsible for calling its first meeting, § 302(e). Several Commission members are fulltime employees in the Executive Branch. Second, although the Commission is advisory only to Congress because it makes recommendations only to Congress, § 303(e), its final report and written comments are submitted to the President as well as to Senate and House committees, § 303(d). Third, the Commission is now funded from appropriations for the Executive Branch out of the Unanticipated Needs Fund, which is an item in the appropriations for the Executive Office of the President. Executive Office Appropriations Act of 1980, Pub. L. No. 96-74, 93 Stat. 565 (1979). Finally, the Commission’s office space is located in an executive department, the Department of the Interior, from which it receives staff support. These factors tend to support a conclusion that the Commission is established within the Executive Branch. Not all committees in the Executive Branch are advisory in nature, as the Office of Legal Counsel has previously recognized. See Memorandum Opinion for the Acting Director, Executive Office of United States Attorneys, 5 Op. O.L.C. 283 (1981) (possible to construct committee that is not advisory but is rather intended to exchange information and data). Furthermore, a commission may have dual responsibilities— as in this case, advisory to Congress, fact­ finding and reporting to the President— without necessarily losing its character as an executive entity. 294 Oh the one hand, therefore, we are faced with a body established to advise Congress, whose role in conducting a study, publishing a report, and making recommendations to Congress might be viewed as merely in aid of Congress’ legislative functions. See Buckley v. Valeo, 424 U.S. 1, 139 (1976) (per curiam). On the other hand, however, the Commission’s members are appointed solely by the President and include executive officers; it is funded out of and physically located in the Executive Branch; and its responsibilities include fact-finding and reporting to the President. Furthermore, the making of recommendations to Congress is not a purely legislative function, but falls squarely within the duties and powers of the Executive. See U.S. Const. Art. 2, cl. 3. Thus, even the mandate of the Commission to make recommendations to Congress need not be viewed as inconsistent with executive functions. Although we recognize that this is a difficult question, we conclude that the circumstances viewed as a whole point to the Commission as an entity within the Executive Branch. B. Are Commission Members Covered Employees? The Hatch Act applies generally to employees in executive agencies, with certain specified exceptions. See 5 U.S.C. § 7324(c) & (d); Federal Personnel Manual at 733-5 (“In the absence of specific statutory exemption, the basic political activity restrictions apply to any person employed in the executive branch of the Federal Government. . . .” ). The Chairman is clearly not a fulltime employee of an executive agency. Nevertheless, the Hatch Act applies to em­ ployees who work on an irregular or occasional basis on those days for which they are paid to perform government services. See 5 C.F.R. § 733.123(b)(4) (1981). As explained in the Federal Personnel Manual, “ [p]ersons who are employed on an irregular or occasional basis, e .g ., experts and consultants on a per diem basis, . . . are subject to the political activity restrictions of the law while in an active duty status only and for the entire 24 hours of any day of actual employment.” Federal Personnel Manual at 733-5. Employees in both the competitive service and the excepted service are subject to the restrictions of the Hatch Act. See 5 C.F.R. § 733.201. There are several exceptions to Hatch Act coverage. The prohibition against taking an active part in political management or political campaigns does not apply to “ an employee paid from the appropriation for the office of the Presi­ dent.” 5 U.S.C. § 7324(d)(1). It has been suggested that this exemption would apply to Commission members for so long as the Commission is funded from the Unanticipated Needs Fund in the Executive Office of the President. The item “ Office of the President,” as used in appropriation statutes when the Hatch Act was enacted, has since been replaced by the item “ The White House Office” in appropriations for the Executive Office of the President. The Office of Legal Counsel has previously interpreted the “ Office of the President” exemp­ tion to apply only to the White House Office. See 1 Op. O.L.C. 54, 56 (1977). (Application of the Hatch Act to the Vice President’s staff: “ the exemption to the Hatch Act in 5 U.S.C. § 7324(d)(1) was intended to apply only to persons paid 295 from the item for the ‘White House Office,’” and not to those paid from other items in appropriations for the Executive Office of the President.) This distinction reflects the congressional intent to provide an exemption for that “ inner circle of personal advisers to the President” whose government jobs are essentially “ as adjuncts to the President in his role as a political officer.” Id. at 55-56. The current appropriation for the Executive Office of the President has 12 separate items, including items for the White House Office, the Unanticipated Needs Fund, the Office of Management and Budget, the Office of Policy Development, etc. The Unanticipated Needs Fund is independent of the White House Office item. Consistent with prior OLC precedent, therefore, we conclude that funding from the Unanticipated Needs Fund is not sufficient to satisfy the Hatch Act exemption for those paid from appropriations for the Office of the President.3See also Memorandum for the Clemency Board from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept. 24, 1974) (Unantici­ pated Personnel Needs Fund of the President does not fall within exemption). Finally, the Hatch Act also does not apply to “ the head or the assistant head of an Executive department or military department.” 5 U.S.C. § 7324(d)(2). This exception is inapplicable to the Chairman, however, because the Commission is not an “ Executive department.” See 5 U.S.C. § 101. Nor is the Chairman exempt under § 7324(d)(3), which applies to persons appointed by the President, “ by and with the advice and consent of the Senate.” Thus, none of the arguably relevant statutory exceptions applies to the Chairman of the Commission.4 We therefore conclude that the Chairman of the Commission is subject to the provisions of the Hatch Act, as set forth in more detail at 5 C.F.R. § 733.122, on the days for which she is paid to perform government services. According to informal advice from the legal staff of the Office of Personnel Management (OPM), these prohibitions go to the Chairman directly, but would not prohibit billboard or other advertisements on her behalf on those days. We suggest, however, that the Chairman obtain further advice as to particular prohibitions from the Office of the Special Counsel at OPM, which has primary jurisdiction over Hatch Act matters. II. Other Statutory and Regulatory Provisions There are several other statutory and regulatory provisions of which the Chairman should be aware. Pursuant to 18 U.S.C. § 602, for example, it is a crime for “ a person receiving any salary or compensation for services from money derived from the Treasury of the United States to knowingly solicit any 3 It might be argued that when the President uses Unanticipated Needs Rinds for the White House Office itself, the Hatch Act exemption should apply nonetheless We need not address this possibility, however, because it is clear in this case that Commission members are not located in the White House Office as advisers to the President. 4 “ ftrso n s who are retained from time to time to perform special services on a fee basis and who take no Oath of Office” also enjoy exemption from the Hatch Act See Federal Personnel Manual at 733-6. We have assumed that the Commission members take an oath o f office, but in any event we do not believe this exception applies to a Commission Chairman appointed for a term . It is intended instead to apply to those receiving a fee, such as attorneys 296 contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 from any other such officer, employee, or person.” 18 U.S.C. § 602(4) (Supp. V 1981).5 Additionally, no officer or employee of the United States, or a person receiving any salary or compensation from the United States Treasury may make such a contribution to his or her employer or employ­ ing authority. 18 U.S.C. § 603 (Supp. V 1981). Presumably, this latter provision would prohibit Commission staff from making any contribution to the Chair­ man’s campaign efforts.6 Finally, the Chairman should also be cognizant of the standards of conduct embodied in 3 C.F.R. § 100.735 for the Executive Office of the President, which will presumably apply for so long as Commission expenses are paid from Executive Office appropriations,7 and those embodied in 5 C.F.R. § 735, which represent the minimum standards of conduct applicable to federal employees. Of particular concern during a campaign for state office is the following prohibition: (1) An employee shall avoid any action, whether or not specifi­ cally prohibited . . ., which might result in, or create the appearance of: (1) Using public office for private gain. . . . 3 C.F.R. § 100.735-4(c)(l); accord 5 C.F.R. § 735.201a(a). Copies of the standards of conduct embodied in Titles 3 and 5 of the Code of Federal Regula­ tions are attached. T heodore B. O lson Assistant Attorney General Office of Legal Counsel 5 “ Contribution” is defined in detail at 2 U.S C § 431(e). 6 For the purposes of the criminal conflict of interest laws, 18 U S C §§ 202-209, the Chairman is a “ special Government employee,” see I8 U .S .C § 202, to whom some, but not all. of those provisions apply. See, e g.. 18 U.S.C. § 208 (prohibiting personal and substantial participation in a particular matter in which employee or his or her family or organization has a financial interest) 7 The standards of conduct found at 3 C F R § 100 735 apply not only to the White House Office, but also to other entities in the Executive Office of the President, including “ any committee, board, commission, or similar group established in the Executive Office of the President 3 C F R § 100 735-2(a). 297